Damages - Penology and criminology - General damages
R (on the application of Daniel Faulkner) v (1) Secretary of State for Justice (2) Parole Board: CA (Civ Div) (Lord Justices Sedley, Hooper, Wilson): 29 March 2011
The court was required to assess damages following a finding that the first respondent secretary of state and the second respondent Parole Board were liable to the appellant (F) for his unlawful detention.
F had been detained for a prolonged period due to delay by the Ministry of Justice in providing a dossier and other material to the board.
It was later found that the secretary of state and the board were liable for F’s unlawful detention in breach of article 5(4) of the European Convention on Human Rights 1950 and that, during that period of detention, he had been improperly denied access to the board which would, in all probability, have directed that he should be released.
For the purposes of the instant hearing, the court was not required to differentiate between the liability of the secretary of state and the board but had to determine what damages, if any, F was entitled to pursuant to section 8(1) of the Human Rights Act 1998.
F submitted that he should be awarded damages of approximately £32,000.
He argued that in addition to damages for loss of liberty, a separate sum should be awarded for distress and anxiety. The secretary of state and the board argued that the damages awarded should be no more than £3,500.
Held: In such cases, unlawful detention contrary to article 5(4), unlike false imprisonment, involved the loss of the opportunity to be granted conditional liberty within the currency of a lawful custodial sentence.
It was not appropriate to adjust an award by reference to the degree of probability of release had the wrong not occurred.
Once it was found probable that parole would have been granted earlier had the dossier been provided when it should have been, there was a compensatable loss of prospective liberty.
A separate sum, in addition to damages for loss of liberty should not be routinely awarded for distress and anxiety.
The stress of being held in prison when detention, albeit unlawful, ought to have come to an end, and when an end was still not in sight, was different from the stress and anxiety of the custodial part of a lawful sentence but that difference was what an award for wrongful detention was required to reflect.
The finding of unlawful detention did not amount by itself to just satisfaction for F but the finding of violation was an important part of the remedy, R (on the application of Greenfield) v Secretary of State for the Home Department  UKHL14, (2005) 1 WLR 673 applied.
Nothing approaching a tariff had yet emerged from the awards made under article 5(4).
The loss of an opportunity of conditional liberty, while not the same thing as false imprisonment, was a real blow to something of real value and if it was to be reflected in money the sum should not ordinarily be insubstantial.
In the instant case, in addition to the finding of violation, a figure of £10,000 was appropriate and necessary to reflect the loss of 10 months’ conditional liberty.
That was the nearest that the court could come to quantifying just satisfaction in monetary terms for that wrong (see paragraphs 7-10, 14-15, 18, 22 of judgment).
Hugh Southey QC, Jude Bunting (instructed by Chivers) for the appellant; Steven Kovats QC for the first respondent; Sam Grodzinski for the second respondent; both respondents instructed by Treasury Solicitor.