England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		30 November 2004

1. MR JUSTICE BENNETT: Ernest Leslie Wright (to whom I will refer as the claimant) seeks judicial review of the refusal of the Secretary of State for the Home Department (to whom I will refer as the defendant) which was communicated in letters of 6th December 2003 and 15th March 2004, to consider the claimant's claim for compensation pursuant to Article 5(5) of the European Convention on Human Rights in respect of his detention, allegedly unlawful, between 1st July 1993 and 10th November 1999 when he was released on licence.
2. The facts are as follows. On 24th May 1973 the claimant received a mandatory life sentence, having been convicted of murder of the husband of his mistress, whom he had killed with an iron bar. No tariff was then set. However, in 1995 the then Lord Chief Justice recommended a tariff of between 13 and 14 years. No tariff was in fact set because the then Secretary of State decided that the claimant had served a sufficient period to satisfy its requirement.
3. In July 1982, August 1983 and April 1984 the Parole Board considered the claimant's case but did not recommend a transfer to open conditions or his release. On 13th December 1985 the Parole Board did recommend release, subject to the claimant completing nine months on the Pre-Release Employment Scheme (PRES). He was given a provisional release date (PRD) of 2nd February 1987. On 18th February 1986 the Secretary of State accepted that recommendation. On 6th May 1986 the claimant was transferred to the Wakefield PRES hostel. On 13th June 1986 he absconded. On 8th July he was arrested for offences of dishonesty and taking a motor vehicle without consent or unlawful authority. For those offences he was later sentenced to 18 months' imprisonment following conviction on 3rd March 1987.
4. The Parole Board next considered the claimant's case in September 1988. It recommended release via open conditions and a period in a PRES hostel. In December 1988 the Secretary of State accepted the recommendation. On 3rd April 1989 the claimant was transferred to an open prison in Sudbury. When he arrived he said he could not cope with open conditions and dormitories and threatened to abscond. He was persuaded nevertheless to remain at Sudbury. On 19th April 1987 he absconded but was recaptured the same day. He had property in his possession from more than one burglary. However, the police did not prosecute as he was serving a life sentence. He was then sent to a closed prison in Birmingham. In June 1989 he was reallocated to Her Majesty's Prison Ranby, a closed, category C prison.
5. In March 1991 the Parole Board reviewed his case and recommended that he remain in closed conditions for a further 18 months. On 9th April 1991, before that recommendation was made known to the claimant, he escaped whilst on an escorted absence to his sister's home in Shipley. On 13th May he was arrested after being seen driving a stolen car. Again, he was not prosecuted. In June he was transferred to Her Majesty's Prison Blundeston, a category B prison.
6. In June 1993 the Parole Board again reviewed the claimant's case. It recommended his staged release from HMP Blundeston. On 1st July 1993 the defendant rejected the recommendation in the following terms:

"Please inform the above-named prisoner as follows:

'The Secretary of State has referred your case to the Parole Board which has recommended your staged release from Blundeston for the following reasons:

"Mr Wright is no longer a risk and is past tariff."

'The Secretary of State has considered this recommendation but is not prepared to give a date for your release for the following reasons:

"The Secretary of State is not prepared to agree to the Parole Board recommendation. He has taken this decision because you have failed to satisfactorily confront and tackle your offending behaviour and you have displayed a lack of insight into your original offence and into the reasons behind your absconds from prison. Furthermore, the Secretary of State is not confident that you are likely to comply with the conditions of a life licence and the requirements of supervision."

'You will be transferred to a category C prison and your next Parole Board review will begin in October 1994.'"

7. In March 1994 the claimant was transferred to Her Majesty's Prison Lancaster, a category C prison.
8. In December 1994 the Parole Board recommended the claimant's release after a period of PRES. The Secretary of State accepted it but on condition that the claimant first completed six months in an open prison and six months in a PRES hostel. On 30th May 1995 the claimant was transferred to HMP Layhill, an open prison, and given a PRD of 29th May 1996. On 14th September 1995 the claimant absconded. On 22nd October 1995 he was arrested in Blackpool. He was not charged with any offence during that period. The release date was cancelled and he was returned to closed conditions.
9. In September 1998 the Parole Board recommended his release after completion of nine months as a category D prisoner whilst remaining in category C conditions at HMP Wymott. The then Secretary of State accepted the recommendation. Accordingly he was released on licence on 10th December 1999 and has remained on licence ever since.
10. On 15th November 2003 Messrs Lester Morrill, the claimant's solicitors, wrote to the defendant claiming compensation as a result of the decision of the European Court of Human Rights in Stafford v United Kingdom [2002] 35 EHRR 1121, who on 28th May 2002 decided that as a matter of domestic law a mandatory life sentence could no longer be regarded as wholly punitive because it was partly punitive and partly preventative. In the light of the decision in Stafford the House of Lords in R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 ruled that section 29 of the Crimes (Sentences) Act 1997 was incompatible with Article 6 of the European Convention on Human Rights.
11. On 6th December 2003 the defendant responded to the claimant's solicitors' letter in the following terms:

