Mr Justice Silber:
I Introduction
- This case raises two interesting and important issues of which the first is whether a decision of the European Court of Human Rights ("the Strasbourg Court") has to be regarded as only having a prospective effect and not having any retrospective effect in respect of claims, which had not been instituted at the time of the decision of the Strasbourg Court. The second issue is whether Article 5(5) of the European Convention on Human Rights ("the ECHR") gives a right to a person wrongfully detained to claim compensation for wrongful detention in the English courts, even though such a claim for compensation could not be made under section 6 of the Human Rights Act 1998 ("the HRA").
- Colin Richards ("the claimant") received a mandatory life sentence for murder on 19 July 1985. His tariff was set at seventeen years and it expired on 19 September 2001. The Parole Board recommended him for release on 16 November 2001 but he was not released by the Secretary of State for the Home Department ("the defendant") until 12 August 2002.
- On 4 November 2002, the claimant's solicitors wrote to the defendant seeking compensation for his detention from 16 November 2001 until 12 August 2002. By a letter dated 18 November 2002, the defendant rejected this claim. In the present proceedings, the claimant is challenging that decision. He is also seeking in respect of his wrongful detention either an assessment by the court of the appropriate level of compensation payable by the defendant and a mandatory order that he pays that sum or alternatively damages from the defendant . Elias J gave permission to pursue this application.
II The Basis of the Claim
- As the claimant has no remedy under English law in respect of his detention, it is accepted by his counsel that he could not obtain relief in the present proceedings without relying on the ECHR. They contend that he is entitled to be compensated for breach of his rights under Article 5 of the ECHR in respect of his detention between some time shortly after the day on which the Parole Board recommended his release on licence and 12 August 2002, which was the date of his actual release.
- To understand the reasons why the claimant contends that his detention was unlawful, it is necessary to explain the legal developments, which led to this claim being made. Article 5 of the ECHR provides that: -
"….
4. Everyone who is deprived of his liberty by arrest or detention should be entitled to take proceedings by which the lawfulness of his detention shall be determined speedily by a court and his release ordered if the detention is not lawful".
- The release or prisoners serving mandatory life sentences is dealt with by section 29 of the Crime (Sentences) Act 1997 ("the 1997 Act"), which provides that: -
(1) If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on a licence a life prisoner who is not one to whom section 28 above applies.
(2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of cases to which that case belongs, to the Board for its advice.
- When it was enacted, section 29 of the 1997 Act was compatible with Article 5 of the ECHR according to the settled ECHR case law, as stated by the Strasbourg Court in Wynne v. United Kingdom (1994) 19 EHRR 333. In that case, it was decided that a mandatory life sentence belonged to a different category from a discretionary life sentence as it was imposed because of the inherent gravity of the offence of murder and not because of the factors likely to change over time, such as the dangerousness of the prisoner. The Strasbourg Court held that in those circumstances, the guarantee in Article 5(4) of the ECHR was satisfied by the original trial and by the appeal proceedings with the result that it conferred no additional rights on a mandatory life sentence prisoner to challenge subsequently the lawfulness of the continuing detention under a mandatory life sentence. The decision in Wynne was itself consistent with and followed the earlier decision of the Strasbourg Court in Thynne, Wilson and Gunnell v. United Kingdom (1991) 13 EHRR 666.
- The basis of those decisions of the Strasbourg Court was that the mandatory life sentence for murder was a sentence, which prescribed life-long detention for punitive reasons. In other words, the sole purpose of the sentence was punitive. Thus, it followed from that the right of a person sentenced to a mandatory life sentence to have the lawfulness of his detention determined by an independent and impartial Tribunal under Article 5(4) of the ECHR had been fully satisfied when the sentencing judge passed the mandatory life sentence and also when any rights of appeal against that sentence had been exhausted.
- On 28 May 2002, the Strasbourg Court reversed its ruling in Wynne when it decided in Stafford v. UK (2002) 35 EHRR 1121 that as a matter of domestic law, the mandatory life sentence could no longer be regarded as being wholly punitive because it was partly punitive and partly preventative; the preventative phase started after the tariff had expired and then new issues effecting the lawfulness of the prisoner's detention had to be determined.
- The only way in which those new issues could be determined under the existing law was by relying on decisions of the Home Secretary. In R (Anderson) v. Secretary of State for the Home Department [2003] 1 AC 837, Lord Bingham of Cornhill explained that section 29 of the 1997 Act imposed no duty on the Secretary of State either to refer a case to the Board or to release a prisoner serving a mandatory life sentence if the Board recommended release. This conclusion followed because Parliament had implemented an entirely different regime, which was applicable to discretionary life sentences in section 28 of the 1997 Act.
- In the light of the decision in Stafford, the House of Lords ruled in Anderson on 25 November 2002 that section 29 of the 1997 Act was incompatible with the ECHR. The issue in Anderson related to the initial setting of the tariff by the Secretary of State rather than the absence of any procedure for the review of continued detention by a judicial body. The House of Lords found that the setting of the tariff was a sentencing function and that it was incompatible with Article 6(1) of the ECHR for this function to be performed by the Secretary of State.
- The House of Lords in Anderson was satisfied that no remedy other than declaration of incompatibility was appropriate because it was not possible to read section 29 of the 1997 Act compatibly with the Convention. This was explained by Lord Bingham of Cornhill when he said in his speech with which the other members of the Appellate Committee agreed that "to read section 29 as precluding participation by the Home Secretary, if it were possible to do so would not be judicial interpretation but judicial vandalism" [30].
- It is common ground between counsel that the decisions and reasoning in Stafford and Anderson lead to the inescapable conclusion that section 29 of the 1997 Act is incompatible with Articles 5(4) and 6(1) of the ECHR. It is the claimant's case that his detention after the date in November 2001 on which the Parole Board had recommended his release on licence was in breach of Article 5(4). The main issues raised on this application are whether this submission is correct and, if so, whether the claimant can claim compensation from the English courts. It is now appropriate to explain the stance of the parties on these issues.
III The Issues
- Counsel agree that the claimant cannot recover damages by relying on the provisions of section 6(1) of the 1998 Act, which state that: -
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right".
- The defendant is "a public authority" but an obstacle for the claimant in his claim for damages for wrongful detention is that the applicability of section 6 (1) of the HRA is severely restricted by section 6(2) of the HRA, which provides with my italicised emphasis added, that: -
"Subsection (1) does not apply to an act if: -
(a) as a result of one or more provisions of primary legislation the authority could not have acted differently or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce these provisions".
- It is common ground between the parties that because of the provisions of section 29(1) of the 1997 Act, which I have quoted in paragraph 6 above, the defendant in the words of section 6 (2) of the HRA "could not have acted differently" to the way in which the claimant's detention was actually handled. The consequence is that the claimant cannot rely on section 6 (1) of the HRA to found his claim for damages in the English courts from the defendant.
- For that reason, Miss. Phillippa Kaufmann for the claimant instead bases the claim for damages on Article 5(5) of the ECHR, which states that: -
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation" (italicised emphasis added).
- Miss. Dinah Rose for the defendant contends that Article 5(5) of the ECHR does not confer a right on the claimant to recover damages or compensation for wrongful detention when he is precluded from relying on section 6 of the HRA. This is the first issue that I will have to resolve because if Miss Rose is correct on this point, the claim must fail.
- The second issue is whether the defendant is correct in saying that the effect of the decision of the Strasbourg Court in Stafford is prospective so that it only applies to subsequent periods of detention and that it does not apply to the claimant's periods of detention in the period before Stafford was decided. The claimant disputes this and he contends that basic legal principles mean that the decision in Stafford also applies to breaches of Article 5 of the Convention, which occurred before that decision was handed down so that the claimant can recover for any period of wrongful detention, irrespective of whether it occurred before or after the decision in Stafford was promulgated. That dispute constitutes the second issue, which I will have to determine.
- If, and only if, the defendant is right on the second issue and Stafford only applies prospectively to periods of detention which occurred after it was published, it becomes necessary to consider a third issue, which relates to the length of the period of grace to which the defendant was entitled in order to make arrangements for the claimant's release after the decision in Stafford. The significance of this third issue is that during the period of grace enjoyed by the defendant, the claimant's detention is not to be regarded as unlawful. There is dispute about the length of this period but I stress that this third issue does not arise if the claimant is right and that the decision in Stafford operated both prospectively and retrospectively because in that event, the claimant can recover for the whole period of his detention provided, of course, that he also succeeds on the first issue and that he is entitled to claim under Article 5(5).
- The specific nature of this third issue is that Miss Kaufmann contends that the defendant should have made arrangements within 14 days of the publication of the decision in Stafford for the claimant's release. Miss Rose disagrees and she submits that on the facts of this case and after taking account of the claimant's personal circumstances, the defendant performed his obligations within a reasonable period and that the claimant was released within a reasonable period with the consequence that the claimant's detention never became unlawful and his claim fails.
- The fourth and final issue relates to the quantum of damages or compensation recoverable but this issue only arises if the claimant succeeds on the other issues so that he is entitled to recover damages or compensation from the defendant. When I heard this case on 21st and on 23rd July 2003, the Court of Appeal had recently heard, but had not by then given its judgment in the conjoined appeals of which the lead case was Anufrijeva v. London Borough of Southwark ([2003] EWCA Civ 1406); these appeals related to the recoverability and quantum of damages recoverable in claims brought under the HRA. Both parties sensibly agreed that they should not make submissions on this issue until the Court of Appeal had handed down its judgment, which it did on 16 October 2003. It was not possible to fix the adjourned hearing until 3 December 2003, when I heard counsel's further submissions on this issue by which time Mr. Keir Starmer QC had replaced Miss. Kaufmann as counsel for the claimant as she was then on maternity leave.
