R (Sturnham) v Parole Board (No 1)

This appeal concerned awards of damages under section 8 of the Human Rights Act 1998 for delay by the Secretary of State and administrative bodies in securing a Parole Board review after the expiry of a tariff, in breach of the article 5(4) right to have the lawfulness of detention decided "speedily". The court held that (i) delay in such reviews will not ordinarily amount to false imprisonment at common law; (ii) delay will not ordinarily give rise to a breach of article 5(1) unless the detention has become arbitrary in all the circumstances; (iii) in considering awards under section 8 the court should be guided principally by the practice of the European Court of Human Rights as explained in R (Greenfield) v Secretary of State for the Home Department, taking particular account of Strasbourg awards in comparable jurisdictions; (iv) where it is shown on the balance of probabilities that the delay caused the prisoner to remain detained beyond the date he would otherwise have been released, damages should ordinarily be awarded to compensate for the resultant detention and for proved pecuniary loss; (v) where loss of earlier release cannot be established, there is a strong (but rebuttable) presumption that significant delay has caused frustration and anxiety for which modest damages should be paid, with a delay of around three months or more likely to merit an award.

The appeals concerned prisoners serving life or indeterminate sentences (including IPP) whose Parole Board reviews were delayed beyond the expiry of their tariff periods. The principal question was when and in what amount damages should be awarded under section 8 of the Human Rights Act 1998 for a breach of article 5(4) (the right to have the lawfulness of detention decided speedily).

Background and procedural history:

• Legislative and institutional background was described: the statutory scheme by which tariffs are set and release after tariff depends on Parole Board directions (see section 28 of the Crime (Sentences) Act 1997 as discussed in the judgment) and the increase in cases following IPP and other sentencing changes.
• The case reached the Supreme Court from the Court of Appeal (see [2011] EWCA Civ 349; [2012] EWCA Civ 452). The Court considered two principal appellants: Mr Faulkner (challenge to a Court of Appeal award of £10,000 for a ten-month delay) and Mr Sturnham (challenge to quashing of a modest award for a six-month delay).

Nature of the claims and issues:

• Each claimant sought damages under section 8 for violation of Convention rights due to delay in obtaining a Parole Board review. The issues were: (i) whether continued detention caused by delay can amount to false imprisonment in English tort law; (ii) whether continued detention of that kind can amount to a breach of article 5(1); (iii) whether an award under section 8 is only appropriate where the prisoner proves on the balance of probabilities that he would have been released earlier (as opposed to a lost chance); (iv) whether there is a threshold duration of delay below which no award for distress should be made; and (v) appropriate principles and levels for quantifying awards.

Court’s reasoning and conclusions:

1. The court rejected the argument that delayed post-tariff detention in these circumstances amounted to false imprisonment because the detention remained authorised by statute and section 6(2)(a) of the Human Rights Act prevented treating statutory authorisation as unlawful when the authority could not have acted differently.
2. The court held that a breach of article 5(4) does not automatically entail a breach of article 5(1): a breach of article 5(1) would require exceptional circumstances showing detention had become arbitrary; that was not established in these cases.
3. On remedies the court emphasised Greenfield: domestic courts must take into account Strasbourg practice in awarding damages under section 8 but are not slavishly bound by Strasbourg; they should focus on comparable Strasbourg awards (particularly from countries with similar costs of living) and may determine disputed facts on the usual domestic standards.
4. Practical rules were stated: if on the balance of probabilities delay caused the prisoner to remain detained beyond the date he would otherwise have been released, he should ordinarily be compensated for that detention and for proved pecuniary loss; damages should not be awarded merely for loss of a chance or adjusted by the degree of probability of release; where causation of earlier release is not established there is a strong presumption that significant delay has caused frustration and anxiety and modest damages will ordinarily be payable; delays of about three months or more will generally merit an award for non-pecuniary loss.
5. Applying those principles, the court allowed Mr Faulkner’s appeal in part and reduced his award from £10,000 to £6,500 (finding no article 5(1) or tort claim). The court allowed Mr Sturnham’s appeal against the quashing of his award and upheld the modest award the judge made for distress (£300).

The judgment contains guidance on the assessment and presentation of Strasbourg authorities in future cases and on the approach domestic courts should take to fact-finding, causation and quantification under section 8.

The appeal by Mr Faulkner was allowed in part. The Court held that delay in obtaining a Parole Board review in breach of article 5(4) does not ordinarily amount to false imprisonment at common law and will not ordinarily amount to a breach of article 5(1) absent exceptional circumstances making detention arbitrary. Courts should be guided by Strasbourg practice under article 41 and by Greenfield when deciding whether damages under section 8 HRA are necessary and in quantifying awards. Where it is shown on the balance of probabilities that delay caused continued detention beyond the date of likely release, full compensation for detention and pecuniary loss should ordinarily be awarded; where causation of earlier release is not established there is a strong presumption that significant delay (ordinarily of about three months or more) causes frustration and anxiety for which modest damages should be paid. Applying these principles the Court reduced Mr Faulkner’s award to £6,500 and dismissed his further submissions; it allowed Mr Sturnham’s appeal against the quashing of his modest award and therefore reinstated compensation for distress in his case.

Appeals to the House of Lords/Supreme Court from judgments of the Court of Appeal: Faulkner (award assessed by Court of Appeal) [2011] EWCA Civ 349 and Sturnham (award quashed by Court of Appeal) [2012] EWCA Civ 452. The Court of Appeal had allowed Faulkner’s appeal below and set damages at £10,000; this was reduced by the Supreme Court to £6,500. The Court of Appeal had quashed a £300 award in Sturnham; the Supreme Court restored that award.