"I should also point out that the Secretary of State in fact only rejected one recommendation for release, in 1993. The recommendations in 1988 and December 1994 (not 1996 as you note) were in fact accepted, but Mr Wright subsequently absconded after being moved to a pre-release hostel. The rejection came one year before Strasbourg held in Wynne (1994) that Article 5(4) did not apply to post-tariff adult mandatory lifers. While Stafford held the opposite in 2002, clearly there was no breach of Convention before 1994.

"As such, I can say that your claim is not being considered as no liability is being admitted and also that the claim is out of time."

12. On 28th January 2004 Silber J gave judgment in R (Richards) v Secretary of State for the Home Department [2004] EWHC 93 Admin
13. On 1st March 2004 the claimant's solicitors wrote again to the defendant, saying, inter alia, as follows:

"We are aware that your letter was written before the High Court gave its judgment on 24th January 2004 in the case of Richards ... In Richards Silber J held that:

(a) there is a freestanding Convention right under Art 5(5) of the Convention so that victims of breaches of Art 5 will have 'an enforceable right to compensation';

(b) the decision in Stafford has retrospective effect.

"On this basis it is our view that your refusal to consider our client's claim for compensation as stated in your letter of 6th December 2003 is action that is incompatible with our client's rights under Art 5(5). On our understanding of the Richards case it does not matter that the original breach of Art 5 occurred before the commencement date of the Human Rights Act 1998. The important decision is the refusal to consider compensation made on 6th December 2003.

"Rather than commence proceedings immediately we feel it is proper to give an opportunity for this matter to be reconsidered in the light of the Richards case.

"However, unless we receive a positive response within 14 days of the date of this letter to the effect that the Secretary of State will consider a payment of compensation to comply with the requirements of Art 5(5) then judicial review proceedings will be commenced without further notice."

14. On 15th March 2004 the defendant replied inter alia as follows:

"We are fully aware of the decision in Richards, and the finding in that case that the ECtHR decision in Stafford has retrospective effect. However, the point that we made in our previous letter is that the only rejection of a recommendation for release in your client's case occurred prior to the ECtHR decision of Wynne in 1994. Whilst Stafford may have some retrospective effect, the European Court made it clear that they were not overruling the earlier Wynne decision, but that the position had merely changed over the intervening years. Accordingly, any executive decision on the release of a mandatory lifer pre-Wynne (and arguably up to 1998 -- the time of the executive release decision in Stafford) cannot be said on any basis to be a breach of Article 5(4). The Richards case does not change this fact.

"Article 5(5) depends on a breach of the other provisions of that Article. For the above reasons, there is no such breach in your client's case, and accordingly we do not accept that there is any right to compensation, quite apart from the obvious time limitations."

15. On 16th April 2004 the claimant launched proceedings for judicial review. The decisions to be reviewed were those communicated to the claimant's solicitors by the defendant's letters of 6th December 2003 and 15th March 2004.
16. Mr Cragg, counsel for the claimant, outlined his submissions as follows:

(i) The claimant's case is based on Richards. There had been a breach in the instant case of the Convention rights under Article 5(1) because the detention of the claimant between June 1993 and November 1999 could not be justified as the claimant, the Parole Board found, presented no risk. There had been also a breach of Article 5(4) because the claimant's detention was not reviewed by a body with power to order his release.

(ii) Richards decided that there is a freestanding Convention right under Article 5(5) for compensation for breach of the provisions of Article 5.

(iii) The defendant acted unlawfully by declining to pay compensation.

(iv) The claimant is entitled to compensation for the breach of Article 5. The court should assess the amount of compensation that ought to be paid.

17. The defendant resisted the claim on three independent grounds which are set out in paragraph 3 of the skeleton argument of Mr Saini, counsel for the defendant, namely:

"The Secretary of State resists the claim on three independent grounds:

(i) The Claimant can have no claim for damages under the Human Rights Act 1998 in respect of detention which pre-dates the coming into force of the Human Rights Act. That is a complete answer to this claim.

(ii) If the Court rejects the first submissions, the Secretary of State submits that the Claimant's detention between June 1993 and November 1999 was in fact lawful under Article 5(1) during the period over which he was detained; it was only on the subsequent change in Convention law in the European Court's ruling in Stafford v UK [2002] 35 EHRR 1121 (delivered on 28 May 2002), that the detention after rejection of a recommendation became unlawful. Silber J's decision in Richards that Stafford had retrospective effect was wrong and should not be followed.

