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

The House of Lords found that the disciplinary adjudication of a prisoner in a private prison engaged article 6 of the European Convention on Human Rights and that the deputy controller lacked the requisite independence and impartiality and wrongly refused the appellant the right to legal representation (article 6(1) and 6(3)). The Secretary of State accepted those points in the light of Strasbourg authority (notably Ezeh and Connors). The only remaining issue was whether damages should be awarded under section 8 of the Human Rights Act 1998. The court held that damages were not necessary: a declaration of unlawfulness afforded appropriate vindication, Strasbourg jurisprudence and section 8 require domestic courts to take into account the principles and modest awards of the European Court, and there was no satisfactory causal link or special feature in this case to justify an award of damages.

The appellant, serving a two year sentence at HM Prison Doncaster (a privately operated prison), was charged under the Prison Rules 1999, rule 51(9), with a drugs offence and relied on the defence in rule 52. The charge was heard by a deputy controller, a Crown servant in a private prison, who refused the appellant's request for legal representation. Following adjournments and confirmatory testing, the deputy controller found the charge proved and ordered 21 additional days imprisonment. The appellant sought judicial review, unsuccessfully in the Divisional Court and the Court of Appeal; following Strasbourg authority (Ezeh and Connors) the Secretary of State conceded that article 6 was engaged, that the tribunal lacked independence and impartiality, and that the appellant had been wrongly denied chosen legal representation.

Nature of the claim: the appellant sought declarations and damages under section 8 of the Human Rights Act 1998 for breaches of article 6(1) and 6(3).

Issues framed: (i) whether the proceedings involved determination of a criminal charge engaging article 6; (ii) whether the deputy controller was an independent and impartial tribunal; (iii) whether refusal of chosen legal representation breached article 6(3); and (iv) whether damages should be awarded under section 8 and, if so, how to assess them in light of Strasbourg jurisprudence.

Court’s reasoning: the House accepted that article 6 rights had been breached and ordered declarations to that effect. On damages the court analysed article 41 of the Convention and section 8 of the Human Rights Act, emphasising that domestic courts must take Strasbourg principles into account and that the European Court frequently treats a finding of violation as in itself just satisfaction. The court observed that awards for non-pecuniary loss in Strasbourg are modest and that an award requires a causal connection between the violation and the loss claimed. On the facts the deputy controller had conducted the adjudication conscientiously, there was no clear causal link that legal representation would have produced a different result, no special features making the case exceptional, and no adequate material put before the House to justify remitting the issue for further hearing. Consequently no award of damages was made, but declarations of unlawfulness were entered.

The House accepted that article 6(1) and 6(3) were breached but dismissed the appellant's claim for damages. Declarations of unlawfulness were made because the deputy controller was not an independent and impartial tribunal and the appellant was wrongly refused chosen legal representation; however, applying Strasbourg principles and section 8 of the Human Rights Act 1998, damages were not necessary to afford just satisfaction on the facts.

[2001] EWHC Admin 113, [2001] 1 WLR 1731 (Divisional Court); [2001] EWCA Civ 1224, [2002] 1 WLR 545 (Court of Appeal); appealed to House of Lords [2005] UKHL 14.