- In the light of my reasons, it is more convenient to deal with the issue relating to the period of grace last after dealing with the damages issue. Thus the issues to be resolved in this case will be dealt with in the following order: -
A – Does Article 5(5) of the ECHR enable the claimant to recover compensation or damages if he has been wrongfully detained? ("A - The Article 5(5) Claim Issue")
B – If so, does the decision of the Strasbourg Court in Stafford only entitle the claimant to compensation or damages for wrongful detention occurring on and after the date of the Stafford decision or from an earlier time? ("B - The Stafford Retrospective Effect Issue")
C – If the claimant is entitled to invoke Article 5(5) to make a claim in respect of his wrongful detention, what damages or compensation is the claimant entitled to? ("C - The Damages Issue")
D – If the decision in Stafford did not entitle the claimant to claim compensation or damages for his wrongful detention occurring before that decision, what period of grace did the defendant have to comply with that decision after the Stafford judgment? ("D - The Period of Grace Issue")
IV– Issue A - The Article 5(5) Claim Issue
- The background to the Article 5(5) issue is, as I have explained, that it is common ground that the claimant cannot invoke section 6(1) of the HRA for the reasons that I have explained in paragraph 16 above. Miss Kaufmann contends that the claimant is not precluded from seeking and securing compensation because the ECHR gives the claimant a free-standing and independent right to compensation in the form of Article 5(5), which is a right conferred on the claimant and which is triggered by the violations of Articles 5(1) and (4) and which is incorporated into domestic law by section 1(1) and (2) of the HRA.
The claimant's case
- The claimant's case is that Stafford, who was, as I have explained, successful in Strasbourg, would not have been precluded from seeking and securing compensation in respect of his Article 5(5) rights had he brought his claim for damages in the English courts rather than in Strasbourg.
- Miss. Kaufmann explains that Article 5 is special among the rights conferred under the Convention because it alone confers not only a substantive right but it also additionally contains within it a specific and additional right to a compensatory remedy where there has been a violation of Article 5 rights. She submits that this additional right to a compensatory remedy is to be found in Article 5(5) and that this compensatory remedy is triggered by a violation of one of the substantive rights of Article 5, which in this case are Articles 5(1) and (4) of the ECHR. Miss. Kaufmann stresses that the right to a compensatory right under Article 5(5) is a freestanding right. She submits that this compensatory right is a right, which constitutes a "convention right" within the meaning of section 1 of the HRA and that in consequence, a public authority, such as the defendant and this court, is under duty to act compatibly with it as otherwise each of them would not be complying with its duties under section 6 (1) of the HRA.
- Miss. Kaufmann points out that the right conferred under Article 5(5) of the ECHR has two component parts. The first is that the use of the words in that paragraph "an enforceable right to compensation" shows that there is a right on the part of a person who has been the victim of wrongful detention and who can show damage to be compensated for that loss; the second is that this right must be "enforceable". The claimant's case is that Article 5(5) also creates two corresponding duties on the state, of which the first is to provide an opportunity to everyone whose rights under Article 5 (1), (2), (3) and (4) have been breached to apply for compensation and the second is to actually compensate those who can show damage resulting from that breach.
- The case for the claimant is not that Article 5(5) requires that applications for compensation have to be determined by a court but that it is sufficient if the executive, such as the defendant, can make that determination. This is subject to the point that a failure by the state to award compensation where the grounds for it have been established is a breach of Article 5(5). In other words, Miss. Kaufmann contends that where the state fails to provide compensation, Article 5(5) requires the victim to be able to invoke the judicial regime of the state in order to enforce his rights. She explains that the defendant would violate the claimant's rights by not paying compensation for breach of Article 5 rights and that section 6 of the HRA would impose a duty to compensate the claimant in accordance with Article 5(5).
- Miss Kaufmann submits that section 6(2) of the HRA does not assist the defendant in respect of an Article 5(5) claim because it is common ground between the parties that the defendant has the power to pay compensation whether under the Appropriation Acts or impliedly under the HRA (see R (Hooper and Others) v. Secretary of State for Work and Pensions ([2003] EWCA Civ 813 and R (KB and Others) v. South London and South West Region Mental Health Review Tribunal and Others [2003] 3 WLR 185, which was approved in Anufrijeva (supra)).
The Defendant's case
- Miss. Rose submits that the claimant does not have any right to compensation for wrongful detention in this jurisdiction and that he can only pursue his claim in the Strasbourg Court. The thrust of her submission is that Article 5(5) does not confer a right to compensation in our courts but it imposes an obligation on the state to provide an "enforceable right" to compensation for detention contrary to Article 5. It is then, she contends, up to the state to prescribe the conditions under which compensation is payable. Miss. Rose contends that the State merely has to make it "possible to make an application for compensation" and that it has no further duties. She says that the only domestic remedy available for detention, which is contrary to Article 5 but clearly authorised by clear primary legislation, is a declaration of incompatibility pursuant to section 4 of the HRA. Miss Rose submits that the claimant has no right of compensation which he can enforce in this jurisdiction as the only court that could give him that remedy is in Strasbourg.
- Miss. Rose explains that this is clear from the fact that even where the court has found a breach of Article 5(5), it has not necessarily awarded damages. Indeed, in Brogan v. The United Kingdom [1989] 11 EHRR 117, breaches of Article 5(3) and 5(5) had been found, but the court reserved for further consideration the question of remedies. Subsequently, on 24 May 1989, the Strasbourg Court held that the principal judgment constituted sufficient satisfaction for the purposes of Article 50 of the ECHR with the result that no payment was made.
- According to Miss. Rose, the United Kingdom has not provided an enforceable right in a court to compensation for detention in its own country under Article 5(5) but she asserts that does not assist the claimant as no claim can be brought for this failure as the HRA does not give any rights in respect of a failure to legislate; section 6(6)(b) of the HRA.
- It is a fundamental feature of the HRA which operates so as to preserve the sovereignty of Parliament that compensation is payable under section 8 of the HRA but then only where a public authority has acted unlawfully.
- Thus, Miss. Rose submits that at most the duty of the defendant under section 6(1) of the HRA was merely to consider whether the claimant should be compensated on the facts of his case. That, she says, is what happened in this case when the defendant decided not to make an ex gratia payment. She points out that in Anufrijeva, Lord Woolf CJ giving the judgment of the Court of Appeal explained that Stanley Burnton J in KB had: -
"concluded that Article 5(5) did not make an award of damages mandatory in such cases. It was complied with provided that it was possible to make an application for compensation; it did not preclude the Contracting States from making an award of compensation conditional upon proof that procedural delay had resulted in damage" [63].
- The "application for compensation" referred to in KB related in that case to an application to the High Court and not, as Miss. Rose submits, to an application to the State. Thus, this quote does not assist the defendant's submission on this issue.
- Miss. Rose contends that there were grounds for the defendant's conclusion that the continuation of the claimant's detention from the date of the Parole Board decision on 17 November 2001 until his release on 12 August 2001 was the claimant's own fault. Thus, it is said by Miss Rose that the defendant has acted compatibly with the ECHR and the HRA when it refused to compensate the claimant. She stresses that the decision of the defendant not to make a payment to the claimant has not been challenged on public law grounds. I add that I will consider if the claimant's detention was his own fault when I comment on issue D, which is the damages issue.
Discussion on the Article 5(5) claim issue
- The critical questions to be resolved are (i) if the provision in Article 5(5) of the Convention that a victim of wrongful detention "shall have an enforceable right to compensation" confers a right on a detained person to bring a claim in the English courts which would lead to a legally binding award and if so, (ii) whether this right confers a "convention right" as is described in section 2 of the HRA (iii) whether this right will be contravened if payment is not made and (iv) whether in that event a claim under section 6 of the HRA can be brought in support of this right. I stress that when considering this issue, I must assume that the claimant has suffered damage as a result of wrongful detention but I will consider if this assumption is correct when I come to issue D, which is the damages issue.
- Starting with (i), I consider for four reasons that Article 5(5) confers a convention right to enable victims of wrongful detention to have "an enforceable claim for compensation" in the English courts. First, the Strasbourg Court has held that there has also been a breach of Article 5(5) where an applicant, who lived in Northern Ireland, had been arrested and detained in breach of Article 5 (3) of the Convention but where: -
"This violation could not give rise either before or after the finding made by the [Strasbourg Court] in the present judgment, to an enforceable claim for compensation by the victims before the domestic courts" (Brogan v. United Kingdom (1998) 11 EHRR 117, 138 paragraph 67).
- The Strasbourg Court adopted similar reasoning in relation to Article 5(5) in Fox, Campbell and Hartley v. United Kingdom ((1990) 13 EHHRR 157 [46]).
- These statements indicate that the Strasbourg Court considered that the right given by Article 5(5) of the Convention was to pursue an enforceable claim for compensation in the domestic courts. Miss. Rose seeks to minimise the effect of these statements by pointing out that the Strasbourg Court later held in both cases that the finding of the breach was "just satisfaction", but that fact-sensitive decision does not undermine what is significant for the issue under consideration, which is the existence of a right of a wrongly detained individual to invoke Article 5(5) of the ECHR to claim damages in his domestic court.
- Second, the words used in Article 5(5) stating that those victims of breaches of Article 5 "shall have an enforceable right to compensation" clearly entail the conferment of a right to obtain an enforceable award and that this should be in the local courts. It would have been unnecessary to have this provision and in particular for the "enforceable right to compensation" to be incorporated into English law by section 1 of the HRA if the intention of Article 5 (5) was, as Miss. Rose submits, not to give any rights to sue in the domestic courts. In this regard, I respectfully agree with the approach of Lord Lester QC and Mr. David Pannick Q.C., who state of Article 5(5), that "the remedy required is one before a national court which leads to a legally binding award" (Human Rights Law and Practice (1999) paragraph 4.5.58 with the authors' italicisation).
- Third, it is difficult to understand why Article 5(5) is needed if Miss Rose is correct and the Contracting States could refuse to give an enforceable right to compensation for detention contrary to Article 5. If Contracting States could act in that way, it is not clear why there had to be any provision stating that fact.
