View source for ICLR R (Faulkner) v SSJ (2013) UKSC 23, (2013) MHLO 60

''HUMAN RIGHTS — Liberty — Just satisfaction — Claimants serving life imprisonment or indeterminate sentence of imprisonment for public protection — Claimants’ cases referred to Parole Board prior to expiry of minimum term — Review delayed in breach of claimants’ Convention right — Whether false imprisonment if claimants would have been at liberty but for delay — Whether award of damages for breach of Convention right appropriate — Whether declaration sufficient to afford just satisfaction — Human Rights Act 1998, s 8, Sch 1, Pt I, art 5''

<b>Regina (Faulkner) v Secretary of State for Justice and another

Regina (Sturnham) v Parole Board and another

[2013] UKSC 23;  [2013] WLR (D)  162</b>

SC(E):  Lord Neuberger of Abbotsbury PSC, Lord Mance, Lord Kerr of Tonaghmore, Lord Reed, Lord Carnwath JJSC:  1 May 2013

Where it was established on a balance of probabilities that a delay in holding a hearing before the Parole Board, in violation of art 5.4 of the Convention for the Protection of Human Rights and Fundamental Freedoms, had 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.

Where it was not established that an earlier hearing would have resulted in earlier release, there was nevertheless a strong, but not irrebuttable, presumption that delay in violation of art 5.4 had caused the prisoner to suffer feelings of frustration and anxiety and, where such feelings could be presumed or were shown to have been suffered, the finding of a violation would not ordinarily constitute sufficient just satisfaction and an award of damages on a modest scale should also be made.

A prisoner whose detention was prolonged as the result of a delay in the consideration of his case by the Parole Board, in violation of art 5.4, was not the victim of false imprisonment nor was he ordinarily the victim of a violation of art 5.1 of the Convention, since such a violation would require exceptional circumstances warranting the conclusion that the prisoner’s continued detention had become arbitrary.

The Supreme Court so held in (1) allowing in part the Parole Board’s appeal against the decision of the Court of Appeal (Sedley, Hooper and Wilson LJJ) [2011] HRLR 489 to overturn the decision of Blair J [2009] EWHC 1507 (Admin) and to orde the Secretary of State for Justice to pay the claimant, Daniel Faulkner, who had been sentenced to custody for life, £10,000 damages under s 8 of the Human Rights Act 1998 for a 10-month delay, in breach of his rights under art 5.4 of the Convention, in holding a hearing before the board to review his ongoing detention, which would in all probability have led to a direction for his release; and (2) allowing the appeal of the claimant, Samuel Sturnham, a prisoner serving an indeterminate sentence for public protection, against the decision of the Court of Appeal (Laws, McFarlane and Kitchin LJJ) [2012] 3 WLR 476 to quash the decision of Mitting J [2011] EWHC 938 (Admin) who had ordered the the Secretary of State for Justice to pay the claimant £300 damages for anxiety and distress caused by a six-month delay, in breach of his rights under art 5.4, in holding a hearing before the Parole Board to review his ongoing detention, although an earlier hearing would not have resulted in his earlier release.

'''LORD REED JSC''' (with whom '''LORD NEUBERGER OF ABBOTSBURY PSC''', '''LORD MANCE''' and '''LORD KERR JJSC''' agreed) said that a prisoner whose detention was prolonged as the result of a delay in the consideration of his case by the board, in violation of art 5.4 of the Convention, was not the victim of false imprisonment. Nor was he ordinarily the victim of a violation of art 5.1: such a violation would require exceptional circumstances warranting the conclusion that the prisoner’s continued detention had become arbitrary. At the present stage of the development of the remedy of damages under s 8 of the 1998 Act, courts should be guided primarily by any clear and consistent practice of the European Court of Human Rights. In particular, the quantum of awards under s 8 should broadly reflect the level of awards made by the European court in comparable cases brought by applicants from the United Kingdom or other countries with a similar cost of living. Where it was established on a balance of probabilities that a violation of art 5.4 had 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. The appropriate amount to be awarded in such circumstances would be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as was available from awards made by the European court, or by domestic courts under s 8 of the 1998 Act, in comparable cases. It would not be appropriate as a matter of course to take into account, as a factor mitigating the harm suffered, that the claimant had been recalled to prison following his eventual release. There might however be circumstances in which the claimant’s recall to prison was relevant to the assessment of damages. Damages should not be awarded merely for the loss of a chance of earlier release. Nor should damages be adjusted according to the degree of probability of release if the violation of art 5.4 had not occurred. Where it was not established that an earlier hearing would have resulted in earlier release, there was nevertheless a strong, but not irrebuttable, presumption that delay in violation of art 5.4 had caused the prisoner to suffer feelings of frustration and anxiety. Where such feelings could be presumed or were shown to have been suffered, the finding of a violation would not ordinarily constitute sufficient just satisfaction. An award of damages on a modest scale should also be made. No award should be made where the delay was such that any resultant frustration and anxiety were insufficiently severe to warrant such an award. That was unlikely to be the position where the delay was of the order of three months or more. An appellate court would not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance. In the present appeals, however, the court was being invited to give guidance as to the appropriate level of awards in such cases. For that purpose, the court had undertaken a fuller analysis of the European court authorities than the Court of Appeal had done, in the course of which it had considered authorities to which that court had not been referred. In the light of that analysis, and applying the general approach described above, the appeal in the first case should be allowed and the sum of £10,000 awarded as damages to the claimant should be reduced to £6,500, and the appeal in the second case against the quashing of the claimant’s award of damages should be allowed.

The following guidance should be followed in any future cases where it was necessary to cite substantial numbers of European Court of Human Rights decisions on the application of art 41 with a view to identifying the underlying principles. First, the court should be provided with an agreed Scott schedule, that was to say a table setting out the relevant information about each of the authorities under a series of columns. The information required was: the name and citation of the case, and its location in the bound volumes of authorities; the violations of the Convention which were established, with references to the paragraphs in the judgment where the findings were made; the damages awarded, if any—it was helpful if their sterling equivalent at present values could be agreed; a brief summary of the appellant’s contentions in relation to the case, with references to the key paragraphs in the judgment; and a brief summary of the respondent’s contentions in relation to the case, again with references to the key paragraphs. Secondly, the court should be provided with a table listing the authorities in chronological order. Thirdly, it had to be borne in mind that extracting principles from a blizzard of authorities required painstaking effort. The submissions should explain the principles which counsel maintained could be derived from the authorities, and how the authorities supported those principles.

'''LORD CARNWATH JSC''' gave a concurring judgment.

'''Appearances:''' Sam Grodzinski QC and Tim Buley (instructed by Treasury Solicitor) for the Parole Board; Hugh Southey QC and Jude Bunting (instructed by Chivers Solicitors, Bingley) for the claimant in the first case; Hugh Southey QC and Philip Rule (instructed by Chivers Solicitors, Bingley) for the claimant in the second case; Lord Faulks QC and Simon Murray (instructed by Treasury Solicitor) for the Secretary of State.

'''Reported by:''' Jill Sutherland, Barrister

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