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R v Secretary of State For the Home Department ex-parte Greenfield, House of Lords, 16 February 2005

28 February 2005
The issues

Human Rights – Right To A Fair Trial – Right To Legal Representation – Article 6 European Convention On Human Rights – Measure Of Damages To Be Awarded Under Section 8 Human Rights Act

The facts

The Appellant was in prison at HM Prison Doncaster when he was charged under prison rules with a drugs offence. He denied the charge. The charge was heard in 2000 by a Deputy Controller, the equivalent of a Deputy Governor in a private prison, who refused a request that he be legally represented. The charge was found to be proved and the Appellant was ordered to serve 21 days additional imprisonment. This decision was approved by the Area Manager.

The Appellant applied for judicial review arguing that his Article 6 rights had been violated. He claimed damages. The Divisional Court rejected the Appellant’s claim as did the Court of Appeal. Since the Court of Appeal had sat, the European Court of Human Rights had given judgment in Ezeh and Connors v United Kingdom and in the light of that case the Secretary of State now accepted that the proceedings against the Appellant did involve the determination of a criminal charge within the meaning of Article 6 and that the Deputy Controller was not an independent Tribunal and that the Appellant was wrongly denied legal representation. The Appeal therefore was now therefore limited to consideration of the Appellant’s claim to damages.

The decision

1. Just Satisfaction

There was an expectation that a member state found to have violated the convention would act promptly to prevent a repetition of the violation. This was the primary object of the convention.
The convention however made provision for affording just satisfaction to the injured party (see Article 41 of the convention). Article 41 was reflected in the 1998 Human Rights Act – see section 8. Under Article 41 there were three preconditions to an award of just satisfaction – that the Court should have found a violation; that the domestic law of the member state should allow only partial reparation to be made; and that it should be necessary to afford just satisfaction to the injured party. There were pre-conditions to an award of damages by a domestic court under section 8 namely 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; that the Court should have power to award damages in civil proceedings; that the Court should be satisfied that an award of damages was necessary to afford just satisfaction; and that the Court should consider an award of damages to be just and appropriate.

The English Court was not bound by the principles applied by the European Court in awarding compensation but should take those principles into account. British Courts therefore had to look to Strasbourg for guidance on the award of damages.

2. Damages for Breach of Article 6

The usual practice of the Court would be that to find a violation of Article 6 would be in itself just satisfaction under Article 41. The European Court of Human Rights would only depart from that principle where it found a causal connection between the violation found and the loss for which an applicant claimed to be compensated. The claim may be for a specific head of loss such as loss of earnings or profits or non pecuniary damage – what English lawyers would call general damages. The claim would generally be put on the basis that but for the violation the outcome of the proceedings would probably have been different and more favourable to the Applicant or alternatively on the more difficult basis that the violation deprived the applicant of the opportunity to get a different result.

Generally the Court would award monetary compensation under Article 41 only where it was satisfied that the loss or damage complained of was actually caused by the violation and it had repeatedly stressed that it would not speculate on what the outcome of the proceedings would have been but for the violation but it had on occasion been willing in appropriate cases to make an award if it was of the opinion that the Applicant had been deprived of a real chance of a better outcome.

The European Court of Human Rights had not sought to lay down hard and fast rules in an area which called for a case by case judgment. Different language used by the Court in different cases could be taken to reflect its assessment of the differing levels of probability held to attach to the causal connection found in individual cases. The further head of general or non pecuniary damages had been described variously as “physical and mental suffering” or “prolonged uncertainty” or “certain feeling of frustration and helplessness” etc. In considering claims under this head the Court has only been willing to award compensation for anxiety and frustration attributable to the Article 6 violation.

The sums awarded under these head were noteworthy for their modesty. It had been suggested that in calculating awards English Courts should be free to depart from the scale of damages awarded by the European Court and that English awards by appropriate Courts should provide the appropriate comparator. There were three reasons why this approach should not be followed. Firstly the 1988 Act was not a tort statute. It had different and broader objects. Secondly, the purpose of incorporating the convention in domestic law was not to give victims better remedies at home that they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg. Thirdly, section 8(4) HRA 1998 required a domestic Court to take into account the principles applied by the European Court under Article 41 not only in deciding whether to award damages but also in deciding the amount.

In this case it was inappropriate to speculate whether a legal representative might have persuaded the Deputy Controller to take a different view. The conduct of the adjudication in itself was exemplary. There was no special feature warranting an award for damages. Instead the declaration would be made that the Secretary of State had acted unlawfully by failing to provide the Appellant with a hearing before an independent Tribunal and by refusing the Appellant to be legally represented.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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