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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Degainis, R (on the application of) v Secretary of State for Justice [2010] EWHC 137 (Admin) (03 February 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/137.html Cite as: [2010] EWHC 137 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/02/2010

The Hon. Mr. Justice Saunders:

1. On 6^th February 1976 when he was 19 years old, the Claimant raped a 55 year old neighbour. It was a very bad case. The rape was carried out at knife point and the victim was caused serious injury which resulted in convictions as well as rape, for Section 18 wounding and aggravated burglary. A very experienced High Court Judge described the rape as the worst he had known. The Claimant was sentenced to Life Imprisonment with a tariff of 10 years. He was not released on licence until October 2005. The Judge had predicted in his sentencing remarks that he may well have to serve more than 10 years before it was considered that he was safe to be released on licence and he was proved to be correct.
2. He was recalled to prison on 1^st July 2006 because he made phone calls to a female, the contents of which gave rise to concerns as to his future behaviour to women. On 22^nd January 2007 there was a hearing by the Parole Board to decide whether the facts relied on to justify the recall were made out and whether on that basis the Claimant's future detention was justified. The Parole Board having heard evidence decided that the recall was justified. In addition the Parole Board laid down a timetable for the next hearing to take place in July 2008. That hearing was to plan for release. A number of reports would need to be prepared for that hearing. They were not ready in July 2008 and the hearing did not take place until 23^rd January 2009.
3. The Claimant commenced an action for Judicial Review on 17^th November 2008 claiming that there was a breach of his rights under Article 5(4) of the ECHR. By virtue of Article 5(4): 'Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.'
4. It is not necessary to consider this part of the claim in detail because the Defendant has admitted the breach of Article 5(4) and has apologised.
5. The Claimant argues that the admission and apology are not a sufficient remedy and argues that he is entitled to damages under Article 5(5). The Defendant disputes this and maintains that the admission and apology that he has made are an adequate remedy. Article 5(5) says as follows: 'Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.'
6. The Human Rights Act 1998 incorporates the ECHR into English law. Section 8 is material to this issue and reads as follows:

'(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—

(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act,

(c) the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4) In determining—

(a) whether to award damages, or

(b) the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.'

7. Article 41 provides that ' If the Court finds that there has been a violation of the Convention ………., and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.
8. The effect of Section 8(4) of the Human Rights Act is that the Court in deciding whether to award damages must take account of any relevant decisions of the European Court.
9. Before deciding whether the Claimant has received just satisfaction or whether he is entitled to damages, I have to decide as a preliminary issue what the period of delay is that I should take into account as being properly the subject matter of this action. The Claimant asserts that it is the period from January 2007 when he says that the reports should have been available to decide whether he was safe to be released until Jan 2009 when the Parole Board hearing finally took place. The Defendant accepts that there was an unlawful delay between July 2008 when the hearing was scheduled to take place and Jan 2009 when it finally did take place.
10. In my judgment the delay on which the Claimant can rely is limited to July 2008 to January 2009. No complaint was made until October 2008 on behalf of the complainant. There were 2 decisions that could have been subject of challenge as a breach of Article 5(4). One was the decision made by the Parole Board in January 2007 and the other was the decision of the Defendant to fix the date for the hearing for July 2008 which was communicated to the Claimant on 6^th February 2007. The first complaint was made in October 2008 and the basis of that complaint was the failure to be ready for the hearing scheduled for July 2008. As was pointed out by Sullivan J at the permission hearing any application to judicially review the decisions made in January or February 2008 is out of time. The subject matter of this action is the failure to provide reports for the hearing in July 2008.
11. The claim for damages is under 2 limbs. Firstly, it is claimed that I should award damages because I should conclude on the evidence that the delay in the hearing has increased the length of the Claimant's detention. The hearing, when it did finally take place in January 2009, did not result in the Claimant's release but on his transfer to open conditions. He is still detained in prison in open conditions, but I am asked to conclude that, on the balance of probabilities, the delay in the hearing will have resulted in a delay in his release and that there should be an award of damages to reflect the additional period of custody. There is no fixed period that someone has to be detained in open conditions before they are released. Release will depend on a number of different factors: progress made by the prisoner; his attitude to offending and, among other things, a satisfactory release scheme. All these and other matters will be taken into account by the Parole Board when deciding whether or not to release a prisoner on licence. It is quite impossible for me to conclude, because of the number of imponderables in this case, that the failure to hold a speedy hearing has actually extended the time that the Claimant has had or will have to spend in custody. That is within the realm of speculation. On similar facts, so far as this aspect of the case is concerned, Ian Dove QC sitting as a Deputy High Court Judge reached a similar conclusion in R (on the application of Downing) -v- the Parole Board [2008] EWHC 3198 (Admin). The second basis for the claim for damages is to compensate for increased frustration and anxiety caused by the delay. While there is a possible inference that the delay did cause some increased anxiety in the Claimant, there is no specific evidence as to the extent of that anxiety or any effect on the Claimant of it. In those circumstances, I have to decide whether there should be any award of damages under this head.
12. It is submitted on behalf of the Claimant that in deciding whether to award damages under Article 5(5) for breach of Article 5(4) I should ignore the provisions of Section 8 of the Human Rights Act and the restrictions it places on awards of damages. The Claimant argues that the terms of Section 8 of the Human Rights Act are inconsistent with the terms of Article 5(5). That is because, so it is argued, Article 5(5) gives an enforceable right to compensation for breaches of Article 5(4) while Section 8 of the Human Rights Act limits the power to award damages. That submission is based on the assumption that compensation in Article 5(5) is restricted in its meaning to money. I can see no basis for so limiting its meaning. Decisions of the European Court do not support the construction suggested by the Claimant. In Oldham -v- United Kingdom [2002] ECHR 433 the Court awarded damages of £1000 for a breach of Article 5(4) but said this at para 42: 'the court considers that the applicant must have suffered feelings of frustration, uncertainty and anxiety flowing from the delay in review which cannot be compensated solely by the finding of violation'. The clear inference from that is that there will be cases where the finding of a violation will provide sufficient compensation for a breach of Article 5(4).
13. The European Court has itself not always awarded damages for a breach of Article 5(4) (see for example Nikolova –v- Bulgaria [1999] ECHR 16) whereas, if the construction of Article 5(5) proposed by Ms. Krause were correct, that compensation only meant money, then the Court would have to award damages in every case because that article gives the victim of a breach of Article 5(4) an enforceable right to them. Ms. Krause does not say that that is the correct interpretation of Article 5(5) but if compensation is restricted to damages it would seem to be the literal meaning.
14. For those reasons I do not consider that Section 8 is incompatible with Article 5(5) and accordingly in deciding whether to award compensation by way of damages I must apply its terms. Stanley Burnton J. also concluded in KB (see hereafter) that Article 5(5) did not require an award of damages in every case but he did so for other reasons on which I do not find it necessary to rely.
15. I have to decide whether in this case I should award damages for frustration and distress. Of course, every decision in cases of this kind will be fact specific but in order that practitioners can act on the exhortations of Collins J. in R(on the application of Betteridge) -v- the Parole Board [2009] EWHC 1638 not to pursue actions which are 'not likely to achieve any sensible redress', it is important that Judges apply the same principles consistently as to the appropriate circumstances in which to award damages.
16. The most extensive review of when to award damages was by Stanley Burnton J. in R(on the application of KB and others) -v- South London and South and West Region Mental Health Review Tribunal [2004] 1 QB 936. In that case he said that to attract an award in damages, the frustration and distress must be 'of such intensity that it would itself justify an award of compensation for non-pecuniary damage'.
17. By virtue of Section 8 of the Human Rights Act, the Court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. Article 41 gives the European Court the power to afford just satisfaction to the injured party if the State has only made partial reparation. Stanley Burnton J reviewed the European cases and demonstrated that there were no consistent principles applied by the European Court as to when to award damages. In some cases it has been prepared to infer that the injured party must have suffered frustration and distress from the breach of Article 5(4) and has awarded a sum in damages without any evidence as to the actual distress suffered. In other cases it has ruled that an apology and admission have provided just satisfaction. That situation remains substantially the same now.
18. I would not be prepared to infer, in the absence of specific evidence, that the injured party suffered from a sufficient level of frustration of distress to warrant an award of damages and, as most of our domestic courts are likely to follow the guidance of Stanley Burnton J., that is likely to be the result in all cases where there is no specific evidence of frustration and distress.
19. In the case of Downing, Ian Dove QC identified four factors in his decision whether to award damages:

• The length of the delay. This seems to me to be a factor which can be taken into account in deciding what the level of frustration or distress was and goes to quantum of damages. As a free standing consideration it seems to me to be in the nature of a claim for exemplary damages rather than just satisfaction. As Stanley Burnton J. pointed out exemplary damages cannot be awarded under Article 5(5).

• The effect of the delay. If satisfied that the delay had resulted in an extension of the time spent in custody then damages would normally be appropriate.

• The impact on the Claimant. In this case a suggestion that he must have suffered from frustration and distress not supported by evidence but asserted to be an appropriate inference.

• The seriousness of the original offence. While both Counsel say that this can be a relevant factor, I have serious doubts as to whether that is correct. True there is a wide discretion in the award of damages in European jurisprudence. Whether it is just and appropriate to make an award is one of the tests. True it is that some, perhaps most, members of the public would be outraged at the idea of payments of money by the State to people who have committed terrible crimes because they have had to wait for a decision as to whether they should be released. It has, however, to be borne in mind that the public are not necessarily in the best position to make an informed opinion because they may only be aware of the issue through sensational reporting. Are they in the best position to decide what is or is not just and appropriate? The tariff imposed on the Claimant as retribution for his offence was one of 10 years which he had to serve before his release on parole could be considered, the equivalent in those days of a 15 year determinate sentence. He was given a Life Sentence because the Judge concluded that he was a danger to the public and should not be released until the Parole Board concluded that he was no longer dangerous. By the time of his first release on parole he had in fact been in prison for 29 years; nearly three times the retributive part of his sentence. The only justification for his continued detention was that he was still dangerous. Having been released and then recalled; it was only right for there to be speedy consideration of whether the state of the evidence including the reason for the recall meant that he remained a danger. I do not think that in normal circumstances the seriousness of the offence will be a relevant consideration as to whether to award damages because in all cases the retributive part of the sentence will have been served before eligibility for release can be considered; but as this criteria was also adopted by Cranston J. in R(on the application of Biggins) -v- the Secretary of State for Justice [2009] EWHC 1704 I will not say it can never be a factor. I also bear in mind that both parties in this case argue that it can be a factor.

20. I make it clear that I have not considered the seriousness of the offence to be a relevant factor in this case.
21. I am not satisfied on the balance of probabilities that the breach of Article 5(4) will have extended the period that the Claimant has to spend in custody. I am not satisfied that the Claimant has suffered the sort of frustration or anxiety that merits an award of damages and accordingly the claim for damages fails.
22. It seems to me that that is likely to be the result in the vast majority of cases of this kind and practitioners and the Legal Services Commission should consider the exhortations of Collins J. in that light.