(iii) Third, as in Richards, the Claimant cannot in fact show that he has suffered any loss by reason of his non-release in June 1993. This is because the evidence shows that when he had been released on recommendations both before and after the June 1993 decision, he had committed offences and absconded. The Claimant would accordingly have been detained, as he was on these occasions, if he had been released in June 1993."

18. During Mr Cragg's submissions I asked him whether, if Mr Saini's submission that the claimant could have no claim for damages under the Human Rights Act 1998 in respect of detention which predated the coming into force of that Act was correct, such a submission was a complete answer to the claim. Mr Cragg, rightly in my judgment, conceded that it was. Accordingly, I suggested to both counsel that that point should be argued first and I would then inform counsel whether I had come to a decided view and, if it was adverse to the claimant, I would give counsel an opportunity of making submissions as to how the hearing should then proceed. Both counsel agreed to that suggestion.
19. Accordingly, both counsel made their submissions on the point raised in paragraph 3(i) of Mr Saini's skeleton argument. At the end of the submissions I indicated that Mr Saini had made good his argument. I rose to allow counsel to discuss how the hearing should then proceed. When I returned I was informed by Mr Cragg that he did not wish to proceed since, if I was against him on other factual matters and dismissed the proceedings, he would not be able realistically to challenge my finding under paragraph 3(i) of Mr Saini's skeleton argument. Mr Saini did not oppose that, as the defendant is anxious to test the ruling of Silber J in Richards that Stafford has retrospective effect, which in that case the Secretary of State was unable to do because the proceedings were dismissed on other grounds. Accordingly, I accepted counsel's submissions and I am now thus giving judgment only on the issue raised in paragraph 3(i) of Mr Saini's skeleton argument.
20. Before coming to the submission of counsel I should set out the relevant parts of Article 5 and of the Human Rights Act 1998. Article 5 provides as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court ...

4. 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.

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."

21. I now turn to the Human Rights Act 1998. Section 1(1) provides as follows:

"(1) In this Act 'the Convention rights' means the rights and fundamental freedoms set out in --

(a) Articles 2 to 12 and 14 of the Convention,

(b) Articles 1 to 3 of the First Protocol, and

(c) Articles 1 and 2 of the Sixth Protocol,

as read with Articles 16 to 18 of the Convention.

(2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15).

(3) The Articles are set out in Schedule 1."

Section 2(1)(a) of the 1998 Act provides as follows:

"A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any --

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights."

Subsections (1) and (2) of section 6 provide as follows:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if --

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

Section 7(1) provides as follows:

"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may --

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act."

Section 8(1) and (2) provide as follows:

"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings."

Finally, I refer to section 22(3) and (4):

"(3) The other provisions of this Act come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes.

(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."

22. There is no dispute between counsel that the above provisions came into force on 2nd October 2000, so that the European Convention on Human Rights then became part of the domestic law of England.
23. Mr Cragg's expanded submissions were as follows. Article 5(5) provides a freestanding right to claim compensation. The unlawful act is to be found in the letters of December 2003 and March 2004, to which I have already referred, i.e. the refusal to pay compensation for the breaches of Articles 5(1) and/or 5(4). It is irrelevant that the breaches of Articles 5(1) and/or 5(4) are not actionable in domestic law. The breaches are not actionable in domestic law by reason of the provisions of section 6(2) of the 1998 Act. The situation in the instant case is identical to that in Richards in that the claimant there could not rely on section 6(1) because it was covered by section 6(2).
24. Mr Cragg submitted that, and drew my attention to, the relevant paragraphs in the judgment of Silber J in Richards are those to be found between paragraphs 24 and 48 inclusive. The rival submissions of counsel in that case are set out in paragraphs 24 to 36 inclusive. The judge's reasoning is to be found between paragraphs 37 and 48 inclusive. In essence it was as follows:

(i) Article 5(5) confers a Convention right to enable victims of wrongful detention to have "an enforceable claim for compensation" in the English courts.

(ii) The words used in Article 5(5) stating that those victims of breaches of Article 5 "shall have an enforceable right to compensation" clearly entail the conferment of a right to obtain an enforceable award, and that this award should be in the local courts.

(iii) It is difficult to understand why Article 5(5) is needed if the contracting states could refuse to give an enforceable right to compensation for detention contrary to Article 5.

(iv) The interpretation put forward by the Secretary of State that Article 5(5) imposed nothing more than an obligation in the contracting states to provide an enforceable right for compensation entailed a radical rewriting of Article 5(5) which was unjustifiable.

