Neutral Citation Number: [2010] EWCA Civ 1434
Case No: C1/2009/1543
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN’S BENCH DIVISION
BLAIR J
CO/9656/2008
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/12/2010
Before :

LORD JUSTICE SEDLEY
LORD JUSTICE HOOPER
and
LORD JUSTICE WILSON
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Between :

	THE QUEEN ON THE APPLICATION OF  DANIEL FAULKNER	Appellant	
	- and -		
	(1)	THE SECRETARY OF STATE FOR JUSTICE
(2)	THE PAROLE BOARD	
Respondents	

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Mr H. Southey QC and Mr J Bunting for the Appellant
Mr S. Kovats QC for the first Respondent
Mr Sam Grodzinski for the second Respondent

Hearing date: 23rd April 2010
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Judgment

Lord Justice Hooper: 
1.	Daniel Faulkner (“Faulkner”), a serving prisoner at the material time, seeks damages for what is said to be an infringement of his rights under Article 5(4) of the European Convention on Human Rights (“ECHR”). 
2.	Article 5(4) provides:
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.
3.	It is submitted on behalf of the appellant that his rights under Article 5(4) have been violated by the now admitted failure to conduct a prompt Parole Board review. It is not suggested, and could not be, that his detention became unlawful in the absence of a speedy review.
4.	In an ex tempore judgment Blair J rejected the claim, [2009] EWHC 1607 (Admin). Faulkner appeals his decision.  The perceived complexity of the issues raised by the appeal is evidenced by the fact that we have been provided with four volumes of authorities.
5.	The defendants before Blair J were the Secretary of State for Justice and the Parole Board. During the proceedings before us, it was accepted that, if there was a period of unjustified delay, then it was not necessary to determine as between the respondents, which respondent was responsible.
6.	On 3 August 2001, at Stafford Crown Court, the appellant (who was born in 1982) was sentenced to custody for life for a second offence of causing grievous bodily harm with intent.  The minimum period was set at two years, eight and a half months, less time spent on remand.  That period expired on 18 April 2004 and he became eligible for parole.  
7.	He would be entitled to be released on parole if the Board, being satisfied that it was no longer necessary for the protection of the public that he should be detained in prison, directed his release. If the Board gave such a direction, then the Secretary of State is required to release him, see Crime (Sentences) Act 1997, section 28.  
8.	On 26 May 2005 the Board did not direct his release but recommended that he be transferred to open conditions. That recommendation was rejected.   A second recommendation to the same effect was made on 31 January 2007 and rejected on 23 May 2007.  In a decision dated 22 April 2010, to which I return later, the Parole Board described a second rejection as “unusual”.
9.	At the conclusion of its statement of reasons for rejecting the Board’s “advice”, 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.
10.	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.
11.	The appellant was therefore entitled to a hearing by the Parole Board, the result of which would be known by the end of January 2008. Such a hearing would have satisfied the appellant’s Article 5(4) rights to the speedy determination of the lawfulness of his continued imprisonment.
12.	Section 28 also provides that the Board may not direct a prisoner’s release unless the Secretary of State has referred his case to the Board.  It follows that the Board cannot conduct the hearing without such a referral.
13.	The HM Prison Service Lifer Manual, Prison Service Order No 4700, with which we were provided, sets out the procedure to be followed at the material time.
14.	Paragraph 6.6 provides that: “The process for a second or subsequent review is set out in the timetable attached as Annex A to this Chapter”. Annex A refers to the LRRS, which is the Lifer Review and Recall Section of the Prison Service.
15.	Annex A reads:
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.
16.	There then follows a detailed time table which varies according to the decision of the Single Board member. The time table envisages that the oral hearing will be held by the end of week 26 with the decision and reasons to be sent to the parties by the end of the 27th week. It also envisages further additions to the dossier sent by the prison to the Board. 
17.	The Board cannot list the case and notify the prisoner and the LRRS of the oral hearing date until receiving what is described in paragraph 6.7 of the Manual as “The note formally referring the case to the Parole Board for consideration”.
18.	It follows from the time table that the oral hearing will not take place until about six months from the date of the receipt of the note.  
19.	I turn back to the facts of this case. To achieve the promised timetable of an oral hearing in January 2008, it follows that the prison had to send the Board the note by no later than about July 1 2007 and the LRRS had to send the skeleton dossier to the prison in sufficient time to enable the prison to obtain the necessary reports and complete the Rule 6 dossier. We were told that the skeleton dossier and note should have been sent by the LRRS to the prison in about May 2007. 
