R (on the application of Faulkner) (FC) (Appellant) v Secretary of State for Justice and another (Respondents)
R (on the application of Faulkner) (FC) (Respondent) v Secretary of State for Justice (Respondent) and The Parole Board (Appellant)
R (on the application of Sturnham) (Appellant) v The Parole Board of England and Wales and another (Respondents)
Lord Neuberger, President
JUDGMENT GIVEN ON
1 May 2013
Heard on 19, 20 and 21 November 2013
Hugh Southey QC
(Instructed by Chivers)
Sam Grodzinski QC
(Instructed by Treasury Solicitors)
Sam Grodzinski QC
(Instructed by Treasury Solicitors)
Hugh Southey QC
(Instructed by Chivers)
| Appellant (Sturnham)
Hugh Southey QC
(Instructed by Chivers)
Sam Grodzinski QC
(Instructed by Treasury Solicitors)
Lord Faulks QC
(Instructed by Treasury Solicitors)
LORD REED (with whom Lord Neuberger, Lord Mance and Lord Kerr agree)
The background to the appeals
"(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 a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court "
Article 5(4) provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
"The 'lawfulness' required by the Convention presupposes not only conformity with domestic law but also conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of article 5(1). Furthermore, the word 'after' in sub-paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue."
In relation to a discretionary life sentence imposed for the purpose of public protection, the court added (para 49):
"The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. 'In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5.'"
Summary of conclusions
1. A prisoner whose detention is prolonged as the result of a delay in the consideration of his case by the Board, in violation of article 5(4) of the Convention, is not the victim of false imprisonment.
2. Nor is he ordinarily the victim of a violation of article 5(1) of the Convention: such a violation would require exceptional circumstances warranting the conclusion that the prisoner's continued detention had become arbitrary.
3. At the present stage of the development of the remedy of damages under section 8 of the 1998 Act, courts should be guided, following R (Greenfield) v Secretary of State for the Home Department  1 WLR 673, primarily by any clear and consistent practice of the European court.
4. In particular, the quantum of awards under section 8 should broadly reflect the level of awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living.
5. Courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so.
6. Where it is established on a balance of probabilities that a violation of article 5(4) has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention.
7. The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases.
8. Pecuniary losses proved to have been caused by the prolongation of detention should be compensated in full.
9. It will not be appropriate as a matter of course to take into account, as a factor mitigating the harm suffered, that the claimant was recalled to prison following his eventual release. There may however be circumstances in which the claimant's recall to prison is relevant to the assessment of damages.
10. Damages should not be awarded merely for the loss of a chance of earlier release.
11. Nor should damages be adjusted according to the degree of probability of release if the violation of article 5(4) had not occurred.
12. Where it is not established that an earlier hearing would have resulted in earlier release, there is nevertheless a strong, but not irrebuttable, presumption that delay in violation of article 5(4) has caused the prisoner to suffer feelings of frustration and anxiety.
13. Where such feelings can be presumed or are shown to have been suffered, the finding of a violation will not ordinarily constitute sufficient just satisfaction. An award of damages should also be made.
14. Such damages should be on a modest scale.
15. No award should however be made where the delay was such that any resultant frustration and anxiety were insufficiently severe to warrant such an award. That is unlikely to be the position where the delay was of the order of three months or more.
The lawfulness of detention when there is a violation of article 5(4)
"The claimants' cases were referred by [the Secretary of State] to the Parole Board as the statute required. A favourable consideration of them may have been delayed, but performance of its task of monitoring their continued detention was not rendered impossible. Mr Lee and Mr Wells remain in custody because the Board was not yet satisfied that they are no longer a risk to the public. The causal link with the objectives of the sentencing court has not been broken."
Just satisfaction and damages
"If the court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the high contracting party concerned allows only partial reparation to be made, the court shall, if necessary, afford just satisfaction to the injured party."
"(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.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including -
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining -
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention.
(6) In this section -
'court' includes a tribunal;
'damages' means damages for an unlawful act of a public authority; and
'unlawful' means unlawful under section 6(1)."
"this is a legalistic distinction which is contradicted by the White Paper [Rights Brought Home: The Human Rights Bill (1997) (Cm 3782)] and the language of section 8 and has no place in a decision on the quantum of an award, to which principle has little application. The court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all."
"The court recalls that it is not its role under article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage."
