R (on the application of Faulkner) v Secretary of State for Justice & Anor [2013] UKSC 23

Two indeterminate-sentence prisoners suffered delays, breaching article 5(4) ECHR, in Parole Board reviews after their tariffs expired. The Supreme Court held such delay is not false imprisonment nor usually an article 5(1) breach, but modest damages under section 8 HRA 1998 are normally payable, guided by Strasbourg practice.

Facts

These conjoined appeals concerned two prisoners serving indeterminate sentences whose cases were not considered by the Parole Board (“the Board”) within a reasonable period after expiry of their tariffs.

Lord Reed explained the statutory background: under section 28 of the Crime (Sentences) Act 1997, a life or IPP prisoner who has served his tariff must be released if the Board so directs, and the Board may only so direct if satisfied that confinement is no longer necessary for the protection of the public. The introduction of imprisonment for public protection (“IPP”) sentences by section 225 of the Criminal Justice Act 2003 greatly increased the Board’s workload, without a commensurate increase in resources, producing systemic delay. As Lord Reed put it at para 4, “Although these consequences of the introduction of IPP sentences were entirely predictable, they had not been anticipated by the Secretary of State, and the Board was not provided with a commensurate increase in its resources.”

Mr Faulkner

Sentenced to custody for life in 2001 under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, with a tariff expiring in April 2004. Owing to administrative failures (late referral by the Ministry of Justice and long delays in producing the “rule 6 dossier” and further reports), his hearing did not take place until January 2009, when the Board directed his release. The Court of Appeal found a 10-month breach of article 5(4) and held that, on the balance of probabilities, he would have been released around March 2008; it awarded £10,000. His licence was subsequently revoked twice, on each occasion following charges of which he was acquitted.

Mr Sturnham

Convicted of manslaughter in 2007 and given an IPP sentence with a tariff expiring on 19 May 2009. Administrative failures by the Secretary of State and the prison delayed the dossier, and the review took place only in May 2010. Mitting J found a six-month breach of article 5(4), found that release would not have been ordered earlier (though transfer to open conditions probably would have been), found anxiety and distress, and awarded £300. The Court of Appeal (Laws LJ) quashed that award, holding that in a delay case just satisfaction would ordinarily be achieved by a declaration unless the delay extended the detention.

Issues

The Court identified the following issues:

• Whether detention continuing beyond the point at which the prisoner would have been released had article 5(4) been complied with constitutes false imprisonment at common law, or a violation of article 5(1).
• Whether damages under section 8 of the Human Rights Act 1998 (“the 1998 Act”) may be awarded only where the prisoner would have been released earlier, or also where he would not.
• If the latter, whether delay must be of a minimum duration before an award is appropriate (a de minimis threshold).
• How damages should be assessed in either category, and what principles from the European Court of Human Rights (“the European court”) domestic courts must take into account under section 8(4).

Arguments

For the prisoners, Mr Southey QC argued that continued detention after the point at which a compliant hearing would have led to release amounted to false imprisonment, alternatively a violation of article 5(1); and that the Oldham line of Strasbourg authority established that awards are routinely made for frustration and anxiety caused by delay, irrespective of whether earlier release would have occurred.

The Board contended that there was a general rule, derived from para 76 of Nikolova v Bulgaria (2001) 31 EHRR 3, that just satisfaction under article 5(3) and (4) can be awarded only in respect of damage resulting from a deprivation of liberty which the applicant would not otherwise have suffered; alternatively that delay had to reach a minimum duration before an award was warranted. It also appealed the £10,000 award to Mr Faulkner as excessive.

For the Secretary of State, Mr Grodzinski QC submitted that there was “an air of unreality” (as Lord Reed summarised at para 34) in attempting to extract principles from an accumulation of ad hoc decisions of a court which does not treat precedent as domestic courts do; and that no award was appropriate in Mr Sturnham’s case.

Judgment

Lord Reed gave the lead judgment, with which Lord Neuberger, Lord Mance and Lord Kerr agreed. Lord Carnwath agreed with the disposal and Lord Reed’s reasons but added a concurring judgment suggesting a more selective route through the Strasbourg case law.

False imprisonment and article 5(1)

The false imprisonment argument was rejected. Following R (James) v Secretary of State for Justice [2010] 1 AC 553, continued detention is authorised by statute: there is no entitlement to release until the Board directs it. Section 6(1) of the 1998 Act does not assist because of section 6(2)(a), and section 3 was not invoked.

Nor is a delay-based article 5(4) violation ordinarily a violation of article 5(1). A breach of article 5(4) does not entail eo ipso a breach of article 5(1); the latter requires arbitrariness (Rutten v Netherlands). James, Wells and Lee v United Kingdom (2013) 56 EHRR 12 concerned lack of access to rehabilitative courses and awards there were for distress, not loss of liberty; it was therefore not directly relevant. On Mr Faulkner’s facts, the errors were administrative, “of a kind which occur from time to time in any system which is vulnerable to human error” (para 74), and were not such as to render detention arbitrary.

Section 8 and Strasbourg “principles”

Following R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, courts must look primarily to Strasbourg practice, not domestic tort scales. Lord Reed emphasised that “principles” in section 8(4) is to be read broadly, focusing on what the European court actually does. He drew three conclusions: courts should be guided primarily by any clear and consistent practice of the European court; the most reliable guidance is awards to applicants from the UK or countries with a similar cost of living, since awards reflect the real value of money; and domestic courts should resolve disputed issues of fact in the usual way, even where the European court would decline to do so given “its own shortcomings as a first instance tribunal of fact” (quoting Denizci v Cyprus).

