Stellato v Ministry of Justice

JurisdictionEngland & Wales
JudgeLord Justice Stanley Burnton,Lord Justice Patten,Lord Justice Maurice Kay
Judgment Date14 December 2010
Neutral Citation[2010] EWCA Civ 1435
Docket NumberB2/2009/1240,Case No: B2/2009/1240
CourtCourt of Appeal (Civil Division)
Date14 December 2010
Paul Christian Stellato
The Ministry of Justice

[2010] EWCA Civ 1435

[2009] EWHC 1719 (QB)

Mr Justice Cranston

Before : Lord Justice Maurice Kay, Vice President of the Court of Appeal Civil Division

Lord Justice Stanley Burnton


Lord Justice Patten

Case No: B2/2009/1240




The appellant in person

Steven Kovats QC (instructed by the Treasury Solicitor) for the Respondent

Hearing date : 17 November 2010

Lord Justice Stanley Burnton

Lord Justice Stanley Burnton :



This is the appeal of Paul Christian Stellato from the decision of Cranston J in so far as it rejected his claim for damages for his detention in respect of the period between 7 December 2006 and 28 February 2007. As will be seen, the appeal raises interesting and important questions as to the legal consequences of the grant of bail by the Court and as to the scope of Article 5.1(b) of the European Convention on Human Rights.

The facts


On 17 December 1998, Mr Stellato was sentenced to 10 years' imprisonment by the Crown Court at Northampton. He was released at the three-quarter point of his sentence, on 23 December 2005. (The three-quarter point of his sentence was in fact 27 December 2005, but he was released on the last working day before Christmas.) The Home Office, which then had responsibility for prisons, purported to release him on licence.


Even prior to his release, Mr Stellato had commenced judicial review proceedings seeking a declaration that his release should be unconditional, by virtue of section 33(3) of the Criminal Justice Act 1991, and not on licence. Permission to apply for judicial review was granted by Ouseley J on 19 December 2005.


On the basis that he was entitled to be released unconditionally, Mr Stellato refused to comply with the terms of his licence. As a result, on 28 December 2005 the Home Secretary purported to revoke his licence. In consequence, Mr Stellato was returned to prison on 6 January 2006.


On 31 January 2006 Mr Stellato issued a claim against the Home Office for damages for false imprisonment and for the infringement of his rights under Article 5 of the European Convention on Human Rights. The Ministry of Justice became the proper defendant to that claim in May 2007 when it assumed responsibility for prisons.


On 31 March 2006 the Divisional Court (Hallett LJ and Jack J) dismissed Mr Stellato's judicial review claim that his release on licence, rather than unconditionally, had been unlawful.


On 1 December 2006 the Court of Appeal (Longmore, Scott Baker and Hughes LJJ) allowed Mr Stellato's appeal. Paragraph 2 of the order was a declaration to the effect that: (i) in respect of any prisoner whose offences were committed before 30 September 1998, and who was recalled to prison after 4 April 2005, section 37(1) of the Criminal Justice Act 1991 continued to govern the duration of his licence following any re-release; (ii) following Mr Stellato's release on 23 December 2005, his licence expired on 27 December 2005 pursuant to section 37(1) of the 1991 Act; (iii) his recall to prison on 6 January had been unlawful, his detention since then had, at all times, been unlawful and he was entitled to immediate release. Paragraph 6 of the order was as follows:

"6) there be a stay of paragraph 2 of the Court's judgment and implementation until midday on 21 st December 2006 provided that the Respondent do lodge a petition for permission to appeal to the House of Lords by 8 th December 2006, if so advised. In the event that the Respondent does not lodge a petition to appeal by the above date, the stay be lifted."


The Court of Appeal granted bail to Mr Stellato on certain conditions. This part of their order was as follows:

"7) the Appellant be granted bail on the following conditions, namely that the Appellant is

(i) to live and sleep each night at a Thames Valley approved hostel, …

(ii) to report to St Aldates police station …

(iii) not to leave the jurisdiction …

(iv) to surrender … any passport

(v) not to contact [named persons]."


However, Mr Stellato refused to comply with those conditions, on the ground that he could not be on bail if he was not on licence.


On 6 December 2006 Hughes LJ, acting as a judge of the Court of Appeal Civil Division, signed an order for Mr Stellato's arrest and detention for breach of the bail conditions. Mr Stellato was arrested on 7 December 2006 and returned to prison in accordance with the terms of that order. At a hearing on 8 December 2006 Hughes LJ ordered that "the bail granted on 1 December 2006 [by the Court of Appeal] be revoked and that the Appellant [Mr Stellato] remain in custody at least until midday on 21 December 2006 when the stay granted in paragraph 6 of the said Order ends".