25. Between paragraphs 46 and 48 inclusive Silber J said:

"46. Sub-issue (iii) raises the question of whether the defendant will contravene the Article 5(5) obligation by not paying compensation to the claimant. I consider that the right conferred under Article 5(5) of the Convention will only be triggered 'if there has been a declaration by the domestic courts, either expressly or impliedly that Article 5 has been contravened' (Human Rights Law and Practice (1999) Lord Lester QC and David Pannick QC paragraph 4.5.58). This right will only arise if the claimant succeeds in establishing a right to damages or compensation but, as I have explained, at this juncture, I am assuming that such a claim will succeed. Thus if the continued detention of the claimant at any time after 17 November 2001 was a breach of Article 5 because of the decision in Stafford and the claimant can establish a right to damages or compensation, then the defendant will have been in breach of Article 5(5) of the Convention by not paying compensation or damages. In other words, the claimant succeeds on this issue but he still has to show, among other things, that he suffered loss.

47. Sub-issue (iv) requires consideration of whether the claimant can bring a claim if the failure of the defendant to pay him damages is a breach of the claimant's Convention rights. Section 6(1) of the HRA makes it unlawful for the defendant as a public authority 'to act in a way which is incompatible' with a Convention right of the claimant, which in this case is the Article 5(5) right to an 'enforceable right to compensation'. Thus, the claimant will succeed on this point unless this claim is precluded by section 6(2) of the HRA, which I have set out in paragraph 15 above. To my mind, section 6(2) of the HRA does not assist the defendant in respect of his claim because, as is common ground, the defendant could have lawfully made a payment of compensation to the claimant.

48. In those circumstances, I consider that the claimant can obtain either an assessment by the court of the appropriate level of compensation payable by the defendant and a mandatory order that he pays such sums or damages under Article 5(5) of the Convention, provided that he can show first that he has suffered some form of damage and second, that he can establish a breach of Article 5, on which he can rely and this entails determining the effect of Stafford, which is the next issue, to which I now turn."

26. Mr Cragg further cited the decision of the European Court in Brogan and others v United Kingdom [1988] ECHR 11209/84. The facts in that case were that the applicants, resident in northern Ireland, had been arrested and detained under the Prevention of Terrorism (Temporary Provisions) Act 1984. They were detained for periods lasting between 4 to 6 days. They were subsequently released without charge. They were never brought before a court. The case came before the European Court of Human Rights where the applicants contended, amongst other things, that there had been breaches of Article 5(1) and 5(3) of the European Convention on Human Rights, since the purpose of their arrest was not to bring them before the competent legal authority and they had not been promptly brought before such an authority or released. The European Court decided that there had been no breach of Article 5(1) but there had been breaches of Article 5(3) and of 5(5). In relation to the Article 5(5) point, the European Court set out the terms of Article 5(5) at paragraph 66 and said:

"A claim for compensation for unlawful deprivation of liberty may be made in the United Kingdom in respect of a breach of domestic law (see para 41 above on false imprisonment). As Article 5 is not considered part of the domestic law of the United Kingdom, no claim for compensation lies for a breach of any provision of Article 5 which does not at the same time constitute a breach of United Kingdom law.

The Government argued, inter alia, that the aim of paragraph 5 is to ensure that the victim of an 'unlawful' arrest or detention should have an enforceable right to compensation. In this regard, they have also contended that 'lawful' for the purposes of the various paragraphs of Article 5 is to be construed as essentially referring back to domestic law and in addition as excluding any element of arbitrariness. They concluded that even in the event of a violation being found of any of the first four paragraphs, there has been no violation of para 5 because the applicants' deprivation of liberty was lawful under Northern Ireland law and was not arbitrary.

67. The Court, like the Commission, considers that such a restrictive interpretation is incompatible with the terms of paragraph 5 which refers to arrest or detention 'in contravention of the provisions of this Article'.

In the instant case, the applicants were arrested and detained lawfully under domestic law but in breach of Article 5(3). This violation could not give rise, either before or after the findings made by the European Court in the present judgment, to an enforceable claim for compensation by the victims before the domestic courts; this was not disputed by the Government.

Accordingly, there has also been a breach of paragraph 5 in this case in respect of all four applicants."

