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This title refers not to the human cost, the political cost or the reputational cost, but to the straightforward financial impact. Recent weeks have seen two important and interesting statements on the issue from our courts.
In R (Faulkner) v Secretary of State for Justice and the Parole Board  UKSC 23, the Supreme Court considered what it meant to provide ‘just satisfaction' to prisoners. It is the latest in a long line of cases arising from the serious backlog which developed at the Parole Board and caused delays in the review, recategorisation or release of many prisoners. One of the appellants was serving a life sentence as a result of having committed a second serious offence, under the scheme introduced by section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The other was subject to indeterminate imprisonment under section 225 of the Criminal Justice Act 2003, for manslaughter. Both had suffered delay in having their continued detention reviewed followed the expiry of the tariff sections of their sentences, and the Supreme Court found this to have breached their Convention rights under Article 5(4), which requires proceedings related to the lawfulness of detention to be decided speedily. In a detailed judgment which will serve well as guidance to the lower courts, Lord Reed gives a thorough exposition of the legal position on damages under the Human Rights Act (HRA).
Section 8 of the Human Rights Act 1998 gives the courts the power to grant such relief or remedy as they consider just and appropriate, but only where damages are necessary to afford just satisfaction. The courts are required by section 8(4) to take into account the principles applied to the European Court of Human Rights in this regard. Lord Reed looks to the case of R (Greenfield) v Secretary of State for the Home Department as providing guidance on the approach to be taken. In this case Lord Bingham stated that the House of Lords was not bound by the principles applied by the Strasbourg court, but should look to them for guidance. The case marked a move away from the previous approach, which suggested there should be some kind of parity between damages awarded under the HRA, and tortious damages in domestic law. This was for a number of reasons: a finding of violation was, in and of itself, part of satisfaction to be afforded to the applicant; section 8 was not designed to give remedies better than could have been awarded in domestic law, but simply to avoid the delay and expense of going to Strasbourg; and that the courts were instructed to take Strasbourg principles into account, suggesting that domestic precedents were less relevant.
In discussing this case, Lord Reed looks to what he considers to be the on-going development of a body of domestic principles on damages under the HRA, developing according to the principles set out in Greenfield: ‘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.'
But just what does section 8 mean when it speaks of ‘principles'. According to Lord Reed, these are not so much precise concepts as ‘factors which lead [the European Court of Human Rights] to make an award of damages or to withhold such an award, and its practice in relation to the level of awards in different circumstances.' He acknowledges that the European court is not in the practice of articulating clear principles, but notes a number of reasons for this: the difficulty of a court hearing claims from so many jurisdictions which take different approaches to damages; that the court is not a fact-finding body; and that the awards it makes must reflect the relative value of money in the contracting states.
Having set out the correct approach to be taken by domestic courts, Lord Reed moves on to consider what principles can be taken from Strasbourg judgments on damages. Two elements of damages fell to be considered: firstly, damages for feelings of frustration and anxiety occasioned by the delay, and damages for loss of liberty where the prisoner may have missed out on earlier release.
Lord Reed began by noting that in the ‘great majority' of cases the European Court had awarded compensation in respect of non-pecuniary damage, to account for frustration and anxiety, where there had been found to be a violation of Article 5(4). Such an award was not dependent on a finding of a loss of opportunity of earlier release, which was in itself a distinct harm element. On the question of proof, the Strasbourg cases showed a ‘strong rebuttable presumption that excessively long proceedings would occasion non-pecuniary damage.' The Parole Board had argued that damages were only awarded where the procedure used to determine the lawfulness of detention was unfair. Lord Reed found this to be a mischaracterisation of Nikolova v Bulgaria (1999) 31 EHRR 64; further cases, such as HL v UK (2004) 40 EHRR 761, showed that this was a distinct category of damages but did not preclude damages for delay leading to a violation of Article 5(4).
Examination of the case law also demonstrated that there was no de minimis principle when it came to assessing damages for delay; the question was not the period of the delay, but whether the feelings of frustration and anxiety were sufficiently serious to warrant an award of compensation. This was, of course, dependent on the circumstances. Although there could be no absolute rules, it was ‘reasonable to suppose that the presumption that the lack of a speedy decision has occasioned sufficiently serious mental suffering to justify an award of compensation should only apply if the delay has been of a significant duration.' Awards for frustration and anxiety have generally been modest, but in assessing quantum the court should not give too much weight to previous decisions, which have generally focused on what would be equitable in the circumstances. A further review of the case law indicated that where conditional release has been delayed by several months, an award should be significantly more than would be made for frustration and anxiety, but significantly below that which would be made for delay of unconditional release. However, here European cases are of limited assistance given that its role is not fact-finding and that its awards are made in the context of the value of money in the country from which the claim originates. Thus at this point domestic courts should look to domestic principles on section 8 damages in comparable cases.
