Communicated on 26 May 2015
Application no. 68909/13
against the United Kingdom
lodged on 23 October 2013
STATEMENT OF FACTS
The applicant, Mr Daniel Faulkner, is a British national, who was born in 1982 and is detained in HM Prison Dovegate, Uttoxeter. He was represented before the Court by Chivers Solicitors, a firm of solicitors based in Bingley.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The backgrounds facts
On 3 August 2001, at Stafford Crown Court, the applicant was sentenced to custody for life for a second offence of causing grievous bodily harm with intent. The minimum period (“tariff”) was set at two years, eight and a half months, less time spent on remand. The tariff expired on 18 April 2004 and he became eligible for parole.
The Parole Board subsequently reviewed his case in order to decide whether his detention remained necessary for the protection of the public. On 26 May 2005 it decided not to direct his release but recommended that he be transferred to open conditions. That recommendation was rejected by the Secretary of State.
A second recommendation to the same effect was made, following the applicant’s second Parole Board review, on 31 January 2007 and rejected by the Secretary of State on 23 May 2007. At the conclusion of its statement of reasons for rejecting the Board’s recommendation, the National Offender Management Service (“NOMS”) wrote:
“The Secretary of State has therefore decided that you should remain in closed conditions and your next review will conclude in January 2008.”
The accompanying letter stated:
“It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in JANUARY 2008.
You will be notified by the Parole Board nearer the time about the exact date of that hearing.
At your next review the Parole Board will consider your suitability for release by way of a paper panel. This consideration will take place approximately 12 weeks prior to your provisional hearing [in January 2008]. If you are not content with the paper panel’s decision you may request that the case proceeds to the arranged oral hearing.”
Because of a delay by the Prison Service in referring the case to the Parole Board and providing the necessary dossier of reports, the hearing took place only on 8 January 2009. On 23 January 2009 the Parole Board directed the applicant’s release. He was released from prison four days later.
On 22 May 2009 his licence was revoked following his arrest on suspicion of wounding and failure to attend a meeting with his offender manager. He remained in hiding until 17 October 2009, when he was returned to prison. He was subsequently acquitted of the charge of wounding. The Parole Board directed his release on 22 April 2010 and he was then released.
On 13 June 2011 his licence was again revoked following his arrest on suspicion of having committed an offence of grievous bodily harm. He was subsequently acquitted of that charge.
2. The domestic proceedings
Meanwhile, in autumn 2008, the applicant commenced judicial review proceedings against the Secretary of State and the Parole Board seeking damages for the delay in holding the hearing. He relied on Article 5 § 4 of the Convention.
The applicant was granted permission to bring proceedings on 13 October 2008. On 5 June 2009, the claim was dismissed by the High Court. Leave to appeal was granted by the Court of Appeal on 27 October 2009.
On 14 December 2010 the Court of Appeal handed down its judgment. After carefully reviewing the facts and the individual periods of delay encountered, it concluded that there was a delay of ten months, from March 2008 to January 2009, in the holding of the Parole Board hearing which was unjustified and for which the Secretary of State was responsible. This delay prevented the applicant from having the lawfulness of his continued detention decided in accordance with Article 5 § 4. On the question of damages, the court was satisfied that the applicant had shown, on a balance of probabilities, that he would have been released had the review taken place in March 2008. Damages on the basis of a loss of liberty were therefore appropriate.
In its judgment of 29 March 2011 on the amount of damages to be awarded, the court considered a number of just satisfaction awards in cases before this Court in which breaches of Article 5 § 4 were found. It distinguished between cases where the delay had merely led to feelings of frustration and those where it had been established that, but for the delay in the holding of the hearing, the applicant would have been released earlier. It awarded the sum of 10,000 pounds sterling (“GBP”) by way of compensation for the loss of ten months’ conditional liberty.
The applicant sought leave to appeal to the Supreme Court on the ground that the award was inadequate. The Parole Board sought leave to appeal on the ground that the award was excessive. Leave was granted, and the applicant was in addition given permission to argue that his detention after March 2008 constituted false imprisonment at common law or a violation of Article 5 § 1 of the Convention. In respect of his latter argument, he relied in this Court’s findings in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012.
In its judgment of 1 May 2013 the Supreme Court unanimously rejected the applicant’s appeal and allowed the appeal of the Parole Board, reducing the damages award to GBP 6,500.
As regards the alleged violation of Article 5 § 1 of the Convention, Lord Reed, giving the leading opinion, observed that Article 5 § 4 provided a procedural entitlement designed to ensure that persons were not detained in violation of their rights under Article 5 § 1. However, he added, a violation of Article 5 § 4 did not necessarily result in a violation of Article 5 § 1. He considered this Court’s judgment in James, Wells and Lee, cited above, not to be directly relevant to the applicant’s case since that judgment concerned lack of access to rehabilitation courses and the just satisfaction awards made were for the feelings of distress and frustration resulting from continued detention without access to courses, and not for loss of liberty. Lord Reed noted that the delay in the applicant’s case appeared to have been the result of errors by administrative staff, “of a kind which occur from time to time in any system which is vulnerable to human error”. While it was extremely unfortunate that the errors had occurred and had resulted in the prolongation of the applicant’s detention, they were not of such a character, and the delay was not of such a degree, as to warrant the conclusion that there had been a breach of Article 5 § 1.
On the matter of damages for the violation of Article 5 § 4 of the Convention, Lord Reed reviewed relevant case-law of this Court where a violation of Article 5 §§ 1, 3 or 4 had been found, focusing in particular on cases concerning a delay in holding a hearing intended to address the question whether a convicted prisoner should be released. He considered that no clear guidance could be derived from the cases since none concerned an award for loss of liberty resulting from a violation of the speedy decision guarantee in Article 5 § 4. He explained:
“74. In considering these awards, it is necessary to bear in mind that unlawful detention in violation of article 5(1) is often a particularly serious violation of the Convention, and is of a different nature from a violation of article 5(4). It is also necessary to take into account that the freedom enjoyed by a life prisoner released on licence is more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen, as the European court has recognised (Weeks v United Kingdom (1988) 10 EHRR 293, para 40). The risk that a prisoner may be recalled to custody, even where no further offence has been committed, is real, as the facts of Weeks and of Mr Faulkner’s case ... amply demonstrate. Although the European court does not make precise adjustments to reflect inflation, it is also necessary to bear in mind that some of these awards were made many years ago. For these reasons, none of the awards which I have mentioned offers any clear guidance. That said, the most helpful is perhaps the award in the Kolanis case [Kolanis v. the United Kingdom, no. 517/02, ECHR 2005-V], since it related to a breach of article 5(4). As I have explained, in that case €6000 was awarded in 2005 as compensation for the loss of a real opportunity of release 12 months earlier from a psychiatric hospital. A higher award would no doubt have been appropriate if there had been a definite loss of liberty for 12 months; but a lower award would have been appropriate if, instead of a patient losing her liberty, the case had concerned a convicted prisoner who had lost an opportunity of earlier release on licence. The award in Weeks, considered in the context of the facts of that case, similarly suggests a level of awards for breaches of article 5(4) in respect of convicted prisoners which is much lower ...
75. Allowing for the various factors which I have mentioned, and in particular for the important differences between conditional release and complete freedom, the cases which I have discussed suggest that awards where detention has been prolonged for several months, as the result of a violation of article 5(4), could reasonably be expected to be significantly above awards for frustration and anxiety alone, but well below the level of awards for a loss of unrestricted liberty. It is however impossible to derive any precise guidance from these awards ... [A] judgment has to be made by domestic courts as to what is just and appropriate in the individual case, taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act [the Human Rights Act], in comparable cases.”
While, he said, an appellate court would not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance, in the applicant’s appeal the court was being invited to give guidance as to the appropriate level of awards in cases of this character. For that purpose, the court had undertaken a fuller analysis of the case-law of this Court than the Court of Appeal. Lord Reed concluded:
“87. ... In the light of that analysis, and applying the general approach which I have described in paragraph 75, it appears to me that an award in the region of £6500 would adequately compensate Mr Faulkner for his delayed release, bearing in mind the conditional and precarious nature of the liberty foregone. That amount falls well short of the award of £10,000 made by the Court of Appeal. In the circumstances, it is in my view appropriate for this court to allow the Board’s appeal and to reduce the award accordingly.”
B. Relevant domestic law and practice
A prisoner detained sentenced to custody for life is entitled to be released on parole after the expiry of his tariff if the Parole Board, being satisfied that it is no longer necessary for the protection of the public that he should be detained in prison, directs his release. If the Board gives such a direction, then the Secretary of State is required to release him (see section 28 of the Crime (Sentences) Act 1997).
The applicant complained that his detention for a period of ten months pending his delayed Parole Board review, in violation of Article 5 § 4 of the Convention, was arbitrary and in breach of Article 5 § 1 of the Convention.
QUESTION TO THE PARTIES
Was the applicant deprived of his/her liberty in breach of Article 5 § 1 of the Convention (see, for example, Erkalo v. the Netherlands, 2 September 1998, Reports of Judgments and Decisions 1998-VI; Rutten v. the Netherlands, no. 32605/96, 24 July 2001; Schönbrod v. Germany, no. 48038/06, 24 November 2011; H.W. v. Germany, no. 17167/11, 19 September 2013)?