Case No:  9BM90248
Neutral Citation Number: [2011] EW Misc 24 (CC)
IN THE COUNTY COURT AT BIRMINGHAM

Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS

Date: Monday 24th January 2011

Before:
HIS HONOUR JUDGE OWEN QC
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B E T W E E N:

DANIEL LUKE STICKLEY

and

MOJ & Anor
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Transcript from a recording by Ubiqus
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
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MR VP JAGADESHAM appeared on behalf of the Claimant
MR C THOMANN appeared on behalf of the Respondent
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JUDGMENT

HHJ OWEN QC: 

1.	The claimant, Daniel Luke Stickley, claims damages against the defendants, the Ministry of Justice and Her Majesty’s Courts Services, for the alleged unlawful detention between the 27th October 2008 and the 22nd December 2008; that is, for a total of 57 days. The appropriate defendant is the First Defendant.
2.	  On 4th October 2006, before the Crown Court sitting at Guildford, the claimant was sentenced to a period of 27 months’ imprisonment in relation to four counts of burglary committed in June 2006.
3.	The claimant was released on licence on 6 September 2007.  On 1st November 2007, before the Stratford‑upon‑Avon Magistrates’ Court, he was sentenced to a conditional discharge for a public order offence.  On  31st December 2007, the claimant was remanded in custody for offences of aggravated vehicle taking, dangerous driving, driving whilst disqualified and driving without insurance, and for failing to stop when called upon to do so by a constable.
4.	On 1st February 2008, before the Crown Court at Warwick, the claimant was sentenced to 15 months’ imprisonment, less 32 days served on remand, in relation to the taking away of the vehicle in aggravated circumstances and dangerous driving, with no separate penalty in relation to the other offences.  The learned judge at the Crown Court ordered the claimant to serve the outstanding period of licence of the sentence imposed by the Crown Court at Guildford, namely 10 months less two days, in effect consecutively to the sentence which he was imposing; that is before his sentence was due to commence.
5.	The learned judge also imposed a two‑day sentence of imprisonment consecutive to the preceding sentences in respect of the claimant’s breach of the conditional discharge imposed in November 2007 by the Magistrates’ Court.  
6.	The learned judge had ordered the additional period of imprisonment in relation to the outstanding period of licence on the basis that he was empowered to do so by the operation of Section 116 of the Criminal Justice Act 2000.  However, by the combined effect of paragraph 116 of schedule 32 to the Act and paragraph 29 of the Criminal Justice Act 2003 (Commencement Order No. 8 and Transitional and Saving Provisions) Order 2005, the power to return the prisoner to custody under section 116 does not arise in respect of offences committed after the 4th April 2005, unless the original term of imprisonment was for a period of less than 12 months.  Moreover, the sentence of two days’ imprisonment consecutive was at with the learned judge’s power on sentencing at the Crown Court since his powers were then limited to those vested in the original court, the Magistrates’ Court.
7.	It was in these circumstances in September 2008 that the claimant on advice from new solicitors lodged an appeal against his sentence imposed by the Crown Court at Warwick. When his appeal against sentence came before the Court of Appeal the sentence in question was quashed. The sentence was described as ‘quite clearly unlawful’. (see R v Stickley [2009] EWCA Crim 35,  paragraph 4, per Mr Justice Maddison).
8.	Following the quashing of that part of the order, the claimant sought compensation for unlawful detention for the 57‑day period to which I have referred.  By his claim form issued on 15th December 2009, the claimant contends that his right to an award of damages for unlawful detention arises as follows: first, at common law, on the basis that he was falsely imprisoned due to the unlawful judicial act of the sentencing judge at the Crown Court at Warwick on 1st February 2008; secondly, under Sections 8 and 9 of the Human Rights Act 1998 on the basis that his right to liberty, safeguarded by Article 5 of the European Convention on Human Rights (ECHR), had been infringed in that he had been deprived of his liberty for 57 days in circumstances which were not justified by the provisions of Article 5.
9.	Mr Jagadesham, who has appeared on behalf of the claimant, made submissions principally on the latter basis; that is pursuant to Article 5  and under the Human Rights Act 1998.
10.	  Mr Jagadesham did not formally abandon the claim at common law; he maintained reliance on that cause of action in his written submissions founded on the observations of Lord Justice Buckley in Sirros v Moore [1975] QB 118 at 140 - 141, in which Lord Justice Buckley stated:
‘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.”’

