The Home Office v Stellato
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 07 April 2009 |
| Neutral Citation | [2009] EWHC 1719 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: CC/2008/PTA/0806 |
| Date | 07 April 2009 |
[2009] EWHC 1719 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
Claim No: CC/2008/PTA/0806
MR S KOVATS appeared on behalf of the Applicant
MR STELLATO appeared in person
Approved Judgment
Introduction
This case concerns the calculation of damages for those unlawfully detained in prison. The respondent to this appeal, Mr Stellato, was awarded some £55,000 at the Oxford County Court. Those were damages for false imprisonment and breach of his rights under Article 5 of the European Convention on Human Rights. The defendant, the Ministry of Justice, appeals to this court on the basis that the learned judge erred in his assessment of the damages, firstly because of his approach to the relevance of Mr Stellato's unlawful behaviour; and secondly, in awarding Mr Stellato anything for loss of opportunity to obtain employment. Moreover, the Ministry of Justice contends that the judge was wrong to hold that he had a discretion to award the defendant less than the judgment rate of interest on costs orders which the Ministry of Justice had obtained against Mr Stellato and which had been set off against the award of £55,000.
Background
In brief, Mr Stellato's claim arose out of a dispute on a point of law. On 17 December 1998 Mr Stellato was sentenced to ten years' imprisonment by the Crown Court at Northampton. He had a long history of offending. He had been born in 1971 and, as of the date of his last conviction in April 2008, to which I will come, he had some 49 fraud and related offences, 82 theft and related offences and a number of other offences, some involving offences against the person, some sexual offences, some property offences, and some public order offences and offences relating to the police. In the event, he was released at the three-quarter point of his 1998 sentence. That was on 27 December 2006, but because 23 December 2006 was the last working day before Christmas he was released on that day.
By the time of his release, Mr Stellato had instituted judicial review proceedings. Permission had been granted by Ouseley J on 19 December 2005. Mr Stellato was seeking a declaration that his release at the three-quarter point should be unconditional release and not release on licence. In fact, the release on 23 December 2005 was release on licence. Mr Stellato contended that unconditional release was demanded as a result of section 33 (3) of the Criminal Justice Act 1991. The matter came before the Divisional Court on 31 March 2006, and Mr Stellato's claim was dismissed ([2006] EWHC 608 (Admin)).
Some nine months later, on 1 December 2006, the Court of Appeal heard Mr Stellato's appeal and allowed it. The court declared that he should have been unconditionally released on 23 December 2005 as a result of section 33 (3) and that consequently his subsequent detention, which I explain in a moment, was unlawful. The Court of Appeal stayed its order until midday on 21 December 2006 and granted Mr Stellato conditional bail ( [2006] EWCA Civ 1639, [2007] 1 WLR 608). The House of Lords gave leave to appeal on 12 December 2006 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 withdrawn or determination of the appeal or further order."
Subsequently, the House of Lords heard the appeal. On 28 February 2007 it held that Mr Stellato's argument had been correct ( [2007] UKHL 5; [2007] 2 AC 70). At that point, Mr Stellato was released unconditionally.
What had happened in the meanwhile was that Mr Stellato had refused to comply with his licence conditions when he had been released on licence in late 2005. He did that because he said that in law he should have been released unconditionally. The Home Secretary purported to revoke his licence on 28 December 2005 because of this and returned him to prison on 6 January 2006. As I indicated, when the claimant was successful in the Court of Appeal, it stayed its order and granted Mr Stellato bail. That was in December 2006. Mr Stellato then refused to comply with his bail conditions because he said that he could not be on bail if he was not on licence. On 6 December 2006 Hughes LJ issued a warrant for his arrest for breach of bail conditions. He was arrested on 7 December and returned to prison. His bail was revoked by Hughes LJ on 8 December 2006. Once the House of Lords announced its decision on 28 February 2007 he was released unconditionally, as I have said.