Notably, Lord Reed offered a forward-looking observation at para 29:

“I would however observe that over time, and as the practice of the European court comes increasingly to be absorbed into our own case law through judgments such as this, the remedy should become naturalised.”

The Nikolova point

The Board’s reliance on Nikolova was rejected. Lord Reed held that Nikolova and the cases following it concerned procedural unfairness, not delay, and that the distinction was explained by the European court itself in HL v United Kingdom (2005) 40 EHRR 32, para 149, where awards for delay were said to be consistent with awards for unreasonable delay under article 6(1). A consistent line, including Oldham v United Kingdom (2001) 31 EHRR 34, Hirst v United Kingdom, Reid v United Kingdom (2003) 37 EHRR 9, Blackstock v United Kingdom (2006) 42 EHRR 2, Kolanis v United Kingdom (2006) 42 EHRR 2, Mooren v Germany (2010) 50 EHRR 23, STS v Netherlands (2011) 54 EHRR 35 and Betteridge v United Kingdom, showed awards for frustration and anxiety without any finding of lost liberty. The Court of Appeal in Sturnham had erred both by starting from common law categories and by misreading the Strasbourg authorities; it was “unfortunate” that HL had not been cited to it.

Summary of conclusions

Lord Reed set out fifteen conclusions at para 13. Key among them: where it is established on the balance of probabilities that the violation prolonged detention, damages should ordinarily be awarded; pecuniary losses proved to be caused should be compensated in full; damages should not be awarded merely for loss of a chance of earlier release, nor adjusted according to the probability of release; where earlier release is not established, there is a “strong, but not irrebuttable, presumption” that the delay caused frustration and anxiety, for which modest damages should normally be awarded; but no award should be made where any resultant frustration and anxiety were insufficiently severe, which is “unlikely to be the position where the delay was of the order of three months or more”.

Quantum and disposal

On Mr Faulkner, Lord Reed upheld Hooper LJ’s approach to causation and Sedley LJ’s refusal to discount for probability, and agreed that subsequent recall should not reduce damages on these facts, given his acquittals; though he accepted there could be cases (for example, where the claimant was recalled after committing an offence planned before release) where recall is relevant. Taking account of “the conditional and precarious nature of the liberty foregone” (para 75) and the fuller Strasbourg analysis, £6,500 was appropriate; the Board’s appeal was allowed and the award reduced from £10,000; Mr Faulkner’s cross-appeal was dismissed.

On Mr Sturnham, the appeal against quashing was allowed and the £300 award restored as reasonable, Betteridge being the most nearly comparable Strasbourg award. His application for permission to argue for a higher award was refused; section 40(5) of the Constitutional Reform Act 2005 does not circumvent the need for permission.

Postscript and Lord Carnwath’s concurrence

Lord Reed gave procedural guidance for future citation of large numbers of Strasbourg authorities (an agreed Scott schedule, a chronological table, and submissions identifying the principles relied on). Lord Carnwath, concurring, would have taken a more selective approach, treating Nikolova as establishing an approach of general application for procedural violations, and HL as establishing the delay exception. He would have regarded a six-month threshold as consistent with Strasbourg, but expressly did not dissent from Lord Reed’s guidance or from approval of Mr Sturnham’s award.

Implications

The decision is the leading domestic authority on damages for breaches of article 5(4) arising from Parole Board delay. It confirms that delay does not make continued detention unlawful at common law or ordinarily under article 5(1): the statutory scheme authorises detention until the Board directs release, and arbitrariness requires exceptional circumstances.

It clarifies that the Nikolova line does not bar awards in delay cases, and establishes a two-tier approach: substantial (but still moderate) compensation where prolonged detention is proved on the balance of probabilities, and modest awards for presumed frustration and anxiety otherwise, subject to a practical threshold around three months. Loss-of-chance awards are excluded domestically, because unlike the Strasbourg court, domestic courts can and should find facts.

For practitioners, the case matters to prisoners, the Board and the Ministry of Justice: it sets realistic expectations of quantum (£6,500 for roughly ten months’ delayed conditional release; £300 for six months’ delay without lost liberty) and reiterates Greenfield‘s rejection of domestic tort scales. Lord Reed’s observation that the remedy should over time “become naturalised” signals a gradual shift towards domestic precedent, but is an observation rather than a present holding.

Limits should be noted. The guidance is fact-sensitive: acute anxiety or mental illness may justify an award even for shorter delays, and remand cases are not treated as equivalent to post-conviction release applications. The relevance of recall is left open. Mr Sturnham’s separate challenge to the lawfulness of the Board’s decision was deferred and not determined. Finally, Lord Carnwath’s alternative analytical route, though not dissenting on outcome, indicates that the methodology for extracting Strasbourg “principles” remains contestable.

Verdict: The Board’s appeal in Mr Faulkner’s case was allowed and the Court of Appeal’s award of £10,000 reduced to £6,500; Mr Faulkner’s cross-appeal (contending the award was inadequate, and that he had suffered false imprisonment or a violation of article 5(1)) was dismissed. Mr Sturnham’s appeal against the Court of Appeal’s quashing of his award was allowed and the award of £300 restored; his application for permission to argue for a higher award was refused, and consideration of his application for permission to appeal against dismissal of his challenge to the lawfulness of the Board’s decision was deferred.

Source: R (on the application of Faulkner) v Secretary of State for Justice & Anor [2013] UKSC 23