LL v The Lord Chancellor

A detention order made by a superior court remains valid and lawful until set aside unless the order is ex facie invalid because it resulted from a gross and obvious procedural irregularity. The threshold is exceptionally high. Individual procedural errors, even serious ones, will not ordinarily suffice. The court must assess their nature and cumulative effect in context, including the judge’s good faith, the circumstances requiring urgent coercive action, and whether the outcome might have been the same if proper procedure had been followed. Errors in recusal, contempt procedure, proof of deliberate breach and sentencing did not cross that threshold. Accordingly, no compensation was payable under Article 5(5) of the Convention.

The claimant was imprisoned for contempt of court by Russell J on 3 April 2014. The Court of Appeal subsequently set aside the committal order and identified defects concerning an unclear order, the judge’s failure to recuse herself, contempt procedure, proof of deliberate breach and sentencing. The claimant sought compensation from the Lord Chancellor for 63 days’ detention under sections 6, 8 and 9 of the Human Rights Act 1998 and Article 5(5) of the Convention.

The issue was whether those defects, individually or cumulatively, amounted to a gross and obvious procedural irregularity so that the detention was unlawful for the purposes of Article 5.

1. Applicable threshold. A claim for compensation under Article 5(5) based on errors in a judicial detention order requires a gross and obvious procedural irregularity. This means something quite exceptional, or an error so serious and egregious that the order is ex facie invalid. The ordinary rule remains that a detention order made by a superior court is valid and lawful until set aside.
2. Assessment in context. The test must be applied to the individual defects and to their cumulative effect. The court must consider the procedural error in its factual and institutional context. Robust judicial pressure may be justified in urgent international child proceedings, particularly where the judge reasonably considers that a party is obstructing compliance with orders. Good faith is relevant to the assessment.
3. Application. The unclear recital requiring action in Singapore was wrong but represented a bona fide attempt to secure the child’s return. The failure to recuse was a misjudgement, not a gross and obvious irregularity. The failures concerning warning the claimant, the contempt procedure and proof of deliberate breach could have been corrected on reconsideration and did not reach the required level. The failure to invite mitigation submissions was a serious procedural omission, but was not shown to be sufficiently fundamental.
4. Cumulative effect and outcome. Taken together, the errors rendered the process flawed and inadequate, but did not amount to the exceptional irregularity required by Article 5. It remained possible that a properly conducted process would have produced the same or a similar result. Liability was therefore not established.

The proceedings arose from the committal order made by Russell J on 3 April 2014. The Court of Appeal set that order aside and remitted the matter to the High Court for consideration of further or different orders. The present court then rejected the claim for compensation.