To complete the chronology, some time in the later part of September 2007 Mr Stellato committed burglary. On 17 April 2008 he was sentenced to three years' imprisonment by the Crown Court at Northampton. The 119 days which he had spent on remand were taken into account in calculating his sentence. About ten weeks later the sentence expiry date for his 1998 conviction was reached, on 26 June 2008.
The present proceedings were issued on 31 January 2006. Initially they were taken against the Home Office, but in May 2007 the Ministry of Justice assumed responsibility for prisons and so became the proper defendant. In essence, Mr Stellato contended that he was falsely imprisoned from 6 January 2006, when his licence was revoked and he was returned to prison, until 28 February 2007, when he was released as a result of the House of Lords decision. There was a short period between 1 and 6 December 2006 when Mr Stellato was on bail and he conceded that that was not to be taken into account.
The matter was heard by HH Judge Harris QC, in the Oxford County Court on 6 November 2008. Judgment was given on 11 November 2008. In the course of the judgment, the learned judge said this:
"10. The claimant's position in the instant case. He had a very bad record, largely for offences of dishonesty, and was at the end of a substantial sentence for arson. He was no stranger to prison, and had so acted in the past as to return to it often. He had no real reputation to lose. While not enjoying prison, he has to his credit made good use of his time there, and almost wholly avoided bad behaviour, and completely avoided drugs. He has had an acute sense of the impropriety and injustice of what happened to him because he had an excellent understanding of the law in what was a difficult field. It was submitted by the defendants that had he been at large he would have been likely to have re-offended and been re-imprisoned. I bear that possibility in mind, especially since he did indeed re-offend after his eventual release by being involved in a burglary in September 2007, for which he is currently serving a three-year sentence imposed in April 2008. It is also pointed out that he was in breach of the conditions of bail, which he was granted on the 1st December 2006 by the Court of Appeal, which was why the bail was revoked. However, as he points out, there should have been no question of bail at all. There is some rather slight evidence that latterly he had been in such a condition that he has needed to received some treatment for depression.
11. It was suggested on the defendant's behalf that an appropriate award might be £35,000 to £40,000, so a mid-figure of say £37,500, with no additional for potential loss of earnings. The claimant submitted that a sum in the order of £56,000 would be appropriate, plus a figure for loss of earnings net of expenses, for which he suggests £10,000, making a total of at least some £66,000.
12. Looking at the matter broadly and taking into account the factors outlined, I have concluded that the proper sum is one of £50,000. To this I add a sum of £5,000 in respect of the loss of a chance to obtain employment. The claimant is an able, fluent and persuasive person, and though his record would be a very heavy and manifest disadvantage to him, he has in the past obtained work once or twice, most recently as a window salesman. He indicated that he could easily have earned £25,000 per annum doing that. Alternatively he might, he says, have done some gardening work. I do not feel able to conclude that on balance of probabilities he would have got a particular job at a particular salary, but do find that there was a respectable chance of him doing some work. Against his net pay, credit would have to be given for living expenses. £5,000 represents the lost chance of some net earnings. It is not a large sum."
The learned judge held that with interest the total amount to be awarded to Mr Stellato was £58,113. The Ministry of Justice's counterclaim was in the sum of £35,298.73 and related to orders it had obtained against Mr Stellato. The learned judge awarded Mr Stellato £1,000 costs on the claim and awarded the Ministry of Justice £500 costs on the counterclaim. He also awarded the Ministry of Justice £8,000 costs in another claim. The upshot was that when these various sums were set off against each other, there was a balance in Mr Stellato's favour of some £15,314.27.
The appeal by the Ministry of Justice to this court falls under three heads.
Ground 1: Mr Stellato's Damages for Non-Pecuniary Loss
Under this head, the Ministry of Justice contends that the judge's calculation of damages for non-pecuniary loss was incorrect. Before considering the reasons it has advanced, three issues should be addressed.
(a) The Law.
There was no difference between the parties as to the overriding principle which should apply in calculating non-pecuniary damages. These were stated by Lord Woolf MR in R v...
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