Damages for Unlawful Detention

Faulkner, R (on the application of) v Secretary of State for Justice the Parole Board [2011] EWCA Civ 349 (29 March 2011) Summary

The Court of Appeal of England and Wales decided Mr Daniel Faulkner was entitled to damages pursuant to section 8(1) of the Human Rights Act 1998 (UK) (HRA) in the sum of £10,000 as a result of being unlawfully detained in breach of Article 5(4) of the European Convention on Human Rights (‘the Convention’).

Facts

The case concerned the amount of damages Mr Faulkner should be awarded, if any, following the Court’s earlier conclusion on 14 December 2010 that the Respondents were liable to Mr Faulkner for his unlawful detention contrary to article 5(4) of the Convention. The circumstances giving rise to Mr Faulkner’s unlawful detention were that the Ministry of Justice had failed to provide necessary dossiers and materials to the Parole Board which would have enabled them to determine Mr Faulkner’s review of the lawfulness of his continued imprisonment. These delays resulted in Mr Faulkner having to wait some ten months longer to hear his case than he should have done.

Decision

Article 5(4) of the Convention provides:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Section 8(1) of the HRA provides:

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.

Finally, pursuant to s 8(4) of the HRA, the Court is required to consider principles applied by the European Court of Human Rights when awarding compensation, which requires a victim of violation to receive ‘just satisfaction’ from the Court in accordance with article 41 of the Convention.

It was acknowledged from the outset that the award granted to Mr Faulkner “may well set the tone in related and similar cases”. The Court undertook a comprehensive analysis of cases from the European Court of Human Rights and UK Courts concerning damages arising from unlawful detention in violation of article 5(4). A number of principles emerged from their analysis.

First, unlawful detention contrary to article 5(4) should not be considered as analogous to false imprisonment in domestic awards. In Mr Faulkner’s case, the unlawful detention involved the lost opportunity to be “granted conditional liberty within the currency of a lawful custodial sentence”, something very different from an innocent person losing their freedom.

Secondly, the Court did not accept that a separate sum (in addition damages for loss of liberty) should be awarded for distress and anxiety, and that there was good reason not to award two sums by way of damages in unlawful detention cases except where it was warranted on the facts of the case. The Court held:

…[I]n cases like this one it would in our judgment be double counting to compensate Mr Faulkner both for being kept in prison when he ought to have been out and for the distress and anxiety which imprisonment designedly causes. If loss of liberty were not stressful, offenders would not be sent to prison.

On the question of quantum, the Court placed weight on the value the common law places on personal liberty and the disapproval of executive action which unlawfully restricts or interferes with it. The finding of unlawful detention did not, by itself, amount to “just satisfaction” for Mr Faulkner, although the finding of a violation was an important part of the remedy.

The Court then reviewed awards made under article 5(4) in other cases, although it recognised that “nothing approaching a tariff has yet emerged”.

Mr Faulkner submitted the appropriate amount of damages was £32,000.  This figure was arrived at by reference to a number of cases, where awards varied from £1,240 to £16,560. The Court observed that while earlier cases, taken alone, set the tariff quite high, the elements making up the awards were “inscrutable”. More recent cases suggested a “change of mood”, but those cases were also considered “ultimately unattractive” or did not concern damages for loss of liberty. The Court noted:

…[I]t is a reminder that the loss of an opportunity of conditional liberty, while not the same thing as false imprisonment, is a real blow to something of real value, and that if it is to be reflected in money the sum should not ordinarily be insubstantial.

The Respondents submitted the appropriate award was £3,500, and that Mr Faulkner’s own responsibility for what had occurred should be considered without a close examination of authorities or extensive examination of the facts. The Court disagreed this interpretation, concluding that an award cannot be quantified without consideration of what has happened.

In light of these principles, the Court considered a figure of £10,000 was the nearest one can come to quantifying just satisfaction in monetary terms for this particular wrong”. In the Court’s view, the amount reflected Mr Faulkner’s loss of 10 months’ conditional liberty by reason of the Respondents’ breach of Mr Faulkner’s right not to continue to be detained in the absence of a speedy decision by a judicial body.

Relevance to the Victorian Charter

The case provides a useful analysis of principles to be considered when awarding damages for violations of human rights. This analysis is of indirect relevance to the Charter only, as section 39(3) provides that a person is not entitled to be awarded any damages because of a breach of Charter rights. However, a person may still seek relief or remedy on the ground of unlawfulness arising from the Charter where that person would otherwise have a cause of action to seek relief or remedies: section 39(1). To that extent, the principles upheld in Faulkner are instructive in the development to remedies under the Charter generally.

On the broader question of liability, section 21(7) of the Charter contains the equivalent right to that found under article 5 (4) of the Convention. Any analysis of this right may, where relevant, draw on discussion of the right in Faulkner. It should be noted, though, that under section 5 the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2009, Adult and Youth Parole Boards are declared not to be public authorities for the purposes of the Charter. In effect, this will limit the application of the right protected by s 21(7) of the Charter to these bodies to circumstances involving interpretation of their statutory obligations.

The decision can be accessed at http://www.bailii.org/ew/cases/EWCA/Civ/2011/349.html.

Kate Mitchell is a lawyer with Allens Arthur Robinson