Damages for violations of the requirement that the lawfulness of detention be reviewed "speedily"
Violations of the requirement that reviews of the lawfulness of detention follow a fair procedure
"Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial."
There had also been a breach of article 5(4): the proceedings before the domestic court were not truly adversarial and did not ensure equality of arms, and the court had failed to consider the applicant's contentions.
"The court recalls that in certain cases which concerned violations of article 5(3) and (4) it has granted claims for relatively small amounts in respect of non-pecuniary damage (see Van Droogenbroeck v Belgium (1991) 13 EHRR 546, para 13, and De Jong, Baljet and Van den Brink v Netherlands (1986) 8 EHRR 20, para 65). However, in more recent cases concerning violations of either or both paragraphs 3 and 4 of article 5, the court has declined to accept such claims (see Pauwels v Belgium (1989) 11 EHRR 238, para 46, Brogan v United Kingdom (1989) 11 EHRR 117, para 9, Huber v Switzerland 23 October 1990, BAILII:  ECHR 25, Publications of the European Court of Human Rights, Series A no 188, p 19, para 46, Toth v Austria (1992) 14 EHRR 551, para 91, Kampanis v Greece (1996) 21 EHRR 43, para 66, and Hood v United Kingdom (2000) 29 EHRR 365, paras 84-87). In some of these judgments the court noted that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of article 5(3) and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered.
In the present case the court sees no reason to depart from the above case law. The court cannot speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention. As to the alleged frustration suffered by her on account of the absence of adequate procedural guarantees during her detention, the court finds that in the particular circumstances of the case the finding of a violation is sufficient."
"The awards of non-pecuniary damages in Reid v United Kingdom (2003) 37 EHRR 9 and in the series of French cases to which the applicant referred [Delbec v France (Application No 43125/98) (unreported, BAILII:  ECHR 495) 18 June 2002 and Laidin v France (Application No 43191/98) (unreported, BAILII:  ECHR 707) 5 November 2002, both concerned with failures to deal speedily with applications to be discharged from psychiatric hospitals] followed findings of, inter alia, unreasonable delay in the domestic proceedings determining applications for release from detention. This is consistent with the award of non-pecuniary damages following a finding of unreasonable delay under article 6(1) of the Convention: despite the procedural nature of such a violation, it is accepted that there can be a causal link between the violation (delay) and the non-pecuniary damage claimed (see, more recently, Mitchell and Holloway v United Kingdom (2003) 36 EHRR 52, para 69)."
Is there a de minimis principle?
The quantum of awards for feelings of frustration and anxiety
The quantum of awards for loss of liberty
The case of Daniel Faulkner
(1) Mr Faulkner had suffered a breach of article 5(4) lasting for a period of 10 months, between March 2008 and January 2009, due to unjustified delays on the part of the Ministry of Justice. There had not been any unjustified delay by the Board in setting the hearing date, once all the reports were available.
(2) There was no reason in this case to award damages for a breach of article 5(4) on the basis of a loss of a real chance of earlier release. Rather, it was necessary for Mr Faulkner to show that he would have been released earlier if the breach had not occurred.
(3) Mr Faulkner had shown on the balance of probabilities that he would have been released if the review had taken place in about March 2008.
(4) As a result of the breach of article 5(4), Mr Faulkner had spent some 10 months in prison when he ought not to have done.
The court then invited parties to make written submissions on the quantum of damages.
The case of Samuel Sturnham
(1) Mr Sturnham's rights under article 5(4) were breached in that the hearing before the Board did not take place until approximately six months had elapsed from the date on which it should have taken place. That delay resulted from the delay in the delivery of the dossier to the Board.
(2) There was no prospect that Mr Sturnham's release would have been ordered if the hearing had taken place six months earlier.
(3) It was more likely than not that the Board would have directed Mr Sturnham's transfer to open conditions six months earlier than occurred.
(4) Such a transfer would not necessarily have resulted in his earlier release. Nor would it have done so to a lower standard of probability.
(5) Mr Sturnham had been caused anxiety and distress by the delay.
"The court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment."
That provision is concerned with questions which it is necessary to determine in order to do justice in an appeal. It does not provide a means of circumventing the need to obtain permission to appeal, where such permission is necessary in order to raise the question in issue. As I have explained, Mr Sturnham was refused permission to appeal in respect of the quantum of the award. It is unnecessary to determine whether the award was too low in order to do justice in his appeal against the quashing of the award. Mr Sturnham's application should therefore be refused.
