Faulkner, R (on the application of) v Secretary of State for Justice & Anor

Damages for breach of Article 5(4) are assessed as just satisfaction under the Human Rights Act 1998, taking account of Strasbourg principles but without a fixed tariff. Where delayed access to the Parole Board probably deprived a prisoner of conditional liberty, that loss is compensable without discount for the probability of release. The award reflects the value of the lost liberty and the stress inherent in detention. A separate routine award for distress and anxiety is generally double counting, although distinct psychiatric, physical or pecuniary damage may justify additional compensation. Domestic awards assist consistency but do not bind the court.

The appeal concerned damages following an earlier Court of Appeal judgment on liability. The respondents’ delay in providing materials to the Parole Board had caused about 10 months’ detention in breach of Article 5(4), during which release would probably have been directed. The court had to determine what damages, if any, were payable under section 8(1) of the Human Rights Act 1998. Blair J had not found for the appellant and had indicated only a possible damages range. The parties proposed figures of £3,500 and £32,000. The central issue was the monetary measure of just satisfaction for loss of conditional liberty during an otherwise lawful sentence.

Disposition. The Court of Appeal assessed damages at £10,000 under section 8(1) of the Human Rights Act 1998, in addition to the earlier finding of a breach of Article 5(4).

1. Framework. Sections 8(1), 8(3) and 8(4) required relief that was just and appropriate, necessary to afford just satisfaction, and assessed by taking account of the principles applied by the European Court of Human Rights under Article 41. Those principles supplied no fixed tariff. The court had to consider what influenced Strasbourg awards and make a fair assessment in the individual case. A finding of violation could itself be sufficient, but was not sufficient here. The value of vindication and the objective of preventing repetition could be considered without awarding exemplary damages.
2. Nature of the loss. A breach of Article 5(4) in these circumstances was not false imprisonment. The underlying detention was within a lawful custodial sentence, but the claimant lost the opportunity to obtain conditional liberty. Once it was probable that parole would have been granted earlier, the loss was compensable and was not to be discounted by reference to the degree of probability.
3. Distress. A separate routine award for distress and anxiety was inappropriate because the award for wrongful detention already reflected the stress caused by imprisonment. Additional compensation remained possible for distinct pecuniary, psychiatric or physical damage. The court did not need to decide whether the claimant’s period on the run should reduce damages.
4. Quantum. Strasbourg and domestic awards were useful comparators but did not establish a tariff. The court assessed the circumstances as a whole and did not apply a monthly multiplier. Ten months’ lost conditional liberty justified and required an award of £10,000.

• Court of Appeal (Civil Division): In its earlier judgment of 14 December 2010, the court held the respondents liable for unlawful detention in breach of Article 5(4).
• Administrative Court, Queen’s Bench Division: Blair J had not found for the appellant. The court recorded that he would have considered damages in the region of £1,000 to £2,000, or perhaps up to £4,000, had liability been established.
• Court of Appeal (Civil Division): In this judgment, reported at [2011] EWCA Civ 349 , the court determined the damages payable at £10,000.