Faulkner, R (on the application of) v Secretary of State for Justice the Parole Board

Article 5(4) requires a speedy review of the lawfulness of continuing detention. A breach is not confined to cases where detention becomes arbitrary or the parole-review system breaks down entirely. Unjustified delays in referring a case or supplying the necessary dossier may themselves violate the guarantee.

Under the Human Rights Act 1998, section 8, and Article 41 principles, damages are awarded only where necessary to afford just satisfaction. On these facts, the claimant had to establish on the balance of probabilities that an earlier review would have led to release. A mere loss-of-a-real-chance approach was not adopted.

The appellant was serving a life sentence and had become eligible for parole. His referral to the Parole Board, preparation of the dossier and provision of further reports were substantially delayed. The Board eventually directed his release in January 2009.

Blair J rejected the claim, holding that Article 5(4) was breached only if continued detention became arbitrary through a complete breakdown of the system, and that damages were not established: [2009] EWHC 1607 (Admin). The appeal concerned whether the delay itself violated Article 5(4) and whether damages required proof of probable earlier release or could be awarded for loss of a real chance.

Lord Justice Hooper delivered the leading judgment. Lord Justice Wilson and Lord Justice Sedley agreed. The appeal was allowed. The appellant was entitled to damages, with the amount to be agreed or assessed after written submissions.

1. Article 5(4). The relevant question was whether the delay in obtaining a review was undue or unjustified. The guidance in In Re D [2008] UKHL 33 supported consideration of whether reasonable steps had been taken, whether delay was outside the responsible body’s control, and whether it was unavoidable. The referral and dossier delays were unexplained and unjustified.
2. The Administrative Court had applied too high a threshold by requiring detention to become arbitrary or the parole system to break down entirely. The Court of Appeal did not read Secretary of State for Justice v James [2009] UKHL 22 as imposing that requirement. The appellant should have received a review in about March 2008. The delay of approximately ten months therefore breached Article 5(4).
3. Damages and causation. Article 5(5), section 8 of the Human Rights Act 1998 and Article 41 required an assessment of whether damages were necessary for just satisfaction. The approach in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14 required a case-by-case assessment. The Court declined to award damages merely for loss of a real chance, observing that the relevant passage in James was obiter. On the evidence, however, the appellant proved on the balance of probabilities that he would have been released after an earlier review.
4. Later events did not justify reducing the award. It was speculative to infer that an earlier release would have led to the same return to custody, and the additional period of custody followed an acquittal. Damages were to reflect the ten months of detention attributable to the breach, calculated in accordance with paragraph 19 of Greenfield.

• Court of Appeal (Civil Division): Appeal allowed. The court found an Article 5(4) violation and held that damages were payable, with quantum deferred.
• Administrative Court, Queen’s Bench Division: Blair J rejected the claim in [2009] EWHC 1607 (Admin).