Wright, R (on the application of) v Secretary of State for the Home Department

The Human Rights Act 1998 is generally prospective. Domestic rights created by the Act cannot ordinarily arise from events completed before 2 October 2000. Article 5(5) is parasitic on a contravention of Article 5. It does not create an enforceable domestic right to compensation where the underlying detention occurred wholly before the Act came into force. Section 6(2) cannot be used to circumvent that temporal limitation. The claimant’s remedy for any pre-commencement Convention breach was a direct application to the European Court of Human Rights.

The claimant, a mandatory life prisoner, sought judicial review of the Secretary of State’s refusal to consider compensation under Article 5(5) for detention between 1993 and 1999. The claim relied on the later decision in Stafford v United Kingdom and on R (Richards) v Secretary of State for the Home Department, which had treated Article 5(5) as conferring a freestanding right to compensation.

The court dealt first with the Secretary of State’s submission that the Human Rights Act 1998 could not support a claim concerning detention before its commencement. The claimant accepted that this issue was decisive.

1. Claim dismissed. The court decided only the temporal issue and did not determine whether the claimant’s detention breached Articles 5(1) or 5(4), whether Richards correctly decided the retrospective effect of Stafford, or the claimant’s alleged loss.
2. The Human Rights Act 1998 made Convention rights part of English domestic law from 2 October 2000. Following Wilson v First County Trust Ltd (No 2) and In re McKerr, the Act was not generally retrospective. The domestic rights created by the Act therefore did not apply to completed pre-commencement events.
3. Article 5(5) was held to be parasitic on Articles 5(1) and 5(4). An enforceable domestic right to compensation required a contravention of Article 5 that occurred after 2 October 2000. The fact that section 6(2) might prevent a claim under section 6(1) did not permit the claimant to obtain compensation under Article 5(5) for an earlier detention.
4. The claimant’s detention ended in November 1999. It therefore could not generate an enforceable domestic compensation claim under Article 5(5). His only recourse for any pre-commencement Convention breach was a direct application to Strasbourg.
5. The court treated R (Richards) as materially different because the detention there occurred after commencement, and declined to extend its reasoning to the present claim. It also distinguished Jordan v Lord Chancellor, which concerned a continuing and incomplete inquest after commencement.
6. Permission to appeal was granted. The claimant was granted an extension of time to 18 January and detailed assessment of publicly funded costs. No order for the defendant’s costs was sought.