Guidance from the Supreme Court on human rights damages

2 May 2013 by

prison2aFaulkner, R (on the application of ) v  Secretary of State for Justice and another [2013] UKSC 23 – read judgment

The Supreme Court has taken a fresh look at what is meant by the Human Rights Act exhortation to take Strasbourg jurisprudence “into account” when fashioning remedies for violations of Convention rights, in this case the right not to be arbitrarily detained under Article 5.

These appeals concerned the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (“IPP”), who has served the minimum period specified for the purposes of retribution and deterrence (the “tariff”), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff.

Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Supreme Court was being asked in this case to give guidance on quantum, the Court determined the level of the award that would adequately compensate the appellants.

The following summary of the conjoined cases is based on the Supreme Court’s press report. 

Legal and factual background

Since 1997, legislation has required judges to impose life sentences on a wider range of offenders than was previously the case. In addition, IPPs were introduced in April 2005. It is for the Parole Board to decide whether to direct the release of a life or IPP prisoner whose tariff has expired. The prisoner’s case must first be referred to the Board by the Secretary of State for Justice. The increase in the number of life prisoners and the introduction of IPP sentences resulted in an increase in the Board’s workload without a concomitant increase in its resources. This resulted in delay in the consideration of post-tariff prisoners’ cases. That delay has implications for Article 5 of the Convention, which requires that the period of detention remains causally related to the objectives of the sentencing court, and also requires that the Board  review the necessity for the continued detention of post-tariff prisoners “speedily” upon the expiry of their tariff and at reasonable intervals thereafter. The 1998 Human Rights Act also provides that the remedies for a violation of a Convention right include damages.

Mr Faulkner was sentenced in 2001 to life imprisonment for a second offence involving grievous bodily harm. Mr Sturnham was convicted of manslaughter in 2007 and given an IPP sentence. In each case, there was a delay in the holding of a hearing before the Board after the tariff had expired, due to administrative errors for which the Secretary of State was responsible. Both men were eventually released following Board hearings, but Mr Faulkner was twice recalled to prison in respect of allegations of which he was acquitted, and remains in custody.

Each sought judicial review of the failure by the Board and the Secretary of State to conduct a review of his detention “speedily”, as required by Article 5(4).  Mr Faulkner was unsuccessful in the High Court, but the Court of Appeal held that the Secretary of State had breached Article 5(4), that Mr Faulkner would have been released 10 months earlier than he was but for that breach, and that the Secretary of State should therefore pay him £10,000 in damages.   In Mr Sturnham’s case, the High Court held that there had been a breach of Article 5(4) due to a delay of 6 months, that he had been caused anxiety and distress by the delay, but that there was no prospect that he would have been released any earlier had the hearing taken place speedily. The Secretary of State was ordered to pay him £300, but that award was quashed by the Court of Appeal. In Mr Faulkner’s case, the Board appeals to the Supreme Court on the ground that the award of damages was excessive.

The Supreme Court allowed the Board’s appeal in Mr Faulkner’s case and reduced the damages awarded to him to £6,500 and allowed Mr Sturnham’s appeal, without increasing the £300 award originally granted.

Reasoning behind the judgment

Lord Reed, giving the leading judgment, rejected Mr Faulkner’s argument that the detention of a life prisoner constituted false imprisonment if it continued beyond the point at which the prisoner would have been released if a hearing had been held in accordance with Article 5(4). That detention, he pointed out,  is still authorised by statute, and is therefore lawful until the Board directs release. Nor was Mr Faulkner the victim of a violation of Article 5(1). Such a violation requires exceptional circumstances warranting the conclusion that continued detention has become arbitrary, which were not present in Mr Faulkner’s case.

On the question of damages under the Human Rights Act, the courts should be guided primarily by the principles applied by the Strasbourg Court, which may be inferred from “any clear and consistent practice” of that court (wherever that can be found). The quantum of such awards should broadly reflect the level of awards made by Strasbourg in comparable cases brought by applicants from the UK or other countries with a similar cost of living.

Where it is established on the balance of probabilities that a violation of Article 5(4) has prolonged the detention of a prisoner past the point at which he would otherwise have been released, damages should ordinarily be awarded. The amount of such damages should be a matter of judgment, reflecting the facts of the case and having regard to guidance from Strasbourg and the national courts in comparable cases. Financial losses should be compensated in full, but damages should not be awarded merely for the loss of a chance of earlier release, or adjusted according to the degree of probability of release if the violation of Article 5(4) had not occurred.

