Please release me

24 December 2010 by Isabel McArdle

Stellato v Ministry of Justice  [2010] EWCA Civ 1435 – Read judgment

The court of appeal has ruled that when a court set a deadline for a prisoner’s release, that deadline could was not lawfully extended simply because a court needed time to hear an appeal against the decision to release him.

In other words, prisoners must be released on time unless a court explicitly rules otherwise. Absent such a ruling, any additional time spent in custody waiting for a hearing will be unlawful detention and could trigger damages.

The Court of Appeal considered the application of Article 5.1(b) of the European Convention on Human Rights (the right to liberty) in relation to the detention of a person released on licence and, later, on bail, who refused to comply with the conditions imposed on him.

Article 5 protects the right to liberty, but has exceptions, including Article 5.1(b). This provides:

1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;”

The reason which underlies detention must be lawful. The making of subsequent court orders which are breached will not make a decision to return a person to detention, based on that beach, lawful, if detention was not originally lawful.

The Facts

Mr Stellato was sentenced to 10 years’ imprisonment. In late 2005 the responsible public authority made the decision to release him on licence. He brought judicial review proceedings, arguing that his release should be unconditional on the basis that a particular statute provided that in his circumstances, that was the appropriate decision.

When he was released on licence, he breached his licence conditions because he believed he should have been released unconditionally.

The public authority then purported to revoke the licence. Mr Stellato brought a claim for damages for false imprisonment and a breach of Article 5, arguing that his release on licence had been unlawful. This was dismissed. However, the Court of Appeal then overturned this decision and released him on bail, with conditions. It also stayed the order of the lower court which provided for his immediate release.

He subsequently refused to comply with his bail conditions, because he believed he could not be on bail if he was not on licence. As a result, he was arrested and detained again for breaching his bail conditions. The court order granting him bail was stayed.

The public authority then appealed to the House of Lords, which dismissed the appeal and released Mr Stellato unconditionally.

The Appeal: was the detention unlawful?

This appeal focussed on whether Mr Stellato’s detention had been unlawful and in breach of Article 5. The different court orders required separate consideration, to assess whether the Article 5.1(b) exception applied. The Court of Appeal’s stay meant that the order requiring the immediate release of Mr Stellato was temporarily of no effect. In other words, his release ceased to be mandatory, his detention did not become mandatory.

In relation to the grant of bail, Mr Justice Cranston noted,

…a grant of bail is not an order for the detention of the person to whom it is granted. To the contrary, it is a grant of liberty to someone who would otherwise be detained… A condition of bail… qualifies the grant of liberty made by the grant of bail. If the person granted bail does not comply with the conditions of his bail, he is liable to be returned to custody. If so, the legal authority for his detention is not the grant of bail, or his breach of the conditions of his bail, but the authority for his detention apart from the order for bail. All that his breach of the conditions of his bail does is to disentitle him to bail. (Paragraph 23)

He went on to explain that although it is an offence to breach bail conditions without reasonable cause, if there is no underlying authority for the detention, that constitutes reasonable cause.

The public authority argued that the detention had been lawful within the meaning of Article 5.1(b), because Mr Stellato’s refusal to comply with his bail conditions and this constituted non-compliance with the lawful order of the court. Cranston J was not persuaded by this argument:

..so to read paragraph (b) is to attribute to a grant of bail an authority to detain the person granted bail when there is no underlying legal basis for his detention. It is to treat a grant of bail as authority to detain, when in my judgment it is, as I have said, the opposite… A failure or refusal to comply with the conditions of bail, at least in civil proceedings, is not non-compliance with an order of a court for the purposes of Article 5. (Paragraph 31)

Lord Justice Patten and Lord Justice Maurice Kay agreed.

Consequently the detention had not been lawful and Mr Stellato was entitled to damages.

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