11.	That is, it was submitted, that whilst there is no evidence or suggestion of bad faith (or alternatively an absence of good faith) on the part of the learned judge, whilst the learned judge may be assumed to have had a conscientious belief that he could so act, such honest belief, it was submitted was due to unjustifiable or careless ignorance or a mistake of law relating to the extent of his jurisdiction.  In those circumstances, it was submitted, in light of the observations of Lord Justice Buckley, the learned judge was not entitled to immunity from action and the cause of action at common law should succeed.
12.	Mr Thomann, who appeared on behalf of the defendants, submitted that the observations of Lord Justice Buckley were merely the observations of the minority or dissenting view which have not since been followed, they carried no weight and did not sit with the majority view clearly expressed by Lord Denning MR and Lord Justice Ormrod.
13.	Lord Denning MR had rejected the observations relied on by Mr Jagadesham in respect to superior and inferior courts and said that the immunity of the judges should rest on the same principle; that is, that a judge would not be liable for acts done  in a judicial capacity and he would only be liable for acting in bad faith, knowing that he had no jurisdiction.  Lord Justice Ormrod expressed a similar view.
14.	In my judgment, at common law, the majority’s formulation must be preferred, namely, that a judge is immune from liability where he makes an order in the bona fide exercise of his office in the belief that he had jurisdiction to so act, even though he may not, in fact, had any such jurisdiction. The known absence of power or jurisdiction on the part of the judge is necessary to complete the cause of action at common law. The genius of the common law of course is its capacity to evolve to meet current standards or circumstances. If this principle of immunity appeared to be incompatible with current and clearly established attitudes doubtless it could and would be redefined. If the reach of the immunity is to be curtailed and the principle in question to be extended or redefined in some way that would be for a higher court to determine in any event. 
15.	Mr Thomann submitted that the more restrictive approach formulated by Lord Denning MR and Ormrod LJ is  well established has been confirmed recently by the Court of Appeal in Mahajan v Department of Constitutional Affairs [2004] EWCA Civ 946, having cited Sirros v Moore, stated at paragraph 36:
‘…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…’

16.	Mr Thomann submitted that that principle at common law is indeed consistent with and is reflected in the Human Rights Act 1998 at section 9(3) which provides that:
‘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.’

17.	In making good his submissions at common law, Mr Thomann drew attention to the decision of the Court of Appeal in R v Governor Brockhill Prison Ex-Parte Evans(No2) [1999] QB 1043 at 1056, per Lord Woolf MR, namely:
‘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)

18.	On the facts of the present case, there being no suggestion of any absence of good faith on the part of the learned judge, and having regard to the correct test to be applied when determining whether on the facts of a particular case a decision complained of is subject to the immunity at common law or not, I am satisfied that on the facts of this case there is no viable cause of action at common law which has arisen or which exists in the claimant’s favour against the defendants.  The learned judge acted in the mistaken belief that the activating of the outstanding period of licence was within his jurisdiction. His belief, though honest, was simply honest and mistaken.  There is no legal right to claim damages for false imprisonment in respect of that honest and mistaken belief on the facts of this case, not at common law.
19.	The immunity exists in those cases where it is plain that the judge has acted in good faith, as in this case, for the reason explained by Lord Woolf MR. Absent access to an alternative  remedy in respect of detention ordered by a judge acting in the honest belief that he had jurisdiction to make that order, the common law cloaks the order until quashed or set aside with the necessary lawful authority which prevents the victim from later asserting that his detention during that period was unlawful, for the purposes of a common law action.
20.	The fact that the victim of such a mistake, himself wholly innocent in this respect, suffers a period of incarceration or detention longer than Parliament intended or permitted is not to be regarded as insignificant or trivial, however. The victim’s right to liberty – and a proper remedy for wrongful interference with it - is no less sacrosanct than that of any other person. Since the introduction of the Human Rights Act 1998 the means of providing a meaningful remedy to such a victim has enhanced the good administration of justice. It has removed the personal nature of the attack or criticism of the court or judge concerned and put in place the statutory basis for providing to the victim a meaningful remedy. The need for the common law to evolve in this area to provide such a remedy is avoided. 
21.	That said, the principal basis for the claimant’s claim in this case as argued by Mr Jagadesham is indeed derived from the operation of the Human Rights Act 1998 and the alleged infringement of the claimant’s right to liberty guaranteed by Article 5 of the European Convention on Human Rights (ECHR).
22.	By Article 5.1, ECHR, the right to liberty and security, it is provided as follows:
“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.”