27. The House of Lords' decision in In re McKerr [2004] 1 WLR 807 formed the central plank of Mr Saini's submissions and Mr Cragg sought to deal with it. In that case in 1982 three men, including the applicant's father, were shot dead by members of the Royal Ulster Constabulary. The three officers concerned were prosecuted in respect of the death of one of the men but were acquitted on the direction of the judge. A police investigation was conducted, resulting in a report in 1986/87. An inquest into the deaths was opened in 1984, but was abandoned in 1994. In March 1993 the applicant's mother lodged an application with the European Court which was continued after her death by the applicant. It alleged that Article 2 of the Convention had been breached in that the applicant's father had been unlawfully killed and that there had been no effective investigation into the circumstances of his death. The European Court gave judgment in May 2001. It made no finding as to the lawfulness of the killing but found that there had been a number of shortcomings in the various investigatory proceedings. It held that Article 2 of the Convention had been violated by failure to comply with the obligation implicit in Article 2 to hold an effective official investigation when a person had been killed by the use of force. It awarded the applicant compensation. The Government duly paid that sum but did not propose, subject to any ruling of the courts, to take any steps to hold a further investigation. On 30th June 2002 the applicant started proceedings against the Secretary of State for Northern Ireland for judicial review claiming relief in the form of declarations that the continuing failure of the Secretary of State to provide an Article 2-compliant investigation was unlawful and in breach of section 6 of the 1998 Act and Article 2 of the Convention, and for a mandatory order compelling him to conduct such an investigation.
28. Campbell LJ dismissed the application, holding that the 1998 Act did not have retrospective effect and that the continuing obligation to hold an Article 2-compliant investigation had come to an end with the order of the European Court. The Court of Appeal in Northern Ireland allowed the appeal by the applicant, granting the declaration that the Government had failed to carry out an investigation complying with Article 2.
29. The Secretary of State appealed to the House of Lords. It was held, allowing the appeal, that the Convention was not part of domestic law save in so far as it was incorporated by the 1998 Act and had not been part of domestic law as so incorporated before the Act had come into force on 2nd October 2000; that the Act was not generally retrospective and the obligation under section 6(1) and Article 2 of the Convention to carry out a proper investigation into a violent death had not applied to the death of the applicant's father before 2nd October 2000; and that, since there had been no breach of the obligation before that date, there could be no continuing breach thereafter.
30. Mr Cragg's bold submission was that McKerr was irrelevant. That was a case, he submitted, about Article 2, which gives no freestanding right to compensation in contrast to Article 5, and in particular to the express words in Article 5(5). Article 5(5) is a freestanding right and it is not dependent upon a finding in domestic law of a breach of Articles 5(1) and/or 5(4). In particular, Mr Cragg relied on paragraph 25 in the speech of Lord Nicholls of Birkenhead where he said:

"Having had the advantage of much fuller arguments I respectfully consider that some of these courts, including the Divisional Court in the Hurst's case and the Court of Appeal in Khan's case, fell into error by failing to keep clearly in mind the distinction between (1) rights arising under the Convention and (2) rights created by the 1998 Act by reference to the Convention. These two sets of rights now exist side by side. But there are significant differences between them. The former existed before the enactment of the 1998 Act and they continue to exist. They are not as such part of this country's law because the Convention does not form part of this country's law. That is still the position. These rights, arising under the Convention, are to be contrasted with rights created by the 1998 Act. The latter came into existence for the first time on 2 October 2000. They are part of this country's law. The extent of these rights, created as they were by the 1998 Act, depends upon the proper interpretation of that Act. It by no means follows that the continuing existence of a right arising under the Convention in respect of an act occurring before the 1998 Act came into force will be mirrored by a corresponding right created by the 1998 Act. Whether it finds reflection in this way in the 1998 Act depends upon the proper interpretation of the 1998 Act."

31. For his part, Mr Saini drew my attention to the statutory provisions of the 1998 Act to which I have already referred. He next took me through, in some detail, the House of Lords' decision in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, in which judgment was given on 10th July 2003. The fact in this case are set out in the headnote and I do not propose to repeat them. The defendants' appeal to the House of Lords was allowed, where it was held that in any proceedings the court's power under section 4 of the 1998 Act to make a declaration of incompatibility in respect of primary legislation did not arise unless the court had first construed the legislation in accordance with section 3(1) and concluded that it was not possible to read and give effect to it in a way which was compatible with the Convention rights; that the presumption against the retrospective operation of legislation was based on the principle that, unless a contrary intention was expressed, Parliament could not have intended to alter the law applicable to past events and transactions so as to alter the rights and obligations of the parties in a manner which was unfair to one or other of them; and that there was no contrary intention expressed to indicate that the 1998 Act in general was intended to operate retrospectively.
32. My attention was drawn to passages in the speeches of Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott and Lord Rodger of Earlsferry. I enumerate the paragraphs to which my attention was drawn, and which I have read, without setting them out in extenso. They are as follows: in the speech of Lord Nicholls, paragraphs 10 to 13; in the speech of Lord Hope, paragraphs 88 to 94, and in particular paragraphs 90 and 92; in the speech of Lord Scott, paragraphs 152 to 161, and in particular paragraphs 153 and 161; and in the speech of Lord Rodger, from paragraph 175 to the end of his speech. However I shall set out one quotation from the speech of Lord Nicholls of Birkenhead contained in paragraph 12 which, in my reading of this decision, really encapsulates that which was decided. Lord Nicholls was considering sections 6 to 9 of the 1998 Act. He said:

