England and Wales Court of Appeal (Civil Division) Decisions

IN THE 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
		29/03/2011

Lord Justice Sedley:

This is the judgment of the court.

1. On 14 December 2010 this court handed down its judgment on liability, holding that the respondents were liable to the appellant for his unlawful detention, in breach of article 5(4) of the European Convention on Human Rights, for a period of about 10 months. During this time he was improperly denied access to the Parole Board, which would in all probability have directed his release. Although the cause of the prolonged detention was the Ministry of Justice's delay in the providing the dossier and other necessary materials to the Parole Board, we have not been asked to differentiate between the two respondents in relation to formal liability. What remains to be decided is what damages, if any, the appellant is entitled to pursuant to s.8(1) of the Human Rights Act 1998.
2. We have invited and received written submissions on this from both counsel and are grateful to them for the research and thought that has gone into them. The problem they present us with is encapsulated in the difference between them: Mr Kovats QC for the respondents submits that an award of damages no higher than £3,500 is appropriate; Mr Southey QC for the appellant submits that the right figure is £32,000. Both derive support from the available precedents.
3. We have concluded that an appropriate figure is £10,000. While this is a round figure, it is not an arbitrary one. We propose to explain in some detail why (possibly a more apt preposition than how) we have arrived at it, because we are conscious that this award may well set the tone in related and similar cases.

The cause of action

4. Although nothing turns directly on it, we have called Mr Faulkner's case a case of unlawful detention notwithstanding that, as Steven Kovats QC for the State of Justice points out, the necessary predicate of his claim is that he was lawfully detained throughout the material 10 months: had he not been, his claim would have been for false imprisonment. But although the relevant purpose of art. 5(4) – see §3 of our first judgment – is only to afford a remedy for delay in judicially deciding whether a prisoner is to be released, it speaks in terms of lawful and unlawful detention because it assumes that release, once judicially ordered, and albeit within the 'envelope' of a continuing sentence, becomes a right. In that sense Mr Faulkner's detention became unlawful in March 2008.

The Ground Rules

5. The ground rules are uncomplicated but open-ended. S.8(1) of the Human Rights Act authorises domestic courts to grant such relief or remedy as they consider "just and appropriate", so long – see s. 8(3) – as it is necessary in order to afford just satisfaction. S.8(4) requires them, in deciding what damages, if any, to award, to "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". Article 41 provides that the victim of a violation shall (if not fully compensated in domestic law) receive just satisfaction from the Court.

Principles

6. Since few cases reach Strasbourg in which the member state has acknowledged any breach of the Convention, almost all awards of compensation made by the Court by way of just satisfaction are full awards, not merely additions to domestic awards. But it is well known, and is common ground before us, that there are no articulated principles, and no discernible tariff, by which these awards are set. This ought not to surprise anyone who recalls the vagaries of general damages for personal injury in this country before the Judicial Studies Board assembled its Guidelines. But it means that, in the absence of a sufficient bulk of ECtHR cases to permit guidelines like the JSB's to be drawn, principles of just satisfaction are not easy to find. Although the use in the statute of the definite article – "the principles" – may have been something of a legislative act of faith, Lord Bingham in R (Greenfield) v Home Secretary [2005] 1 WLR 673 (§19) made it clear that what it means is that we are to look to what influences the figures arrived at by the Court, albeit these are "not precisely calculated but are judged by the court to be fair in the individual case".
7. There are also, of course, domestic awards for false imprisonment. But we remind ourselves that unlawful detention contrary to article 5(4) is not the same thing as false imprisonment. At least in a case such as this one, it involves the loss of the opportunity to be granted conditional liberty within the currency of a lawful custodial sentence. That is not to say that it is inconsequential; but it is not the same thing as the loss of an innocent person's freedom.
8. We accept the submission of Hugh Southey QC for the appellant that it is not appropriate for the court to adjust its award by reference to the degree of probability of release had the wrong not occurred. Once it is found probable that parole would have been granted earlier had the dossier been provided when it should have been, there is a compensable loss of prospective liberty.
9. We do not, however, accept Mr Southey's submission that a separate sum, in addition to damages for loss of liberty, should be routinely awarded for distress and anxiety. We do not exclude the possibility that unlawful detention may cause special damage, whether pecuniary, psychiatric or physical. But in cases like this one it would in our judgment be double counting to compensate Mr Faulkner both for being kept in prison when he ought to have been out and for the distress and anxiety which imprisonment designedly causes. If loss of liberty were not stressful, offenders would not be sent to prison.
10. We have not overlooked the fact that stress and anxiety were described by Lord Bingham in Greenfield, §16, in a passage which cited the expressions used in a substantial series of Strasbourg decisions to describe this typical effect of unjustified detention, as "[a] second head of general or non-pecuniary damage". Without doubt the stress of being held in prison when detention, albeit lawful, ought to have come to an end, and when an end is still not in sight, is of a different order from the stress and anxiety of the custodial part of a lawful sentence; but that difference is precisely what the award for wrongful detention is required to reflect. In spite of Lord Bingham's use of the expression "head of damage", we do not understand either Greenfield or any other case to be authority for the routine awarding of two sums by way of damages in unlawful detention cases, and we consider there to be good reason for not doing so except where particular facts warrant it.
11. This being so, Mr Kovats' contingent submission that this element of damage ought to be discounted for Mr Faulkner's having gone on the run from May to October 2009 does not have to be decided.

