R (Carroll and Greenfield) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD CARSWELL,LORD RODGER OF EARLSFERRY,LORD BROWN OF EATON-UNDER-HEYWOOD,BARONESS HALE OF RICHMOND,LORD BINGHAM OF CORNHILL |
| Judgment Date | 16 February 2005 |
| Neutral Citation | [2005] UKHL 14 |
| Date | 16 February 2005 |
| Court | House of Lords |
ex parte Greenfield (FC)
[2005] UKHL 14
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
My Lords,
The appellant Richard Greenfield, while serving a two year sentence of imprisonment at HM Prison Doncaster, a private prison, was charged under the Prison Rules 1999 (SI 1999/728) with a drugs offence, which he denied. The charge was heard in October-December 2000 by a deputy controller, the counterpart in a private prison of a deputy governor, but a Crown servant for whom the Secretary of State is responsible. The deputy controller refused a request by the appellant that he be legally represented. The charge was found to be proved, and the appellant was ordered to serve 21 additional days of imprisonment, a decision approved by the area manager. The appellant applied for judicial review of these decisions, contending that his rights under article 6 of the European Convention had been violated in that the hearing had involved the determination of a criminal charge, the deputy controller had not been an independent and impartial tribunal and he had wrongly been denied the right to be legally represented. He claimed damages for these violations. The respondent Secretary of State successfully resisted the appellant's contentions before the Queen's Bench Divisional Court (Latham LJ and Potts J) [2001] EWHC Admin 113, [2001] 1 WLR 1731, and the Court of Appeal (Lord Woolf CJ, Tuckey and Arden LJJ) [2001] EWCA Civ 1224, [2002] 1 WLR 545. Those courts did not therefore have occasion to consider the appellant's claim for damages. But since the decisions of the Divisional Court and the Court of Appeal the European Court of Human Rights has given judgment in Ezeh and Connors v United Kingdom (2002) 35 EHRR 691, (2003) 39 EHRR 1. In the light of those judgments the Secretary of State accepts that the proceedings against the appellant did involve the determination of a criminal charge within the meaning of article 6 of the Convention, that the deputy controller was not an independent tribunal and that the appellant was wrongly denied legal representation of his own choosing which was available to him. (He makes no concession about the provision of legal assistance, which was not an issue in this case.) Thus the Secretary of State now accepts that the declarations set out in para 31 below should be made. Thus this appeal is now limited to consideration of the appellant's claim to damages.
Before turning to the details of the appellant's claim, it is convenient to consider, in principle, the entitlement of an applicant or claimant to damages under the European Convention and under section 8 of the Human Rights Act 1998, and then to consider the principles adopted in Strasbourg in relation to claims for compensation for violations of article 6.
Just satisfaction and damages
The primary aim of the European Convention was to promote uniform protection of certain fundamental human rights among the member states of the Council of Europe. Thus the fifth recital of the preamble refers to "collective enforcement" of certain of the rights stated in the Universal Declaration of Human Rights. In its original version, as ratified by the United Kingdom in March 1951 (Cmd 8969, October 1953), the Commission could receive petitions from individuals or groups of individuals claiming to be victims of a violation of a Convention right by a member state only if that state had declared that it recognised the competence of the Commission to receive such a petition (article 25), a member state was not obliged to accept the compulsory jurisdiction of the Court (article 46) and only a member state or the Commission had the right to bring a case before the Court (article 44). Not until 1966, over 12 years after the Convention came into effect, did the United Kingdom recognise the competence of the Commission to receive petitions by individuals. Under article 32 of the original version of the Convention the Committee of Ministers had authority, if a question was not referred to the Court within a specified period, to decide whether or not there had been a violation of the Convention.
Articles 25, 44 and 46 of the original Convention have since been repealed and no longer form part of the Convention. The jurisdiction of the Court is now compulsory (article 32) and individuals have a right to apply to the Court (article 34). But the focus of the Convention is still on securing observance by member states of minimum standards in the protection of the human rights specified in the Convention. Member states are bound by article 46(1), as they were by article 53 of the Convention, to abide by the final judgment (or decision) of the Court in any case to which they are parties. Article 26 of the Vienna Convention on the Law of Treaties, expressing customary international law, requires states parties to a treaty to perform it in good faith.
The expectation therefore is, and has always been, that a member state found to have violated the Convention will act promptly to prevent a repetition of the violation, and in this way the primary object of the Convention is served.
The Convention has always, however, made provision for affording just satisfaction to the injured party. Article 41 of the Convention, repeating the substance of article 50 of the original version, now provides:
"Just satisfaction
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."
Article 41 is not one of the articles scheduled to the 1998 Act, but it is reflected in section 8 of the Act, which is to this effect:
"Judicial remedies
(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.
(5) A public authority against which damages are awarded is to be treated -
(a) in Scotland, for the purposes of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made;
(b) for the purposes of the Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
(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)."
It is evident that under article 41 there are three pre-conditions to an award of just satisfaction: (1) that the Court should have found a violation; (2) that the domestic law of the member state should allow only partial reparation to be made; and (3) that it should be necessary to afford just satisfaction to the injured party. There are also pre-conditions to an award of damages by a domestic court under section 8: (1) that a finding of unlawfulness or prospective unlawfulness should be made based on breach or prospective breach by a public authority of a Convention right; (2) that the court should have power to award damages, or order the payment of compensation, in civil proceedings; (3) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (4) that the court should consider an award of damages to be just and appropriate. It would seem to be clear that a domestic court may not award damages unless satisfied that it is necessary to do so, but if satisfied that it is necessary to do so it is hard to see how the court could consider it other than just and appropriate to do so. In deciding whether to award damages, and if so how much, the court is not strictly bound by the principles applied by the European Court in awarding compensation under article 41 of the Convention, but it must take those principles into account. It is, therefore, to Strasbourg that British courts must look for guidance on the award of damages.
Damages for breach of article 6
It is desirable for present purposes to concentrate on the Strasbourg approach to the award of damages on finding that article 6 has been violated. Article 6 seeks to ensure that everyone, in the determination of their civil rights and obligations or of any criminal charge against them, shall enjoy a fair and public hearing within a reasonable time by an independent and impartial...
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