Man arrested for child photos entitled to human rights damages

4 June 2010 by Adam Wagner

R (on the application of ASO MOHAMMED) v CHIEF CONSTABLE OF WEST MIDLANDS [2010] EWHC 1228 (Admin) – Read Judgment

A man who was arrested and cautioned for taking naked pictures of his girlfriend’s child has had his caution quashed and has been awarded £500 damages under the Human Rights Act. The case demonstrates that human rights claims can be successful against the police, and raises questions as to whether sex offender laws are being used overzealously.

We posted last month on the difficulty of bringing human rights claims when the police have made mistakes. This case provides an example of where human rights law can assist, and demonstrates what kinds of questions a court must ask itself before awarding damages under section 8 of the Human Rights Act 1998.

A walk in the park

On 27 September 2009 Mr Mohammed, a 24-year-old man, visited Longford Park in Coventry along with his girlfriend, her 5-year-old child and another friend. Whilst they were in the park the child removed her clothes. Mr Mohammed was subsequently seen taking naked pictures of her by a member of the public, who called the police.

Later that day, Mr Mohammed, his girlfriend and their friend were arrested on suspicion of taking indecent photographs of a child, which is an offence under section 1 of the Protection of Children Act 1978.

Mr Mohammed was interviewed under caution with the help of an Kurdish interpreter, as his English was not particularly good. He was released on bail but subject to conditions, including the requirement to report daily to a named police station, not to move from his address and not to have any unsupervised contact with children under 16.

The conditions lasted until mid-December, when Mr Mohammed was invited back to the police station on the understanding that he would be offered a caution. He was told that an interpreter would be present but when he attended on 15 December 2009, no interpreter assisted with the administration of the caution. As a result of the caution, Mr Mohammed was placed on the sex-offenders list.

Judicial review

Mr Mohammed brought a judicial review against the police, seeking that the caution and all records relating to it be quashed, a declaration that his Article 6 (right to a fair trial) and Article 8 (right to private and family life) rights had been breached, and damages under section 8 of the Human Rights Act.

The issues before the judge were therefore first, whether the claimant’s rights had been breached, and second, whether he was entitled to damages as “just satisfaction” of that breach.

Damages under human rights law

A person is entitled to damages under section 8 of the Human Rights Act in relation to any act of a public authority which the court finds is unlawful. The court can only award damages if it “is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made”. Just satisfaction is a term of art in human rights law used to describe the kind of remedies which are available to claimants (see, for example, our analysis of the rights of barred voters).

Unlike for example contract or tort law, human rights law is not primarily about damages. Rather, is concerned with correcting unlawful acts committed by public authorities. This means that the focus of claimants is almost always on bringing adverse treatment to an end, rather than making the authority pay for their mistake. This is not to say, however, that damages are never available to claimants.

Mr Justice Wyn Williams referred to the well known case of Anufrijeva v London Borough of Southwark for the relevant principles on appropriate remedies under the Human Rights Act. In that case, the Lord Chief Justice said:

Where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance. This is reflected in the fact that, when it is necessary to resort to the courts to uphold and protect human rights, the remedies that are most frequently sought are the orders which are the descendents of the historic prerogative orders or declaratory judgments. The orders enable the court to order a public body to refrain from or to take action, or to quash an offending administrative decision of a public body. Declaratory judgments usually resolve disputes as to what is the correct answer in law to a dispute. This means that it is often procedurally convenient for actions concerning human rights to be heard on an application for judicial review in the Administrative Court. That court does not normally concern itself with issues of disputed fact or with issues as to damages. However, it is well placed to take action expeditiously when this is appropriate.

Breach of human rights

Mr Mohammed argued that the caution was “fundamentally flawed”, as there was insufficient evidence to afford a realistic prospect of conviction. The police decided before the hearing that they would concede this point.

The judge ultimately found that there was a clear breach of Mr Mohammed’s article 8 rights as the caution, which had been unlawfully administered, was likely to indicate to the world that Mr Mohammed had admitted to a sexual offence in relation to a child. He was also placed on the sex offenders register as a direct result of the caution. Therefore, the unlawful caution was found to be a direct cause of the interference of his rights to private and family life.

The judge went on to decide whether damages were appropriate in this case, given that the claimant had already had his caution quashed and so achieved the main aim of his claim. He did so by the principles in Anufrijeva to Mr Mohammed’s case, ultimately finding that the interference with Mr Mohammed’s rights was so severe that the mere quashing of the caution would not amount to just satisfaction. He said at paragraph 44:

I do not consider that right minded people would conclude that the Claimant had obtained just satisfaction in all the circumstances of this case if I decided to make an award of damages and confined myself to an order quashing the caution. I take that view balancing the private interests of the Claimant against the wider public interest as I am enjoined to do.

Checks and balances

Ultimately, the judge saw fit to award £500 to Mr Mohammed. The amount could have been more but Mr Mohammed had agreed that the potential award would be limited to a maximum of £500 in order that the judge could hear his entire case in one sitting, rather than having to drag out the claim for further months.

Damages under the Human Rights Act are rarely high. This is because human rights law is not supposed to be primarily concerned with financial compensation; rather, it is incumbent upon the courts and the public authorities who have breached a person’s right to find more creative and appropriate means of righting the wrong.

But this is not to say that damages under human rights law are never appropriate. Mr Mohammed’s case provides a good example of when administrative incompetence by the police, which lead to significant and potentially devastating consequences, can be put right in the courts. Some might say, however, that the award itself is a pittance given the scale of the damage to Mr Mohammed’s life that the mistake caused.

This post originally included a sentence on the capping of human rights damages to £10,000 – this is not the case and has been removed with apologies.