"The context powerfully supports this interpretation. One would not expect a statute promoting human rights values to render unlawful acts which were lawful when done. That would be to impose liability where none existed at the time the act was done. Sections 7 to 9 are concerned with conduct outlawed by section 6(1). They prescribe remedial consequences which ensue when a public authority has acted, or proposes to act, in a way 'which is made unlawful by section 6(1)': section 7(1). It follows therefore that, like section 6(1), sections 7 to 9 are concerned with post-Act events."

33. I now turn to the decision of the House of Lords in McKerr. The passages in their Lordships' speeches to which I was referred were Lord Nicholls paragraphs 15 to 25 inclusive, Lord Steyn paragraphs 47 and 48, Lord Hoffmann, paragraphs 62 to 68, Lord Rodger, paragraph 81; and Lord Brown of Eaton-under-Heywood, paragraphs 85 to 90.
34. At paragraph Lord Nicholls said:

"It is now settled, as a general proposition, that the 1998 Act is not retrospective. The Act itself treats section 22(4) as an exception. This general proposition, however, raises almost as many questions as it answers. Past events have continuing effects."

35. He then referred to Wilson. At paragraph 20 he continued:

"The position is not so clear where the violation comprises a failure to carry out a proper investigation into a violent death. Obviously there is no difficulty if the death in question occurred post-Act. The position is more difficult if the death occurred, say, shortly before the Act came into force and the necessary investigation would fall to be held in the ordinary course after the Act came into force. On which side of the retrospectivity line is a post-Act failure to investigate a pre-Act death?

"21. In my view the answer lies in appreciating that the obligation to hold an investigation is an obligation triggered by the occurrence of a violent death. The obligation to hold an investigation does not exist in the absence of such a death. The obligation is consequential upon the death. If the death itself is not within the reach of section 6, because it occurred before the Act came into force, it would be surprising if section 6 applied to an obligation consequential upon the death. Rather, one would expect to find that, for section 6 to apply, the death which is the subject of investigation must itself be a death to which section 6 applies. The event giving rise to the article 2 obligation to investigate must have occurred post-Act.

22. I think this is the preferable interpretation of section 6 in the context of article 2. This interpretation has the effect, for the transitional purpose now under consideration, of treating all the obligations arising under article 2 as parts of a single whole. Parliament cannot be taken to have intended that the Act should apply differently to the primary obligation (to protect life) and a consequential obligation (to investigate a death). For this reason I consider these judicial review proceedings are misconceived so far as they are sought to be founded on the enabling power in section 7 of the 1998 Act."

36. In paragraph 63 Lord Hoffmann said:

"It should no longer be necessary to cite authority for the proposition that the Convention, as an international treaty, is not part of English domestic law ... That proposition has been in no way altered or amended by the 1998 Act. Although people sometimes speak of the Convention having been incorporated into domestic law, that is a misleading metaphor. What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state. And their meaning and application is a matter for domestic courts, not the court in Strasbourg."

He continued at paragraph 65:

"If one keeps the distinction between international and domestic obligations firmly in mind, the fallacy in the applicant's reasoning becomes apparent."

37. He continued by referring to a decision of Jackson J in R (Wright) v Secretary of State [2001] Lloyd's Rep Med 478. At paragraph 66, in respect of that decision, he said:

"But the fallacy of the reasoning lies in the notion of a 'continuing breach' of articles 2 and 3. The judge was concerned with the rights of the claimants in domestic law. Before 2 October 2000, there could not have been any breach of a human rights provision in domestic law because the Act had not come into force. So there could be no continuing breach. There may have been a breach of article 2 as a matter of international law and this may have 'continued' after 1 October 2000, although, for the reasons given by my noble and learned friend, Lord Brown of Eaton-under-Heywood, I think it unlikely. But that is irrelevant to whether the claimants had rights in domestic law, for which there can be no source other than the 1998 Act. The Act did not transmute international law obligations into domestic ones. It created new domestic human rights. The simple question is whether as a matter of construction, those rights applied to deaths which occurred before the Act came into force."

At paragraph 67 he said:

"Why then should the ancillary right to an investigation of the death apply to a person who died before the Act came into force? In my opinion it does not. Otherwise there can in principle be no limit to the time one could have to go back into history and carry out investigations."

