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

The Human Rights Act 1998 is forward-looking. A person cannot obtain a domestic remedy under section 7 for detention before 2 October 2000 merely because later Strasbourg jurisprudence establishes that the detention contravened Article 5. Article 5(5) is not a free-standing right to compensation. It is parasitic on a breach of Article 5(1) or 5(4) recognised by domestic law. Separately, section 6(2) excludes liability where primary legislation meant that the public authority could not have acted differently. The court also dismissed a respondent’s notice raising an issue not decided below. Its observations on the retrospective effect of Stafford were obiter.

The appellant sought judicial review after the Secretary of State refused to consider a claim for compensation under Article 5(5). The claim concerned detention between 1993 and 1999 and alleged failures to release him after Parole Board recommendations and to provide a court review under Article 5(4). Bennett J dismissed the claim, holding that the Human Rights Act 1998 could not support a domestic claim based on detention before the Act came into force. The appeal concerned whether Article 5(5) created an autonomous post-commencement cause of action and, on a respondent’s notice, whether Stafford operated retrospectively.

1. Appeal dismissed. Ward LJ, with whom Arden LJ and Hallett LJ agreed, held that the appellant could not claim damages under section 7 of the Human Rights Act 1998 for detention occurring before 2 October 2000. Sections 6 to 9 were forward-looking, and the Secretary of State’s pre-commencement conduct was not unlawful under section 6(1).
2. Article 5(5) was a domestic statutory right, not an autonomous international cause of action. A person was a victim of detention in contravention of Article 5 only where the relevant breach of Article 5(1) or 5(4) was recognised by domestic law. The compensation right was therefore parasitic on an actionable breach. The alleged violations occurred between 1993 and 1997, before the Act came into force.
3. There was also an independent section 6(2) answer. Section 29 of the Crime (Sentences) Act 1997 imposed no duty on the Secretary of State to refer the case to the Parole Board or to release the prisoner. He therefore could not have acted differently while section 29 remained in force, notwithstanding its later declaration of incompatibility.
4. The respondent’s notice was dismissed because Bennett J had not decided the question whether Stafford had retrospective effect. There was consequently no decision or order capable of being appealed on that issue.
5. Ward LJ’s observations on Stafford were expressly obiter. He considered that the Strasbourg court had treated Stafford as retrospective, since it awarded compensation for violations occurring before that judgment and later made similar awards. Section 2(1) required the domestic court to take those decisions into account. Arden LJ added that clear and constant Strasbourg jurisprudence should generally be followed absent special circumstances, and that prospective-only effect would be very exceptional. The appeal and respondent’s notice were both dismissed.

1. Court of Appeal (Civil Division): On 15 February 2006, dismissed the appeal and the respondent’s notice: [2006] EWCA Civ 67.
2. Administrative Court: Bennett J dismissed the judicial-review claim on 30 November 2004, holding that compensation could not be claimed domestically for detention predating the commencement of the Human Rights Act 1998.