Brooks, R (on the application of) v The Independent Adjudicator & Anor

Where primary legislation makes continued detention mandatory, section 6(2)(a) of the Human Rights Act 1998 prevents the detention from being unlawful under section 6(1) if the public authority could not have acted differently. Sections 7 and 8 cannot then support a damages claim for breach of Article 5. Independently, Article 5(1) does not generally make intervening detention retrospectively unlawful because a custody decision is later quashed for legal or procedural error within jurisdiction. The principle applies to additional days imposed by an independent adjudicator under a prescribed, Article 6-compliant procedure.

Matthew Brooks was serving an extended sentence under the Criminal Justice Act 2003. After a disciplinary incident at a young offender institution, an Independent Adjudicator found him guilty and awarded 14 additional days. He served 11 days after the release date that followed from his Crown Court sentence.

The disciplinary finding and award were later quashed by consent. The High Court subsequently declared the additional detention a breach of Article 5 and awarded agreed damages. The Secretary of State appealed, arguing that section 257 of the 2003 Act required detention for the extended period, that section 6(2)(a) of the Human Rights Act 1998 barred the claim, and that the later quashing did not retrospectively invalidate detention imposed under a prescribed judicial procedure. The central issue was whether the 11 days were unlawful.

Appeal allowed. Lord Justice McCombe gave the judgment, and Lord Justice Jackson agreed.

1. The Criminal Justice Act 2003 required release at the statutory release point under section 247(2), but section 257 extended the period to be served by any unremitted additional days. The Secretary of State therefore had no choice but to detain the claimant for the extended period. Section 6(2)(a) of the Human Rights Act 1998 applied because primary legislation meant that the authority could not have acted differently. Section 6(1) did not apply, and the claimant was not entitled to proceed or obtain a remedy under sections 7 and 8. No declaration of incompatibility was sought under section 4, and such a declaration would not itself have provided a remedy against detention required by the legislation.
2. Independently, Article 5(1) did not make the intervening detention retrospectively unlawful. The court relied on the Strasbourg approach summarised in Webster v Lord Chancellor [2015] EWCA Civ 742, including Krzycki v Germany (1978) 13 DR 57 and Benham v United Kingdom (1996) 22 EHRR 293. Detention pursuant to a procedure prescribed by law remains lawful in principle where a custody decision is later quashed for legal or factual error within jurisdiction. The Independent Adjudicator’s award was a judicial act sufficiently similar to a sentence. It was made under the Young Offender Institution Rules 2000, following procedural safeguards required by Article 6. The refusal to recuse was a procedural error within jurisdiction and did not retrospectively invalidate the 11 days.
3. The domestic false-imprisonment and second-actor issue was unnecessary to the result. Obiter, the court was attracted by the view that an authority required by statute to comply with an apparently lawful direction could rely on it until quashed. The discussion referred to the distinction between voidable and void ab initio decisions in In re McC (A Minor) [1985] AC 528, and to the related authorities. The appeal was allowed on the first two grounds, making a decision on that wider issue unnecessary.

• Court of Appeal (Civil Division) — Allowed the Secretary of State’s appeal from the High Court’s declaration that the 11 days’ detention breached Article 5.
• High Court of Justice, Queen’s Bench Division, Administrative Court, Mrs Justice Laing — Declared the detention unlawful under Article 5 and awarded agreed damages, by judgment dated 30 October 2014 and order dated 3 November 2014.
• High Court of Justice, Administrative Court, Mr Justice Singh — By consent order dated 18 May 2012, quashed the disciplinary findings and awards of additional days; damages claims were stayed.