The Secretary of State duly lodged a petition to the House of Lords. On 12 December 2006 the Appellate Committee gave leave to appeal and ordered that "there be a stay of paragraph 2 of the Court of Appeal Order of 1 December 2006 and implementation thereof continued until withdrawal or determination of the appeal or further order".


The House of Lords then heard the appeal and on 28 February 2007 dismissed the Secretary of State's appeal. Mr Stellato was then released unconditionally.

The damages claim


Mr Stellato's claim for damages for false imprisonment and for breach of his rights under Article 5 of the European Convention on Human Rights was heard by HH Judge Harris QC in Oxford County Court on 6 November 2008. At this hearing it was conceded by the Ministry of Justice that Mr Stellato had been wrongfully imprisoned for the entire period from 6 January 2006 until 28 February 2007, apart from the period from 1 to 6 December 2006 when he was on bail. Judgment was handed down on 11 November 2008. Mr Stellato was awarded damages of £55,000 plus interest. The final amount payable by the Ministry of Justice was only £15,314.27, however, since there were counterclaims and costs orders which were set off.


The Ministry of Justice appealed on various grounds, including that the judge had erred in his assessment of damages for non-pecuniary loss. It withdrew its concession as to the unlawfulness of the detention from 7 December 2006 onwards. It contended the detention was lawful during that period since it was pursuant to orders, namely the stay in paragraph 6 of the Court of Appeal's order of 1 December 2006, the arrest warrant and subsequent revocation of bail. Those orders had been made by a court of unlimited jurisdiction: the Court of Appeal Civil Division had all the powers of the Divisional Court whose appeal was before it, and the Divisional Court was a court of unlimited jurisdiction (see section 19 of the Senior Courts Act 1981).


The appeal was heard by Cranston J. The judge allowed the Ministry to withdraw its earlier concession. Mr Stellato contended that whatever the position at common law might be, his detention between 7 December 2006 and 28 February 2007 was unlawful under the Convention. The Ministry contended that that period of detention was lawful because it was justified by the orders of Hughes LJ, and the stay ordered by the Court of Appeal and the House of Lords.


The judge upheld the Ministry's contentions. He said:

17. Mr Stellato submits, overall, that the orders which were made which resulted in his detention in December 2006 were not prescribed by law. They were not adequately accessible and foreseeable; in other words, formulated with sufficient precision for him to understand their significance. They were on their face invalid. Consequently, none of the exceptions recognised in Article 5 (1) ECHR could apply and make his detention lawful.

18. In my view, the detention of Mr Stellato from 7 December 2006 until his release on 28 February 2007 was lawful. To my mind, at the very least the exception in Article 5 (1) (b) ECHR applies. There were clear orders of a superior court, which revoked his bail and justified his continued detention. The analogy with the decision in Lloyd and other similar cases does not hold. Those were cases where there were orders of Magistrates' Courts which were, on their face, flawed through procedural defects. Here there was an unimpeachable order of Hughes LJ which justified Mr Stellato's detention, notwithstanding that subsequently the House of Lords held that when he was released at the three-quarter point he should have been released unconditionally.

19. In my view, the upshot is that the period of unlawful detention is reduced by the days of lawful detention from 7 December 2006 until 28 February 2007. The period of unlawful detention from 6 January 2006 therefore becomes 329 days, rather than 418 days.


Accordingly, the judge allowed the Ministry's appeal and reduced the damages awarded to Mr Stellato from £55,000 to £45,428.14, including interest. As before, this claim fell to be reduced on account of the Ministry's counterclaim and various costs orders.

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6 cases
  • The Queen (on the application of Seth Kaitey) v Secretary of State for the Home Department
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    • Court of Appeal (Civil Division)
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    ...on bail. The very object of granting bail was to relieve him from imprisonment.” 155 Similarly, in Stellato v Ministry of Justice [2010] EWCA Civ 1435; [2011] QB 856, at para. 23, Stanley Burnton LJ said: “In principle, a grant of bail is not an order for the detention of the person to wh......
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    ...the grant of bail or in the breach of conditions of bail but must be found in an ongoing lawful power to detain, as appears from Stellato v Ministry of Justice [2010] EWCA Civ 1435; [2011] QB 856 and R (Konan) v Secretary of State for the Home Department [2004] EWHC 22 (Admin), authorities......
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    ...and that the Defendant was separately entitled to impose bail conditions. 116 Mr Buttler refers me to Stellato v Ministry of Justice [2010] EWCA Civ 1435. In that case, which concerned detention pursuant to a sentence for a criminal offence, the Court of Appeal explained that a grant of ba......
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