23.	By article 5.4: “ Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.
24.	By article 5.5: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
25.	In the present case, it is common ground that the learned judge did not have the legal justification or jurisdiction to impose the additional 57 days’ judicial detention complained of due to the fact that section 116 of the 2000 Act did not apply to the case before him.
26.	  Indeed, the Court of Appeal Criminal Division expressly declared the learned judge’s order as being ‘clearly unlawful’.  Mr Thomann has submitted on behalf the defendant that whilst the sentence imposed by the learned judge was declared to be unlawful by that court, it does not follow, he submitted, that this court should regard it as unlawful for present purposes, namely, for the purposes of Article 5.  He submitted that the true interpretation of article 5.1 should result in a finding that the detention was lawful for present purposes. Merely stating the proposition contended for demonstrates the apparent difficulty in accepting it.
27.	Mr Jagadesham submitted that the starting point in this case is section 9(3) of the Act which provides that “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”. In other words, whatever may the position at common law, under the Act a remedy in damages exists in circumstances where the detention was ordered pursuant to a judicial act done in good faith. He cited in support of that Hammerton v MOJ [2009] EWHC 1423 (QB), para 29, per Blake J. Thus, the simple question is whether the detention in question was or was not lawful.  For the answer to that he relied upon the declaration by the Court of Appeal to which I have referred. That is, that the detention was “quite clearly unlawful”.
28.	 Mr Jagadesham drew attention to the decision of the Grand Chamber of the European Court in Mooren v Germany [2009] ECHR 1082, where at paragraph 72 the court said:
‘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.’

29.	 It was submitted on the facts of this case the learned judge’s sentence did not and could not conform to the substantive and procedural rules of national law, given the undeniable fact that Section 116 had no application in this case.  The substantive and procedural rules of national law were thus not followed and the first requirement was not met.  It followed, Mr Jagadesham submitted, that such detention which could not properly be described as lawful was necessarily therefore in breach of Article 5.1.  Secondly, as to ‘arbitrariness,’ disclosed by a failure to apply the national legislation correctly, Mr Jagadesham referred again to the decision in Mooren v Germany at paragraphs 77 and 78 which demonstrated that where detention is said to be lawful under domestic law it can still be ‘arbitrary’ and in breach of Article 5.
30.	Both he and Mr Thomann in fact drew attention to this decision and in particular paragraph 78.  For present purposes I cite paragraphs 77 to 79 of the judgment, under the subheading of ‘Principles Governing the Motion of Arbitrary Detention:
’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.’