Even where it is not established that an earlier hearing would have resulted in earlier release, there is a strong presumption that delay which violated Article 5(4) has caused the prisoner frustration and anxiety. Where such a presumption is not rebutted, an award of damages should be made, though on a modest scale. No such award should be made in cases where the frustration and anxiety were insufficiently severe to warrant an award. Following that approach, and having regard to the Strasbourg authorities, the award of £300 to Mr Sturnham was reasonable in his case.

Comment

When deciding whether to award damages, and if so how much, the UK courts are not strictly bound by the principles applied by the Strasbourg court in awarding compensation under article 41 of the Convention (see Lord Bingham in R (Greenfield) v Secretary of State for the Home Department 2005] 1 WLR 673. But Section 8(4) HRA enjoins them to take Strasbourg principles “into account”.  But where are these principles to be found?  The problem with relying on the Strasbourg approach to the assessment of damages (or anything else for that matter) is that there is little by way of consistent or clear guidance in the reports (see the Law Commission’s critique of this aspect of Strasbourg jurisprudence, and this refreshingly robust reflection by one commentator:

It is rare to find a reasoned decision articulating principles on which a remedy is afforded. One former judge of the European Court of Human Rights privately states: ‘We have no principles’. Another judge responds, ‘We have principles, we just do not apply them’.” (Dinah Shelton, Remedies in International Human Rights Law (1999) p 1)

Of course it would be unreasonable to expect that court can replicate at an international level any one of the widely divergent approaches to damages adopted in the 47 very diverse domestic legal systems from which its judges are drawn. As Lord Reed says:

Given the differing traditions from which its judges are drawn, and bearing in mind that the court has not regarded the award of just satisfaction as its principal concern, it is not altogether surprising that it has generally dealt with the subject relatively briefly, and has offered little explanation of its reasons for awarding particular amounts or for declining to make an award [34]

And “principles” for this purpose must be understood in the broad sense, meaning that courts should aim to pitch their awards at the general level indicated by Strasbourg awards in comparable cases, so far as that can be estimated.  And then there is the obvious point that awards granted by the Strasbourg court to applicants from countries where the cost of living is relatively low tend to be low by comparison with awards to applicants from countries where the cost of living is much higher. In order to obtain guidance as to the appropriate level of awards under section 8 of the 1998 Act, it is therefore necessary to focus upon awards made to applicants from the UK or from other countries with a comparable cost of living.

But Lord Carnwath had an alternative, more selective approach to suggest. Most of the Strasbourg court’s decisions are not intended to have any precedential effect, and it was a mistake in his view to treat them as if they were. He suggested focusing on those cases which explicitly decide points of principle, and eschewing those which are simply assessments of the facts. Such a case is Nikolova v Bulgaria (2001) 31 EHRR 3 in which the Strasbourg Court, in refusing to award any financial remedy at all for violations under Article 5(3) and 5(4), was clearly drawing a line under the discrepancies of earlier cases and providing more consistent guidance for the future.

The continuing relevance of the principle or practice established in Nikolova is apparent from the subsequent cases in which it has been cited (one of the more recent being Mitreski v Former Yugoslav Republic of Macedonia (Application No 11621/09) (unreported, BAILII: [2010] ECHR 376) 25 March 2010) and the absence of any case in which it has been directly questioned. (Lord Carnwath, para 121]

The one principled approach that is consistent across the Strasbourg rulings is that financial awards under Article 41 are modest. In this sense there are very good reasons why the courts should follow Strasbourg rather than relying on remedies awarded in domestic precedents. It is important to remember that the Human Rights Act 1998 is not a tort statute; it does not require the courts to apportion fault and compensatory damages between civil parties. As Lord Bingham reminds us in Greenfield, remedies for human rights violations do not have to come in the form of cash:

 Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted.

Furthermore, the purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg. In Lord Reed’s elegant formulation, one must reflect upon the international origins of the remedy and its lack of any native roots, and understand that “the primary source of the principles which are to guide the courts in its application is said to be the practice of the international court that is its native habitat.”[29]

Practitioners note: in a postscript to his judgment, from para 99 – 103 , Lord Reed suggested a procedure for furnishing the court with Strasbourg authorities that would reduce the delay caused by both sides duplicating their analysis of the same cases and the confusion engendered by submitting the court to a “blizzard of authorities”  from which no clear principles can be discerned.  Instead the court should be provided with an agreed Scott schedule, i.e. a table setting out the relevant information about each of the authorities under a series of columns, along with a list of the authorities in chronological order.

 Otherwise, to adapt Mark Twain’s remark about life, the citation of authorities is liable to amount to little more than one damn thing after another; or even, to borrow a well-known riposte, the same damn thing over and over again.

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