38. In paragraph 81 Lord Rodger of Earlsferry said:

"What the applicant is really saying, therefore, is that, when the Act came into force, it conferred on him a right under article 2 to have his father's death investigated even though his killing was not, and is not to be regarded as having been, in breach of any article 2 Convention right under the Act. Therefore, the applicant is not asking the courts to apply the Act according to its terms, but to amend them so as to fit this case. That cannot be done. If Parliament had intended the rights under article 2 to be split up, with the Act applying differently to the different aspects, then it would have provided for this expressly."

39. In paragraphs 87, 88 and 89 Lord Brown set out the argument advanced by the Attorney-General on behalf of the Secretary of State. At paragraphs 89 and 90 Lord Brown said:

"The duty to investigate is, in short, necessarily linked to the death itself and cannot arise under domestic law save in respect of a death occurring at a time when article 2 rights were enforceable under domestic law, i.e. on and after 2 October 2000."

90. Such is the argument and to my mind it is irresistible. To say, as Mr Treacy, for this applicant does, that the procedural obligation, once engaged, is a continuing one, regarded by the European Court here as still continuing at the date of their decision in 2001, is nothing to the point. Even were it so (and, as I shall shortly come to explain, for my part I doubt it is), that would be the position only on the international plane. It would say nothing as to whether, on the true interpretation and application of the 1998 Act, a pre-2 October 2000 death could give rise to a procedural obligation to hold an article 2-compliant investigation enforceable under domestic law on and after 2 October 2000."