20.	What did in fact happen? 
21.	The skeleton dossier and note were sent by the LRRS to the prison in September 2007, some four months after they should have been.   The appellant’s case was sent to the Parole Board on 21 December 2007 by a caseworker in the pre-release section of the Ministry of Justice, some six months after it should have been. 
22.	According to a letter dated 9 January 2008 (page 52) sent by the Parole Board to the appellant’s solicitors, that referral was “late”. In the same letter the Board wrote that, in the light of the late referral on 21 December, the appellant’s case had been provisionally listed for an oral hearing in May 2008 (some five months later).  Thus what was required of the Parole Board by the end of week 1, namely the setting of an oral hearing date, had now been done.
23.	On 16 January 2008 the Board wrote to the appellant’s solicitors that no exact date could be given for an oral hearing until the dossier had been received. The letter also stated that a reminder letter would be sent to the prison and to the Ministry of Justice if the dossier was not received by 29 January.
24.	In the beginning of May the Board received the Rule 6 dossier from the prison. In order to achieve a date for the hearing in January 2008, the Board should have received that dossier in about September 2007. Thus the Rule 6 dossier was sent some eight months after it should have been.  
25.	On 16 May the Parole Board conducted a case management review and directed that the case be deferred given that it was not now possible to achieve the May 2008 hearing date (page 65). The Board also ordered further reports which it described in its Detailed Grounds for Opposing the Claim as necessary and missing.   
26.	On 8 October 2008, the Parole Board received the remaining reports which had been required by the case management directions in May.  In the words of the judge “the case was then ready for hearing”. 
27.	Complaint is made that the first respondent unduly delayed sending these remaining reports to the Parole Board and that thereafter there was an undue delay in setting the hearing date. I do not think that there was any unjustified delay by the Board in setting the hearing date.  The earlier date having been lost, it would inevitably take time to find another date.
28.	The hearing did not in fact take place until January 8 2009 and the Board on 23 January directed the appellant’s release. He was in fact released from prison four days later. 
29.	In May 2009 he was recalled to prison for breaching the licence and, after a period of being unlawfully at large, he was returned to prison.
30.	In the meantime on 13 August 2008 letters before claim were sent by the appellant’s solicitors. On 10 October 2008, these proceedings were issued challenging, at that time, the continued failure to complete the review. Permission was given a few days later. The substantive hearing was subsequently adjourned in December 2008 until after the decision of the Parole Board in January 2009. 
31.	I should point out that, having been instructed in September 2007, the appellant’s solicitors were thereafter extremely diligent in taking steps to get the appellant’s case before the Parole Board as soon as possible.
32.	There is no evidence seeking to justify the delay in the taking of the various required steps. 
33.	Some help about determining whether a delay is undue or unjustified can be found in paragraph 35 of In Re D [2008] UKHL 33; [2008] 1 WLR 1499. Reference is made there to a delay not being “undue” if reasonable steps were taken to proceed to a hearing, or if delays were outside the control of, in that case, the Northern Ireland Life Sentence Review Commissioners, or if the delays were unavoidable. 
34.	The appellant’s complaint is that his hearing, and thus his release, was unduly or unjustifiably delayed by about a year.  Mr Grodzinski conceded a year’s delay. In other words, but for the delay on the part of the first respondent, the appellant’s hearing would have taken place in January 2008. 
35.	Mr Kovats in a short written submission made after the hearing suggests that, but for the delays for which the first respondent is responsible, the hearing would have occurred in May 2008 and he points to the letter from the Board to the appellant’s solicitors dated 9 January (see paragraph 22 above). However it was not until May that the Rule 6 dossier was received and not until October that the reports, required by the Board in May, arrived.
36.	It is not easy to calculate for precisely how long the review was delayed and Blair J did not make any such calculation. Doing my best, it seems to me that but for the unjustified delays on the part of the first respondent, the hearing would have taken place, if not in January 2008, then in about March 2008.  Thus the appellant had to wait some ten months longer for his review than he should have done.
37.	I turn to the conclusion of Blair J. He decided that a breach of Article 5(4) only arose if the detention has become “arbitrary”, saying that it would become “arbitrary” only if the system breaks down entirely.  Mr Southey had not submitted that the detention was “arbitrary”.  
38.	The Parole Board does not seek to uphold this conclusion. In the words of Mr Grodzinski:
... 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.
