Home Office v Stellato

Detention pursuant to an unimpeachable order of a superior court may be lawful under article 5(1)(b), even where the order is later overtaken by an appellate decision establishing that the prisoner should previously have been released unconditionally. In assessing non-pecuniary loss for unlawful detention, subsequent criminality and the potential operation of statutory provisions concerning the balance of an earlier sentence may be relevant factors, but they do not extinguish liability or automatically reduce damages to nominal damages. A claimant may recover for a lost employment opportunity without proving a particular job or salary, provided there is evidence supporting the opportunity. County court judgment interest prescribed by statute and statutory instrument is mandatory where no applicable rule permits variation.

Mr Stellato had been sentenced to ten years’ imprisonment. Following release at the three-quarter point on licence, he successfully established in the House of Lords that he should have been released unconditionally. The Ministry of Justice accepted liability for false imprisonment, but disputed the period of unlawful detention, the assessment of non-pecuniary damages, the award for lost employment opportunity and the rate of interest on judgments forming part of its counterclaim.

The County Court awarded £50,000 for non-pecuniary loss, £5,000 for loss of employment opportunity and consequential sums. The Ministry appealed. The central issues were whether detention following revocation of bail was lawful, how subsequent offending affected damages, whether the employment award was permissible, and whether the County Court could reduce statutory judgment interest.

1. Period of unlawful detention. Detention from 7 December 2006 to 28 February 2007 was lawful. The revocation of bail by Hughes LJ was an unimpeachable order of a superior court and justified detention under article 5(1)(b) of the ECHR, notwithstanding the later House of Lords decision. The analogy with Lloyd v United Kingdom was inapplicable because that case concerned orders flawed on their face by procedural defects. The period of unlawful detention was therefore reduced to 329 days.
2. Effect of subsequent offending. The potential operation of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 was relevant as a factor in assessing non-pecuniary loss. It did not automatically cancel the loss caused by unlawful detention or require nominal damages for the period which might have been added to the sentence. The stronger submission was speculative, particularly because no section 116 order had been made and its effect depended on the timing of the subsequent offence. The broader relevance of criminality was supported by O’Brien v Independent Assessor.
3. Assessment of damages. Although the County Court award was higher than might have resulted from guideline cases such as R v Governor of Her Majesty’s Prison Brockhill, ex parte Evans (No. 2), the assessment was for the trial judge, who heard the evidence and considered all relevant factors. The appellate court could not say that the calculation was wrong.
4. Employment opportunity. Loss of employment opportunity is a question of fact. A claimant need not prove a specific job offer, salary or accepted offer, but must provide evidence enabling the court to conclude that an opportunity was lost. The County Court was entitled to rely on evidence that Mr Stellato had previously obtained employment and to award £5,000.
5. Interest. Under section 74 of the County Courts Act 1984, the applicable statutory rate was mandatory. The County Courts (Interest on Judgments Debts) Order required interest at the rate specified in section 17 of the Judgments Act 1838. The County Court had no discretion to substitute a 2 per cent rate for the prescribed 8 per cent rate. The appeal was allowed to that limited extent, and also as to the length of unlawful detention.

• House of Lords: In [2007] UKHL 5; [2007] 2 AC 70, held that Mr Stellato should have been released unconditionally.
• High Court (Queen’s Bench Division): The appeal from the County Court was allowed in part as to the period of unlawful detention and the calculation of interest. The damages awards were otherwise upheld.