Case Comment: R (Faulkner) v Secretary of State for Justice & Anor; R (Sturnham) v Parole Board of England and Wales & Anor  UKSC 23
13 Monday May 2013
The appeals concerned the circumstances in which a prisoner serving a life or indefinite public protection (IPP) sentence, who has served his tariff period and whose case has not been considered by the Parole Board within a reasonable period thereafter, should be awarded damages for breach of his right to a speedy review of detention under ECHR, art 5(4), and the quantum of such awards. The appeals arise against the backdrop of the systemic failure to properly resource the implementation of the former IPP regime (as considered by the House of Lords in R (James) v Secretary of State  1 AC 553) – including a failure to properly resource the Parole Board – leading to a significant number of claims by IPP prisoners for breach of art 5(4).
The key issue in the Faulkner appeal was the correctness of the Court of Appeal’s guideline award of £10,000 for a breach causing a 10-month delay to release on licence. Mr Faulkner also obtained leave to argue that this delay had rendered his detention unlawful at common law and in breach of art 5(1) (which had not been argued below). The key issue in the Sturnham appeal was the correctness of the Court of Appeal’s conclusion that a declaration was sufficient just satisfaction for the feelings of frustration and anxiety caused by delay where this did not lead to prolonged detention, absent special features of the case.
As detailed in my case preview (here), underlying the specific issues on quantum was a broader issue regarding the correct relationship between the domestic remedial jurisdiction to award damages under the HRA 1998, s 8, and the (sparsely reasoned and frequently inconsistent) just satisfaction decisions of the European Court of Human Rights pursuant to art 41 of the Convention.
What the Supreme Court decided
In a nutshell, the Supreme Court (in a leading judgment given by Lord Reed) upheld the core conclusions of the Court of Appeal in Faulkner: damages should ordinarily be awarded where it is established on the balance of probabilities that the prisoner was detained longer than he otherwise would have been as a result of the breach, but not for loss of a chance of earlier release. Quantum should not be affected by the prospect of release. However, after a fuller analysis of decisions of the European Court than the Court of Appeal had had opportunity to consider, the Court revised down the appropriate award for ten months delayed release on license from £10,000 to £6,500. This was suggested to be significantly above the level of awards for mere anxiety and frustration, but well below the level of awards for loss of unrestricted liberty.
The Supreme Court overturned the Court of Appeal’s guidance in Sturnham on damages for non-pecuniary loss. It held that, subject to a de minimis threshold of sufficient seriousness of mental suffering (which is likely to be crossed after 3 months delay), frustration and anxiety were to be strongly presumed to arise from delay, ordinarily requiring a modest award of damages. The Court of Appeal was found to have erred in applying a line of the European Court’s just satisfaction decisions regarding procedural breaches (stemming from Nikolova v Bulgaria (1999) 31 EHRR 64) to cases of delay.
The Supreme Court rejected the contention that the delay rendered Mr Faulkner’s detention unlawful at common law, reaffirming the decision of the House of Lords in James on this point. It moreover found that the delay did not cause the continued detention to become arbitrary so as to breach art 5(1); such a violation required “exceptional circumstances”. The decision of the European Court in James, Wells and Lee v the United Kingdom (2012) 56 EHRR 399 – finding that continued detention of IPP prisoners had become arbitrary during periods when the prisoners were not afforded access to courses necessary to address risk to the public – was not directly relevant to the present appeals.
On the issue of the correct approach to s 8, the Court reaffirmed the guidance in R (Greenfield) v Secretary of State  1 WLR 673: courts should, at least at the present stage of the development of the s 8 remedy, remain guided “primarily by any clear and consistent practice of the European court”, though (reflecting the differing institutional role of domestic courts making awards under s.8 from the subsidiary role of the European Court under art 41) domestic courts should resolve all relevant issues of fact in the usual way even where the European Court might not do so. The quantum of awards under s 8 should broadly reflect the level of awards made by the European Court in comparable cases brought by applicants from the UK or other countries with a similar cost of living. However, Lord Reed foreshadowed the “naturalisation” of the s 8 remedy and a time in the future where the remedy will have developed sufficiently that domestic courts need not be “perpetually looking to the case law of an international court as our primary source”. He made clear that domestic courts are now to take the Supreme Court’s judgment as the “starting point” on art 5(4) delay cases.
Despite the obvious practical significance of the Court’s specific guidance on the award of damages for breach of art 5(4), the lasting and wider significance of the decision may lie in the articulation of the Court’s broader vision of the s 8 remedial jurisdiction. The Court envisages a “confident” domestic case law that will ultimately obviate the need for constant resort to the European Court’s case law. The cornerstone of this development would appear to be a practice of domestic appellate guidance decisions in the vein of the Court’s judgment in Faulkner and Sturnham.
Such a practice is surely a sensible and welcome response to the challenges inherent in the task of accurately elucidating principles from, what Lord Reed termed, a “blizzard” of European Court authorities, a challenge most vividly highlighted by the error in the Sturnham Court of Appeal’s reading of the European Court’s case law on awarding damages for non-pecuniary loss. First instance courts are less well-placed than appellate courts to undertake this task. Moreover, in an era of increasingly limited legal aid and squeezed judicial resources it is arguably wholly inefficient for parties and first instance courts to duplicate the exercise of elucidating general principles in areas of repeat claims (a point underscored by the somewhat demanding guidance given by Lord Reed to parties in presenting Strasbourg just satisfaction decisions to courts in the future, in the Postscript to his judgment at -). Finally, the salutary impact of a practice of confident domestic appellate guidance may well extend upwards, as well as downwards, by assisting in the development and application of consistent principles by the European Court.