House of Lords
|Session 2004 - 05
Publications on the Internet|
PDF print version
Regina v. Secretary of State for the Home Department (Respondent) ex parte Greenfield (FC) (Appellant)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Secretary of State for the Home Department (Respondent) ex parte Greenfield (FC) (Appellant)
WEDNESDAY 16 FEBRUARY 2005
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department (Respondent) ex parte Greenfield (FC) (Appellant)
 UKHL 14
LORD BINGHAM OF CORNHILL
1. The appellant Richard Greenfield, while serving a two year sentence of imprisonment at HM Prison Doncaster, a private prison, was charged under the Prison Rules 1999 (SI 1999/728) with a drugs offence, which he denied. The charge was heard in October-December 2000 by a deputy controller, the counterpart in a private prison of a deputy governor, but a Crown servant for whom the Secretary of State is responsible. The deputy controller refused a request by the appellant that he be legally represented. The charge was found to be proved, and the appellant was ordered to serve 21 additional days of imprisonment, a decision approved by the area manager. The appellant applied for judicial review of these decisions, contending that his rights under article 6 of the European Convention had been violated in that the hearing had involved the determination of a criminal charge, the deputy controller had not been an independent and impartial tribunal and he had wrongly been denied the right to be legally represented. He claimed damages for these violations. The respondent Secretary of State successfully resisted the appellant's contentions before the Queen's Bench Divisional Court (Latham LJ and Potts J)  EWHC Admin 113,  1 WLR 1731, and the Court of Appeal (Lord Woolf CJ, Tuckey and Arden LJJ)  EWCA Civ 1224,  1 WLR 545. Those courts did not therefore have occasion to consider the appellant's claim for damages. But since the decisions of the Divisional Court and the Court of Appeal the European Court of Human Rights has given judgment in Ezeh and Connors v United Kingdom (2002) 35 EHRR 691, (2003) 39 EHRR 1. In the light of those judgments the Secretary of State accepts that the proceedings against the appellant did involve the determination of a criminal charge within the meaning of article 6 of the Convention, that the deputy controller was not an independent tribunal and that the appellant was wrongly denied legal representation of his own choosing which was available to him. (He makes no concession about the provision of legal assistance, which was not an issue in this case.) Thus the Secretary of State now accepts that the declarations set out in para 31 below should be made. Thus this appeal is now limited to consideration of the appellant's claim to damages.
2. Before turning to the details of the appellant's claim, it is convenient to consider, in principle, the entitlement of an applicant or claimant to damages under the European Convention and under section 8 of the Human Rights Act 1998, and then to consider the principles adopted in Strasbourg in relation to claims for compensation for violations of article 6.
Just satisfaction and damages
3. The primary aim of the European Convention was to promote uniform protection of certain fundamental human rights among the member states of the Council of Europe. Thus the fifth recital of the preamble refers to "collective enforcement" of certain of the rights stated in the Universal Declaration of Human Rights. In its original version, as ratified by the United Kingdom in March 1951 (Cmd 8969, October 1953), the Commission could receive petitions from individuals or groups of individuals claiming to be victims of a violation of a Convention right by a member state only if that state had declared that it recognised the competence of the Commission to receive such a petition (article 25), a member state was not obliged to accept the compulsory jurisdiction of the Court (article 46) and only a member state or the Commission had the right to bring a case before the Court (article 44). Not until 1966, over 12 years after the Convention came into effect, did the United Kingdom recognise the competence of the Commission to receive petitions by individuals. Under article 32 of the original version of the Convention the Committee of Ministers had authority, if a question was not referred to the Court within a specified period, to decide whether or not there had been a violation of the Convention.
4. Articles 25, 44 and 46 of the original Convention have since been repealed and no longer form part of the Convention. The jurisdiction of the Court is now compulsory (article 32) and individuals have a right to apply to the Court (article 34). But the focus of the Convention is still on securing observance by member states of minimum standards in the protection of the human rights specified in the Convention. Member states are bound by article 46(1), as they were by article 53 of the Convention, to abide by the final judgment (or decision) of the Court in any case to which they are parties. Article 26 of the Vienna Convention on the Law of Treaties, expressing customary international law, requires states parties to a treaty to perform it in good faith.
5. The expectation therefore is, and has always been, that a member state found to have violated the Convention will act promptly to prevent a repetition of the violation, and in this way the primary object of the Convention is served.
