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The Issue: domestic human rights damages for breach of ECHR, art 5(4)

When and on what basis should damages be awarded for delay convening a Parole Board hearing in breach of the European Convention on Human Rights, art 5(4) (the procedural right to a speedy determination of lawfulness of detention) under the Human Rights Act 1998, s 8? This is the issue which the Supreme Court (Lords Neuberger, Mance, Kerr, Reed and Carnwath) will consider in the appeals/cross-appeal in Faulkner v Secretary of State [2011] HRLR 23 and Sturnham v Secretary of State for Justice [2012] 3 WLR 476 to be heard together on 19 and 20 November 2012. The former case concerns damages for loss of liberty (conditional release on licence), and the latter damages for frustration and anxiety short of a diagnosed mental injury (which also deprived the claimant of a progressive transfer to open conditions, but not of release) due to delay convening a hearing. Underlying the two appeals is a deeper question regarding the relationship between the domestic 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. S 8 provides that human rights damages for the unlawful act of a public authority can be awarded where “it is just and appropriate” to do so, but only where “the court is satisfied that the award is necessary to afford just satisfaction”. In determining the question of whether damages are “necessary to afford just satisfaction”, domestic courts must “take into account the principles applied” by the European Court of Human Rights under art 41 of the Convention. Art 41 provides a discretionary jurisdiction to make an award of damages for a breach where domestic law has only allowed partial reparation to be made and it is “necessary to afford just satisfaction to the injured party”.

The leading authority: Greenfield v Secretary of State

The relationship between s 8 and decisions under art 41 was last authoritatively considered by the UK’s highest court in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14 (a case concerning awards of damages for breach of ECHR, art 6) in which it was held (see [17]-[19]) that – while domestic courts were not inflexibly bound by Strasbourg awards – s 8 required domestic courts to look to Strasbourg for guidance both on whether to make an award and as to quantum. Art 41 was not enacted to give victims better remedies at home than they could recover at Strasbourg and therefore awards under s 8 should not be significantly more or less generous than an award in Strasbourg: the Court should therefore not look to domestic precedents and scales. Further, the HRA 1998 was not a tort statute, but a statute with different and broader objects, and a finding of violation itself was an important remedy to vindicate breach of a Convention right. In general, awards of damages were not required to secure future compliance with rights since States were already bound to perform their obligations in good faith under international law.

The approach in Greenfield was not a foregone conclusion. A contrary school of judicial and extra-judicial thought had considered that the broad applicable damages principles were substantially common to Strasbourg and domestic case law, that guidance could and should be sought from domestic principles and scales, and that awards under s 8 should not generally be less generous than for equivalent causes of action in domestic law: see variously by way of example the approach adopted in the joint report of the Scottish and English Law Commissions entitled Damages under the Human Rights Act 1998 (published in October 2000, see para. 4.97), and in a line of cases including R (KB & Ors) v Mental Health Review Tribunal  [2004] QB 946 (see [53]) and R (Anufrijeva) v Southwark LBC [2003] EWCA Civ 1406 (see [74]).

Greenfield has also come in for criticism in the literature (for example from J Steele and J Varuhas). In particular, it has been criticized for failing to recognize and give effect to the intended role of s 8 in securing compliance with the distinct, primary obligation of Member States to provide an effective remedy under art 13 of the Convention, which encompasses requirements of both effective ex ante safeguards (via the availability of appropriate remedies) and ex post redress. Further, an apparent circularity – or even incoherence – is suggested to arise in any mechanical application of decisions under art 41 (an expressly subsidiary, international law remedial jurisdiction) to s 8 (a primary, domestic jurisdiction):

“ . . . what constitutes just satisfaction at a supranational level, when it is afforded by a supervisory and subsidiary institution, will naturally and legitimately differ from what constitutes an effective remedy provided by a domestic institution that has principal responsibility for the provision of redress” (Varuhas, 755).

The potential circularity is underscored by the apparent regard that the European Court has had on occasion to domestic principles and tariffs under art 41.