31.	Mr Jagadesham submitted that on the facts of this case it is unarguable but that the jurisdiction to make a Section 116 order no longer existed in law and the application of the relevant legislation had, in reality, been neglected. In those circumstances the order for detention was ‘arbitrary’.
32.	It was thus submitted that  having regard to the principles identified in Benham v United Kingdom (1996) ECHRR 293, at paragraph 25 (also cited by Mr Thomann)  in identifying an act done in excess of jurisdiction to be within the reach of Article 5.1 the present case shows that the learned judge’s order demonstrated that he exercised  his powers (of sentencing) in a (procedural) manner which involved a ‘gross and obvious irregularity’ and/or that the order complained of had no proper foundation in law because of a failure to observe a statutory condition precedent, namely the statutory provisions which underpinned the requirements for a lawful order of detention.
33.	Mr Jagadesham submitted that the purported imposition of a section 116 order could be nothing other than a gross and obvious irregularity in exercise of the relevant sentencing powers. The order had no proper foundation in law. Thus, the order was not lawful within the meaning of Article 5.1
34.	Mr Thomann submitted that the starting point was the European Court’s interpretation or meaning given to ‘lawful’ for the purposes of Article 5.1. His analysis followed the common law approach. If the detention was derived from a court order it remains a lawfully sanctioned detention the validity of which remains unaffected by a subsequent order (on appeal to a superior court). That is, during the currency of the period of detention based on a court order the detention is necessarily ‘lawful’, citing, for his purposes, Mooren v Germany (supra) and also Benham v United Kingdom (supra). Mr Thomann submitted that Strasbourg case law recognised the initial primacy of the national law. He submitted that the sentence complied with the procedure applied by the sentencing judge and that the European Court, in effect, exercises only a power of review to protect individuals from the arbitrariness of a decision under national law.
35.	 The detention merely followed an otherwise valid order of the court, submitted Mr Tromann. That submission, of course, begs the meaning of a ‘valid’ order for present purposes.  Mr Thomann submitted that here the learned judge’s error was one of law only in that the judge had passed in good faith a sentence which was no longer prescribed by law on the facts of the case but, he submitted, that error did not render the subsequent detention unlawful.
36.	Mr Tromann also drew attention to the observations of Lord Woolf, MR, in Ex-Parte Evans (see above).  He submitted that at common law (ie. in accordance with domestic law) the Crown Court order for sentence provided lawful authority for the claimant’s subsequent detention unless and until set aside.  Since it was a sentence made in good faith and in circumstances where it could not be said that the judge was not acting judicially, and the claim at common law was bound to fail, so too he submitted that the alternative claim should be rejected under Article 5 and the Act.
37.	To make good his submission Mr Thomann cited Benham v United Kingdom at paragraphs 39 to 43:
’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.’