Quantum

12. Although the vindication by judgment of a victim's rights is itself an aspect – and in some instances may be exhaustive – of just satisfaction (see Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 §53), we are satisfied that our finding of unlawful detention does not amount by itself to just satisfaction for Mr Faulkner. We are entitled in this regard to place weight on the high value that the common law has always placed on personal liberty and on the courts' consequent disapproval of executive action which unlawfully restricts or interferes with it. We are also entitled to take into account the fact that damages not only compensate the wronged party but will – or ought to – concentrate the mind of the wrongdoer, especially where the latter is a public authority which is capable, unless it changes its ways, of repeating its error. In fact it is counsel for the Secretary of State for Justice who has advanced the prevention of repetition as the primary Convention objective. None of these considerations trespasses on the separate role of exemplary damages, which are not claimed here.
13. Blair J, had he found for Mr Faulkner, 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 Mental Health Tribunal [2004] QB 396". But he had not quantified the delay as we have now done, and he had not in any event had the advantage we have had of very full submissions on quantum. Both for these reasons and we because we recognise that this judgment may be something of a benchmark, we have made our own assessment.
14. It is first necessary to bear in mind that, even where it is insufficient in itself, the finding of violation is still "an important part of [the] remedy": Lord Bingham in Greenfield, §19.
15. Beyond this, one has to recognise that nothing approaching a tariff has yet emerged from the awards made under art 5(4) in Strasbourg (see Clayton and Tomlinson The Law of Human Rights (2^nd ed) §21.30). This is hardly surprising given not only the variety and disparity of the judicial cultures represented on the Court but the difference in the real value of pecuniary awards among the 47 member states. What one has to work from, as formerly with personal injury awards in domestic law, is a running comparison between the facts of individual cases and the awards made in them.
16. To this end we set out, first, the conspectus advanced by Mr Southey in his written submission:

3.3.1 In Weeks v United Kingdom (1988) 10 EHRR 293, the applicant had been convicted and given a life sentence in 1966 when he was 17 years old. He was released on licence in 1976, but was later recalled to prison by the Secretary of State for the Home Department in June 1977. Following his recall, the applicant had not been entitled to challenge the lawfulness of his detention during the currency of his indeterminate life sentence. However, the European Court held that, in view of the applicant's behaviour, his recall to prison and the period of his subsequent detention were not incompatible with Article 5(1)(a) (at [41]–[53]). Indeed, the European Court noted that, during the period of detention in breach of article 5(4), the Parole Board had taken the view in December 1977 that the applicant was still a danger to himself and to the public and confirmed his recall; the applicant then absconded from an open prison in 1979, surrendering himself in 1980; a provisional release date was deferred after he had, in October 1981 when residing at a prison hostel, injured a hostel warden with a knife during a violent struggle. In the European Court's subsequent decision on just satisfaction [(1991) 13 EHRR 435], the Court did not find that the applicant would have been released earlier but for the breach of article 5(4), but rather noted that he had suffered a "loss of opportunities" with the result that "the claim for pecuniary loss cannot therefore be completely discounted" (at [13]). However, the applicant's case for release was considerably less strong than that of the Appellant in this case (the Court noted, at [13], that "in the light of the recurrence of his behavioural problems the prospect of [the applicant] realising [the lost opportunities] fully was questionable"). Moreover, the European Court does not specify in terms the period of delay, and does not state at any stage that it is laying down a set formula for the assessment of damages for a lost opportunity. The European Court inferred a finding of anxiety and distress, and awarded the applicant £8,000 in 1988, which equates, in today's value, to around £16,560 [15];