- Finally, the interpretation advocated by Miss Rose that Article 5(5) imposes nothing other than an obligation on the Contracting States to provide an enforceable right for compensation subject to the right of the state "to prescribe the conditions under which such compensation is payable" and this approach entails rewriting Article 5(5). Indeed, it would have to state (with the words needed to express Miss Rose's interpretation italicised) that "the state shall have an obligation to ensure that everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to make an application for compensation". No cogent reason has been put forward to justify that approach, which entails a radical rewriting of Article 5(5).
- In my view, Grosz, Beatson and Duffy were correct when they stated of Article 5(5), with my italicised emphasis added that:-
"The effect of this provision is to require an enforceable claim for compensation before the national courts whenever a breach of the other paragraphs of Article 5 has occurred. This is distinct from and without prejudice to the power of the [Strasbourg Court] to award "just satisfaction"" (Human Rights (2000) page 218).
- Thus, I am satisfied in respect of sub-issue (i), that Article 5(5) of the Convention confers on the claimant a right to obtain an award in the English courts for contraventions of Article 5. That leads on to sub-issue (ii) which is whether this right under Article 5 (5) is a "Convention right" as specified in section 1 of the HRA. The answer to that must be in the affirmative as section 1(1) of the HRA states, insofar as is material to this issue, that " In this Act "the Convention rights" means the rights and fundamental freedoms set out in (a) Articles 2 to 12 and 14 of the Convention …". The provisions of Article 5 (5) of the ECHR contain "an enforceable right to compensation", which falls within the definition of Convention rights; indeed the Article 5(5) provision is set out in Schedule 1 of the HRA, which lists "Articles [which] are to have effect for the purposes of this Act …": section 1(2) of the HRA.
- Sub-issue (iii) raises the question of whether the defendant will contravene the Article 5(5) obligation by not paying compensation to the claimant. I consider that the right conferred under Article 5(5) of the Convention will only be triggered "if there has been a declaration by the domestic courts, either expressly or impliedly that Article 5 has been contravened" (Human Rights Law and Practice (1999) Lord Lester QC and David Pannick QC paragraph 4.5.58). This right will only arise if the claimant succeeds in establishing a right to damages or compensation but, as I have explained, at this juncture, I am assuming that such a claim will succeed. Thus if the continued detention of the claimant at any time after 17 November 2001 was a breach of Article 5 because of the decision in Stafford and the claimant can establish a right to damages or compensation, then the defendant will have been in breach of Article 5 (5) of the Convention by not paying compensation or damages. In other words, the claimant succeeds on this issue but he still has to show, among other things, that he suffered loss.
- Sub-issue (iv) requires consideration of whether the claimant can bring a claim if the failure of the defendant to pay him damages is a breach of the claimant's Convention rights. Section 6(1) of the HRA makes it unlawful for the defendant as a public authority "to act in a way which is incompatible" with a Convention right of the claimant, which in this case is the Article 5(5) right to an "enforceable right to compensation". Thus, the claimant will succeed on this point unless this claim is precluded by section 6(2) of the HRA, which I have set out in paragraph 15 above. To my mind, section 6(2) of the HRA does not assist the defendant in respect of this claim because, as is common ground, the defendant could have lawfully made a payment of compensation to the claimant.
- In those circumstances, I consider that the claimant can obtain either an assessment by the court of the appropriate level of compensation payable by the defendant and a mandatory order that he pays such sums or damages under Article 5(5) of the Convention, provided that he can show first that he has suffered some form of damage and second, that he can establish a breach of Article 5, on which he can rely and this entails determining the effect of Stafford, which is the next issue, to which I now turn.
V Issue B- The Stafford Retrospective Effect Issue
- The essence of this dispute is whether the decision of the Strasbourg Court in Stafford is to be regarded as having both retrospective and prospective effect or merely having prospective effect. The significance of this issue to the present case is that the Stafford decision was published on 28 May 2002 while the present claim relates to the claimant's detention both before and after that date, namely from 17 November 2001 until 12 August 2002. The claimant contends that the Stafford decision has both retrospective and prospective effect while the defendant submits that the judgment in Stafford should be treated as being only prospective in its effect with the result that the principle of legal certainty dispenses the United Kingdom Government from reopening legal acts or situations which antedate that judgment.
- The basis of the defendant's case is that when the claimant's detention occurred in 2001, his detention was compatible with Article 5 in the light of the decision of the Strasbourg Court in Wynne, to which I have already referred in paragraph 7 above and which had been delivered as recently as 1994. The Wynne decision was upheld by the European Commission of Human Rights in its more recent cases, of Raja on 20 May 1998, as well as in Ryan and Bromfield on 1 July 1998. Each of these three cases was based on complaints of violation of the claimant's rights under Article 5 of the Convention but each of them was rejected in Strasbourg as being manifestly ill-founded.
- Miss. Rose attaches great importance to the fact that the Strasbourg Court in Stafford was not purporting to overrule Wynne or the later Commission decisions, which followed it, or to suggest that any of them had been wrongly decided. She considers that it is noteworthy that the reasoning of the Strasbourg Court was based on changing conditions, an emerging consensus discernable in the domestic law and, in particular, on the evolution of the analysis of a mandatory life sentence over time in the English courts.
- Thus, it is said on behalf of the defendant that the effect of these changes and national conditions had a consequential effect in showing that the nature of the United Kingdom's obligations under Article 5 had changed. In support of this submission, Miss. Rose points to the reasoning of the Strasbourg Court in Stafford as demonstrating the importance that they attached to these changing conditions when it explained that: -
"While the court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved…. It is of crucial importance that the Convention is interpreted and applied in a manner, which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement" [68].
- The Strasbourg Court applied this principle to the "changing conditions and emerging consensus" discernable in the domestic legal order. The Court explained that although there was no material distinction on the facts between those prevailing in Stafford and those which were considered in Wynne, it proposed to assess "having regard to the significant developments in the domestic sphere …. in the light of present day conditions" what is the appropriate interpretation and application of the Convention [69].
- The Strasbourg Court then proceeded in its judgment to examine the evolution of the mandatory life sentence and it concluded in paragraph 79 that "the finding in Wynne that the mandatory life sentence constituted punishment for life can "no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner". The Court considered that once the punishment element of the sentence, which is reflected in the tariff had been served, the only grounds that could justify the continued detention of a prisoner subject to a mandatory life sentence were considerations of risk and dangerousness. These factors could change over time so that prisoners subject to mandatory life sentences were entitled to the review of their continuing detention after the end of his tariff by an independent body satisfying the requirements of Article 5(4). This review must have included the power of those carrying out the review to order the prisoners' release. In Stafford, the Strasbourg Court held that the United Kingdom had violated the applicant's Article 5(4) rights in respect of the applicant's continued detention after the expiry of his sentence to the date of his release because his continuing detention had not been reviewed by a body with a power to release or with a procedure containing the necessary judicial safeguards, including, for example, the possibility of an oral hearing.
- In the light of that approach, Miss. Rose contends that it is consistent with the reasoning in Stafford to suggest that the effect of that decision should be retrospective and not prospective. She submits that the decision and the reasoning in Stafford could not be relied upon, for example, to prove that the detention of a mandatory life sentence prisoner held in the light of the decision in Wynne and before the Stafford decision was contrary to Article 5.
- To make good her point that the English approach should not apply to Stafford, Miss Rose relied on what she contended was the analogous case of Goodwin v. United Kingdom [2002] 35 EHRR 447, in which the Strasbourg Court held for the first time that the United Kingdom authorities had acted in breach of a claimant's Article 8 rights when it failed to amend the official records of the claimant after the claimant, who was born a male but who had become a female transsexual. In justifying its decision, the Strasbourg Court adopted identical reasoning at paragraph 74 of its judgment in Goodwin to that which had been used by it to justify its earlier change of approach to mandatory life sentences in paragraph 68 of Stafford and to which I referred in paragraph 52 above.
- Thus, in both Stafford and Goodwin, the Strasbourg Court decided that the obligations of the United Kingdom under the ECHR were to be regarded as having altered because of changes in social conditions. The relevance of referring to the identical approach to changing social conditions by the Strasbourg Court in both of these cases is, according to Miss. Rose, that in Bellinger v. Bellinger [2003] 2 AC 467, Lord Nicholls of Birkenhead recognised that the decision in Goodwin "was essentially prospective in character" [24].
- Miss. Rose says that a similar analysis and approach means that Stafford should only have prospective effect. Thus, her submission is that it is appropriate to regard Stafford as having a purely prospective effect because the Strasbourg Court in Stafford was expressly departing from its earlier case law, not on the basis that its earlier decisions were wrong but because the state's obligation under the Convention had evolved over time because of changing conditions.
- Miss. Rose also submits that support for her submission for her argument can be derived from the approach adopted by the European Court of Justice ("ECJ") in construing the EU Treaty because it has on a number of occasions ruled that its judgments were to have only a prospective effect. This approach has been adopted, especially where the previous conduct of the community organs had led states reasonably to believe that their previous practice was lawful (see, for example, Defrenne v. SABENA [1976] ICR 547, 571 [69] – [75] and Barber v. Guardian Royal Exchange [1990] ICR 610 [40] – [45]).
- Miss. Rose says that it is noteworthy in each of these cases, the ECJ allowed only those who had already issued proceedings at the date of the judgments in question to continue and to claim compensation in reliance on that judgment. The Court held that others, who had at the date of the judgment made no complaint about past treatment, could not then jump on the bandwagon and then bring claims for compensation. It is then submitted by Miss. Rose that the same principle should apply to the present claim with the result that the claimant is not entitled to compensation.
