ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE MITTING)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE KITCHIN
|- and -
(1)Secretary of State for Justice
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Mr Simon Murray (instructed by Treasury Solicitor) appeared on behalf of the First Respondent (SSJ).
Mr David Mankell (instructed by Treasury Solicitor) appeared on behalf of the Second Respondent/Interested Party (Parole Board).
Crown Copyright ©
Lord Justice Laws:
"5 (a)a life prisoner to whom this section applies has served the relevant part of his sentence; and
(b)the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
(6)The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless—
(b)the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
"...the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences"
"I have myself reached a conclusion that you will be dangerous. You hold and express strong views. You are physically very strong. You are possessed of a forceful personality. If you meant what you said in evidence, you regard it as your right to respond with violence to anyone who uses it or threatens you. In my judgment you would not shrink from exercising that supposed right. For some years you have not brought your heavy drinking under control and you have not respected court orders for drink-related offences. You are, in addition, a cocaine user. You do not yet show any commitment to change your drinking and drug-taking habit.
I have reached the conclusion therefore that you do pose a danger of the sort described by the Act, largely because of your drinking and your unreformed attitude and your personality."
"That brief description of the views of responsible officials about the claimant demonstrates that this was a far from straightforward case for the Parole Board when it came to consider its decision."
"The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel of the Parole Board that considered your case on 14 April and 10 May 2010 was not so satisfied that your risk was low enough to direct release. However it does recommend your transfer to open conditions."
"Having taken into account the written and oral evidence and the matters specified in the Secretary of State's directions, the panel commends you for your progress but considers that your risk was not low enough to be released. However there would be significant benefits to a period of time in open conditions where you could test and develop your relapse prevention plans and further build your relationship with your family."
"the test to be applied by the Parole Board in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined is whether the likelihood of risk to life and limb of others is considered to be more than minimal."
"The Board is empowered to direct the release of those indeterminate sentence prisoners who have served a period of imprisonment necessary to satisfy the requirements of retribution and deterrence, the tariff. In order to direct release, the Board must be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The test to be applied is whether the offender's level of risk to life and limb is considered to be more than minimal. There is a presumption that release will not be directed unless the evidence demonstrates to the Board's satisfaction that the level of risk is acceptable for release. The Board should refuse to direct release where it is satisfied that there exists the risk of serious violence or sexual offending, including arson, irrespective of the precise nature of the index offence."
The claimant was released on licence by direction of the Parole Board on 7 September 2011.
"(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.
(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."
"It is...to Strasbourg that British courts must look for guidance on the award of damages."
The core provision in our domestic law which marches with Article 41 is the requirement of section 8(3) that the court be satisfied "that the award is necessary to afford just satisfaction" to the claimant.
"Of course whether a finding of breach of the Convention is sufficient to afford the applicant just satisfaction is a peculiarly subjective matter and it is therefore not surprising to find that the case law does not provide any coherent principles to apply in deciding whether or not this is the case and there are cases where different results have occurred even though they appear to be indistinguishable on their facts. All that can be said is that it appears to be an increasing trend in the European Convention on Human Rights that a finding of breach alone is sufficient."
That last observation is not a view shared by all the commentators.
"These are important rights, and significant violations are not to be lightly regarded. But they have one feature which distinguishes them from violations of articles such as article 3, where an applicant has been tortured, or article 4, where he has been enslaved, or article 8, where a child has been unjustifiably removed from its family; that it does not follow from a finding that the trial process has involved a breach of an article 6 right that the outcome of the trial process was wrong or would have been otherwise had the breach not occurred. There is an obvious contrast with article 5, guaranteeing the right to liberty and security of the person, which provides in para (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.'
There is a risk of error if Strasbourg decisions given in relation to one article of the Convention are read across as applicable to another."
"In the great majority of cases in which the European Court has found a violation of article 6 it has treated the finding of the violation as, in itself, just satisfaction under article 41. Very many examples could be cited… "
Examples are then given. The quotation continues:
"In most of these cases the Court declined to speculate on what the outcome of the particular proceedings would have been had the violation not occurred.
The routine treatment of a finding of violation as, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation. It is noteworthy that, in exercising its former jurisdiction under the original article 32, the Committee of Ministers did not, before 1987, award compensation at all, even where a violation was found: D J Harris, M O'Boyle and C Warbrick: Law of the European Convention on Human Rights (Butterworths, 1995), p 699. Thus the Court of Appeal (Lord Woolf CJ, Lord Phillips of Worth Matravers MR and Auld LJ) were in my opinion right to say in Anufrijeva v Southwark London Borough Council  EWCA Civ 1406,  QB 1124, paras 52-53:
'52. … The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages.
53. Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance.'
