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

Article 5(5) of the European Convention on Human Rights confers a domestic, enforceable right to compensation for a breach of Article 5, even where section 6 of the Human Rights Act 1998 cannot be relied on. A Strasbourg decision ordinarily operates retrospectively as well as prospectively. Damages under the Human Rights Act remain discretionary and are awarded only where necessary to afford just satisfaction. No award was justified where the claimant would have remained detained in any event because of accommodation, disability, behavioural and risk-related issues.

The claimant remained detained after expiry of his tariff and the Parole Board’s recommendation for release. The Secretary of State rejected his claim for compensation. Judicial review challenged that decision and sought compensation or an assessment and mandatory order.

The parties accepted that section 6(1) of the Human Rights Act 1998 could not itself found the claim because section 6(2) applied. The issues were whether Article 5(5) supplied an enforceable domestic compensation right, whether Stafford v United Kingdom applied to detention before its judgment, and whether damages were recoverable.

1. Article 5(5) gives a victim of detention contrary to Article 5 an enforceable right to compensation in the domestic courts. It is a Convention right incorporated by sections 1(1) and 1(2) of the Human Rights Act 1998. The right is triggered by an express or implied domestic finding of breach, provided the claimant establishes loss.
2. Stafford v United Kingdom applied to detention before as well as after 28 May 2002. English courts ordinarily treat judicial decisions as retrospective. The Strasbourg exception based on legal certainty requires an express indication that earlier legal situations are not to be reopened. Stafford v United Kingdom contained no such limitation.
3. Applying Anufrijeva v London Borough of Southwark, the relevant counterfactual was what would have happened if the Parole Board’s recommendation had operated as a direction. The claimant would still have been detained because of the lack of suitable accommodation, his disability, alcohol history, behavioural concerns and risk assessment. An award was therefore unnecessary to afford just satisfaction under section 8(3) of the Human Rights Act.
4. The judicial review claim was dismissed. No declaration was granted. A detailed assessment of the claimant’s publicly funded costs was ordered, subject to the appropriate certificate.