The claimant's submissions
- Miss. Kaufmann contends that the basic rule is first that judgments only exceptionally have solely prospective effect and second that the only justification for that course would be the interests of legal certainty. She submits that where a decision is only to have prospective effect, that point is clearly stated in the body of that judgment.
- The debate on this issue covered the jurisprudence of the English Courts, the ECJ and the Strasbourg Court. It is convenient to look at the authorities and arguments in respect of each of them while bearing in mind that the obligation set out in section 2(1) of the HRA is for English Courts "to take into account" the jurisprudence of the Strasbourg Court and associated bodies, but not of the ECJ.
(i) Decisions of English Courts on the Retrospective Effect of its Decisions
- In R v. Governor of Brockhill Prison ex parte Evans (No 2) [2001] 2 AC 19, the release date of prisoners had been calculated on the authority of judicial decisions which had been subsequently overruled and the House of Lords unanimously held that the applicant's detention based on and in accordance with those overruled decisions had never been lawful because the judicial decision overruling those decisions applied retrospectively to cover their periods of detention.
- In the Evans case, Lord Hope of Craighead, with whom Lord Browne-Wilkinson agreed on this point, considered that "the working assumption is that where previous authorities are overruled, decisions to that effect operate retrospectively" (ibid pages 36g and 27d respectively). Lord Slynn of Hadley explained that the fact the claimant "was merely thought to be lawfully detained .. is not a sufficient justification for the tort of false imprisonment, even if based on rulings of the court" (ibid page 26f). Lord Steyn accepted the applicant's submission that the declaratory theory of judicial decisions – that the law has always been as is now expounded - "ruled out any defence by the Governor of having relied on an earlier generally accepted but incorrect view of the law" (pages 28d and 28g). Lord Hobhouse of Woodborough explained that "it is a denial of the constitutional role of the courts for courts to say the party challenging the status quo is right, that the previous decision is over-ruled, but that the decision will not affect the parties and only apply subsequently" (page 48e). Thus, under English law, decisions have retrospective and prospective effect in claims for detention unless the doctrine of prospective overruling applies.
- The concept of prospective overruling was also considered in the Evans case. Lord Slynn of Hadley said that, "there may be situations in which it would be desirable, and in no way unjust, that the effect of judicial rulings should be prospective or limited to certain claimants" (page 26h). Lord Steyn said of the idea of prospective overruling that "without shutting the door on the possibility of such a development by a decision or practice statement of the House, I would say that it is best considered in the context of a case or cases where the employment of such a power would serve the ends of justice" (page 29f).
- Lord Hope of Craighead considered that Evans' case was: -
"not an appropriate case for detailed consideration of these arguments [on prospective overruling]… If ever there was a case where the declaratory theory should be applied, it must be one where the liberty of the subject is in issue - as it plainly is where the point relates to the entitlement of the subject to be released from custody" (page 37a-b).
- Lord Hobhouse of Woodborough stated that: -
"Anything said about the doctrine of "no-retrospectivity" will be obiter and is best left over to a case which requires its decision. It is extremely doubtful that there will be any such case" (pages 47h-48a).
- Lord Browne-Wilkinson explained that he did not express any view on the merits of introducing a doctrine of prospective overruling (page 27e). It would be fair to say that although the possibility of prospective overruling was not ruled out by the House of Lords, it could only be used in exceptional circumstances, which in the opinion of Lord Hope of Craighead, would not have included a case where the liberty of the subject was involved, such as where the point relates to the entitlement of the subject to be released from custody.
(ii) Strasbourg Court decisions
- The conventional approach of the Strasbourg Court is that its decisions have both prospective effect and retrospective effect. Thus, in Stafford, the Strasbourg Court on 28 May 2002 found a violation of the applicant's Article 5 rights from 1 July 1997 to the date of his release on 22 December 1998 [89] and it awarded damages to the applicant in respect of the whole of that period [94]. This shows clearly that the Strasbourg Court regarded its decision in that case as relating to and affecting periods of wrongful detention, which occurred before it published its decision.
- The Strasbourg Court has itself applied the approach that its decisions apply to past events as well as to future occurrences but subject to one important exception. In Marckx v. Belgium (1979) 2 EHRR 330, the Strasbourg Court took a pragmatic approach when it stated that its judgment should have only prospective effect when it precluded potential applicants from relying on its decision in relation to events, which antedated the court's decision. The judgment of the Strasbourg Court stated that its decision expressly "dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present Judgment" (page 353 [58]).
- The Marckx principle was explained in the later case of Walden v. Liechtenstein ...Application no. 33916/96 - 16 March 2000), when the Strasbourg Court stated that: -
"… the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that antedate judgments of the Court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional" [with my emphasis added] (pages 6-7).
- As a corollary to this principle, the Strasbourg Court has also occasionally held that the state should be afforded a reasonable period of time in which to bring an offending law into conformity with the Convention and so a person affected by the offending law would not be entitled to complain of a violation of his or her Convention rights which occurs during that "period of grace". The Walden case is itself an example of this because the period of grace was extended to give the state time to implement legislation to correct an incompatibility identified by the Liechtenstein Constitutional Court. I will return to consider this when I turn to Issue D in paragraph 132.
- In R (on the application of Hooper and Others) v. Secretary of State for Work and Pensions [2002] EWCA Civ 813 the Court of Appeal held that this Marckx/Walden approach is inapplicable domestically because this country has no Constitutional Court that can strike down legislation so that "the Walden principle can have no direct application in this jurisdiction" [77]. The Court of Appeal did, however, consider that: -
"the Walden principle reflects the fact that the State is entitled not merely to a wide margin of appreciation when considering whether and when a change is required to the law in order to ensure that it remains Convention compliant in changing circumstances, but that, having so decided, it is entitled to such time as is reasonable to make the necessary change" [78].
- In any event, the Marckx/Walden principle is only invoked exceptionally and in limited circumstances. Walden and Marckx both concerned the incompatibility with Convention rights of domestic legislation regulating complex financial arrangements with far-reaching implications for a large proportion of the population of the Respondent State; in Walden its effect was on a neighbouring state, which shared pension arrangements with the respondent state. For the purpose of the present claim, it is also of great importance to note that when the Marckx/ Walden principle is invoked to restrict the operation of a judgment, the Strasbourg Court expressly states that this is to be the case.
- Apart from this exception, there have been no cases cited in which applicants have been prevented from bringing claims in respect of acts predating Strasbourg or domestic constitutional decisions. So, for example in SL v. Austria Application no. 45330/99, 9 January 2003, the Strasbourg Court upheld the applicants' complaints that Article 209 of the Austrian Criminal Code, which outlawed homosexual acts with adolescents, breached their Article 14 rights taken in conjunction with Article 8, notwithstanding that Article 209 had already been found to be unconstitutional by the Austrian Constitutional Court and that the Austrian Government was in the process of introducing legislative reform. The Strasbourg Court stated in SL that : -
"The Court notes at the outset that, following the Constitutional Court's judgment of 21 June 2002, Article 209 of the Criminal Code has been repealed. The amendment in question entered into force on 14 August 2002. However, this development does not affect the applicant's status as a victim within the meaning of Article 34 of the Convention. In this connection, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a victim unless the national authorities have acknowledged, either expressly or in substance and then afforded redress for, the breach of the Convention (see, for instance, Dalban v. Romania [GC], no. 28114/95, Para 44, ECHR 1999-VI)".
- In the context of mandatory life prisoners, Mr. Starmer contends that the very recent case of Von Bulow v. UK ...Application no. 75362/01, 7 October 2003) in which the Strasbourg Court upheld a claim for breach of an applicant's Article 5(4) rights arising out of his continued detention after the end of the period specified in the tariff but before the decision in Stafford, is strongly supportive of the claimant's contention that Stafford had retrospective as well as prospective effect. Mr. Starmer points out that no distinction was made by the Strasbourg Court in respect of whether the applicant's detention occurred before or after 28 May 2002, which is the date of the Stafford decision because it regarded both periods as covered by Stafford.
- A similar approach was adopted even more recently by the Strasbourg Court in Wynne v. United Kingdom (No 2)(Application no 67385/01, 16 October 2003) in which a breach of Article 5(4) was established in respect of the period of that applicant's detention which occurred before Stafford was decided even though it was the applicant's first complaint to the Strasbourg Court in Wynne v. UK (1994) 19 EHRR 333 that confirmed the approach in Thynne and Others v. United Kingdom [1991] 13 EHRR 666 which, as I have explained, in paragraph 9 above was rejected by Stafford.
- The Strasbourg Court has taken the same approach of giving its decision retrospective effect in the context of prison detainees when it applied the decision of the Strasbourg Court in Hussain v. United Kingdom [1996] 22 EHRR 1. Subsequently in Curley v. United Kingdom (Application no. 32340/46, 28 May 2000), the Strasbourg Court relied on Hussain to conclude that there was a violation of Article 5(4) in respect of the period in 1987 until his eventual release in May 1997 even though the decision in Hussain was not handed down by the Strasbourg Court until 21 February 1996. All these cases indicate that the decisions of the Strasbourg Court are regarded by that court as normally having both prospective and retrospective effect.
- English courts are obliged under section 2(1) of the HRA to "take into account those decisions" of the Strasbourg Court and Lord Slynn has said of that obligation that "in the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the [Strasbourg Court]" (R (Alconbury Developments Limited and others v. Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 [26]). Indeed the principles that I have outlined on the circumstances in which the Strasbourg Court regards its decisions as having only prospective effect constitute such "clear and constant jurisprudence" and I will therefore follow them.
- The legal position relating to the retrospective effect of judgments under English and Strasbourg jurisprudence can be summarised in the following way: -
(1) English Courts ordinarily regard their judgments as having not only prospective effect but also retrospective effect in the sense that their judgments cover acts, which occurred both before and after the judgment was given.
(2) English courts have accepted that in an appropriate case their judgments might possibly have only prospective effect but there is authority for the view that such a principle in any event would not apply where it affects the liberty of an individual.
