R (on the application of Faulkner) v Secretary of State for Justice and another

Delay contrary to article 5(4) in reviewing a prisoner’s continued detention does not itself render the detention unlawful or constitute false imprisonment. Article 5(1) is violated only in exceptional circumstances where continued detention has become arbitrary.

Under section 8 of the Human Rights Act 1998, a prisoner who proves that the delay prolonged detention should ordinarily receive compensation. Damages are not awarded for a mere loss of a chance of release. Even without prolonged detention, delay carries a strong rebuttable presumption of frustration and anxiety for which modest damages will ordinarily be necessary. No award is required where the suffering lacks sufficient severity. For convicted prisoners awaiting Parole Board review, delay of three months or more is likely to merit an award.

These conjoined appeals concerned delayed Parole Board reviews of prisoners serving indeterminate sentences. In Faulkner, the Court of Appeal found that a ten-month breach of article 5(4) had delayed release and awarded £10,000: [2011] EWCA Civ 349. The Board challenged the amount, while the prisoner contended that the detention also constituted false imprisonment or violated article 5(1).

In Sturnham, the High Court found a six-month breach which had caused anxiety and distress, but had not delayed release, and awarded £300: [2011] EWHC 938 (Admin). The Court of Appeal quashed that award: [2012] EWCA Civ 452.

The central questions were when damages are necessary under section 8 of the Human Rights Act 1998, how causation and quantum should be determined, and whether delay under article 5(4) can also make continued detention unlawful.

1. Disposition. Lord Reed, with whom Lord Neuberger, Lord Mance and Lord Kerr agreed, allowed the Board’s appeal in Faulkner and reduced the award from £10,000 to £6,500. The prisoner’s cross-appeal was dismissed. The appeal in Sturnham was allowed and the High Court’s £300 award restored. Lord Carnwath adopted Lord Reed’s reasons and agreed with those orders.
2. Continued detention pending a direction for release by the Parole Board remained authorised by statute. Delay in providing the speedy review required by article 5(4) therefore did not constitute false imprisonment. Section 6(1) of the Human Rights Act 1998 did not alter that conclusion because primary legislation prevented release until the Board directed it.
3. A breach of article 5(4) does not of itself violate article 5(1). Article 5(1) is concerned with arbitrary detention and would be violated only in exceptional circumstances where the connection between conviction and detention had broken down. The administrative failures and delay in Faulkner were serious but did not satisfy that standard.
4. Damages under section 8 of the Human Rights Act 1998 are a discretionary remedy of just satisfaction, not tort damages. Following R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, domestic courts should presently look primarily to clear and consistent Strasbourg practice. Award levels should broadly reflect comparable cases involving the United Kingdom or countries with similar living costs. Domestic courts should nevertheless resolve disputed facts under ordinary domestic procedures.
5. Where a claimant proves on the balance of probabilities that an article 5(4) breach prolonged detention, compensation should ordinarily be awarded for that detention and any proved pecuniary loss. A mere loss of a chance of earlier release is insufficient, and damages should not be scaled according to the probability of release. Later recall to prison does not ordinarily mitigate the award, although particular facts may make it relevant. The conditional and precarious nature of release on licence remains relevant to quantum.
6. Even where earlier release is not proved, there is a strong rebuttable presumption that undue delay caused frustration and anxiety. A declaration will not ordinarily provide sufficient just satisfaction, and a modest award should also be made. No award is necessary where the resulting suffering is insufficiently severe. For a convicted prisoner awaiting Board review, a delay of three months or more is likely to justify an award, although individual vulnerability may justify compensation for a shorter period.
7. Section 40(5) of the Constitutional Reform Act 2005 could not be used to evade the requirement for permission to appeal. Sturnham was therefore refused permission to seek an increase in the £300 award.

• United Kingdom Supreme Court: In R (Faulkner) v Secretary of State for Justice [2013] UKSC 23, the Board’s appeal was allowed, the damages award was reduced to £6,500, and Faulkner’s cross-appeal was dismissed. Sturnham’s appeal was allowed and his £300 award restored.
• Court of Appeal — Faulkner: The court had found a ten-month violation of article 5(4), determined that earlier release was proved on the balance of probabilities, and later awarded £10,000: [2010] EWCA Civ 1434; [2011] EWCA Civ 349.
• Administrative Court — Faulkner: The application for judicial review was dismissed: [2009] EWHC 1507 (Admin).
• Court of Appeal — Sturnham: The Secretary of State’s appeal was allowed, the prisoner’s appeal was dismissed and the £300 award was quashed: [2012] EWCA Civ 452.
• Administrative Court — Sturnham: The court found a six-month violation of article 5(4), rejected the substantive challenge to the Board’s decision and awarded £300 for anxiety and distress: [2011] EWHC 938 (Admin).