Admin Court rules that Articles 5(5) and 8 of the Convention are compatible in relation to damages

9 February 2010 by

R (Degainis) v Secretary of State for Justice [2010] EWHC 137 (Admin)

Mr Justice Saunders

When deciding whether to award damages under Article 5(5) of the European Convention on Human Rights (ECHR) for breach of Article 5(4), regard has to be paid to Article 8 and the limits on damages in that provision. Articles 5 and 8 are not, however, incompatible. There was no basis for the claim that Article 5(4) compensation can only be monetary, and in some cases a finding of a breach can be sufficient compensation.

On 6th February 1976 when he was 19 years old, the Claimant raped a 55 year old neighbour.  A very experienced High Court Judge described the rape as the worst he had known. The Claimant was sentenced to Life Imprisonment with a tariff of 10 years. He was not released on licence until October 2005.

He was recalled to prison on 1st July 2006 because he made phone calls to a female, the contents of which gave rise to concerns as to his future behaviour to women. The Parole Board having heard evidence decided that the recall was justified. In addition the Parole Board laid down a timetable for the next hearing to take place in July 2008. That hearing was to plan for release. A number of reports would need to be prepared for that hearing. They were not ready in July 2008 and the hearing did not take place until 23rd January 2009.

The Claimant commenced an action for Judicial Review on 17th November 2008 claiming that there was a breach of his rights under Article 5(4) of the ECHR. By virtue of Article 5(4): ‘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.’

Mr Justice Saunders ultimately found that an award for damages was not justifiable in this case as it was not supported by evidence.

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