(3) Convention jurisprudence "may dispense states from questioning legal acts or situations which predate judgments of the court declaring domestic legislation incompatible with the Convention" (Walden v. Liechtenstein (supra), with my emphasis added).
(4) Where the Strasbourg Court seeks to invoke the principle so that a particular judgment will only have prospective effect, it states that intention expressly in its judgment;
- I must now apply those principles to the Stafford decision. In my view the decision in Stafford governed periods of detention that occurred both before and after the date of the decision for three reasons. First, the Strasbourg Court in Stafford considered that its judgment should have retrospective effect in that case and it awarded damages to the claimant in respect of periods before it published its judgment during which the established case law indicated that the detention in question was lawful. Second, the Strasbourg Court in two subsequent cases of Van Bulow and Wynne (No. 2) followed that approach. Third, in Stafford the Strasbourg Court, unlike its approach in Marckx, did not dispense the United Kingdom from reopening release decisions, which pre-dated the date of that judgment; this is important because when the Strasbourg Court invokes that principle, it says so but it did not do so in Stafford. Indeed, the reasoning of the Strasbourg Court in Stafford itself indicates that it recognised the need to have regard for legal certainty but significantly, the Strasbourg Court did not consider it necessary to do more than to exercise caution before taking a decision to depart from Wynne. It explained: -
"67. The Court in Wynne was well aware that there were similarities between the discretionary life and mandatory life sentences, in particular that both contained a punitive and a preventative element and that mandatory life prisoners did not actually spend the rest of their lives in prison. The key passage states: -
"However the fact remains that the mandatory life sentence belongs to a different category from the discretionary life sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender" (p 14, § 35).
68. While the Court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging in consensus as to the standards to be achieved (see, amongst other authorities, the Cossey v. The United Kingdom judgment of 27 September 1990, Series A no. 184, p. 14, § 35, the Chapman v. The United Kingdom judgment of 18 January 2001, [GC] no. 27238/95, ECHR 2001-I, § 70). It is of crucial importance that the Convention is interpreted and applied in a manner, which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement.
69. Similar considerations apply as regards the changing conditions and any emerging consensus discernible within the domestic legal order of the respondent Contracting State. Although there is no material distinction on the facts between this and the Wynne case, having regard to the significant developments in the domestic sphere, the Court proposes to re-assess "in the light of present-day conditions" what is now the appropriate interpretation and application of the Convention (see the Tryer v. The United Kingdom judgment of 25 April 1978, Series A no. 26, § 31 and subsequent case-law)".
- In reaching the conclusion that Stafford determines the legality of the claimant's detention before and after it was handed down, I have not overlooked Miss. Rose's contention that there is a close analogy between the Strasbourg's decision in Stafford and that in Goodwin, which was the subject, as I have explained, of the decision by the House of Lords in Bellinger. As I have already pointed out, Lord Nicholls of Birkenhead said of the decision in Goodwin that it "was essentially prospective in character" [24]. He explained later in his speech that he could not accept the submission that the Government would have a reasonable period in which to implement the changes in English law required after Goodwin. He added that: -
"It may be that echoing the language of the ECJ [in Marckx], the principle of legal certainty dispenses the United Kingdom Government from re-opening legal acts or situations which antedate the judgment in Goodwin. But that is not the present case" [52].
- Both Lord Scott of Foscote and Lord Rodger of Earlsferry agreed with Lord Nicholls ([80] and [81] respectively). Miss. Rose accepts that these comments were obiter but she stresses that in Goodwin similar language was used to that set out in paragraph 69 in Stafford to which I have referred above. I do not consider that the comments of Lord Nicholls are of decisive importance in the present case bearing in mind that in the Bellinger case, the Appellate Committee was not considering a claim which pre-dated the Strasbourg decision let alone whether a Strasbourg Court decision had only prospective effect; it was merely looking at the future situation in the context of a claim for a declaration. The present case is very different. Miss Rose submits that the decisions of the ECJ are helpful as showing that the Stafford decision has only prospective effect and so I must consider them in order to decide if I should reconsider and modify my provisional decision that Stafford had both prospective and retrospective effect in the light of the decisions of the ECJ, which is the topic to which I now turn.
(iii) Decisions of the European Court of Justice
- As I have already explained, Miss. Rose attaches importance to the fact that the ECJ has on a number of occasions ruled that its judgments were to have only prospective effect and not retrospective effect. This step has been taken by the ECJ by invoking the principle of legal certainty, particularly where the previous conduct of a Community organ has led states to reasonably believe that their previous practice was lawful. In the two reported cases of Defrenne and Barber referred to in paragraph 59 above, the ECJ allowed only those parties who had already issued proceedings at the date of the judgments in question to rely on those decisions so as to claim compensation. The rights of those who had already complained and who had previously brought proceedings were thus preserved but not those who did not fall into those categories.
- I do not consider that those cases are of any relevance to the present case for four different reasons. First, there is no principle of Strasbourg Court jurisprudence or of the English Courts cited to me, which means that the English Courts should follow the example of the ECJ when dealing with human rights issues. It is noteworthy that section 2(1) of the HRA requires our courts to take into account decisions of the Strasbourg Court and other entities but no mention is made of the decisions of the European Court of Justice.
- Second, in both Defrenne and Barber, the European Court expressly made it clear that its judgment would only have prospective effects; thus it was said in Defrenne that its decision cannot be relied on in order to support pay claims prior to the date of this judgment, "except as regard those workers who have already brought legal proceedings or made an equivalent claim" ([75]). Clearly, this is not what the Strasbourg Court expressly stated in Stafford. Third, if Miss. Rose were right, it would have a dramatic effect on all the Strasbourg Court judgments, which did not contain any express statement in them to that effect. Fourth, no cogent reason has been put forward by Miss. Rose to justify the application in the approach in Defrenne and Barber to the present case. For all those reasons, I do not derive any assistance from those decisions of the European Court of Justice.
- In conclusion, I consider that the decision of the Strasbourg Court in Stafford was not limited to having only a prospective effect and that therefore the claimant's detention infringed his Article 5 rights even though part of the detention occurred before the decision in Stafford was handed down. Thus, in the light of my finding in paragraph 48, the claimant's Article 5 rights have been infringed so that pursuant to Article 5(5) he can obtain either an assessment by the court of the appropriate level of compensation payable by the defendant and a mandatory order that he pays such sums or damages.
VI. Issue C – The Damages Issue
The submissions of counsel for the claimant
- Mr. Keir Starmer QC contends that the claimant is entitled to damages for wrongful detention because the defendant failed to comply with the duty imposed on him by Article 5(5) of the ECHR when he refused to make any payment to the claimant in respect of his wrongful detention even though the claimant had a right to compensation because a breach of Article 5(1) had been established. He says that this means that a claim can be brought under section 6 of the HRA, which provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". In consequence, Mr. Starmer submits that the claimant is either entitled to damages under section 8(1) of the HRA or to an assessment by the court of the appropriate level of compensation payable by the defendant and a mandatory order that he pays it. The claimant's case is that when the Parole Board determined in November 2001 that it was no longer necessary to detain the claimant in order to protect the public, the sole justification for his continued detention fell away with the result that first his continued detention thereafter was a breach of his Article 5 rights and that second there is no discretion whether to award compensation for such a breach.
The submissions of counsel for the defendant
- Miss. Rose contends that the defendant was correct in determining that the claimant is not entitled to any damages as there was no causal link between the breach of Article 5 of the ECHR and the claimant's detention from November 2001 to August 2002 because he would have been detained in any event during that period; that was because of his behaviour and the lack of suitable accommodation for somebody as disabled as the claimant even if the Parole Board's recommendation had been implemented as an order, as it should have been in the light of the decision in Stafford. Miss. Rose points out first that the claimant was detained from early January 2002 until his release because first initially his behaviour in an incident on 3 January 2002 meant that he could not stay in the hostel to which he had been sent and second that thereafter he was detained because of concerns about his behaviour and the absence of a suitable hostel in which he could remain. Indeed, it was for these reasons that the defendant refused to make any payment to the claimant and it was that decision, which prompted the present application.
- Miss. Rose contends first that the claimant would have been detained in the way and for the periods that he actually was even if the Parole Board's decision of November 2001 had taken effect as an order and second that therefore no damages should be paid to the claimant because this court cannot be satisfied that such an award of damages "is necessary to afford just satisfaction to the person in whose favour it is made": section 8(3) of the HRA. Mr. Starmer disputes these contentions.
- I have set out the relevant statutory provisions of the HRA on damages in the Appendix to this judgment.
The issue between the parties
- The main issue is therefore to consider what would have happened to the claimant between November 2001 and his release in August 2002 if the Parole Board's recommendation in November 2001 that the claimant should be released had taken effect as an order to that effect. This question is highly relevant because in Anufrijeva, Lord Woolf CJ giving the judgment of the Court of Appeal explained that "the applicant should, insofar as this is possible, be placed in the same position as if his Convention rights had not been infringed"[59].
- I should also mention that I raised during submissions on this issue whether it would be possible or desirable for further evidence to be adduced by, for example, the Parole Board and the claimant on what would have happened to the claimant if the Parole Board had ordered his release in November 2001 as I was concerned that I might not have before me adequate material in order to resolve this issue. Both counsel agreed that I should not take this course because Lord Woolf CJ had explained in Anufrijeva that where, as is the position in this case, no pecuniary loss is claimed, a claim for damages "should be decided without…an extensive and prolonged examination of the facts. In many cases, the seriousness of the maladministration and whether there is a need for damages should be capable of being ascertained by an examination of the correspondence and the witness statements" ([62]). Thus, I agreed with counsel that I should resolve these issues in that way on the existing evidence and that I should reach my conclusions without calling for any further evidence.
The claimant's particular needs and circumstances
- In order to resolve the issue, it is necessary for me to mention three important factors relating to the claimant, which were during this period from November 2001 until August 2002 very relevant to the issue of whether the claimant could and would have been detained in prison.