Applying these principles to the cases before the court, Lord Reed found that it was entirely appropriate for the domestic courts to conduct a fact-finding exercise when considering a loss of the opportunity of liberty, following normal domestic principles requiring the claimant to establish loss on the balance of probabilities. Lord Reed agreed with the Court of Appeal that the fact that the Faulkner was returned to prison for breach of licence within some months of his release was irrelevant; the court could not speculate as to whether or not this would simply have happened sooner, thus limiting the amount of liberty he would have enjoyed even if there had been no delay. It was important to recognise that the delay in Faulkner's case seemed to have arisen as a result of human error, rather than any more systematic failing. The Supreme Court allowed the Parole Board's appeal, and reduced Faulkner's award from £10,000 to £6,500.
In relation to the second claimant, Sturnham, there was no issue of loss of opportunity of liberty, as the delay affected his transfer to open conditions as opposed to release. The only question related to an award for anxiety and distress. Whilst a delay of 6 months was clearly sufficient to warrant an award, the Supreme Court upheld the decision that this should be of just £300 as being reasonable in the circumstances.
Lord Reed concludes his judgment by adding a brief practice note on the use of authorities. No fewer than 75 Strasbourg cases were referred to in argument, and Lord Reed suggests that in cases of this type, counsel might helpfully assist the court by providing a schedule of the authorities and the salient points to be drawn from them. This issue is echoed in Lord Carnwath's concurring judgment, which he prefaces by suggesting that there may be an ‘alternative, and perhaps less laborious, route to the same end.' He suggests a more selective approach to the Strasbourg case law, noting that the decisions as to damages are often made on an equitable basis and thus are strongly linked to the facts of the case, urging caution in the use of so-called authorities. They should not be considered to create precedent. Whilst it would be wrong to say that there are no principles emanating from the European Court, in Lord Carnwath's view, the specific wording of section 8 indicates that not all Strasbourg decisions would be ‘determinative, or even illustrative, of any principle of general application.' European decisions should be the starting point, the courts, and indeed advocates, should be careful to seek out decisions that go further than their own facts.
Lord Carnwath takes a different approach to Nikolova v Bulgaria (1999) 31 EHRR 64, which he sees not as being confined to its own facts, but as being an attempt by the Grand Chamber, following full debate of the issues before it, to make a statement of principle and break from the somewhat messy case law which preceded it. He goes on to note two significant cases in which Nikolova was considered to be pertinent, and that Nikolova has never itself been questioned in Strasbourg. Taking the opposite approach to Lord Reed, Lord Carnwath suggests that subsequent cases, not Nikolova, were limited to their facts.
As for cutting through the forest of authorities in search of these elusive principles, Lord Carnwath identified a number of Strasbourg cases as containing the essence of what was required here. In doing so, he cited factors which gave them this status; these included that the question of damages for non-pecuniary loss under Article 5(4) had been subject to thorough debate; that the cases contained a consistency of approach, consistent language and similar subject matter (the Parole Board); that the approach remained the same both before and after other significant decisions on the European Court. Identifying no more than six or seven cases, Lord Carnwath was able to draw on a number of principles which led broadly to the same conclusions as set out by Lord Reed.
The second case relates not to damages under the HRA, but to costs where there has been found to be a significant breach of the Act, and is of interest as having arisen in the family context. Lancaster County Council (LCC) freed two brothers for adoption in 2001. They were never adopted and the orders remained in force until 2012. The impact of this on the children was found to have breached their rights under Articles 3, 6 and 8 of the European Convention on Human Rights. The case of A and S (Children) v Lancashire County Council  EWHC 851 (Fam) concerned the allocation of costs. Whilst LCC argued for the application of the family procedure rules in this case, as under these there is no general rule that costs follow the event. The children argued for the application of the civil procedure rules, on the grounds that the proceedings were in effect civil, with the main emphasis having been on the HRA element, and the question of revocation of the freeing orders having been unopposed. Jackson J found in favour of LCC in applying the family procedure rules, but LCC's conduct throughout the entire ordeal had been so ‘unlawful and unreasonable' that it should be for them to pay the boys' costs. He recognised that the court is entitled to look to behaviour outside the litigation, adding that ‘the impact on LCC's budget is extremely regrettable, but there is no good reason why the Legal Services Commission should subsidise substandard behaviour of this kind by another public body.' Although there was no further award for indemnity, the judge noted that this was only because LCC had cooperated fully with the litigation. Jackson J approves the statement in Re T (Children) (Care Proceedings) (Costs)  UKSC 36, that although costs awards in family cases are rare, they will be made where ‘the behaviour of a party has been reprehensible or outside the band of reasonableness.'
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 A & S (children) v Lancashire County Council  EWHC 1689 (Fam).
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