6. The Convention has always, however, made provision for affording just satisfaction to the injured party. Article 41 of the Convention, repeating the substance of article 50 of the original version, now provides:
Article 41 is not one of the articles scheduled to the 1998 Act, but it is reflected in section 8 of the Act, which is to this effect:
It is evident that under article 41 there are three pre-conditions to an award of just satisfaction: (1) that the Court should have found a violation; (2) that the domestic law of the member state should allow only partial reparation to be made; and (3) that it should be necessary to afford just satisfaction to the injured party. There are also pre-conditions to an award of damages by a domestic court under section 8: (1) that a finding of unlawfulness or prospective unlawfulness should be made based on breach or prospective breach by a public authority of a Convention right; (2) that the court should have power to award damages, or order the payment of compensation, in civil proceedings; (3) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (4) that the court should consider an award of damages to be just and appropriate. It would seem to be clear that a domestic court may not award damages unless satisfied that it is necessary to do so, but if satisfied that it is necessary to do so it is hard to see how the court could consider it other than just and appropriate to do so. In deciding whether to award damages, and if so how much, the court is not strictly bound by the principles applied by the European Court in awarding compensation under article 41 of the Convention, but it must take those principles into account. It is, therefore, to Strasbourg that British courts must look for guidance on the award of damages.
Damages for breach of article 6
7. It is desirable for present purposes to concentrate on the Strasbourg approach to the award of damages on finding that article 6 has been violated. Article 6 seeks to ensure that everyone, in the determination of their civil rights and obligations or of any criminal charge against them, shall enjoy a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law with judgment given in public. Criminal charges entail additional rights: the presumption of innocence, the right to be informed of the charge, the right of a person to defend the charge himself or through legal assistance of his own choosing. These are important rights, and significant violations are not to be lightly regarded. But they have one feature which distinguishes them from violations of articles such as article 3, where an applicant has been tortured, or article 4, where he has been enslaved, or article 8, where a child has been unjustifiably removed from its family; that it does not follow from a finding that the trial process has involved a breach of an article 6 right that the outcome of the trial process was wrong or would have been otherwise had the breach not occurred. There is an obvious contrast with article 5, guaranteeing the right to liberty and security of the person, which provides in para (5):
There is a risk of error if Strasbourg decisions given in relation to one article of the Convention are read across as applicable to another.
8. In the great majority of cases in which the European Court has found a violation of article 6 it has treated the finding of the violation as, in itself, just satisfaction under article 41. Very many examples could be cited, but it is enough to refer, among relatively recent cases, to Benham v United Kingdom (1996) 22 EHRR 293, para 68; Findlay v United Kingdom (1997) 24 EHRR 221, para 88; Perks and Others v United Kingdom (1999) 30 EHRR 33, para 82, in relation to the seven applicants other than Mr Perks; Kingsley v United Kingdom (Appn No. 35605/97, 7 November 2000, unreported), para 63, (2002) 35 EHRR 177, paras 42-43; Ezeh and Connors v United Kingdom (2002) 35 EHRR 691, para 114, (2003) 39 EHRR 1, para 143; GW v United Kingdom (Appn No. 34155/96, 15 June 2004, unreported), para 53. Both Kingsley and Ezeh and Connors were referred on to a Grand Chamber. In most of these cases the Court declined to speculate on what the outcome of the particular proceedings would have been had the violation not occurred.
9. The routine treatment of a finding of violation as, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation. It is noteworthy that, in exercising its former jurisdiction under the original article 32, the Committee of Ministers did not, before 1987, award compensation at all, even where a violation was found: D J Harris, M O'Boyle and C Warbrick: Law of the European Convention on Human Rights (Butterworths, 1995), p 699. Thus the Court of Appeal (Lord Woolf CJ, Lord Phillips of Worth Matravers MR and Auld LJ) were in my opinion right to say in Anufrijeva v Southwark London Borough Council  EWCA Civ 1406,  QB 1124, paras 52-53:
Where article 6 is found to have been breached, the outcome will often be that a decision is quashed and a retrial ordered, which will vindicate the victim's Convention right.