40. Mr Saini took issue with Mr Cragg's submission that Article 5(5) provides a freestanding Convention right. However, he told me that if what Mr Cragg was submitting was that Article 5(5) made explicit in relation to Article 5 what was correspondingly implicit in other articles (for example, Article 2), then he takes no issue. He submitted that if McKerr is applied, then there is no basis to distinguish between an investigation consequential on death under Article 2 and an express right to compensation under Article 5(5). Unless the breach under Articles 5(1) and 5(4) was actionable in domestic law in England at the time it happened (i.e. 1993 and continuing until 1999), the claimant cannot rely upon what he termed a "parasitic" right under Article 5(5) which flows from the breaches of Article 5(1) and/or 5(4). To adopt the language of Lord Nicholls in paragraph 21 of McKerr, the obligation to pay compensation is an obligation triggered by the unlawful detention between 1993 and 1999. The obligation to pay compensation does not exist in the absence of breaches of Article 5 because Article 5(5) specifically states that there must have been "contravention of the provisions of this Article". If the breaches occurred before 2nd October 2000, when no Convention right was actionable in English domestic law, no compensation is payable under Article 5(5).
41. So far as the case of Richards is concerned, Mr Saini submitted that there is a crucial difference in the facts. In Richards the detention for which compensation was claimed under Article 5(5) began on 16th November 2001 and ran until his release on 12th August 2002, i.e. all the unlawful detention ran post 2nd October 2000. In the instant case all the detention ran from 1993 to 1999, i.e. well before the incorporation of the European Convention on Human Rights into English domestic law. Thus he submitted that the point I am asked to decide never arose in Richards.
42. I should say for the sake of the record that Mr Saini reserved his position on whether, in the light of McKerr, that part of Silber J's reasoning in Richards that compensation could be given although the detention could not be challenged was in fact correct. He submitted that it was unnecessary for him to go that far before me. In respect of the European Court in Brogan he submitted that it did not assist in answering the question that I have to decide.
43. In my judgment the submissions of Mr Saini are much to be preferred to those of Mr Cragg. The European Convention on Human Rights was made part of English domestic law by the 1998 Act. Prior to 2nd October 2000 it was not part of English domestic law. It must therefore follow that no breach of Articles 5(1) and/or 5(4) in respect of a claimant's detention between 1993 and 1999 was actionable in English domestic law; and thus no compensation could have been payable under Article 5(5). The only recourse available to the claimant would have been for him to have gone directly to the European Court of Human Rights.
44. In Wilson and McKerr the House of Lords said that, save for certain exceptions which do not apply in the instant case, the provisions of the 1998 Act were not intended to apply to matters which occurred before 2nd October 2000. I accept that McKerr was concerned with section 6. Mr Cragg has submitted that section 6(2) operates in the instant case as it did in Richards to take the matter out of section 6(1). But even on the assumption that that is correct, I do not see how the very strong and powerful dicta of the House of Lords in Wilson and McKerr can thereby be circumvented. Furthermore, the logic of Mr Cragg's argument (which he readily accepted) is that Article 5(5) could be used by convicted murderers, in respect of detention following the refusal of the Secretary of State to accept the Parole Board's recommendation for release, going back to the abolition of the death penalty and the provision that a person convicted of murder shall be sentenced to life imprisonment, pursuant to the Murder (Abolition of the Death Penalty) Act 1965. That, to my mind, is a startling proposition.
45. I accept Mr Saini's submissions that Article 5(5), which, as with the other parts of Article 5, only became part of English domestic law with effect from 2nd October 2000, is parasitic on Article 5. There is no enforceable right to compensation unless there has been a 'contravention of the provisions of this Article'. In my judgment it is logical and consistent with Wilson and McKerr to hold that compensation is payable under Article 5(5), provided that breach under Article 5(1) and/or 5(4) occurred after 2nd October 2000, whether or not a cause of action under section 6(1) could be defeated by reason of section 6(2) of the 1998 Act. For, if section 6(2) did not apply, then a claimant would be within section 6(1) and McKerr would, in my judgment, prevent a claimant from claiming compensation under Article 5(5) in respect of breaches under Article 5(1) and 5(4) which took place prior to 2nd October 2000. I see no reason why, if section 6(2) applies, which it is said to do in the instant case, a claimant such as the claimant in this case should be able to circumvent the clear decisions of the House of Lords and thus be in a better position.
46. Mr Cragg in his skeleton argument drew my attention to a decision of the Court of Appeal of Northern Ireland in Jordan v Lord Chancellor [2004] NICA 29, but which he did not refer to in oral argument. In that case the deceased died in 1992. An inquest was started in January 1995 and adjourned on a number of occasions. Prior to the start of the inquest the father of the deceased lodged an application before the European Court alleging a breach of Article 2. At 2003 37 EHRR 52 the court concluded that the Article 2 obligation to protect life required by implication that there should be some sort of effective official investigation when individuals had been killed as a result of the use of lethal force by agents of the state. It found a number of shortcomings in the investigation. Following a number of adjournments the coroner fixed a preliminary hearing on 9th and 10th October 2001. There was another preliminary hearing on 9th January 2002. In a judicial review application the claimant challenged the decision of the coroner in respect of a number of issues he had decided on 9th January 2002.
47. At paragraphs 13 and 23 Girvan J distinguished McKerr because that case was not dealing with a situation where there was a continuing and incomplete inquest which failed to be completed subsequent to the commencement of the 1998 Act, as was the case in Jordan. In my judgment, if it is necessary to say so, I would distinguish Jordan on the grounds that the detention in the instant case was over by November 1999, and thus obviously did not continue up to and after 2nd October 2000.
48. For those reasons the claim will be dismissed.
49. MR CRAGG: My Lord, I am grateful. There was one point I wanted to clarify with your Lordship, if I can do that. After your Lordship read out paragraph 25 of McKerr, your Lordship said that I had been at pains to submit that the 1998 Act was not relied upon by us, but that we relied upon the terms of Article 5(5). I think I was at pains to submit that we were not relying on the 1998 Act for the purposes of article 5(1) and 5(4), but of course we did rely on the 1998 Act for the purposes of Article 5(5).
50. MR JUSTICE BENNETT: Shall I cross that bit out then, if you tell me I have it wrong? I clearly understood you to say what I thought I had said in my judgment, but I accept my mistake.
51. MR CRAGG: We had to rely on the 1998 Act for the purposes of Article 5(5).
52. MR JUSTICE BENNETT: Shall I just cross that bit out then? If you tell me you did not submit that, I will cross it out when I come to --
53. MR CRAGG: That would be fine. It is only a minor point in the judgment.
54. MR JUSTICE BENNETT: Thank you. Yes.
55. MR SAINI: My Lord, I have no application for costs.
56. MR JUSTICE BENNETT: No.
57. MR CRAGG: My Lord, I am grateful for that. My Lord, your Lordship did indicate yesterday that your Lordship would grant permission to appeal. I do formally apply for that.
58. MR JUSTICE BENNETT: I grant you permission to appeal.
59. MR CRAGG: I am grateful. My Lord, I am thinking about the timetable for lodging the necessary documentation. (inaudible) the Christmas and New Year, and also for leave on my side for us to apply for an extension of the public funding certificates. I wonder whether it would be possible to apply for an extension of time to appeal, so we are not caught by the Christmas period if there is any delay in public funding being granted, and I wanted to ask for an extension until 18th January.
60. MR SAINI: I have no objection to that.
61. MR JUSTICE BENNETT: Mr Saini has no objection to that so you shall have it.
62. MR CRAGG: I am very grateful. The only other thing I need to ask for is detailed assessment of the claimant's publicly funded --
63. MR JUSTICE BENNETT: Certainly. You shall have that with pleasure. Thank you both very much.