3.3.2 In Johnson v. United Kingdom (1999) 27 EHRR 296, the European Court held that the applicant's release from mental health detention had been indefinitely deferred, in breach of article 5(1), for a period of around 3½ years. However, the European Court also held that the applicant had conducted himself in a manner that exacerbated the length of his continued detention (at [20] and [77], as he had not cooperated further with the authorities after October 1990, the start date for the relevant period being June 1989). The European Court also held, at [64], that the Mental Health Review Tribunal had been justified in initially deferring the applicant's release. It appears that these factors had a substantial impact on the level of damages awarded by the European Court. It is difficult to state with precision what period of detention the European Court considered had been served in breach of article 5(1). There is no suggestion in the judgment that the European Court had applied a clear formula to the assessment of non-pecuniary damages. It is also difficult to draw a clear analogy between damages for breach of article 5(1) and for breach of article 5(4). The European Court awarded the applicant £10,000 in non-pecuniary damages (in October 1997), which equates, in today's value, to around £13,800 [77];

3.3.3 In Caballero v. United Kingdom (2000) 30 EHRR 643, the European Court considered that the automatic refusal of bail to the applicant was a breach of article 5(3). Undisputed affidavit evidence was submitted by the applicant to the effect that he would have had a good chance of being released on bail prior to his trial. However, it is also relevant to note that the applicant was subsequently sentenced to four years' imprisonment for the assault conviction and to life imprisonment for the attempted rape conviction and that the trial Court deducted the period of his pre-trial detention from the sentence imposed. The period of detention pending trial was 9 months. The European Court awarded non-pecuniary compensation of £1,000, which it said it had arrived at "on an equitable basis". There was no other reasoning. There was no suggestion that the award should be treated as a benchmark figure. There was no claim under article 5(4). An award of £1,000 in February 2000 equates, approximately, to an award of £1,280 in today's money [31];

3.3.4 In Oldham v United Kingdom (2001) 31 EHRR 34, the complaint was of a two-year delay between Parole Board reviews. Following a recall to custody, the Parole Board refused to re-release in November 1996. The Secretary of State fixed a review date in November 1998 and identified various courses that the claimant was required to undertake. Those courses were completed within 8 months. The UK Government sought to justify the remaining period as being required in order to monitor progress. The court rejected the proposition that two years would be needed for the whole of this activity including monitoring but did not identify what period it considered appropriate in the circumstances. The general damages awarded in that case were £1,000 for non-pecuniary damage for breach of article 5(4) on the basis that "the applicant must have suffered feelings of frustration, uncertainty and anxiety flowing from the delay in review which cannot be compensated solely by the finding of violation" (at [42]). However, the European Court does not specify the length of delay that was in breach of article 5(4). Nor does it find that the applicant would have been released had he received an earlier hearing. Nor does the European Court find that the applicant had a strong case for release in the way that the Appellant plainly was in this case. Rather, as the European Court makes clear, at [17], the applicant was released by the Discretionary Lifer Panel only after it had expressed some reservations about whether release was appropriate. It is perhaps for this reason that the applicant does not appear to have even sought damages for loss of liberty in that case (see the summary of the applicant's submissions on damages at [39] and [40]). There is also nothing in the reasoning of the European Court that would justify the straight application of the award in that case to other cases involving other periods of delay in different circumstances. It should also be noted that an award of £1,000 in 2001 equates to a figure of around £1,240 today [42].

