R (KB) v Mental Health Review Tribunal (Damages)
| Jurisdiction | England & Wales |
| Judgment Date | 13 February 2003 |
| Neutral Citation | [2003] EWHC 193 (Admin) |
| Docket Number | Case Nos: CO/2363/2001 CO/3863/2001 CO/4052/2001 CO/4070/2001 CO/4598/2001 CO/97/2002 CO/1586/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 February 2003 |
[2003] EWHC 193 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Stanley Burnton
Case Nos: CO/2363/2001
CO/3130/2001
CO/3863/2001
CO/4052/2001
CO/4070/2001
CO/4598/2001
CO/97/2002
CO/1586/2001
Kris Gledhill and Mark Mullins instructed by Harman & Harman on behalf of KB, by Kaim Todner on behalf of MK, PD and TB, by Archers Solicitors on behalf of JR, by Stuart Miller on behalf of GM, and by Galbraith Branley on behalf of LB.
Paul Bowen (instructed by Scott-Moncrieff, Harbour & Sinclair) for B
Philip Sales and Elisabeth Laing (instructed by the Office of the Solicitor to the Department of Health and the Department for Work and Pensions) for the Secretary of State.
The Mental Health Review Tribunal did not appear and was not represented.
The Claimants are or were patients detained under powers conferred by the Mental Health Act 1983 ("the MHA"). They made applications to the Mental Health Review Tribunal for the review of their respective detentions. There were delays in the hearings of their applications. In R on the application of KB and ors v Mental Health Review Tribunal [2002] EWHC 639 (Admin) ("the first judgment"), I held that their rights under Article 5.4 of the European Convention on Human Rights to speedy hearings of their applications had been infringed. I ordered that the issues between the Claimants and the Defendant as to whether the Claimants were entitled to awards of damages, and if so their amounts, should be determined at a later hearing.
In R on the application of B v Mental Health Review Tribunal [2002] EWHC 1553 (Admin), Scott Baker J, as he then was, held that the tribunal had failed to hear B's application speedily. He directed that the issues as to damages to which B might be entitled should be heard subsequently. B's damages claim was heard by me together with the claims of KB and others.
The damages claims of all of the Claimants were heard by me between 2 and 5 December 2002. They raise issues of principle concerning awards of damages under the Human Rights Act 1998 ("the HRA"). As far as I am aware, this is only the second judgment on such issues: the other is that of Sullivan J in R (Bernard) v London Borough of Enfield [2002] EWHC 2282 (Admin), the facts of which differ in important respects from the present cases. A number of other cases await the determination of the claims in the present cases.
I consider the facts of each Claimant's case below. At this point it is sufficient to note that none of them makes a claim for pecuniary loss. The only claims of PD, KB and TB are for the frustration and distress they allege they suffered by reason of the delay to the hearings of their applications. LB, GM, JR and MK claim, in addition, that the breaches of Article 5.4 resulted in deprivation of their liberty and/or damage to their mental health. B's claim relates to his feelings of frustration and distress only, but Mr Bowen submitted on his behalf that an award of exemplary damages could and should be made.
It was also submitted that even if a claimant could not establish that on a balance of probabilities he would have been discharged if there had been an earlier hearing of his application, damages could and should be awarded for his or her loss of the chance to be so discharged. If such damages may be awarded, the court would have to assess the percentage prospects of a tribunal having directed the discharge of a claimant at an earlier hearing and award as damages that percentage of the damages that would be awarded if it were established that there would have been a discharge from detention: c.f. Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602. Given that substantial damages should be awarded for loss of liberty, this approach could lead to relatively large awards of damages to those whose prospects of release were always low.
This is my judgment on the damages issues.
The relevant provisions of the HRA
Section 1 defines "Convention rights" as the rights and fundamental freedoms set out in, among others, Article 5 of the European Convention on Human Rights. Section 2 requires the court "determining a question which has arisen under this Act in connection with a Convention right" to "take into account" any judgment, decision, declaration or advisory opinion of the European Court of Human Rights and the other authorities listed in subsection (1).
Section 6 renders it unlawful for a public authority to act in a way that is incompatible with a Convention right. This court, as well as the Mental Health Review Tribunals, are public authorities within the meaning of the Act.
Section 7 confines claims against public authorities for acts alleged to be incompatible with their Convention rights to the victims of the unlawful acts concerned. It is not disputed that the Claimants are victims within the meaning of section 7.
Section 8, headed "Judicial remedies", is 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.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including�any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and 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 whether to award damages, or 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)."
Section 9(3) provides:
"In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention."
Counsel for the Claimants accepted that "act" in section 9(3) includes omission, that the Mental Health Review Tribunal is a judicial body for these purposes, and that none of the acts or omissions of the tribunals in the present cases was done otherwise than in good faith,. The present claims all arise from acts or omissions of the tribunal. Article 5.5 is therefore central to their claims.
The Convention
The relevant provisions of Article 5 are as follows:
"Article 5 � Right to liberty and security
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) �.
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
5.4 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.
5.5 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."
It was not suggested that Article 5.5 is limited to cases where there has been wrongful arrest or wrongful detention, in other words to cases where the victim has been unlawfully deprived of his liberty. It was common ground that it applies to a claim for breach of Article 5.4 even though the delay in obtaining a decision of a court did not prolong the victim's detention.
Some of the authorities to which I was referred concerned the analogous rights under Article 6.1 of a defendant in criminal proceedings and of the parties to civil proceedings to "a fair and public hearing within a reasonable time".
Article 13 provides:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
Article 13 has not been incorporated into English law by the HRA.
Article 41 of the Convention (previously numbered 50) provides:
"If the Court (i.e., the European Court of Human Rights) 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."
Article 41 is not one of the Articles listed in section 1 of the HRA, doubtless because it is inapplicable directly to a national court. "Reparation" in this context means restitution for injury: the French text is: "�si le droit interne de la Haute Partie contractante ne permet d'effacer qu'imparfaitement les cons�quences de cette violation�" It is common ground that the European Court of Human Rights applies Article 41 in cases in which...
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