DAMAGES — Measure of damages — Breach of Convention rights — Claimant being detained in prison beyond timetable set by Parole Board for further hearing — Claimant asserting defendant’s admission of breach and apology insufficient remedy — Whether claimant also entitled to damages — Whether inference that claimant suffered frustration and distress sufficient to warrant award of damages absent specific evidence — Human Rights Act 1998, s 8, Sch 1, Pt I, art 5(4)(5)
When deciding whether to make an award of damages, under art 5(5) of the Convention for the Protection of Human Rights and Fundamental Freedoms, for a breach of art 5(4) of the Convention it was necessary to have regard to the provisions of s 8 of the Human Rights Act 1998 and the restrictions placed on such awards. There was no inconsistency between the terms of s 8 of the 1998 Act and the terms of art 5(5) and no basis for the assumption that compensation in art 5(5) was restricted in its meaning to money, and in some cases the finding of a violation would provide sufficient compensation for a breach of art 5(4).
Saunders J so held when dismissing a claim for judicial review brought by the claimant, Michael Degainis, against the defendant, the Secretary of State for Justice, on the ground that the claimant’s rights under art 5(4) of the Convention had been breached by his continued detention in prison beyond the date originally set for a Parole Board hearing to plan for his release.
The claimant, who had been convicted of a serious offence of rape and released on licence after serving a sentence of life imprisonment with a tariff of ten years, was recalled to prison in July 2006 because of an incident which gave rise to concerns as to his future behaviour towards women. At a hearing in January 2007 the Parole Board decided that the recall was justified and stipulated that the next hearing should take place in July 2008. However, the necessary reports were not ready in time and the hearing did not take place until January 2009. The defendant admitted the delay between July 2008 and January 2009 was a breach of art 5(4) and apologised, but the claimant did not consider that the admission and apology were sufficient remedy and argued that he was entitled to damages under art 5(5) of the Convention.
The Convention, as scheduled to the Human Rights Act 1998, provided by art 5: “(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (5) 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.”
SAUNDERS J said that the basis of the claim for damages was twofold: (1) that the court should conclude on the evidence that, on the balance of probabilities, the delay in hearing would result in a delay to the claimant’s release and that there should be an award of damages to reflect the additional period of custody, and (2) that an award of damages would compensate for increased frustration and anxiety caused by the delay. As to (1), because of the number of imponderables, such as the progress made by the prisoner and the availability of a satisfactory release scheme, it was impossible for the court to conclude that the failure to hold a speedy hearing had extended the time that the claimant had spent, or would have to spend, in custody. As to (2), there was no specific evidence, only a possible inference that the delay had caused some increased anxiety in the claimant. There was no merit in the claimant’s argument that the terms of s 8 of the Human Rights Act were inconsistent with the terms of art 5(5), or the assumption on which the submission was based, that compensation in art 5(5) was restricted in its meaning to money. The meaning should not be so limited. By virtue of s 8 of the Human Rights Act the court, in deciding whether to award damages, must take account of the principles applied by the European Court of Human Rights in relation to the award of compensation under art 41 of the Convention. The European Court had not awarded damages for a breach of art 5(4) in every case, and it was possible to infer that in some cases the finding of a violation would provide sufficient compensation for breach of art 5(4). In R (KB) v South London and South and West Region Mental Health Review Tribunal  QB 936 Stanley Burnton J had demonstrated that there were no consistent principles applied by the European Court as to when to award damages; that situation remained. In this case, taking into account Stanley Burnton J’s guidance that regard must be had to the intensity of the frustration and distress suffered by the claimant, together with three of the four factors in deciding whether to award damages identified by Ian Dove QC in R (Downing) v the Parole Board  EWHC 3198 (Admin) (length of delay, effect of the delay on time spent in custody and the impact on the claimant). The seriousness of the original offence was not relevant in this case and would not on a normal basis be a relevant consideration as to whether to award damages. It was not possible to be satisfied on the balance of probabilities that the breach of art 5(4) would have extended the period that the claimant had to spend in custody, or that the claimant had suffered the sort of frustration and anxiety that merited an award of damages, and, accordingly, the claim failed.
 EWHC 137 (Admin);  WLR (D) 24
QBD: Saunders J: 3 Feb 2010
Appearances: Florence Krause (instructed by Michael Purdon Solicitor) for the claimant; Rory Dunlop (instructed by Treasury Solicitor) for the Secretary of State for Justice.
Reported by: Alison Crail, barrister