39.	Mr Grodzinski points out that the interpretation given to James by Blair J is inconsistent with the decision of Collins J in (Betteridge) v Parole Board [2009] EWHC 1638 Admin and of HHJ Pelling QC in Pennington v The Parole Board [2009] EWHC 2296 (Admin). At paragraph 16 HHJ Pelling gives an admirable explanation of why the delay type of case survives Secretary of State for Justice v James [2009] UKHL 22; [2010] AC 553.
40.	In his skeleton argument Mr Kovats wrote that the Secretary of State does not advance a positive case that the delay in referring the case to the Parole Board and the delay in submitting the Rule 6 dossier “caused no breach of article 5(4)” of the ECHR.  
41.	Mr Kovats also wrote:
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.  ...
42.	These concessions, rightly made in my view, fatally undermine the conclusion of Blair J that a breach of Article 5(4) only arose if the detention has become “arbitrary”.  He reached that conclusion after an analysis of the decision of the House of Lords in Secretary of State for Justice v James [2009] UKHL 22; [2010] AC 553, in which Lord Hope held at paragraph 21 that: 
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. 
43.	The concessions made by the first respondent and by the second respondent, the Parole Board, receive ample support from James in which Lord Brown, with whose reasons the other members of the Appellate Committee agreed, said:
60. ... I accept that article 5(4) requires the basic rule 6 dossier to be made available: without this the Board simply cannot function. ...
44.	Mr Kovats wrote at the conclusion of his submissions on Article 5(4):
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.
45.	Notwithstanding the concessions made by Mr Kovats on behalf of the first respondent, Mr Kovats argued that there was no breach because the delays did not involve anything approaching a breakdown in the system.  I do not read what Lord Brown said in James as requiring any such breakdown in the system.
46.	In my view, the unjustified delays in this case, for which the first respondent is responsible, prevented the appellant from having the lawfulness of his continued detention decided in accordance with Article 5(4) in about March 2009. 
47.	There was therefore, in my view, a breach of Article 5(4) for a period of about ten months. 
48.	I turn to the issue of what, if any, is the appropriate relief beyond a declaration that there was such a violation. 
49.	Article 5(5) provides:
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. 
50.	Section 8(1) of the Human Rights Act 1998 provides:
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.
51.	Section 8(3) and (4) provide: 
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— 
 (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 determining—
(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.
52.	Article 41 of the ECHR provides:
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.
53.	Under the Strasbourg jurisprudence, an award of damages is made in circumstances in which the court considers it to be "equitable" to do so. 
54.	The appellant’s claim for damages is for “general damages” or what the ECHR sometimes describes as “non-pecuniary damage”.
55.	Blair J held that, if there had been a breach of Article 5(4), it was “not possible to draw the inference from the January 2009 decision that the claimant would have been released earlier” than January 2009 (emphasis added) and therefore the appellant was not entitled to any damages  Blair J said, on the issue of causation:
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.
56.	Mr Kovats submits the appellant was in a significantly stronger position in January 2009 than he would have been had the hearing taken place in January 2008. Mr Grodzsinki submits:
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.
57.	Mr Southey submits that the judge was wrong to ask whether the claimant would have been released earlier. He submits that the proper test is whether the appellant lost the chance of earlier release.  Mr Grodzinski and Mr Kovats do not accept that. 
58.	What then is the right test?
59.	The respondents point to Wloch v Poland (2002) 34 EHRR 9 (Application No. 27785/95), an Article 5(4) case, where the ECHR declined to speculate as to whether the applicant’s detention would have come to an end had a review been held earlier, as it should have been. They also refer to Anufrijeva v Southwark London Borough Council [2004] QB 1124, where Lord Woolf, at paragraph 56, said that damages are “a remedy of last resort”.  Although such a statement can offer some guide to a decision maker, it does not inform us as to what cases fit into the “last resort” category.
60.	All parties rely on R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14; [2005] 1 WLR 673.  Lord Bingham, in that case, made a detailed analysis of the ECHR jurisprudence and said: 
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)
61.	Relying on the ECHR cases which establish the proposition in the underlined passage, Stanley Burnton J, as he then was, held in R (KB) v London Mental Health Tribunal [2003] EWHC 193 (Admin); [2004] QB 936 that an applicant must show on the balance of probabilities that he would have had a decision in his favour at the time when the review should have taken place.