Where article 6 is found to have been breached, the outcome will often be that a decision is quashed and a retrial ordered, which will vindicate the victim's Convention right.
"In the present case, the Court cannot speculate as to whether the applicant would have been detained if the procedural guarantees of Article 5 § 4 of the Convention had been respected in his case. Consequently, the Court considers that the non-pecuniary damage claimed is adequately compensated by the finding of a violation of this provision."
This follows the line taken in Nikolova v Bulgaria  31 EHRR 64 (paragraph 76) and Niedbala v Poland  33 EHRR 1137 (paragraph 88).
"...no 'clear and constant jurisprudence' of the European Court on the recoverability of damages for distress under Article 5.5 in the absence of deprivation of liberty. There are two principles applied by the Court: that damages are not recoverable in the absence of deprivation of liberty, and that damages are recoverable for distress which may be inferred from the facts of the case. It follows that this Court must itself determine the principles it is to apply."
At paragraph 73 Stanley Burnton J indicated that the principle which he would apply to claims for damages for distress was as follows:
"Thus, even in the case of mentally ill claimants, not every feeling of frustration and distress will justify an award of damages. The frustration and distress must be significant: of such intensity that it would in itself justify an award of compensation for non-pecuniary damages. In my judgement, an important touchstone of that intensity in cases such as the present will be that the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes."
"...in many cases, perhaps the large majority, a declaration will be a sufficiently effective and just remedy."
However, he awarded £1200, recognising two unusual features which he stated had particular force. The first was the long delay. The second was described by Ouseley J as follows at paragraph 56:
"Second, the Claimant did suffer from mental illness which I am satisfied made that delay and uncertainty more difficult to cope with. And his stress and frustration were further exacerbated here because, although I have concluded that an earlier review would not have led to release or transfer, the Claimant had made what appeared to be very considerable, largely successful and distinctly promising efforts on his courses, gaining support from responsible officers at least for progress to open conditions. He had a reasonable basis for genuinely believing he would be released or transferred to open conditions, and that delay in the review alone stood in his way."
"It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage."
The words "of such intensity" were emphasised not by the court but by Stanley Burnton J quoting that observation.
"The point has sufficient of a history and is of sufficient importance for it not to be concluded at the permission stage."
"The real answer to Mr Fitzgerald's submission we have concluded to be this: the sentencing court recognises that passing a life sentence may well cause the accused to serve longer, and sometimes substantially longer, than his just desserts. It must thus not expose him to that peril unless there is compelling justification for such a course. That compelling justification is the perception of grave future risk amounting to an actual likelihood of dangerousness. But of course the court's perception of that future risk is inevitably imprecise. It is having to project its assessment many years forward and without the benefit of a constant process of monitoring and reporting such as will be enjoyed by the Parole Board. When at the post-tariff stage the assessment comes to be made by that court they are thus much better placed to evaluate the true extent of the risk will be posed by the prisoner's release. And they are a more expert body, custom built by Parliament for the purpose. Given those considerations, and given too that their recommendations for release on licence, if accepted by the Secretary of State, will have immediate effect in terms of endangering public safety -- quite unlike the decision of the trial judge whose sentence would in any event had protected society for an appreciable time -- it seems to us perfectly appropriate that the Parole Board to apply some lower test of dangerousness, ie one less favourable to the prisoner.
In short, the true position is in our judgment this, the imposition of the life sentence itself can only be justified by a very high degree of perceived public danger: there would otherwise be the temptation to impose it altogether too often simply in the interests of long term public safety. But, once lawfully imposed, the life sentence then justifies the prisoner's continued detention, even although the risk is ultimately perceived is substantially less than an actual probability of his seriously re-offending upon release, and common sense surely supports such a conclusion. Were it otherwise, the Parole Board would be required to release back into society a relatively high risk group some of whom (although logically, of course, less than 50 per cent) would commit further serious offences of violence. Parliament cannot be thought to have intended such an approach. We certainly do not feel driven to circumscribe the Parole Board's discretion in such a fashion."
"The issue raised in these proceedings is much narrower. It is that the Board in its decision letter, by its reference to the Secretary of State's directions, demonstrated that, contrary to the clearest statement of principle in Girling, it was paying heed to something that it should not. The answer to that is factually simple. The Secretary of State's directions contain a good deal of general and perfectly sensible guidance about the approach which should be adopted when assessing the suitability of a prisoner for release on licence (paragraphs 5 and 6). Those were held by the Court of Appeal in Girling to be unobjectionable. I need not set them out. They are clearly unobjectionable. In my judgment, and as a matter of fact, the Board was simply referring to that unobjectionable part of the guidance when it made the comment that it had regard to the Secretary of State's directions when reaching the decision."
Lord Justice McFarlane:
Lord Justice Patten:
Order: 2011/0904 allowed; 2011/0979 dismissed