AM, R (on the application of) v The Chief Constable of West Midlands Police

Damages under section 8 of the Human Rights Act 1998 are discretionary and do not follow automatically from a breach of a Convention right. The court must consider all the circumstances, including other relief and the consequences of the decision, and ask whether damages are necessary to afford just satisfaction. A quashing order may be insufficient where an unlawful public-authority act causes a serious and continuing interference with private life. The assessment requires a balance between the claimant’s interests and the wider public interest. Where an unlawful caution for a sexual offence materially contributes to restrictions on private and family relationships, the resulting Article 8 interference may justify a modest award of damages.

The claimant was arrested after being seen photographing a naked child and was later administered a caution for making indecent photographs of a child. The caution was administered without an interpreter or legal representative and was subsequently accepted by the defendant to have been unlawful because there was insufficient evidence to justify charging him.

The claimant sought judicial review, an order quashing the caution, Article 6 and Article 8 declarations, and damages under section 8 of the Human Rights Act 1998. The defendant conceded that the caution should be quashed, but disputed damages and costs. The central issues were whether the caution interfered with the claimant’s Article 8 private life and whether damages were necessary to afford just satisfaction.

1. Article 8 interference. The defendant knew that the claimant’s private life was at risk. A caution indicated to the world that he had admitted a sexual offence against a child and made sex-offender registration mandatory. The caution also materially influenced the local authority’s decision to restrict the claimant’s contact with E and M. Those matters were causally linked to a substantial interference with private life. The court did not determine the Article 6 allegation because the claimant accepted that nothing practical would be achieved by pursuing it.
2. Damages. The principles in Anufrijeva v Southwark LBC [2004] QB 1124 were applied. Damages are discretionary, are not automatic upon proof of a Convention breach, and may be awarded only where necessary to afford just satisfaction after considering other relief and the consequences of the decision. The court must balance the claimant’s interests against the wider public interest. Damages are a remedy of last resort, but a quashing order will not always provide just satisfaction.
3. The absence of evidence sufficient to justify a charge, the seriousness of the caution and compulsory registration, and the substantial and continuing interference with private life made damages necessary. The claimant’s limited English and unfamiliarity with legal procedures were relevant to the delay in bringing proceedings.
4. The caution was quashed. The obligation to register as a sex offender ceased automatically. The claimant was awarded £500 damages for breach of Article 8 and, having been wholly successful, his costs.

First-instance judicial review proceedings in the Administrative Court. The caution was quashed and damages were awarded.