62.	Mr Southey relies on those ECHR cases referred to by Lord Bingham in which an award has been made because “the applicant has been deprived of a real chance of a better outcome”.  Lord Bingham went on to say:
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.	Mr Southey also relies on the words which I have underlined in a passage in the speech of Lord Brown in James. Lord Brown said 
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)
64.	I do not believe that the underlined words can be relied upon as authority for the proposition that the test is now “a real chance”.  They are obiter and no authority is cited.
65.	Having considered the authorities and particularly Greenfield, I see no reason in this case for granting damages on the basis of loss of a real chance.
66.	I turn therefore to the conclusion of Blair J that it was not possible to draw the inference from the January 2009 decision that the claimant would have been released earlier.  Blair J said that the only documentary material to which he had been referred was the 2009 decision.
67.	Mr Southey submits that Blair J was wrong to reach the conclusion that he did because:
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.
68.	In its decision of 23 January 2009, much of which is quoted by Blair J in the passage from his decision which I have set out above (paragraph 55), the Board also said:
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. 
69.	I have read Mrs Brookes’ report with care. Her report is dated 1 April 2008 and states that she has read a number of reports written by others. There is nothing to suggest in her report that, if asked for her views when she should have been asked in the summer of 2007, her views would have been any different.  Indeed in a decision dated 22 April 2010 the Board referred to the continued support of the appellant by Mrs Brookes over many years (Mrs Brookes having become the appellant’s external probation officer in 2005).
70.	As Blair J noted, the Board also referred to the first respondent’s concession that his continuing objections to the appellant being released had not taken account of the further reports. These further reports would presumably have included the report of Mrs Brookes. 
71.	Amongst the other reports supporting release on licence was a report dated 31 January 2008 written by Mr Orme who described himself in this way:
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.
72.	Mr Birchall in a report dated 1 February 2008 wrote: “I recommend and fully support Mr Faulkner getting his parole”.  Mr Birchall described himself and his links with the appellant in this way:
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.
73.	Another probation officer in a report dated 28 March 2008 supported the appellant’s release on licence, as did also a “Therapy Manager” who, importantly, had last worked with him in August 2007. 
74.	As Blair J noted, the Board also referred to the first respondent’s concession that his continuing objections to the appellant being released had not taken account of the further reports. These further reports would presumably have included all these reports.  
75.	In my view, in the light of these reports and notwithstanding the respondents’ submissions, the appellant has shown on the balance of probabilities that he would have been released if the review had taken place in about March 2008.  I also see strength in Mr Southey’s submission that there is nothing in the documents to indicate the Appellant made substantial progress towards release in the period of delay. I do not think that the issue over the telephone assists one way or another.
76.	I must now turn to the events after his release which, so it is said by the respondents, are relevant on the issue of quantum.  Having been released on 23 January 2009, the appellant was arrested for an offence of wounding on 17 May 2009 and released on bail. Having told Mrs Brookes about the arrest and realising that he was at risk of recall, he absconded a few days later, thus breaching his licence, and went into hiding. Following the revocation of his licence on 27 May 2009, a warrant was issued for his arrest.  He was returned to prison on 16 October 2009.  On 18 March 2010, the trial judge directed the jury that there was no case to answer and he was acquitted.  On 26 April 2010 the Board directed the appellant’s release on licence.  
77.	In its decision the Board wrote:
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.
78.	Mr Kovats invites us to take into account that he unlawfully absconded only four months after his release from prison on licence and that the incident leading to the appellant’s arrest calls into question his judgment in allowing himself to become involved in a situation of violence. I do not think that the second point is of any relevance.   
79.	As to the first point and his return to prison it would be speculation to say that, had he been released in March 2009, he might have been back in prison a few months later for breach of his licence.  As to his absconding, when the case was heard by Blair J the appellant was still on the run. Blair J said:
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.  
80.	Having taken into account that the appellant has spent a further six months in prison for conduct of which he was acquitted on the directions of the judge, I do not see why any damage award should be reduced for this reason. 
81.	In my view the appellant is entitled to an award of damages to reflect the fact that, in breach of article 5(4), the appellant spent some 10 months in prison when he ought not to have done. Blair J said as to the level of damages:
[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 [2004] QB 936.
82.	However, Blair J reached this conclusion without deciding on the length of the unjustifiable delay.
83.	In the light of my findings of fact, I would make an order inviting the parties to present their written submissions on the level of damages to reflect the appellant’s continued detention between March 2008 and January 2009, unless an amount can be agreed.  The figure should be calculated in accordance with paragraph 19 of Greenfield. 
LORD JUSTICE WILSON
84.	I agree.
LORD JUSTICE SEDLEY
85.	I also agree.