10. The Court has acknowledged the principle of restitutio in integrum (see Piersack v Belgium (1984) 7 EHRR 251, para 11; De Cubber v Belgium (1987) 13 EHRR 422, para 21), but has on the whole preferred to express the principle without resort to the Latin tongue. Thus in Bönisch v Austria (1985) 13 EHRR 409, para 11, the Court noted
Similar statements may be found in Delta v France (1990) 16 EHRR 574, para 43; Vidal v Belgium (Appn No. 14/1991/266/337, 28 October 1992, unreported), para 8; Pelissier and Sassi v France (1999) 30 EHRR 715, para 80; Zielinski and Others v France (1999) 31 EHRR 532, para 79; Davies v United Kingdom (2002) 35 EHRR 720, para 34; Polskiego v Poland (Appn No. 42049/98, 21 September 2004, unreported), para 47; Edwards and Lewis v United Kingdom (Appn Nos. 39647/98 and 40461/98, 27 October 2004, unreported), para 49, in which the Grand Chamber endorsed the earlier finding of a Chamber. A recent statement of particular authority, since given by a Grand Chamber on a reference specifically directed to the issue of just satisfaction under article 41, is found in Kingsley v United Kingdom (2002) 35 EHRR 177, para 40:
11. As appears from the passage just cited, the Court has ordinarily been willing to depart from its practice of finding a violation of article 6 to be, in itself, just satisfaction under article 41 only where the Court finds a causal connection between the violation found and the loss for which an applicant claims to be compensated. Such claim may be for specific heads of loss, such as loss of earnings or profits, said to be attributable to the violation. The Court has described this as pecuniary loss, which appears to represent what English lawyers call special damage. This head does not call for consideration here. It is enough to say that the Court has looked for a causal connection, and has on the whole been slow to award such compensation.
12. More germane to the present case is a second head of claim for what English lawyers would call general damages and the Court tends to call, but not always consistently, non-pecuniary damage. A claim under this head may be put on the straightforward basis that but for the Convention violation found the outcome of the proceedings would probably have been different and more favourable to the applicant, or on the more problematical basis that the violation deprived the applicant of an opportunity to achieve a different result which was not in all the circumstances of the case a valueless opportunity. While in the ordinary way the Court has not been easily persuaded on this last basis, it has in some cases accepted it: see Goddi v Italy (1984) 6 EHRR 457, para 35 ("a loss of real opportunities"); Colozza v Italy (1985) 7 EHRR 516, para 38 ("a loss of real opportunities"); Lechner and Hess v Austria (1987) 9 EHRR 490, para 64 ("some loss of real opportunities"); Weeks v United Kingdom (1988) 13 EHRR 435, para 13 ("a loss of opportunities"); O v United Kingdom (1988) 13 EHRR 578, para 12 ("some loss of real opportunities");Delta v France (1990) 16 EHRR 574, para 43 ("a loss of real opportunities").
13. In some cases the national court has indicated its opinion that, had an applicant enjoyed the benefit of his article 6 right, as he should, the outcome of the proceedings would or very well might have been more favourable to him. In such cases the Court is ready to find a causal connection. Such an opinion was expressed in Perks and Others v United Kingdom (1999) 30 EHRR 33, paras 15, 64, 79, 80 and 81, and the Court on this account distinguished the case of Mr Perks from that of the other applicants. In Hooper v United Kingdom (Appn No. 42317/98, 16 November 2004, unreported) the judge had expressed himself in a more understated way, but was treated by the Court, in my view quite rightly, as having expressed a similar opinion: see para 31.
14. The point was made in argument that the Court had used a number of different expressions in concluding that a sufficient causal connection had been found. This is factually correct, as an array of examples will demonstrate: Goddi v Italy, above, para 35 ("the outcome might possibly have been different"); Colozza v Italy (1985) 7 EHRR 516, para 38 ("does not find it unreasonable to regard"); Bönisch v Austria (1985) 13 EHRR 409, para 11 ("does not exclude the possibility"); Weeks v United Kingdom (1988) 13 EHRR 435, para 13 ("it cannot be entirely excluded"); O v United Kingdom (1988) 13 EHRR 578, para 12 ("cannot, in the Court's opinion, be entirely excluded"); Delta v France (1990) 16 EHRR 574, para 43 ("does not find it unreasonable to regard"); Vidal v Belgium (Appn No. 14/1991/266/337, 28 October 1992, unreported), para 9 ("not unreasonable to regard"); de Geouffre de la Pradelle v France (A/253-B, 16 December 1992, unreported), para 39 ("considers it reasonable, however, to hold"); Pelissier and Sassi v France (1999) 30 EHRR 715, para 80 ("does not find it unreasonable to regard"); Krcmár and Others v Czech Republic (2000) 31 EHRR 953, para 50 ("does not find it unreasonable to regard"); P C and S v United Kingdom (2002) 35 EHRR 1075, para 149 ("cannot be excluded"); Polskiego v Poland (Appn No. 42049/98, 21 September 2004, unreported), para 47 ("not unreasonable to regard"). Thus while the Court laid down in the authoritative case of Kingsley in the passage quoted in para 10 above, and repeated in Edwards and Lewis v United Kingdom (Appn Nos. 39647/98 and 40461/98, 27 October 2004, unreported), paras 46 and 49, that the Court will award monetary compensation under article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, and it has repeatedly stressed that it will not speculate on what the outcome of the proceedings would have been but for the violation, it has on occasion been willing in appropriate cases to make an award if of opinion that the applicant has been deprived of a real chance of a better outcome.
