33 Bull Street
B e f o r e :
|DANIEL LUKE STICKLEY|
|MOJ & Anor|
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
MR C THOMANN appeared on behalf of the Respondent
Crown Copyright ©
HHJ OWEN QC:
'In the context of identifying the reach of the immunity from personal civil liability in respect of any judicial act undertaken by a judge the following questions may arise: 1. Was the act non-judicial? 2. If the act was or purported to be a judicial act, was it within the judge's jurisdiction? 3. If the act purported to be a judicial act in the exercise of the jurisdiction which the judge possessed and about the extent of which he was under no misapprehension, did the judge act as he did upon an erroneous judgment that the circumstances were such as to bring the case within the ambit of that jurisdiction? 4. If the act was not in truth within the judge's jurisdiction, did he act in a conscientious belief that it was within his jurisdiction and, if so, a) was this belief due to a justifiable ignorance of some relevant fact or, b) due to a careless ignorance or disregard of some such fact or, c) due to a mistake of law relating to the extent of his jurisdiction? "He will in my opinion," said Lord Justice Buckley, be immune in cases 2, 3 and 4(a) but not otherwise."'
'…judges of the superior court enjoy a complete immunity from liability in damages for any act that is either within their jurisdiction or is honestly believed to be within their jurisdiction…'
'In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.'
'The situation is different in that were prisoners convicted and the conviction is subsequently set aside on appeal. Here the conviction is not retrospectively set aside by the higher court for all purposes. It can therefore provide lawful authority for imprisonment prior to it being set aside even though it has been shown to state inaccurately what is the law; that is the position if a court of record passes a sentence which is in excess of that which the law allows on the defendant, for example, a court only having power to pass nine months passes a 12-month sentence and where the mistake is found out afterwards, and the sentence is subsequently quashed and a lawful sentence substituted. The governor will still be entitled to rely on the fact of the sentence passed by the court as providing a justification for the imprisonment.' (underlining my emphasis)
"1. Everyone has the right to liberty and security of person. No person shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court."
'Where the lawfulness of detention is in issue, including the question of whether a procedure prescribed by law has been followed, the Convention refers essentially to national law and first lays down the obligation to conform to the substantive and procedural rules thereof, compliance with national law is not however sufficient. 2. Article 5(1) requires in addition that any deprivation of liberty should be in keeping with the purpose of detecting the individual from arbitrariness.'
'77. No detention which is arbitrary can be compatible with Article 5.1, the notion of arbitrariness in this context extending beyond the lack of conformity with national law. As a consequence a deprivation of liberty which is lawful under domestic law can still be arbitrary and thus contrary to the Convention. Whilst the court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute arbitrariness for the purposes of Article 5.1, key principles have been developed on a case-by-case basis. It is moreover clear from the case law that the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved.
78. On general principle established in the case law is that detention will be arbitrary where despite complying with the letter of national, there has been an element of bad faith or deception on the part of the authorities, where the domestic authorities neglected to attempt to apply the relevant legislation correctly.
79. Furthermore, in the context of subparagraph (c) of Article 5.1, the reasoning of the decision ordering detention is a relevant factor in determining whether the person's detention must be considered as arbitrary. The court has considered the absence of any grounds given by the judicial parties in the decisions authorising detention for a prolonged period of time to be incompatible with the principle of the protection from arbitrariness enshrined in Article 5.1. Conversely, it has found that an applicant's detention could not be said to have been arbitrary if the domestic courts gave certain grounds justifying the continued detention on remand, unless the reasons given are extremely laconic and without reference to any legal provision which would have permitted the applicant's detention.'
'39. The court first observes that this case falls to be examined under subparagraph (b) of Article 5(1), since the purpose of the detention was to secure to fulfilment of B's obligation to pay the community charge owed to him.
40. The main issue to be determined in the present case is whether he disputed detention was "lawful", including whether it complied with a procedure prescribed by law". The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness.
41. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5(1) failure to comply with domestic law entails a breach of the Convention, it follows that the court can and should exercise a certain power to review whether this law has been complied with.
42. A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law.
43. It was agreed by those appearing before the court that the principles of English law which should be taken into account in this case distinguished between acts of a magistrates' court which were within its jurisdiction and those which were in excess of jurisdiction. The former were valid and effective unless or until they were overturned by a superior court, whereas the latter were null and void from the outset.
It was further submitted that the appropriate test under English law for deciding whether or not magistrates acted within their jurisdiction was that laid down by the House of Lords in McC v Mullan. The third limb of that test was relevant to the instant case, namely that the magistrates exceeded their jurisdiction when they made an order which had no foundation in law because of a failure to observe a statutory condition precedent.'
'Doubtless all were in agreement at the consent order stage that on grounds of general procedural fairness persons of such an age should have been given the opportunity to obtain representation and thus that the warrants be quashed. It is not evident however that in the circumstances of these cases the magistrates' conduct amounted to a "gross or obvious irregularity" in the exceptional sense indicated by the case-law. The court concludes that the detention of the applicants in these cases cannot therefore be considered on that ground as falling outside the jurisdiction of the magistrates or, therefore, in breach of Article 5(1) of the Convention.'
In that case the court was concerned with 36 days' unlawful detention, in respect of which an award nowadays of just under £9,000 was made and concerned a gross and obvious irregularity.
'It is evident that under article 41 there are three pre-conditions to an award of just satisfaction: (1) that the court should have found a violation; (2) that the domestic law of the member state should allow only partial reparation to be made; and (3) that it should be necessary to afford just satisfaction to the injured party. 1) that a finding of unlawfulness or prospective unlawfulness should be made based on a breach or prospective breach by a public authority of a Convention right; (2) that the court should have power to award damages, or order the payment of compensation, in civil proceedings; (3) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (4) that the court should consider an award of damages to be just and appropriate. It would seem to be clear that a domestic court may not award damages unless satisfied that it is necessary to do so, but if satisfied that it is necessary to do so it is hard to see how the court could consider it other than just and appropriate to do so. In deciding whether to award damages, and if so how much, the court is not strictly bound by the principles applied by the European Court in awarding compensation under article 41 of the Convention, but it must take those principles into account. It is, therefore, to Strasbourg that British courts must look for guidance on the award of damages.'
'As concerns for breaches of Article 5 found above in respect of 26 of the applicants, the court will recall that it found that the detention was unlawful in that the magistrates did not have jurisdiction to make orders of committal due, inter alia, to a failure properly to enquire of the applicant's means, a failure to have proper regard to alternatives to imprisonment, committing the applicant to prison in his or her absence without satisfying themselves that the applicant had received proper notice of the hearing. It is true, as pointed out by the Government, that in cases concerning procedural defects and Article 5, the court has held that just satisfaction was to be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of missing guarantees (e.g. Nikolova v Bulgaria [GC] no.31195/96, ECHR 1999-II, 76). However, where there are findings of unlawfulness in the detention itself under the first paragraph of Article 5, it may be noted that generally the court makes an award which reflects the importance of the right of liberty which should not be removed save under the condition provided for in domestic law and in conformity with the rule of law. As well as the length of the resulting detention, the degree of arbitrariness disclosed by the circumstances of the case may be a significant factor influencing the appropriateness of any award. The domestic scales of damage are not decisive, or, in all cases, relevant to applications under the Convention.'