38.	Thus it was submitted that where a statutory condition precedent had not been disregarded there could be no basis to find that the detention was unlawful according to Strasbourg case law.  In this context, Mr Thomann referred to Lloyd and Others v The United Kingdom [2005] ECHR 147, paragraph 114 in which it was stated as follows:
‘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.
39.	As to the requirement of ‘arbitrariness’, to render any such detention unlawful, Mr Thomann also referred to Mooren v Germany (see above).  He submitted that in these circumstances ‘arbitrariness’ was absent and that such an essential ingredient or criteria could not be established. That is, the correct analysis under the Act, in accordance with Strasbourg case law mirrors the analysis at common law which rendered the claim untenable.  
40.	In his reply to those submissions, Mr Jagadesham submitted that on the facts of this case and by reference to domestic law, the detention in question was plainly not lawful within the meaning of Article 5.1.  He referred to the same decisions cited by Mr Thomann and he submitted that on the facts of this case the learned judge’s failure to apply the clear and relevant statutory provisions, which themselves identify the relevant ‘statutory condition precedent’ was sufficient in itself to found this claim and to complete the cause of action; and that on the facts of this case there was a gross and obvious irregularity and arbitrariness as defined or explained in the decisions to which I have referred demonstrated by the failure to apply the relevant sentencing powers.  
41.	It was in those circumstances that Mr Jagadesham submitted that the cause of action contrary to the submissions of Mr Thomann is made out and that there should be an award of damages pursuant to Sections 8(1)(2)(3)and 9(3)(4) of the Act by reason of a breach of Article 5.1.
42.	In my judgment the starting point is the fact that the detention in question was, according to the law of England and Wales, not lawful. That much is plain from the judgment of the Court of Criminal Appeal and its reasons. The necessary justification for such detention provided for by Article 5.1 (a) is absent. The well established principle that an apparently regular order of a court remains valid and is not rendered invalid retrospectively by a subsequent order (usually on appeal) is not to the point in the present case. The crucial factor is that the detention was not lawful. The issue is whether the law of England and Wales provides for a remedy. At common law it does not. Under the Act it plainly does, in my judgment. I prefer the submissions of Mr Jagadesham.
43.	The fact is that the claimant was subjected to detention for 57 days longer than was justified by the law of England and Wales due to a judicial act done in error. It has been declared by a superior court that the detention was ‘clearly unlawful’. It could not now properly be explained or justified on the necessary basis that it was none the less a ‘lawful detention’ under article 5.1 (a).
44.	 The justification for the detention relied on by the defendant in this case under Article 5.1(a) has not been established. 
45.	The detention was in fact and for the purposes of article 5.1 not lawful. To argue to the contrary would be to mount a collateral attack upon the earlier judgment of the Court of Criminal Appeal. Besides, it is not possible sensibly or properly to contend on the facts of this case that the detention in question was other than unlawful. It was sanctioned in error. It lacked any statutory or legal basis. The judge’s judicial act was done in good faith. It was none the less done mistakenly and not in accordance with relevant sentencing powers. In that respect the detention was ‘arbitrary’ (if it is necessary strictly to adopt the analysis from the Strasbourg cases) given the fundamental error involved and the non-compliance with the relevant sentencing powers. The relevant judicial duty was to sentence only in accordance with the relevant sentencing powers. In that respect the distinction between a judge’s personal immunity for a judicial error (done in good faith) and the responsibility of the state to secure access to an appropriate remedy including compensation is correctly drawn. The Act provides for an appropriate remedy. It is provides for an ‘impersonal’ remedy, if the judicial act was done in good faith. In doing so the Act provides for a remedy in circumstances which hitherto the common law had not reached. The availability of the remedy undoubtedly enhances the good administration of justice and serves to protect the judiciary from uninformed and unnecessary criticism. 
46.	In the circumstances, I am quite satisfied that the Claimant has established his right to a remedy under the Act, which should sound in an award of damages in respect of his detention for a period of 57 days which was not in accordance with a procedure prescribed by law, namely, the detention was not ‘the lawful detention of a person after conviction by a competent court’. That is, the defendant having admitted that the Claimant was deprived of his liberty for 57 days longer than was permitted by law has failed to justify that detention in accordance with Article 5.1. 
47.	The question which arises now concerns the appropriate measure of damages for such breach.
48.	  By Section 8(3) of the Act the award must be such as to afford just satisfaction to the Claimant, and no more. By section 8(4), the court must take into account the principles applied by the European Court of Human Rights in relation to any award of compensation made under article 41.
49.	Both counsel submitted that in this respect the starting point is the guidance provided by Lord Bingham in R(Greenfield) v Secretary of State for the Home Department [2005] UKHL 14 and [2005] 1WLR 763 in which Lord Bingham said, in the context of the interrelationship between Section 8 of the Act and Article 41, and on the facts of that case Article 6 as follows:
‘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.’

50.	It is evident from that guidance that the relevant principles identified and applied by the European Court in this field must be taken into account.  In this respect, both counsel also referred to the decision in Lloyd and Others v The United Kingdom [2005] ECHR 147 to which I have already referred, and in particular paragraph 151 in which it is stated as follows:
‘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.’

