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
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Mr Steven Kovats QC (instructed by Treasury Solicitors) for the first Respondent
Mr Sam Grodzinski (instructed by Treasury Solicitors) for the second Respondent
Hearing date: 23rd April 2010
Crown Copyright ©
Lord Justice Sedley:
This is the judgment of the court.
The cause of action
The Ground Rules
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 –). 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 ). However, the applicant's case for release was considerably less strong than that of the Appellant in this case (the Court noted, at , 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 ;
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  and , 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 , 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 ;
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 ;
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 ). 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 , 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  and ). 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 .
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  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  EWHC 1638 (Admin) paragraphs 28, 31 [tab 14]; R (Degainis) v Secretary of State for Justice  EWHC 137 (Admin) paragraphs 15-18, 21-22 [tab 19]. In R (Guntrip) v (1) Secretary of State for Justice (2) The Parole Board  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.