Regina v. Secretary of State for the Home Department (Respondent) ex parte Greenfield (FC) (Appellant)

Damages under section 8 of the Human Rights Act 1998 are not automatic upon proof of a Convention violation. A finding or declaration will ordinarily provide just satisfaction for an article 6 procedural breach. Monetary compensation requires loss caused by the violation, a real and non-valueless loss of opportunity, or anxiety and frustration attributable to the breach. Courts should avoid speculation about whether a compliant hearing would have produced a different result.

Domestic courts must take Strasbourg principles and award levels into account. They should not use domestic tort or discrimination awards as their governing scale or aim to be materially more or less generous than Strasbourg. Damages remain secondary to vindicating the right and ending the infringement.

Richard Greenfield was charged with a prison disciplinary drugs offence while serving a sentence in a private prison. A deputy controller refused legal representation, found the charge proved and imposed 21 additional days of imprisonment. The Divisional Court rejected his judicial review claim in [2001] EWHC Admin 113, [2001] 1 WLR 1731. The Court of Appeal upheld that result in [2001] EWCA Civ 1224, [2002] 1 WLR 545.

Following Ezeh and Connors v United Kingdom, the Secretary of State conceded that the adjudication determined a criminal charge, that the deputy controller lacked the independence required by article 6, and that the appellant had wrongly been denied legal representation of his own choosing. The House was therefore asked principally whether damages were necessary under section 8 of the Human Rights Act 1998, either for loss of an opportunity to obtain a better result or for anxiety and frustration.

1. Appeal allowed in part unanimously. Lord Bingham of Cornhill delivered the leading speech. Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood agreed. The House declared that the failure to provide an independent tribunal violated article 6(1) and that the refusal of legal representation violated article 6(3). It made no award of damages.
2. Per Lord Bingham, section 8 of the Human Rights Act 1998 permits damages only where a court with civil compensation powers finds an unlawful act by a public authority, considers an award necessary to afford just satisfaction after taking all the circumstances into account, and considers it just and appropriate. The court must take Strasbourg principles into account when deciding both entitlement and amount.
3. Per Lord Bingham, the usual response to an article 6 violation is a finding or declaration. Monetary compensation requires a causal connection between the violation and the claimed loss. An award may exceptionally reflect the loss of a real opportunity to obtain a better outcome, but a court should not speculate about what a compliant tribunal would have decided. Anxiety and frustration may justify compensation only to the extent attributable to the violation. Strasbourg's ordinary practice is not to compensate alleged procedural opportunity or distress arising merely from structural want of independence.
4. Per Lord Bingham, the Human Rights Act 1998 is not a tort statute. Its purpose was to provide domestically remedies equivalent to those available in Strasbourg, without the associated delay and expense. Domestic tort and discrimination scales are therefore not the governing comparators. Although domestic courts are not inflexibly bound by individual Strasbourg awards, they should not aim to be significantly more or less generous.
5. Per Lord Bingham, the possibility that representation might have persuaded the adjudicator or another tribunal was speculative. The adjudication had been conducted conscientiously, and its decisive issue was credibility. Nor was any special anxiety or frustration shown beyond that ordinarily associated with the established prison adjudication procedure. The declarations therefore afforded just satisfaction.
6. Per Lord Bingham, remittal of the damages issue was inappropriate. The appellant had claimed damages from the outset and was obliged to put forward supporting material. The pursuit of damages should rarely become an end in itself in an article 6 case. Written submissions on costs were invited.

1. House of Lords: In [2005] UKHL 14 the House allowed the appeal in part. It made declarations of violations of article 6(1) and article 6(3), but refused damages and remittal.
2. Court of Appeal: In [2001] EWCA Civ 1224, [2002] 1 WLR 545 the court upheld the rejection of the appellant's article 6 contentions. It therefore did not determine damages.
3. Divisional Court: In [2001] EWHC Admin 113, [2001] 1 WLR 1731 the court rejected the judicial review claim and consequently did not determine damages.