Degainis, R (on the application of) v Secretary of State for Justice

Compensation under Article 5(5) of the European Convention on Human Rights is not necessarily monetary. A finding that Article 5(4) has been breached, together with an admission and apology, may provide just satisfaction. Under section 8 of the Human Rights Act 1998, damages require more than speculation that delay extended detention. Specific evidence is ordinarily required to establish frustration or distress of sufficient intensity to justify compensation for non-pecuniary damage. The seriousness of the original offence may be relevant in exceptional cases, but will normally have little or no relevance where the punitive part of the sentence has already been served.

The claimant, serving a life sentence, was recalled to prison after concerns arose about telephone calls to a woman. The Parole Board upheld the recall and fixed a later hearing to plan for release. That hearing was delayed because the necessary reports were not ready. The defendant admitted a breach of Article 5(4) and apologised.

The claimant sought damages under Article 5(5), alleging that the delay prolonged his detention and caused frustration and anxiety. The court therefore had to determine the period properly in issue, whether the delay probably extended detention, and whether the admission and apology supplied just satisfaction under Article 5(5) and section 8 of the Human Rights Act 1998.

1. The claim for damages was dismissed. The relevant delay ran from July 2008, when the scheduled hearing did not take place, to January 2009, when it was held. Earlier decisions were not challenged in time and were outside the scope of the claim.

2. Article 5(5) does not require an award of monetary damages in every case involving a breach of Article 5(4). The word compensation is not confined to money. The European Court’s decisions show that a finding of violation may itself provide sufficient compensation, while an admission and apology may also contribute to just satisfaction.

3. Section 8 of the Human Rights Act 1998 was compatible with Article 5(5). The court was required to consider whether damages were necessary to afford just satisfaction and to take account of the principles applied under Article 41.

4. The alleged extension of detention was too speculative. Release depended on several imponderable matters, including the claimant’s progress, attitude to offending and the adequacy of a release scheme. The court could not conclude, on the balance of probabilities, that the delay had extended or would extend custody.

5. For frustration and anxiety, the court would not infer, without specific evidence, a level of suffering sufficient to justify damages for non-pecuniary loss. Relevant considerations could include the length and effect of the delay and its impact on the claimant. The seriousness of the original offence was not relevant on these facts, although it could not be said never to be relevant.

6. The court was not satisfied that the claimant had suffered compensable frustration or anxiety. The claim for damages therefore failed. Such claims were likely to fail in the great majority of cases lacking specific evidence.

First-instance judicial review claim. No appellate history is stated in the judgment.