Postscript: submissions on the case law of the European Court of Human Rights
1. The name and citation of the case, and its location in the bound volumes of authorities.
2. The violations of the Convention which were established, with references to the paragraphs in the judgment where the findings were made.
3. The damages awarded, if any. It is helpful if their sterling equivalent at present values can be agreed.
4. A brief summary of the appellant's contentions in relation to the case, with references to the key paragraphs in the judgment.
5. A brief summary of the respondent's contentions in relation to the case, again with references to the key paragraphs.
"Principles" under the Human Rights Act 1998
"On the one hand, the German and Dutch systems have rules as detailed as the English. Their theories of causation are highly developed, and pecuniary and non-pecuniary loss are dealt with under clearly separated headings. In contrast, French and Belgian courts proceed 'empirically' in matters of causation, with a minimum of theorising and 'swayed by considerations of fairness as much as causal potency'.
Thus, in French private law, for example, the measure of damages is regarded as a matter for the 'sovereign power of assessment' of the judge of first instance. The comparative lack of structure is most evident in relation to the assessment of the relevant damage. This is always treated as a question of fact, thus leaving the judge in the lower court with a degree of unstructured discretion to adjust the award as he or she sees fit. As long as the award is framed properly in law, the appeal courts will not interfere with it. Conventional scales are sometimes used, but must not be treated as rules of law. In particular, French judges do not draw clear distinctions between different heads of loss. The Strasbourg practice appears to be close to the French tradition." (para 3.7-8).
They also cited practical factors:
"At a more practical level, the character and size of the court inevitably affects its ability to deal with detailed issues of damages in a consistent way. It is a large body, sitting in a number of different constitutions. The judges are drawn from different backgrounds and diverse jurisdictions, and will have varied experiences of awarding damages. It is inevitable that their views as to the proper level of compensation, and the basis on which it should be assessed, will differ." (para 3.10)
"It is rare to find a reasoned decision articulating principles on which a remedy is afforded. One former judge of the European Court of Human Rights privately states: 'We have no principles'. Another judge responds, 'We have principles, we just do not apply them'." (D Shelton, Remedies in International Human Rights Law (1999) p 1)
Similarly, Lester and Pannick saw the court's decisions on just satisfaction as "little more than equitable assessments of the facts of the individual case", and urged that there is a "danger of spending time attempting to identify principles that do not exist." (Lord Lester of Herne Hill and D Pannick (eds), Human Rights Law and Practice (1999) para 2.8.4, note 3). As will be seen, the court has taken some steps to address these criticisms by choosing particular cases in which to offer more reasoned justifications.
" 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.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."
"In all the circumstances, and in accordance with its normal practice, in civil and criminal cases, as regards violations of article 6(1) caused by failures of objective or structural independence and impartiality, the court does not consider it appropriate to award monetary compensation to the applicant in respect of loss of procedural opportunity or any distress, loss or damage allegedly flowing from the outcome of the domestic proceedings." (emphasis added)
Lord Bingham commented:
"Thus, whatever the practice in other classes of case, the ordinary practice is not to make an award in cases of structural bias." (para 16)
On the facts of the case before him, he found "no special feature which warrants an award of damages" (para 29).
Principles under article 5(4)
" the court stated that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the procedural guarantees of article 5 of the Convention and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered. (para 91)
92. 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."
Faced with a claim of US$300,000 for pecuniary and non-pecuniary loss, alleged to arise from loss of family life, destruction of a business, and pain and distress (para 89), the court made no award, since it was not possible to speculate whether the violation of article 5(4) made any difference to the detention.
i) The issue of damages for non-pecuniary loss under article 5(3) and (4) seems to have been subject to vigorous debate within the court between 2001 and 2002.
ii) The three Parole Board cases demonstrated a consistency of approach, expressed in consistent language, over a period of five years to cases of significant delay before the Parole Board. The court was willing to make an award of £1,000 as "equitable" compensation for non-pecuniary loss, regardless of the prospects of earlier release.
iii) That approach was maintained both before and after the Migon decision. Judge Bratza, who led the chamber in Migon and was party to the judgment in HL, was also involved in all three decisions. There is no indication that he or the chamber as a whole saw any conflict between them. The natural explanation is that drawn by the court itself in HL.