R Daniel Faulkner v The Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Wilson,Hooper LJJ,Sedley |
| Judgment Date | 29 March 2011 |
| Neutral Citation | [2011] EWCA Civ 349 |
| Date | 29 March 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/1543,C1/2009/1543 |
[2011] EWCA Civ 349
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
BLAIR J
Before: Lord Justice Sedley
Lord Justice Hooper and
Lord Justice Wilson
Case No: C1/2009/1543
CO/9656/2008
Mr Hugh Southey QC and Mr Jude Bunting (instructed by Chivers Solicitors) for the Appellant
Mr Steven Kovats QC (instructed by Treasury Solicitors) for the first Respondent
Mr Sam Grodzinski (instructed by Treasury Solicitors) for the second Respondent
Hearing date: 23 rd April 2010
Lord Justice Sedley:
This is the judgment of the court.
On 14 December 2010 this court handed down its judgment on liability, holding that the respondents were liable to the appellant for his unlawful detention, in breach of article 5(4) of the European Convention on Human Rights, for a period of about 10 months. During this time he was improperly denied access to the Parole Board, which would in all probability have directed his release. Although the cause of the prolonged detention was the Ministry of Justice's delay in the providing the dossier and other necessary materials to the Parole Board, we have not been asked to differentiate between the two respondents in relation to formal liability. What remains to be decided is what damages, if any, the appellant is entitled to pursuant to s.8(1) of the Human Rights Act 1998.
We have invited and received written submissions on this from both counsel and are grateful to them for the research and thought that has gone into them. The problem they present us with is encapsulated in the difference between them: Mr Kovats QC for the respondents submits that an award of damages no higher than £3,500 is appropriate; Mr Southey QC for the appellant submits that the right figure is £32,000. Both derive support from the available precedents.
We have concluded that an appropriate figure is £10,000. While this is a round figure, it is not an arbitrary one. We propose to explain in some detail why (possibly a more apt preposition than how) we have arrived at it, because we are conscious that this award may well set the tone in related and similar cases.
The cause of action
Although nothing turns directly on it, we have called Mr Faulkner's case a case of unlawful detention notwithstanding that, as Steven Kovats QC for the State of Justice points out, the necessary predicate of his claim is that he was lawfully detained throughout the material 10 months: had he not been, his claim would have been for false imprisonment. But although the relevant purpose of art. 5(4) – see §3 of our first judgment – is only to afford a remedy for delay in judicially deciding whether a prisoner is to be released, it speaks in terms of lawful and unlawful detention because it assumes that release, once judicially ordered, and albeit within the 'envelope' of a continuing sentence, becomes a right. In that sense Mr Faulkner's detention became unlawful in March 2008.
The Ground Rules
The ground rules are uncomplicated but open-ended. S.8(1) of the Human Rights Act authorises domestic courts to grant such relief or remedy as they consider "just and appropriate", so long – see s. 8(3) – as it is necessary in order to afford just satisfaction. S.8(4) requires them, in deciding what damages, if any, to award, to "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". Article 41 provides that the victim of a violation shall (if not fully compensated in domestic law) receive just satisfaction from the Court.
Principles
Since few cases reach Strasbourg in which the member state has acknowledged any breach of the Convention, almost all awards of compensation made by the Court by way of just satisfaction are full awards, not merely additions to domestic awards. But it is well known, and is common ground before us, that there are no articulated principles, and no discernible tariff, by which these awards are set. This ought not to surprise anyone who recalls the vagaries of general damages for personal injury in this country before the Judicial Studies Board assembled its Guidelines. But it means that, in the absence of a sufficient bulk of ECtHR cases to permit guidelines like the JSB's to be drawn, principles of just satisfaction are not easy to find. Although the use in the statute of the definite article – "the principles" – may have been something of a legislative act of faith, Lord Bingham in R (Greenfield) v Home Secretary [2005] 1 WLR 673 (§19) made it clear that what it means is that we are to look to what influences the figures arrived at by the Court, albeit these are "not precisely calculated but are judged by the court to be fair in the individual case".
There are also, of course, domestic awards for false imprisonment. But we remind ourselves that unlawful detention contrary to article 5(4) is not the same thing as false imprisonment. At least in a case such as this one, it involves the loss of the opportunity to be granted conditional liberty within the currency of a lawful custodial sentence. That is not to say that it is inconsequential; but it is not the same thing as the loss of an innocent person's freedom.
We accept the submission of Hugh Southey QC for the appellant that it is not appropriate for the court to adjust its award by reference to the degree of probability of release had the wrong not occurred. Once it is found probable that parole would have been granted earlier had the dossier been provided when it should have been, there is a compensable loss of prospective liberty.
We do not, however, accept Mr Southey's submission that a separate sum, in addition to damages for loss of liberty, should be routinely awarded for distress and anxiety. We do not exclude the possibility that unlawful detention may cause special damage, whether pecuniary, psychiatric or physical. But in cases like this one it would in our judgment be double counting to compensate Mr Faulkner both for being kept in prison when he ought to have been out and for the distress and anxiety which imprisonment designedly causes. If loss of liberty were not stressful, offenders would not be sent to prison.
We have not overlooked the fact that stress and anxiety were described by Lord Bingham in Greenfield, §16, in a passage which cited the expressions used in a substantial series of Strasbourg decisions to describe this typical effect of unjustified detention, as "[a] second head of general or non-pecuniary damage". Without doubt the stress of being held in prison when detention, albeit lawful, ought to have come to an end, and when an end is still not in sight, is of a different order from the stress and anxiety of the custodial part of a lawful sentence; but that difference is precisely what the award for wrongful detention is required to reflect. In spite of Lord Bingham's use of the expression "head of damage", we do not understand either Greenfield or any other case to be authority for the routine awarding of two sums by way of damages in unlawful detention cases, and we consider there to be good reason for not doing so except where particular facts warrant it.
This being so, Mr Kovats' contingent submission that this element of damage ought to be discounted for Mr Faulkner's having gone on the run from May to October 2009 does not have to be decided.
Quantum
Although the vindication by judgment of a victim's rights is itself an aspect – and in some instances may be exhaustive – of just satisfaction (see Anufrijeva v Southwark LBC [2003] EWCA Civ 1406§53), we are satisfied that our finding of unlawful detention does not amount by itself to just satisfaction for Mr Faulkner. We are entitled in this regard to place weight on the high value that the common law has always placed on personal liberty and on the courts' consequent disapproval of executive action which unlawfully restricts or interferes with it. We are also entitled to take into account the fact that damages not only compensate the wronged party but will – or ought to – concentrate the mind of the wrongdoer, especially where the latter is a public authority which is capable,...
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