17. We offer the following comments on these decisions. Weeks was an early case, but a substantial award of £8,000 was made for the loss of a not very promising opportunity of parole over an unquantified period. Taken alone, it would set the tariff quite high. Johnson, a decade later, seems in line with Weeks, but the elements making up the award are again inscrutable. From then on, however, there is a change of mood. Caballero, another ultimately unattractive case, in 2001 attracted an award of £1,000 for denial of bail contrary to art. 5(3) which had kept the applicant in prison for a period very similar to that in the present case. And the following year, in Oldham, a case much closer on its facts to Mr Faulkner's, the same sum was awarded for what looks like a delay of the order of 15 months in holding a parole hearing. But it may be that, as Mr Southey points out, damages were not sought for the loss of liberty.
18. We have been reminded of the Strasbourg principle (see Kingsley v United Kingdom (2002) EHRR 10, §40) that one object of just satisfaction is restitutio in integrum. As a principle it is readily understood, but to translate it into money remains a forbidding task. Nevertheless, it is a reminder that the loss of an opportunity of conditional liberty, while not the same thing as false imprisonment, is a real blow to something of real value, and that if it is to be reflected in money the sum should not ordinarily be insubstantial.
19. Beyond this point Mr Kovats relies initially on the decision of this court in Anufrijeva, albeit an art. 8 case. There the court said (§65) that, apart from pecuniary loss, the court should decide whether damages were called for in the light of the claimant's own responsibility for what has gone wrong and "without a close examination of the authorities or an extensive or prolonged examination of the facts". These, however, are questions antecedent to the quantification of an award. We do not see how an award itself can be quantified without attention, sometimes detailed attention, to what has happened. And while the court went on in Anufrijeva (§81) to commend a summary determination of the award with minimal reference to authority, we have also to respect the more circumstantial methodology commended in Greenfield.
20. To this end Mr Kovats advances the following written submission:

22. There are two aspects to the award. One is the loss of the probability of earlier release. The other is psychological distress (not amounting to personal injury) caused by the delay. See Greenfield at paragraphs 15-16.

23. In respect of the first aspect, in R (Pennington) v The Parole Board [2010] EWHC 78 [tab 17] HHJ Pelling QC, sitting as a High Court judge, reviewed the relevant authorities and at paragraph 13 of his judgment, set out a number of principles to be derived from them. He awarded the claimant £1,750 for a breach of article 5(4) that had delayed his release by 3 months: paragraph 25.

24. In respect of the second aspect, the court will not in the absence of specific evidence infer that a claimant has suffered a level of psychological distress that merits an award of damages: R (Betteridge) v The Parole Board [2009] EWHC 1638 (Admin) paragraphs 28, 31 [tab 14]; R (Degainis) v Secretary of State for Justice [2010] EWHC 137 (Admin) paragraphs 15-18, 21-22 [tab 19]. In R (Guntrip) v (1) Secretary of State for Justice (2) The Parole Board [2010] EWHC 3188 (Admin) (attached) Ouseley J awarded the claimant £1,200 for a 2 year breach of article 5 (4) that did not delay release, noting that he might well not have awarded any damages if the delay had only been 1 year: paragraphs 49, 57, 65. In Guntrip, the court found, on the basis of medical evidence that was before the court, that the claimant's mental health problems meant he would have found the distress of the delay harder to cope with.

25. The first respondent submits that these authorities provide the closest and most up to date comparators for the present case. They are first instance cases, and each of them turns ultimately on its facts. There is no question of them binding the Court. Nor does the first respondent suggest that they establish a tariff. But it is obviously desirable that the courts should bear in mind awards made in similar cases, so as to promote consistency and certainty, and thereby to minimise the need for litigation in other cases.

21. We are assisted by these awards, though not of course bound by them. We venture to think, however, that Ouseley J in Guntrip may have undervalued the stress placed on the particular claimant by reason of his fragile mental condition, in spite of the fact that the delayed parole review had not in the event postponed his release.
22. Standing back, but keeping in mind those principles and awards which we have touched on, it has seemed to us that, in addition to the finding of violation, a figure of £10,000 is appropriate and necessary to reflect the loss of some 10 months' conditional liberty by reason of the state's breach of the claimant's right not to continue to be detained in the absence of a speedy decision by a judicial body. We have not arrived at it by applying a multiplier to a monthly sum, although it can no doubt be disaggregated in that way. It is in our judgment the nearest one can come to quantifying just satisfaction in monetary terms for this particular wrong.