LL v The Lord Chancellor

Detention ordered by a court may breach article 5 of the European Convention on Human Rights where linked procedural errors, assessed cumulatively, constitute a gross and obvious irregularity. The threshold remains high. Ordinary judicial errors are generally corrected by appeal and do not create a right to compensation.

An irregularity is “obvious” if it is apparent to a person familiar with normal court procedure. Committing a person for failing to comply with an expectation placed only in a recital, particularly where compliance was not feasible, may cross the threshold when combined with apparent predetermination, a procedurally defective contempt hearing, failure to prove deliberate breach and denial of an opportunity to mitigate sentence.

LL was committed to prison for 18 months for contempt after failing to secure his child's return from Singapore. The committal judge relied partly upon an expectation stated in a recital rather than an operative order. The contempt hearing also involved apparent predetermination, compelled evidence, immediate cross-examination, failure to establish deliberate breach and no opportunity to mitigate sentence.

An earlier Court of Appeal allowed LL's appeal and ordered his release: [2014] EWCA Civ 905. LL then sought damages from the Lord Chancellor under sections 6, 7 and 9 of the Human Rights Act 1998. Foskett J dismissed that claim in [2015] EWHC 3273 (QB). The central issue on this appeal was whether the linked errors amounted to a gross and obvious irregularity rendering LL's detention unjustified under article 5.

1. Appeal allowed. Jackson LJ, with whom King and Longmore LJJ agreed, held that the five linked errors in the contempt proceedings cumulatively amounted to a gross and obvious irregularity. The Lord Chancellor therefore could not justify LL's detention under article 5(1)(a) or (b) of the European Convention on Human Rights.
2. A detention order is not rendered unlawful merely because it is later set aside. Article 5 generally distinguishes an order that is valid until reversed from an order affected by a gross and obvious irregularity. The threshold is high because most judicial mishaps resulting in imprisonment are remedied by appeal and do not engage a right to compensation.
3. Linked errors may properly be assessed cumulatively. The recital encouraged proceedings in Singapore which had neither been ordered nor shown to be capable of securing the child's return within the required time. The judge then relied on non-compliance with that expectation when committing LL. Her failure to recuse herself led into further defects: requiring LL to give evidence without warning him of his right not to do so, beginning with cross-examination, failing properly to determine whether breach was deliberate, and denying him an opportunity to mitigate sentence.
4. An irregularity is “obvious” when it would be apparent to anyone familiar with normal court procedure. Including a veiled instruction in a recital, where compliance was not feasible, and then imprisoning a person for failure to comply was a gross irregularity. The other connected failings reinforced that conclusion. It was unnecessary to decide whether the same circumstances also constituted a flagrant denial of justice.
5. Foskett J had neither introduced an impermissible exceptionality test nor erred merely by considering the committal judge's good faith and the possibility that a properly conducted hearing might have resulted in lawful imprisonment. His error was the ultimate conclusion that the cumulative defects did not cross the required threshold.
6. King LJ stressed that the decision arose from unusual facts and did not undermine judicial immunity. Longmore LJ regarded the decisive irregularity as imprisonment for breach of an order which had never been made, viewed with the defective hearing and denial of mitigation.

1. Court of Appeal (Civil Division): The present court allowed LL's appeal from Foskett J and held that the cumulative errors amounted to a gross and obvious irregularity under article 5 of the European Convention on Human Rights: [2017] EWCA Civ 237.
2. High Court, Queen's Bench Division: Foskett J dismissed LL's damages claim, holding that the errors did not cross the required threshold: [2015] EWHC 3273 (QB).
3. Earlier Court of Appeal proceedings: The court quashed the contempt finding and 18-month sentence and ordered LL's immediate release: [2014] EWCA Civ 905.