Bernard, R (on the application of) v Secretary of State for the Home Department & Anor

Article 5(4) requires a speedy review of the lawfulness of detention, but speed does not override fairness. Reasonable adjournments to obtain evidence may be justified, particularly where they are requested or agreed by the detained person and the evidence may assist the review.

Delay must be assessed by reference to the periods fairly attributable to the public authority. A substantial lapse of time does not, without more, establish a breach. Declaratory relief may be refused where delay resulted from isolated, acknowledged errors rather than a continuing systemic failing. Damages under Article 5(5) require proof that they are necessary to afford just satisfaction. General distress must be significant and sufficiently supported by evidence.

The claimant was serving a life sentence for manslaughter and sought judicial review of delay in arranging a Parole Board hearing. He alleged breaches of Article 5(4) and sought damages under Article 5(5).

The relevant period included adjournments for further psychiatric, psychological and penile plethysmograph evidence, difficulties in obtaining that evidence, a later SARN assessment, and the eventual hearing in September 2004. The claimant alleged that the delay was attributable to the Secretary of State and the Parole Board. The central issues were whether the delay was unlawful, whether declaratory relief would serve a useful purpose, and whether damages were necessary for just satisfaction.

1. Claim dismissed. No relief was granted against either defendant. The application for leave to appeal was refused.
2. Article 5(4) requires the lawfulness of detention to be decided speedily, but the obligation to proceed speedily does not override the obligation to act fairly. The Parole Board was entitled to allow reasonable adjournments, particularly where the claimant requested or agreed to them and further evidence could assist him in a difficult case where experts disagreed about the motivation for the offences (paras [13]-[14], [45]).
3. The court rejected the suggested simple calculation of delay from the 2001 hearing to the 2004 hearing. Only relatively short periods between May and July 2002 and between January and May 2003 could fairly be attributed to the Secretary of State on the evidence. Other periods involved agreed or justified adjournments, the claimant’s own decisions, unavailable evidence, or matters for which there was no adequate evidential basis for attributing default to the defendants (paras [13]-[18], [27], [40]-[42]).
4. There was no sensible criticism of the Parole Board’s conduct. The Secretary of State accepted that there had been muddle and delay, but those errors were individual and had been acknowledged. Declaratory relief would serve no useful purpose because there was no demonstrated systemic failing requiring correction (paras [44]-[47]).
5. Even assuming declaratory relief had been appropriate, damages were not necessary under section 8(3) of the Human Rights Act 1998. There was no convincing evidence that an earlier hearing would probably have resulted in release. A claim based on distress and frustration therefore required proof of significant feelings of such intensity as to justify compensation for non-pecuniary damage. The claimant’s general assertions, unsupported by contemporaneous medical records or corroborative evidence, did not meet that threshold (paras [48]-[62]).
6. The court declined to make a wasted-costs order against the claimant’s solicitors. Their conduct involved negligence, but did not cross the threshold of conduct approaching an abuse of process (paras [123]-[140]).