- First, the claimant was severely disabled and this meant that there were very few hostels with facilities capable of accommodating him. Before the claimant was sentenced to life imprisonment on 19 July 1985 for the murder of a police officer whom the claimant had shot during his arrest for armed robbery, he had also been convicted of two counts of robbery, one count of attempted robbery, one count of wounding with intent and two counts of using a firearm to assist arrest. On the day when the claimant shot the police officer, he had previously carried out a robbery of a Post Office whilst armed with a sawn-off shotgun and he had also previously been involved in an attempted robbery of another Post Office also whilst armed with a sawn-off shotgun. The claimant had also shot and hit another police officer. The claimant was then himself shot and was seriously injured while attempts were being made to arrest him for these offences and as a result of these injuries, he is now unfortunately a paraplegic, who has to use a wheelchair. He also sustained bladder injuries, which has necessitated the use by him of a catheter bag. These disabilities meant that he needed special accommodation in which he could use his wheel chair. This constituted a serious impediment to finding a suitable hostel for the claimant because as the claimant's solicitor explained in a witness statement "it became apparent that there were virtually no hostels with facilities capable of accommodating him".
- Second, the claimant has been an excessive user of alcohol. The Parole Assessment Report of 22 January 2001 for the claimant shows that he abused alcohol when he committed his original offences. Thereafter he had alcohol-related and drug-related adjudications recorded against him in prison with the most recent being in December 1997. By January 2001, alcohol abuse did not any longer seem to be a problem for him according to that report and the claimant was granted a "Release on Temporary Licence" ("ROTL") at Lightfoot House Hostel ("Lightfoot"), which has specialist facilities for the disabled, but while he was there on 10 July 2001, the claimant was recorded as having consumed alcohol. Accordingly, he was in breach of his licence and so his licence was thereafter revoked. The claimant nevertheless successfully completed two further periods of ROTL with one starting on 22 October 2001 and another on 26 November 2001 but, as I will explain, concerns about whether the claimant would consume excessive quantities of alcohol were considered as significant when his release was under consideration in 2001 and in 2002.
- Third, the claimant was according to a note of an internal review board held on 6 March 2002 more concerned to be released to a hostel where he could be visited by friends and family and he was "prepared to wait" until a place could be found for him at a suitable hostel. According to the claimant's solicitor, "shortly after this", the claimant informed the prison staff that he would be prepared to accept any hostel but no date is given for the occasion when the prison staff were so informed.
Discussion of what would have happened to the claimant between November 2001 and the end of May 2002 if the Parole Board had directed his release in November 2001
- The first matter that therefore has to be considered is whether the claimant would have been at liberty between November 2001 and the end of January 2002 if the recommendation of the Parole Board of 16 November 2002 had been implemented so that the claimant would then have been released on life licence. Mr. Starmer correctly in my view accepts that the licence on which the claimant would then have been released in those circumstances would have been subject to a residence requirement, which in my view was highly likely to be along the lines of the Parole Board's recommendation condition, namely that the claimant "reside at [Lightfoot] or as directed by his supervising officer".
- Although the Parole Board considered the claimant's case on 16 November 2001 and recommended that he be released on life licence subject to conditions, Mr. Starmer accepts that the claim for wrongful detention can only be pursued in respect of the period starting with the date when the claimant would have been released if the Parole Board's recommendation of 16 November 2001 that he be released had taken effect as an order in accordance with the decision in Stafford. This point is irrelevant in the light of my conclusion, which I will explain, that the claimant would have been detained until August 2002 even if the Parole Board had ordered his release in November 2001 but I will deal with it briefly as submissions were made on this point.
- Mr. Starmer says that on that basis, the claimant would have been released before the end of 2001. He explains this submission by pointing out that some assistance as to how quickly a release procedure would have operated in the claimant's case in and after November 2001 can be found first in the procedures then in place for discretionary lifers and second from the interim arrangements, which were subsequently put in place for mandatory lifers after the Stafford decision.
- Under those procedures, the release procedure would have been dictated by the Parole Board Rules 1997, which provides some indication of the requirements of Article 5(4) in this regard. These Rules require that the Parole Board notify the prisoner of their decision within 7 days of the end of the hearing (Rule 15). In a case where release is directed, the Secretary of State is required to give effect to that decision and in accordance with the requirements of Article 5(4) of the ECHR, it was a necessary implication that there would be a duty to release speedily in such circumstances.
- Following the judgment of the European Court of Human Rights in Stafford, the defendant issued interim instructions before the introduction of a formal change in the legislative framework dealing with the release of mandatory lifers. It is common ground that these instructions provide, among other things, that: -
(a) Recommendations made by the Parole Board for release will normally be accepted;
(b) Recommendations made by the Parole Board are to be forwarded to the Lifer Unit of the Prison Service within 7 days (5 working days);
(c) Expedited measures have been put in place to obtain the views of the judiciary as is required by the relevant legislation (1997 Act section 29(1));
(d) The Prison Service's key performance indicators require that final decisions will be issued on behalf of the Secretary of State within 10 working days of receipt of the Parole Board's recommendation. The original instruction issued by the Prison Service (Lifer Unit Notice 22/2002) did state that the aim would be to actually effect release within 10 working days, presumably to give full vindication to the Article 5(4) rights at stake. This was subsequently altered to notifying the prisoner of the final decision in order to account for cases where the release plan might not be able to take immediate effect.
- Mr. Starmer therefore submits that in cases in which the Parole Board has recommended the release of a prisoner subject to a mandatory life sentence, the normal practice would be for a final decision to release the prisoner to be made within twenty-one days of that recommendation. He says first that it would therefore be a rare and exceptional case in which release would not have taken place within about three to four weeks of the recommendation having been made under a procedure that is compliant with Article 5(4) and second that no such exceptional factors have been identified in this case and that a hostel place was ready for the claimant. It is therefore submitted by Mr. Starmer that the claimant would almost certainly have been released before the end of 2001 had there been no breach of Article 5.
- The answer to this point is twofold. First, the claimant, as Mr. Starmer rightly accepts, would only have been released by the Parole Board subject to a residence requirement, which would very probably have been along the lines that he should reside at Lightfoot. The claimant's solicitors accepted in their letter of 10 August 2001 that "there is no suggestion that [the claimant's] release should be to anything other than an approved hostel [which]… is required to have specialist facilities for the disabled". My conclusion is that if the Parole Board's recommendation for the claimant's release in November 2001 had taken effect as a direction, it would have been subject to a condition that the claimant resided at Lightfoot. Second, I consider that it would have taken longer than the end of December 2001 to have arranged the claimant's release which would otherwise have fallen in middle of the Christmas holiday period and the pressures at that time are likely to have delayed the release of the claimant by 10 days or so until about 5th January 2002
- In reaching that conclusion, I have not overlooked the fact that when the defendant eventually took the decision to release the claimant in July 2002, it was then possible to reach a decision in a shorter period but by the time when the decision had been taken to release the claimant, many inquires had already been made about suitable accommodation for somebody as disabled as the claimant and so the process did not have to start from scratch
- I consider the appropriate starting period for the assessment of any claim for compensation for the claimant should be at the earliest on 5 January 2002 if, of course, such a claim can be pursued. As I will explain, it is irrelevant for my present purpose of ascertaining if the claimant would have been at liberty prior to May 2002 whether the starting point for the claim is December 2001 as is contended for by Mr. Starmer or early January 2002 as determined by me. The important point is that irrespective of the date selected, the claimant would have been at Lightfoot on 3 January 2002 because as correctly Mr. Starmer accepts, his release would have at that time still been subject to a condition "to reside at [Lightfoot] or as directed by his supervision officer", which was also the condition of the Parole Board recommendation. Indeed, in the light of the claimant's disability and his previous problems with alcohol, it is very likely that a condition of they type would have been imposed.
- As it happens, the claimant was at Lightfoot on a ROTL when he was recorded on 3 January 2002 as having returned to Lightfoot after curfew. The hostel staff there determined that the claimant was therefore in breach of his licence as he had consumed alcohol. He was returned to prison on 4 January 2002. The claimant pleaded not guilty to charges laid against him during the adjudication process and the Adjudicating Governor decided on balance not to continue with the adjudication and so he dismissed the charge. As I have already explained, the claimant nevertheless still had some older alcohol-related adjudications, which had previously been recorded against him.
- It is not suggested correctly that the 3 January 2002 incident would not have occurred if the claimant had been released on an earlier date because he would still have been at Lightfoot as a condition of his licence. It is noteworthy that in spite of the dismissal of the complaint against the claimant, after the 3 January 2002 incident, Lightfoot resolved not to have the claimant back and that the claimant refused to go back there according to the minute of an internal review board meeting. The claimant's solicitor states in a witness statement that the claimant was "informed that because of new Victims' Charter issues, [Lightfoot] had declined to offer him a place". I am satisfied that after the incident on 3 January 2002, the claimant would have had to leave Lightfoot and he would have been returned to prison, because he could no longer satisfy the condition of his release, namely residence at Lightfoot or as directed by his supervising officer, as there was no suitable alternative hostel able to take the claimant.
- Thus, the next issue to be determined is what would then have happened to the claimant as well as whether and for how long the claimant would have been detained after his return to prison on or about 4 January 2002. Mr Starmer contends that the claimant would not have had his parole revoked and he would not have been recalled to prison or detained but that instead he would have been found another hostel by late January 2002. His reasoning is that the claimant could only have been recalled if one of two situations existed.
- The first way in which the claimant could have been recalled was by invoking section 32(2) of the 1997 Act, which empowers the defendant to authorise a recall where it is "expedient in the public interest to recall that person before such a recommendation [by the Parole Board to recall that person] is practicable". This is an emergency recall as it is a decision taken in cases in which there is insufficient time to obtain the advice of the Parole Board. I doubt if this procedure would have in any event been invoked in the claimant's case because there would have been adequate time to obtain the advice of the Parole Board and the claimant would in any event have been returned to prison and would have remained there after Lightfoot had stated that he could not remain there after the January 2002 incident.
- The second basis on which the claimant could have been recalled would have been if the Parole Board had recommended the recall of the claimant and if the defendant had then followed that recommendation (see section 32(1) of the 1997 Act). Mr Starmer says that the claimant would not have been recalled because if the episode on 3 January 2002 had been reported to the Parole Board "there is no reason to believe that it would have departed from the view taken by the prison governor, who dismissed the allegation". He also points out that the claimant was in fact allowed to remain in an open prison, which shows that he was not then to be regarded as a danger to the public. Mr Starmer also contends that the events of July 2002 show that when it was subsequently decided to release the claimant on about 18 July 2002, a hostel place was then found for him in 11 days.
- Miss Rose disagrees and she says that the proper analysis is that the claimant would have been unable to comply with a condition of his licence when Lightfoot evicted him for alleged alcohol usage and for a breach of its rules. She says that the matter would then have been referred to the Parole Board for advice pursuant to section 32(1) of the 1997 Act. By section 32(6) of the Criminal Justice Act 1991, the defendant may give directions to the Parole Board relating to the matters to be taken into account by the Parole Board in discharging its functions to recommend the recall of a mandatory lifer. Those directions insofar as they are relevant to the claimant provide that: -
"2. In deciding whether to recommend the recall of a mandatory lifer released on life licence, the Parole Board should consider: -…
b) the extent to which the licensee has failed to comply with the conditions of his licence or otherwise failed to cooperate with the supervising officer;
c) whether the licensee is likely to comply with the conditions of the licence and agree to supervision if allowed to remain in the community …
4. Each case should be considered on its individual merits".
- Miss Rose submits that in order to determine what would have happened to the claimant after the 3 January 2002 incident if the Parole Board had previously ordered the release of the claimant in November 2001, it is instructive to consider what actually happened to the claimant in that period. Mr. John Mills, the Senior Manager at the Lifer Unit at the Home Office, has explained in a witness statement that as a consequence of the decision of Lightfoot not to give any further accommodation to the claimant, his "release plan was in disarray and inquiries had to be made by the defendant about alternative accommodation arrangements". He also stated that the allegations that had been made against the claimant also raised concerns about the level of risk posed by him, not only because alcohol abuse had been a factor in the claimant's original offence but also because the Parole Board had made its recommendation on the basis that the claimant no longer drank alcohol.
- The matter would have, in my view, been referred to the Parole Board for advice after 3 January 2002 pursuant to section 32(1) of the 1997 Act because first the condition imposed by it for residence by the claimant at Lightfoot could no longer be satisfied, second there was no other hostel available and third because of the need for reconsideration of the claimant's alcohol abuse problem for the reasons described by Mr. Mills. I agree with Miss Rose that there is no reason to believe that the thinking of the Parole Board or the defendant would have been different if the Parole Board had ordered the release of the claimant in November 2001 as the Parole Board and the defendant would then also have concluded that the claimant's release plan was in disarray for the reasons outlined by Mr. Mills. Thus, if the Parole Board had directed the release of the claimant in November 2001, it would have been subject to residence in Lightfoot or as directed by the supervising officer, then the claimant would have been detained after the 3 January 2002 incident in a prison and thereafter because his release plan would have been in disarray.
- I do not consider that the Parole Board would have attached as little importance to the 3 January 2002 incident as Mr Starmer suggested merely because the prison governor dismissed the charge. The Parole Board and the defendant would have had to examine not merely the fact that the charge had not been proven but they would have had to consider the incident in the much wider context of the claimant's previous problems. In particular, the Parole Board and the defendant in and after January 2002 would have been concerned about four factors, of which the first would have been fears about the claimant's drink problem of the same kind as those held by Mr. Mills and his colleagues. The second matter, which would have given rise to concern on the part of the Parole Board and of the defendant, would have been that the claimant was not allowed by Lightfoot to return and that he did not wish to go back there. The claimant's solicitor has stated that the claimant had been informed "that because of new Victims' Charter issues, they had declined to offer him a place". It is not contended that the claimant then or later could have been or should have been returned to Lightfoot. Indeed it is difficult to see how he could have been returned there in the light of the attitude of the claimant and of the authorities at Lightfoot. The third factor would have been the difficulties of finding accommodation for somebody disabled, as the claimant was. Finally, as I will explain in paragraph 118, the claimant had indicated that the claimant was prepared to wait in custody until a place was found in a location acceptable to him.
- In addition, I am unable to agree with Mr. Starmer that the fact that the claimant was placed in an open prison indicates that he would not have been recalled to prison. The reasons why he would not have been released related not to the fact that he would abscond and/or commit serious offences but the fact that with his disabilities and his history of alcohol abuse, he needed to be placed in a suitable hostel in circumstances in which he would not abuse alcohol. In any event, as I will explain, the claimant was prepared to wait for his release.
- My conclusion is that the claimant would have been recalled to prison pursuant to the directions given by the defendant to the Parole Board that I have set out in paragraph 112 above and in particular the requirements for the Parole Board to consider "the extent to which [the claimant] has failed to comply with the conditions of his licence or otherwise failed to cooperate with the supervising officer" and "whether the licensee is likely to comply with the conditions of the licence and agree to supervision if allowed to remain in the community".
- There was a further significant factor, which would have precluded the claimant's release and that is that at a meeting of the Internal Review Board on 6 March 2002 , the claimant indicated that many of the possible hostels were unsuitable for him. He said that he would not consider Peterborough Hostel, which was like Hollesley Bay, as it was too far for his family and friends to go to visit him, but he later said that he would accept a place in Peterborough. The note of the meeting records that the claimant could not go to the Ipswich Hostels and that the claimant "would rather find a suitable place nearby and is prepared to wait".
- The claimant's solicitor subsequently said in a witness statement in relation to this comment that "shortly after this" conference, when it became apparent that there were virtually no hostels with facilities capable of accommodating the claimant, he informed his probation officer that he would be happy to accept any hostel. I have no idea what the words "shortly after this" mean. It is noteworthy that there is no evidence adduced by the claimant to identify a hostel in which the claimant with his disabilities could and would have lived during the period after he had left Lightfoot but before he was released to the Cambridgeshire Hostel on 12 August 2002. My conclusion is that there was no such hostel with a suitable vacancy for the claimant prior to in any event the end of May 2002. Thus as there was no hostel in which the claimant could stay outside prison after he left Lightfoot, he would not have been released in the period which I am considering and which terminates at the end of May 2002.
- This conclusion that the claimant would have been detained until the end of May 2002 is fortified by the fact that on 17 May 2002, the Probation Service reported to the defendant that its efforts to establish a new resettlement address for the claimant had not succeeded, as no organisation was able to provide for him a sufficient level of supervision. Another hostel had rejected the claimant on the grounds that he had previously broken the hostel rules and thus he had not demonstrated his willingness or ability to prevent further contravention of the rules. Mr. Mills explained that it was believed that the claimant would continue to "take risks that could prove harmful to others". It is very probable that the Parole Board and the defendant would have considered matters in the same way if the claimant had been released in November 2001, subject to the condition of residence to which I have referred. It must not be forgotten that in recommending the release of the claimant in November 2001, the Parole Board had noted that while in open conditions, the claimant "had displayed no alcohol problems" and that release plan was "sufficiently strong for him not to require a further period in a resettlement facility". It is very likely that the Parole Board would not have held those views after the episode on 3 January 2002 for the reasons explained by Mr. Mills and to which I have referred with the result that they would also have reconsidered the claimant's suitability for release in the way that Mr. Mills described.
- According to its report, the Probation Service considered that in May 2002 the claimant's level of risk was then assessed as being too high for further periods of ROTL and that it was necessary for the claimant to undertake work with an experienced probation officer to address the problems that had been identified. The report indicated that it would be possible to reassess the risk once that work had been completed. Mr. Mills explained that if the risk was to be reduced to an acceptable level, it was proposed that the claimant would be considered for release to "structured and properly professionally supervised accommodation". Again, I consider that similar reasoning would have been adopted by the Parole Board and the defendant if the Parole Board's recommendation of November 2001 had been regarded as an instruction. In other words, in the same way as the claimant's level of risk was too high for further periods of ROTL until 18 July 2002, his release from prison after his return there after the incident on 3 January 2002 would have been postponed for the same reasons, even if the Parole Board had ordered rather than merely recommended his release in November 2001.
Discussion of what would have happened to the claimant between the end of May 2002 and August 2002 if the Parole Board had directed his release in November 2001subject to residence in an appropriate hostel.
- On 28 May 2002, two developments occurred. First, as I have explained, the Strasbourg Court gave its ruling in Stafford. Second, by a letter of that date, the defendant informed the claimant first, that he had received reports about the claimant's "inappropriate behaviour" while at Lightfoot, second that a fresh release plan had to be formulated and third that his case would be resubmitted to the Parole Board for its advice on his suitability for release in the light of the allegations that he had consumed alcohol and the collapse of his release plan. I believe that a similar course would have been adopted if the Parole Board had directed the claimant's release in November 2001 as the concerns of the authorities would have been the same.
- By a letter received on 14 June 2002, the claimant's solicitors questioned the appropriateness of referring the matter back again to the Parole Board. In the light of the judgment in Stafford, further consideration was given by the Home Office to the issue of a further referral. It was then decided on 28 June 2002 to proceed with the release of the claimant without any further referral on the basis that on further reflection, the concerns of the Lifer Unit about the claimant's behaviour did not, in the words of Mr. Mills "on balance raise issues of risk to life and limb". Again, I do not consider that there is any cogent reason to believe that different reasoning would have been adopted if the claimant had been released on parole in November 2001 but subject to residence conditions.