The judgments of the Court of Appeal in Faulkner and Sturnham

Faulkner

In R (Faulkner) v Secretary of State for Justice & Anor [2010] EWCA civ 1434 (Faulkner I), the Court of Appeal had found a breach of ECHR, art 5(4) that had (on the balance of probabilities) delayed the claimant’s release so as to entitle him to damages for a ten month period he ought not to have spent in detention ([75] and [81]). A separate hearing before the same panel of judges subsequently considered quantum and resulted in the decision on appeal ([2011] EWCA civ 349: Faulkner II), which awarded a sum of £10,000 for what was characterised as ten months loss of “conditional liberty” (i.e. conditional release on licence). While the award was not arrived at on the basis of a monthly multiplier, the Court stated it could legitimately be disaggregated in this way ([22]).

In reaching this decision – faithful to Greenfield – the Court surveyed a sample of relevant Strasbourg (and domestic s 8) awards, though the Court remarked on the absence of clear and consistent principles and a discernible tariff in the Strasbourg case law ([6] and [15]) and ultimately stood back from this body of decisions ([22]). The Court reasoned that “loss of an opportunity of conditional liberty, while not the same as false imprisonment, is a real blow to something of real value…”, which the Strasbourg restitutio integrum principle required be suitably reflected in not insubstantial monetary terms ([7] and [18]). It placed weight on the “high value that the common law has always placed on personal liberty” ([12]) thereby suggesting that supplementary guidance may be found in the principles of the common law, at least at a general level, where the primary source of guidance is inadequate.

Also faithful to Greenfield, the Court recorded that the finding of a violation was an important part of the remedy ([14]). However, interestingly, the Court made reference to the effect of a monetary award to “concentrate the mind of the wrongdoer, especially where the latter is a public authority, which is capable, unless it changes its ways, of repeating the error” ([12]). This disciplinary function for human rights damages was deprecated (although not altogether excluded) in Greenfield, but is consonant with the intended role of the HRA 1998, s 8 in securing compliance with art 13 of the Convention and may be regarded as particularly apt within the anxious context of protecting individual liberty.

Sturnham

At first instance in Sturnham ([2011] EWHC 938 (Admin)), Mitting J found a breach of art 5(4) in respect of a period of six months delay scheduling a Parole Board hearing due to an administrative error, and awarded £300 non-pecuniary damage for the stress and anxiety caused to the claimant ([47]). The Judge found that the claimant would not have been released had the hearing been convened earlier, but that he would more likely than not have been transferred to open conditions – no damages were awarded specifically for this loss ([44]). The Secretary of State successfully appealed the award of £300 non-pecuniary damages.

In overturning the decision of Mitting J, the Court of Appeal articulated the following four propositions regarding human rights damages for breaches of art 5(4) due to delayed hearings (at [22] per Laws LJ):

“1) Damages are only to be awarded where that is necessary to afford just satisfaction under the Human Rights Act s 8(3).

2) In an Art 5.4 delay case the Convention right will ordinarily be vindicated and just satisfaction ordinarily achieved by a declaration. The focus of the Convention and of the court is on the protection of the right rather than compensation of the Claimant.

3) But if the violation involves an outcome for the Claimant in the nature of a trespass to the person, just satisfaction is likely to require an award of damages. The paradigm of such a case arises where the Claimant’s detention is extended by reason of the delay. Another case might be where the delay occasions a diagnosable illness in the Claimant.

4) Other cases where the outcome or consequence of the delay is stress and anxiety but no more, will not generally attract compensation in the absence of some special feature or features by which the Claimant’s suffering is materially aggravated . . . ”

On the facts of the case, the Court concluded that the distress and anxiety suffered by the claimant due to the delayed hearing did not bring the case within the category of special/exceptional cases that sounded in damages under the Court’s fourth proposition, and neither did the fact that the claimant was deprived of a transfer to open conditions: [24].

