Sturnham v Secretary of State for Justice & Anor (Rev 1)

Under the Human Rights Act 1998, damages for delay violating Article 5.4 are discretionary and awarded only when necessary for just satisfaction. A declaration ordinarily suffices. Damages may be necessary where delay prolongs detention or causes a diagnosable illness; stress and anxiety alone ordinarily require a special aggravating feature.

For release of an IPP prisoner, the Crime Sentences Act 1997 applies the same public-protection test as for other life prisoners. The Parole Board assesses current risk to life and limb. It need not find that risk has fallen to the level required to impose the original IPP sentence. “More than minimal” may mean a real, not fanciful, risk.

The claimant was serving an imprisonment for public protection sentence imposed after a manslaughter conviction. The Parole Board’s consideration of his release was delayed by at least six months. It declined to direct release but recommended transfer to open conditions.

Mitting J found a breach of Article 5.4, awarded £300 damages, and rejected the claimant’s argument that the Board had applied the wrong release test. The claimant appealed on the construction of section 28(6)(b) of the Crime Sentences Act 1997 and on the Secretary of State’s directions. The Secretary of State appealed against the damages award. The central issues were the proper remedy for Article 5.4 delay and the risk threshold governing release of an IPP prisoner.

1. Damages. Laws LJ held that section 8(3) of the Human Rights Act 1998 permits damages only where necessary to afford just satisfaction, with the principles applied under Article 41 taken into account under section 8(4). In an Article 5.4 delay case, a declaration will ordinarily vindicate the right. Damages are more likely where the delay produces an outcome akin to a private-law wrong, such as prolonged detention or a diagnosable illness. Stress and anxiety alone will not generally justify compensation without a special feature materially aggravating the claimant’s suffering. The present case was not exceptional. A declaration was sufficient, the Secretary of State’s appeal was allowed on this issue, and permission was refused for the claimant to seek an increased award.
2. Academic issues. Although the claimant had been released, the court properly entertained the remaining issues because they concerned discrete questions of statutory construction of public importance. The approach was supported by ex parte Salem [1999] 1 AC 450.
3. IPP release test. Section 28(6)(b) of the Crime Sentences Act 1997 applies uniformly to all life prisoners for whom a minimum term order has been made, including IPP prisoners. The court would not read into it the risk threshold required when an IPP sentence is imposed. The Parole Board must assess the prisoner’s current risk to life and limb and whether confinement remains necessary for public protection. Equivalence between the risk justifying sentence and the risk governing release is not required. The reasoning in Ex parte Bradley [1991] 1 WLR 134 was compelling and applicable.
4. Directions. R (Girling) v Parole Board [2006] EWCA Civ 1779 objected to directions purporting to dictate how the Board should decide release, but did not establish that the wording of the risk test was itself legally erroneous. The Board’s reference to the Secretary of State’s directions did not show unlawful obedience to paragraph 4. “More than minimal” could properly mean a real, rather than fanciful, risk to life and limb. The claimant’s appeal was therefore dismissed. McFarlane LJ and Kitchin LJ agreed.

1. Court of Appeal (Civil Division) [2012] EWCA Civ 452: allowed the Secretary of State’s appeal against the damages award and dismissed the claimant’s appeal on the release test and directions.
2. High Court, Administrative Court [2011] EWHC Admin 938: found a breach of Article 5.4, awarded £300 damages, and rejected the claimant’s challenge to the Parole Board’s release test.