- Further advice had been received from the Probation Service on 18 July 2002 and it was then decided that the claimant's work on alcohol relapse prevention could be built into his release plan rather than needing it to be undertaken by him prior to his release. There remained the question of the claimant's release address and the consequent need for the Parole Board to agree to the new release plan because in accordance with section 31(3) (b) of the 1997 Act, the Parole Board had to be consulted in respect of any variation in the licence of somebody such as the claimant, who was subject to a mandatory life sentence.
- By a letter dated 29 July 2002, the claimant's prospective supervising probation officer informed the defendant that the Cambridgeshire Hostel in Peterborough had been identified as having available accommodation for the claimant on release, subject to a number of further conditions including some concerning the use of alcohol being inserted in his licence. The Parole Board was consulted on the new licence conditions on 31 July 2002 and it sought further information on 6 August 2002. I believe that the Parole Board would have dealt with the claimant in a similar way if he had been released but subject to conditions in November 2001; indeed, the criteria for allowing the claimant to leave prison would not have been different if the Parole Board had ordered his release. In any event, I repeat that there is no cogent evidence that there had been a place available for the claimant at a hostel which could provide facilities for him at any earlier time.
- The Cambridgeshire Hostel was finally confirmed as the claimant's release address on 7 August 2002 following a meeting of the Multi-Agency Public Protection Panel, which took place on 6 August 2002. This is a forum, which includes the police, the probation service and the social services and which is designed for an exchange of information, knowledge and concerns about serious and risky offenders so as to ensure that whoever might be affected by the release of a prisoner is made fully aware of the presence of the offender in the community.
- On 7 August 2002 the Cambridgeshire Hostel informed the Lifer Unit that they could accept the claimant on 12 August 2002. On 8 August 2002 the defendant decided to release the claimant on a licence, which included the conditions which had been proposed and on which the Parole Board had been consulted. The claimant was then duly released to the Cambridgeshire Hostel on 12 August 2002. I consider that a similar course would have been adopted if the Parole Board had ordered the claimant's release in November 2001 but subject to conditions.
Conclusion
- I therefore agree with Miss. Rose that in the circumstances of this case, there is no causal link between the interference with the claimant's Convention rights and his detention from 18 November 2001 until August 2002. The defendant was correct to refuse the claimant's application for compensation. Thus I am not satisfied that, in the words of section 8(3) of the HRA, an award of damages is "necessary to afford just satisfaction to the [claimant]". In addition, the claimant would have not enjoyed any greater freedom in the period from November 2001 to 12 August 2002 if the recommendation of the Parole Board had taken effect as a direct order; in consequence, no award of compensation is needed in the words of Lord Woolf CJ, which I have already quoted from Anufrijeva [59], in order "to place the claimant in the same position as if his Convention rights had not been infringed".
- Thus, the claimant would not have been entitled to damages if the test for awarding them was the same as at common law but as Lord Woolf CJ explained in Anufrijeva [56] "the court has a wide discretion in respect of the award of damages for breach of human rights …damages are not an automatic entitlement but a remedy of "last resort"". As I have explained, the defendant through no fault of his own would have been and was faced with a combination of unusually difficult problems in finding a hostel in which the claimant could be accommodated; these problems included the claimant's serious disabilities, the scarcity of suitable hostels for the claimant, the fact that his behaviour meant that he could not be accommodated in Lightfoot and his wish for some period in and after March 2002 to remain in prison rather than to be moved to a hostel in an area in which he did not wish to live. These factors constitute additional reasons why I should exercise my "wide discretion" not to award the claimant damages in this case.
- I have also considered whether the claimant should receive damages for frustration, uncertainty and anxiety in the same way as Van Bulow received 1500 euros under that head in the decision to which I have referred in paragraph 76 above. In that case, the Strasbourg Court explained that "it is not possible to speculate as to the applicant's success of release if the procedures had conformed with Article 5..."[29]. There are three significant differences between that case and the present one. First, as I have explained, in the present case, the claimant's prospects of being released in the period from November 2001 until August 2002 would have been extremely low if the Parole Board's recommendation had taken effect as an order.
- Second, in the present case, the claimant stated, as I have explained in paragraph 120 above at the meeting on 6 March 2002, that he "would rather find a suitable place nearby and is prepared to wait" and although, the claimant according to his solicitors changed his mind "shortly afterwards", he was responsible for some substantial periods of the delay in finding him suitable accommodation. Third, there is no evidence or even any allegation of frustration, uncertainty or anxiety on the claimant's part and this is significant in the light of the claimant's attitude as I have explained in the last sentence.
VII. Issue D- The Period of Grace Issue
- It was common ground that if Stafford is not to be interpreted as retrospectively altering the obligations of the United Kingdom Government, the Government would then have been entitled to a period of grace following the judgment in Stafford to implement its new obligations. As I have decided that Stafford is to be interpreted as having retrospective effect so that the claimant's detention was unlawful, this issue is only now of academic interest and so I will set out my conclusions briefly.
- Miss. Kaufmann submits that the defendant was entitled to only a period of two weeks grace following the publication of the Stafford judgment in order to decide whether to release the claimant and thereafter he was entitled to a further two weeks to effect that release. I agree with Miss. Rose that those figures appear to be plucked from the air and they do not appear to have any objective justification. Miss Rose contends that the defendant was entitled to a period of grace from 28 May 2002 when Stafford was decided until 12 August 2002 when the claimant was released. Clearly what is a reasonable period depends on the circumstances of the case.
- I have already set out the way in which the defendant dealt with the claimant's case after the decision was given in Stafford and I will therefore not repeat the full history. It will be recollected that on 28 June 2002 the defendant decided to proceed with the claimant's release without any further referral to the Parole Board on the basis that on further reflection, concerns at the lifer unit about the claimant's behaviour did not on balance raise issues of risk to life and limb. Thus the first period that I must consider is that from the handing down of the Stafford decision on 28 May 2002 until 28 June 2002.
- To my mind, the Secretary of State cannot be criticised for not releasing the claimant from the publication of the decision in Stafford on 28 May 2002 to 28 June 2002. He was entitled to a reasonable time to consider the implications of Stafford, to take advice from the Law Officers and to formulate an appropriate policy for the advantage of all those prisoners subject to life tariff. Miss. Rose told me that there were about 35 other prisoners whose circumstances had to be considered at the same time and in those circumstances, there can be no criticism of the delay until 28 June 2002.
- I would also respectfully adopt the approach of Pitchford J in R(Middleton) v. Secretary of State for the Home Department [2003] EWHC 315 Admin.when he explained that:-
"The Secretary of State was entitled, it seems to me, to take a reasonable time to consider the implications of the decision, to take advice from the law officers and to formulate an appropriate policy for the advantage of all those prisoners subject to a life tariff. It is noticeable that it was not until 17 October 2002 that the Government was in a position to announce its response to Stafford in the House of Commons. I accept the submission made on behalf of the Secretary of State that the European Court itself recognises the necessity, before a Convention State acts upon a finding of incompatibility, to ensure legal certainty and continuity if possible".
- Pitchford J. held in that case that the decision-making process between 28 May 2002 and 17 June 2002 was "wholly reasonable" [17]. I respectfully agree and consider that in the circumstances of this case with the problems of the claimant's disability, his alcohol problems and the difficulties of his previous misbehaviour, the defendant was entitled to delay his decision until 28 June 2002.
- The second period, which I then have to consider, is the period from 28 June 2002 when the defendant decided to proceed with the claimant's release without any re-referral till his eventual release on 12 August 2002. I have already set out the reasons for the delay in this period and I do not consider that the defendant could have acted more speedily. It is noteworthy that the claimant has not said what the defendant should have done but did not do in this period in order to secure the claimant's earlier release. So I am satisfied that even if the Stafford decision did not mean that the claimant could claim in respect of previous periods of detention, the defendant was entitled to a period of grace, which would not have expired prior to the time of his actual release.
VIII Conclusion
- Even though the claimant has been successful on the Article 5(5) claim issue and on the Stafford retrospective effect issue, the claim fails because no loss can be established. I consider that even if the Parole Board recommendation had taken effect as an instruction to release him, the claimant would still have been detained from the time of the Parole Board recommendation in November 2001 until is actual release on 12 August 2002. This was because of the claimant's severe disabilities, the consequential difficulties of finding accommodation for him, his previous misbehaviour and his unwillingness to move out of the area during some of this period. In any event, in the exercise of my wide discretion, the claimant should not be entitled to any compensation for his detention after 16 November 2001 for the reasons that I have explained. I must express my gratitude to all three counsel for their admirable oral and written submissions which were very helpful.
- After a draft of this judgment had been circulated, it was contended on behalf of the claimant that the order that should be made should not be merely that the claim should be dismissed, but that a declaration should also be granted that the claimant's rights under Articles 5(1) and 5(4) were breached and that in consequence he has a right to apply to receive compensation for any loss caused by those breaches under Article 5(5). I agree with Miss. Rose that such a declaration is inappropriate in this case because this application of the claimant was for a judicial review of the decision of the Secretary of State refusing to agree to the claimant's application for compensation in respect of his detention. My finding is that this decision cannot be impugned and thus the claim for judicial review should be dismissed. In addition, my findings on the legal issues raised have been explained in the judgment and no benefit would be gained by making declarations. In those circumstances, the claim for judicial review is dismissed and I order that there should be a detailed assessment of the claimant's publicly funded costs provided that the appropriate certificate has been lodged.
APPENDIX
HUMAN RIGHTS ACT 1998
Section 8 - Judicial remedies
(1) 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.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including-
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining-
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
(5) A public authority against which damages are awarded is to be treated-
…
(b) for the purposes of the Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
(6) In this section-
'court' includes a tribunal;
'damages' means damages for an unlawful act of a public authority; and
"unlawful" means unlawful under section 6(1)."
