Stellato v The Ministry of Justice

A stay of a declaration requiring a prisoner’s immediate release removes the enforceability of that declaration. It does not positively authorise continued detention.

A grant of bail confers liberty upon a person who would otherwise be lawfully detained. Bail and its conditions do not themselves provide the underlying authority for detention. In civil proceedings, breach of a bail condition is therefore not non-compliance with a court order within article 5.1(b) of the European Convention on Human Rights. That provision concerns breach of an obligation or prohibition imposed by a lawful court order.

The appellant had been recalled to prison after refusing to comply with licence conditions. In earlier judicial review proceedings, the Court of Appeal declared that his licence had expired and that he was entitled to immediate release. That declaration was stayed pending an appeal, and the appellant was granted conditional bail. After he refused to comply with the bail conditions, Hughes LJ revoked bail and ordered his continued detention until at least midday on 21 December 2006. He remained imprisoned until the House of Lords dismissed the Secretary of State’s appeal on 28 February 2007.

The County Court awarded damages for false imprisonment and breach of article 5 of the European Convention on Human Rights. Cranston J, at [2009] EWHC 1719 (QB), held that the detention from 7 December 2006 was lawful and reduced the award. The central issues were whether the appellate stays or bail orders authorised detention and whether article 5.1(b) justified imprisonment for breach of civil bail conditions.

1. The appeal was allowed unanimously. The stays imposed by the Court of Appeal and continued by the House of Lords did not authorise the appellant’s detention. A stay merely meant that the declaration requiring his immediate release was temporarily unenforceable. It could not convert the absence of an enforceable release order into positive authority to detain him.

2. A grant of bail is not an order authorising detention. It grants liberty to someone who would otherwise be detained under an independent legal authority. A bail condition qualifies that grant of liberty. Breach of the condition may disentitle the person to bail, but the legal authority for any resulting custody must come from elsewhere.

3. The general position may be modified by statute. Sections 3 and 6 of the Bail Act 1976 respectively impose an obligation to surrender and create an offence for failure without reasonable cause to surrender. That Act did not apply because the bail had been granted in civil judicial review proceedings.

4. The decision in R v Secretary of State for the Home Department, ex parte Turkoglu [1988] 1 QB 398 did not establish that bail itself authorises detention. It concerned an immigration applicant who had no right to liberty in the United Kingdom and was granted bail ancillary to judicial review proceedings.

5. Article 5.1(b) of the European Convention on Human Rights permits detention for non-compliance with a court order only where the order imposes an obligation or prohibition, such as an injunction. Civil bail conditions are true conditions rather than obligations. Refusal to comply with them therefore does not constitute non-compliance with a lawful court order for the purposes of article 5.1(b).

6. The appellant was entitled under article 5.5 and sections 6 and 8 of the Human Rights Act 1998 to damages for detention from 7 December 2006 until his release on 28 February 2007. The order of 8 December did not authorise detention after midday on 21 December, despite the words “at least”. The Ministry itself was responsible for detention thereafter, so damages at common law were also recoverable for the period from 21 December 2006 to 28 February 2007. The financial consequences and consequential orders were left for agreement or written submissions.

1. Court of Appeal (Civil Division): By [2010] EWCA Civ 1435, unanimously allowed the appellant’s appeal and held that he was entitled to damages under article 5 for detention from 7 December 2006 to 28 February 2007, and at common law for detention after 21 December 2006.

2. High Court, Queen’s Bench Division: Cranston J, at [2009] EWHC 1719 (QB), allowed the Ministry’s appeal from the County Court, held that detention from 7 December 2006 was lawful and reduced the damages award.

3. Oxford County Court: HH Judge Harris QC awarded £55,000 plus interest for false imprisonment and breach of article 5, subject to set-off for counterclaims and costs orders.