The decisions in Faulkner II and Sturnham are not overtly inconsistent in terms of outcomes in that the damages awarded in Faulkner II can be said to fall within the third proposition in Sturnham (being the paradigm case where the claimant’s detention is extended by reason of the delay). Moreover, the reasoning in Sturnham – culminating in the Court’s general propositions – has one thing, in particular, in common with that in Faulkner II, namely that the Court recognised the elusive nature of the task of identifying clear principles within the Strasbourg case law ([13] and [20]) and resorted to analogy with domestic law to justify its conclusions (Sturnham at [15]-[18]). However, there is also some tension evident between the reasoning of the two decisions. First, Sturnham discloses no recognition of a disciplinary function for human rights damages, as identified in Faulkner II. Indeed, the second proposition in Sturnham proposes a sharp dichotomy between protecting rights and compensating individuals, which appears to entirely discount any such ex ante function. Further, while the approach in Faulkner II suggests that damages should be awarded for a loss of “something of real value” (there conditional liberty), the loss of a progressive move to open conditions in Sturnham was found not to sound in damages despite its obvious “real value” to the claimant and likely direct knock-on impact on his ultimate release date in practice (cf. the common law’s recognition of the value of such residual liberty in e.g. Karagozlu v Metropolitan Police Commissioner & Anor [2006] EWCA Civ 1691).

Concluding comments: the role of s 8 and of the domestic courts

There may be little chance that the Supreme Court will be inclined (or invited) to revisit the fundamental holdings in the relatively recent House of Lords decision of Greenfield. This is notwithstanding the case for doing so, in particular to fully reflect the differing nature of the primary jurisdiction under s 8 (as compared to the subsidiary jurisdiction under art 41), and the role of HRA 1998, s 8 in securing compliance with the UK’s obligation to provide an effective remedy under art 13. However, Greenfield leaves ample scope for elucidation of the correct approach in circumstances where no clear and consistent guidance is to be found in the Strasbourg case law (as was expressly stated to be the case by the Court of Appeal in both Faulkner II and Sturnham, albeit with different resulting approaches).

A potential divergence between Faulkner II and Sturnham is with regards to the purpose of the remedial jurisdiction in s 8. Are damages under s 8 limited to a narrow implementation of the Strasbourg case law on art 41 (akin to the approach to interpreting substantive rights – to keep pace – no more, no less: see R (Ullah) v Special Adjudicator [2004] 3 All ER 785 at [20]), or should domestic courts seek to engage more directly with the value of the right at stake (potentially informed by the values of the common law at least in so far as this is not inconsistent with any clear and consistent principles evident in Strasbourg decisions), and to assess what is necessary to provide proper redress (and effective protection of the right)? The distillation of an apparent exceptionality threshold for claiming non-pecuniary damages for stress and anxiety under the fourth proposition in Sturnham appears to be a stark example of the former approach. The danger with this approach – at least where the Strasbourg principles are less than clear and consistent – is not just that it may not necessarily be an accurate reflection of the flexible principles in the Strasbourg case law or that it may fail to give effect to a broader intended role for the domestic remedial jurisdiction, but that it risks making only partial reparation for breaches under domestic law so as to leave an application to the European Court necessary to secure full reparation.

A related institutional question arises regarding the relationship between domestic courts and the European Court. Do the domestic courts – and pre-eminently the Supreme Court – have a role to play in articulating and developing what is necessary to afford just satisfaction? They are arguably well-placed to do so by virtue of being closely connected with the domestic context giving rise to the breach, and therefore better placed than the Strasbourg Court to determine what is in fact necessary to make full redress and prevent future breaches. Moreover, the evident difficulties of seeking to mirror and apply the Strasbourg just satisfaction decisions under s 8 in the absence of clear and consistent guiding principles might be said to present a further and compelling reason for the domestic courts to step in and play a fuller role in developing and supplementing the Convention just satisfaction principles. Such engagement by the domestic courts has the potential to have a salutary effect both on decision-making at a domestic level under s 8, and on the Convention case law under art 41 itself. With this in mind, it is perhaps appropriate to recall Lord Carnwath’s extra-judicial plea to domestic courts “for judicial confidence” in embracing such a role, made at the HRA 1998’s inception, which might be said to be as relevant now as it was then.