51.	Accordingly, certain relevant factors have there been identified: the award must be necessary; it would follow that in all probability that where unlawful detention has been made that an award of damages would follow.  Such an award must secure just satisfaction and reflect the court’s finding as to that particular breach of Article 5.  
52.	Furthermore, the court must have regard the degree of arbitrariness demonstrated by the particular facts of the case.  The court may have regard to domestic scale of damages for which they, as guidance, for example, in relation to false imprisonment and wrongful arrest cases, and of course to the duration and the particular circumstances of the claimant’s detention.  Thus, the impact upon the claimant occasioned by the detention in question and the manner in which it is shown, by evidence, to have affected him will be relevant. It is for this reason that so-called ‘comparable awards’ must be treated with caution.  
53.	Finally, each case will of course depend upon its own facts and the court should not adopt a mechanistic approach. The court should avoid simply adopting a tariff, assessed on an hourly, daily, weekly or other basis. Such approach is liable to produce an award which does not do justice to anyone. 
54.	It is to ensure the good administration of justice that a proportionate and measured approach be adopted. The award should be in keeping however with awards approved by the court in broadly similar circumstances. That said, it is well understood that the particular facts of the particular case provides the touchstone for any award.  
55.	Inevitably, both counsel have referred to previous awards to support their suggested figure.  Mr Jagadesham submitted in writing that the award ultimately for 57 days’ wrongful detention should be in the region of £40,000 or, alternatively, perhaps no less than £28,500, which could be justified by reference to a daily rate of £750 or £500 respectively. He drew attention to the case of Kingshott v Ministry of Justice [2009] EWHC 3666 QB to justify such a large award. Conversely, the award in Lloyd, for 36 days’ detention was just under the current equivalent of £9,000.  
56.	For his part, Mr Thomann drew attention to the approach of the Court of Appeal in Ex-Parte Evans and he submitted that that is the more measured approach, which so far as duration of detention is concerned and from a qualitative assessment of arbitrariness, those factors would tend to suggest that the award should in the region of £7,000 to £9,000 or so.  
57.	Both counsel agreed that the court is bound to proceed on the basis that the appropriate award must be sufficient and not excessive and must demonstrate that due regard has been had to Article 41, and of course taking into account the particular factors which I have identified, which would make an award is necessary.
58.	  I have found that on the facts of this case there is no answer to the claim for damages under Article 5 and the Human Rights Act 1998.  That is so notwithstanding the fact that the judge made an honest error and the Claimant, who was lawfully sentenced to a substantial period of imprisonment in any event, has such an appalling criminal record.  In some quarters the claim and award may be thought to be an undeserved windfall. However, his rights are no less worthy of protection than those of any other citizen. Provided that the award is measured and proportionate, not excessive and no more than just satisfaction the fact of an award could only enhance, not diminish, the good administration of justice.  
59.	I bear in mind the fact that the claimant was incarcerated lawfully by reason of the serious offences to which he pleaded guilty, and that it was not until at the earliest September 2008, upon his transfer to HMP Stafford that it was drawn to his attention that he might have a legitimate complaint in relation to the extent of his sentence.  
60.	It is evident that it was only then that the claimant was advised of the mistake which had been made.  This is not a case, for example, of the claimant enjoying his liberty and with every expectation that he would continue to do so suddenly finding himself, in an oppressive or high handed manner,  removed from that freedom by the State and incarcerated.  In that respect I accept the submission of Mr Thomann to the effect that the ‘arbitrariness’ in the particular case coupled with the Claimant’s particular circumstances (an appalling criminal record involving previous experiences of incarceration and being sentenced to another substantial term) is such as to justify a more modest award than might otherwise be indicated for 57 days’ deprivation of liberty and which Mr Jagadesham had submitted.  
61.	It could not be said on the facts of this case that there was any form of oppressive conduct by the state or highhandedness involved or bad faith, or indeed, any delay in dealing with the matter properly once the error had been identified.  
62.	I also bear in mind the approach of the Court of Appeal, albeit some time ago, in Ex-Parte Evans.  It is recognised nowadays (as it was then) that where there has been an unlawful detention the victim’s rights should be recognised by way of an appropriate award of damages. Such an award or remedy is necessary in my judgment. It should be the accepted responsibility of the state, in this case the First Defendant (not the Second Defendant) when the criteria for an award have been met and the remedy should ordinarily go beyond the mere declaration of fact that there has been an unlawful detention and resulting interference with a human right.  
63.	However, having said that, I also direct myself there is a need to ensure proportionality and to avoid awarding an excessive sum. Having regard to the particular circumstances of the Claimant at the time of the detention, the apparent (modest) effect upon him due to the additional loss of liberty, the duration of the detention and bearing in mind the range of other awards I am satisfied that the award necessary to afford just satisfaction to the Claimant comes nowhere near the figures submitted on his behalf by Mr Jagadesham.
64.	 I am satisfied for the reasons which I have given that the appropriate award for damages in relation to the breach which I have identified is in the sum of £8,500.That is the sum which I award under the Act. 
(judgment ends)