15. Counsel for the appellant relied on these variations of language to criticise the jurisprudence of the Court as showing a lack of principle. The criticism is in my view misplaced. In the absence of a clear causal connection, the Court's standard response has been to treat the finding of violation without more as just satisfaction. It has done so even in cases such as Benham, Perks (in the cases of the seven applicants other than Mr Perks) and Ezeh and Connors where an award might well have been made. But it has softened this response where it was persuaded that justice required it to do so. The variations of language used are such as occur when a court addresses itself to the detailed facts of the case before it, rather than endlessly reproducing a form of words stored in the court's word processor. Wisely, in my opinion, the Court has not sought to lay down hard and fast rules in a field which pre-eminently calls for a case by case judgment, and the Court's language may be taken to reflect its assessment of the differing levels of probability held to attach to the causal connection found in individual cases.
16. A second head of general or non-pecuniary damage has been variously described: "physical and mental suffering" (Colozza, above, paras 36, 38); "prolonged uncertainty" (Bönisch, above, para 11); "prolonged uncertainty and anxiety" (Lechner and Hess, above, para 64); "a certain feeling of frustration and helplessness" (O, above, para 13); "a certain sense of isolation and confusion" (Granger v United Kingdom (1990) 12 EHRR 469, para 52); "the stress and strain which he has suffered over the years in which he has been fighting legal battles instead of practising medicine" (Darnell v United Kingdom (1993) 18 EHRR 205, paras 23-24); "a feeling of uncertainty and anxiety as to whether they would be able to carry on their occupation and a deep feeling of injustice" (Hornsby v Greece (Appn No 107/1995/613/701, 1 April 1998, unreported, para 18); "distress, anxiety and frustration" (Davies v United Kingdom (2002) 35 EHRR 720, para 38); "distress and anxiety" (P, C & S, above, para 149); "distress and frustration" (Massey v United Kingdom (Appn No 14399/02, 16 November 2004, unreported, para 34). In considering claims under this head the Court has, consistently with its general approach, only been willing to award compensation for anxiety and frustration (however described) attributable to the article 6 violation. It has recognised that for very many people involvement in legal proceedings is bound to cause anxiety irrespective of any article 6 breach, and no award is made in such cases. In some cases the Court has found on the facts that the applicant had suffered attributable anxiety and frustration: see, for example, Bönisch, above, para 11; De Cubber, above, para 24; P, C & S, above, para 149. In other cases the Court has found that the applicant "must have" suffered such feelings (as in O, above, para 13, and Granger, above, para 52) or that it is reasonable to assume he did (as in Davies, above, para 38, and Massey, above, para 34). To gain an award under this head it is not necessary for the applicant to show that but for the violation the outcome of the proceedings would, or would probably, or even might, have been different, and in cases of delay the outcome may not be significant at all. But the Court has been very sparing in making awards, as its refusals in the cases of Saunders v United Kingdom (1996) 23 EHRR 313, paras 87-89; Findlay, above, paras 86-88; Robins v United Kingdom (1997) 26 EHRR 527, paras 40-41; and Kingsley, above, para 43 may be said to show. In the last cited passage the Grand Chamber said:
Thus, whatever the practice in other classes of case, the ordinary practice is not to make an award in cases of structural bias.
17. Where, having found a violation of article 6, the Court has made an award of monetary compensation under article 41, under either of the heads of general damages considered in this opinion, whether for loss of procedural opportunity or anxiety and frustration, the sums awarded have been noteworthy for their modesty. The Court itself has recognised this, referring in Nikolova v Bulgaria (2001) 31 EHRR 64, para 76, an article 5 case, to the award of "relatively small amounts", and in Migon v Poland (Appn No 24244/94, 25 September 2002, unreported, para 91), another article 5 case, to "modest awards". It made plain in Osman v United Kingdom (1998) 29 EHRR 245, para 164:
It made the same point in an article 5 case, Curley v United Kingdom (2000) 31 EHRR 401, para 46: