COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE WILSON
| THE QUEEN ON THE APPLICATION OF DANIEL FAULKNER
|- and -
|THE SECRETARY OF STATE FOR JUSTICE
THE PAROLE BOARD
Mr S. Kovats QC for the first Respondent
Mr Sam Grodzinski for the second Respondent
Hearing date: 23rd April 2010
Crown Copyright ©
Lord Justice Hooper:
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.
The Secretary of State has therefore decided that you should remain in closed conditions and your next review will conclude in January 2008.
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.
By end of week 1 Parole Board (PB) lists case and notifies prisoner and LRRS of oral hearing date.
By end of week 5 LRRS disclose skeleton dossier and prisoner informs PB of details of legal representative.
By end of week 8 Prison discloses complete dossier [known as the Rule 6 dossier] to prisoner, PB and LRR.
By end of week 12 Prisoner sends representations and independent reports to PB (copied to LRRS).
By end of week 14 Single PB member considers case and makes decision as below.
... the Board after carefully considering the position, does not seek to maintain its earlier argument [before Blair J] that the Appellant's claim is defeated by James.
The Secretary of State accepts that routine delay in referring prisoners' cases to the Board would breach article 5(4).† The Secretary of State also accepts that on the facts of Mr Faulkner's case, the Secretary of State should have referred his case to the Board in or around July 2007 in order to give the 26 weeks for preparation envisaged by PSO 4700 ... for a target of a hearing in January 2008.† ...
As in the case of Article 5(1), it will only be if the system breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary that the Article 5(4) guarantee would be violated and the prisoner will be entitled to a remedy in damages.
60. ... I accept that article 5(4) requires the basic rule 6 dossier to be made available: without this the Board simply cannot function. ...
In summary, the Secretary of State's case on article 5(4) is that the review of the lawfulness of Mr Faulkner's detention was regrettably delayed by reason of events that were unfortunate but in essence were specific to the facts of his individual case, involved no misdirection in law and did not involve anything approaching a breakdown of the system.† It is for the Court to judge whether this breached article 5(4) ECHR.
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.
In relation to any act ... of a public authority which the court finds is ... unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, includingó
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determiningó
(a)whether to award damages, or
(b)the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party, is completely or partially in conflict with the obligations arising from the present convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.
33. ... [C]an the claimant show that this has had any causative effect in that he would have been released earlier? The argument has turned entirely upon the terms of the Parole Board's decision of 8 January 2009, which was promulgated on 23 January 2009 (and which I should record was the only documentary evidence to which I was referred during the hearing). A number of matters emerge from that decision. In paragraph 4, the Board refers to the lifer manager's report that he was impressed by the maturity and insight that the claimant was showing. His motivation to participate in the process, empower himself and take responsibility for his next targets was, he said, a credit to him.
34. The Board then went on to deal with what is admitted to have been a lapse in the claimant's behaviour, which resulted in an adjudication against him in September 2008. This related to him having a mobile phone and attempting to dispose of it. The Board took the view on the basis of subsequent evidence from a psychologist, that this was just a lapse. It went on to record the view of other professionals involved in the case, some of whom took the view that the claimant should be transferred to open conditions prior to release as a natural progression from closed conditions. It then recorded the view of a Ms Brookes that, in her view, the claimant did not need to "go open" but could be safely managed in the community. In paragraphs 7 and 8, the Board as follows:
"7. You told the Panel that you sought release, and had learned a great deal from the disappointments of your previous refusals of transfer to open conditions by the Secretary of State. You explained the recent mobile phone incident and the Panel accepted the honesty of what you said, as had Ms Pixley in her report. The Panel also noted that this adjudication had not affected your enhanced status within the prison and that otherwise, your recent prison behaviour had been excellent. It was satisfied that you had learned from this experience [that is the mobile phone experience]. It was also satisfied with your plans for release and strategies for dealing with any problems that might arise.
8. At the conclusion of the evidence, upon submissions to the Panel, it was said on behalf of the Secretary of State that 'it was now apparent that the Secretary of State's view had not taken account of the further significant information placed before this Panel'. The Panel felt that this was an honest assessment of the evidence that it had heard."
On that basis, the Panel directed the claimant's release and, as I have said, he was released some days later.
35. Mr Southey submits that when one reads the Parole Board report it is plain that the position would have been precisely the same in January 2008, a year earlier, had a review taken place at that point in time. He submits that there was nothing to show that release would not have been ordered at that point in time. Again, I prefer the submissions of the defendants on this point. It appears to me that, when one looks at the facts of the case in the round, what one sees is a progression. It seems to have been accepted that so far as the claimant's behaviour is concerned, the September 2008 adjudication relating to the mobile phone was a single lapse. It seems to me that it is not possible to draw the inference from the January 2009 decision that the claimant would have been released earlier. On the contrary, this is, in my judgment, best viewed as a case in which there has been progress, and good progress, resulting in a decision for release and subsequent release.
It is impossible to say with any confidence that the Board would have reached the same conclusion as to the risk presented by the Appellant had his case been heard a year earlier.
12. ... A claim under this head [non-pecuniary damage] may be put on the straightforward basis that but for the Convention violation found the outcome of the proceedings would probably have been different and more favourable to the applicant, or on the more problematical basis that the violation deprived the applicant of an opportunity to achieve a different result which was not in all the circumstances of the case a valueless opportunity. While in the ordinary way the Court has not been easily persuaded on this last basis, it has in some cases accepted it: ...
14. Thus while the Court laid down in the authoritative case of Kingsley ..., and repeated in Edwards and Lewis v United Kingdom ... , that the Court will award monetary compensation under article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, and it has repeatedly stressed that it will not speculate on what the outcome of the proceedings would have been but for the violation, it has on occasion been willing in appropriate cases to make an award if of opinion that the applicant has been deprived of a real chance of a better outcome. (Underlining added)
15. Counsel for the appellant relied on these variations of language to criticise the jurisprudence of the Court as showing a lack of principle. The criticism is in my view misplaced. In the absence of a clear causal connection, the Court's standard response has been to treat the finding of violation without more as just satisfaction. It has done so even in cases such as Benham, Perks (in the cases of the seven applicants other than Mr Perks) and Ezeh and Connors where an award might well have been made. But it has softened this response where it was persuaded that justice required it to do so. The variations of language used are such as occur when a court addresses itself to the detailed facts of the case before it, rather than endlessly reproducing a form of words stored in the court's word processor. Wisely, in my opinion, the Court has not sought to lay down hard and fast rules in a field which pre-eminently calls for a case by case judgment, and the Court's language may be taken to reflect its assessment of the differing levels of probability held to attach to the causal connection found in individual cases.
63. ... Unless the claimants can establish that, had they been given the opportunity to demonstrate their safety for release, they would have been (or at least would have had a real chance of being) released, it is difficult to see how they could be entitled to any substantial award of damages. ... (Underlining added)
The Parole Board essentially directed release because it endorsed the conclusions of report writers (particularly Ms Brookes).† Those report writers were supporting release from at least April 2008; and
There is nothing to indicate the Appellant made substantial progress towards release in the period of delay.
The Panel agreed with the report writers that your risk of serious harm had been reduced significantly.† It also agreed with the very firm evidence of Mrs Brookes, who is your Offender Manager, that this was a risk that could safely be managed in the community and there was no need or requirement for you to go to open conditions first.† It therefore directs your release.
I am a serving officer with 16 years' experience of the prison service.† I have completed the "Life in the 21st Century" course.† I am the Senior Officer of the unit upon which Daniel Faulkner resides, so I see him on a regular basis.
Knowledge of the prisoner
My name is Dean Birchall.† I am a Prison custody Officer (PCO) at HMP Dovegate Therapeutic Community (TC).† I have been a PCO at HMP Dovegate since 21st December 2004 and Personal Officer to Mr Daniel Faulkner since 26th January 2004 [presumably 2005].
I have regular contact with Mr Faulkner during a normal working week.† I am Personal Officer to him and I sometimes facilitate the small therapy groups he attends three times a week and the community meetings he attends twice weekly.† This report has been written with my working knowledge of Mr Faulkner and the collation of information from his therapy files, wing files, and education records.† I also interviewed Mr Faulkner for 1.5 hours.
Mrs Brookes told the Panel about your compliance with licence conditions and your good progress until the events of 17th May 2009 when you were arrested and bailed on suspicion of committing an offence of wounding.† This came to her attention two days later when you voluntarily informed her about the alleged assault which you always denied.† You asked Mrs Brookes, who has known you since her first involvement with you in April 2005, whether or not you would be recalled and she could not say, as you had not at that stage been charged with any offence.† She did require you to see her on the following Friday as usual and it was your considered and deliberate failure not to do so in breach of both your licence and later on your bail that led at once to revocation of your life licence.† Your subsequent behaviour as you now acknowledge with shame and regret betrayed the trust that Mrs Brookes placed in you and your deliberate failure to accept responsibility by remaining in hiding until your arrest on October 2009 had serious consequences for you and for Miss Gregory in particular.† You have now been in custody for over six months since arrest and this time was useful for you to resolve the charge of assault which was dismissed in Stafford Crown Court on a submission of no case to answer without your having to give evidence.† You explained in detail to the Panel during your evidence how you were acting in self-defence following an attack upon you with a bottle at a party which you attended when you asked a friend to give you a lift home.† The Panel were impressed with your evidence and accepted your account.† They further accept that neither drink nor drugs were a factor so far as you were concerned and they are happy that justice was served by a prompt resolution of the case in Court.† You nevertheless accepted that your failure to meet Mrs Brookes as required and your later period of hiding and failing to accept responsibility was entirely deserving of a recall to custody and you have tried to make recompense by making good use of the time.† You completed the ETS programme for a second time and believe that you have now learnt the lessons from your recent failure.† You have good reason to be thankful to Mrs Brookes for her continued support for you over many years and also to Miss Leach for her considered and helpful evidence supporting your immediate release.† The Panel are satisfied that you are genuine in your desire to avoid the pitfalls that led you to abscond in May 2009 and they were pleased to note your determination to succeed in your stated aims of accepting family and wider responsibilities including a period of strict compliance with life licence conditions.
38. I of course do not know the precise circumstances of how it comes to be that this claimant has absconded. I do not know the circumstances of the incident that led to his arrest and his subsequent release on bail. It appears to have involved an act of violence with the victim being struck in the face with a glass. I recall that the claimant's offences that gave rise to his sentence were both section 18 GBH offences in 1999 and 2001 respectively. There has not been an application for an adjournment to see whether these matters could be explored further. That is not in any sense a criticism, and no doubt the claimant was wise to proceed today. However, the fact is that, as I understand it, he has been in touch with his lawyers. He could have given information, but it has not been provided to the court.
39. Mr Kovats submits that public confidence in the administration of justice is a relevant consideration in terms of giving damages for the alleged failure to deal properly with his parole to a prisoner who is on the run. There is, in my view, substance in this submission. I have indicated why, in my judgment, this claim fails. However, had I been of the contrary view, I would not have felt able to make an award of substantial damages to the claimant in these circumstances. I do not think that an award would be necessary to afford him "just satisfaction" or that such an outcome would be considered a fair one.
[If I had found a breach of Article 5(4)] I would have awarded damages in the region of £1,000 to £2,000 awarded in the Strasbourg cases, or perhaps up to the £4,000 awarded by Stanley Burnton J in KB v the Mental Health Tribunal  QB 936.
LORD JUSTICE WILSON
LORD JUSTICE SEDLEY