In its judgment of 29 March 2011 on the amount of damages to be awarded, the court considered a number of just satisfaction awards in cases before this Court in which breaches of Article 5 § 4 were found. It distinguished between cases where the delay had merely led to feelings of frustration and those where it had been established that, but for the delay in the holding of the hearing, the applicant would have been released earlier. It awarded the sum of 10,000 pounds sterling (“GBP”) by way of compensation for the loss of ten months’ conditional liberty.
The applicant sought leave to appeal to the Supreme Court on the ground that the award was inadequate. The Parole Board sought leave to appeal on the ground that the award was excessive. Leave was granted, and the applicant was in addition given permission to argue that his detention after March 2008 constituted false imprisonment at common law or a violation of Article 5 § 1 of the Convention. In respect of his latter argument, he relied in this Court’s findings in James, Wells and Lee v. the United Kingdom , nos. 25119/09 , 57715/09 and 57877/09 , 18 September 2012.
In its judgment of 1 May 2013 the Supreme Court unanimously rejected the applicant’s appeal and allowed the appeal of the Parole Board, reducing the damages award to GBP 6,500.
As regards the alleged violation of Article 5 § 1 of the Convention, Lord Reed, giving the leading opinion, observed that Article 5 § 4 provided a procedural entitlement designed to ensure that persons were not detained in violation of their rights under Article 5 § 1. However, he added, a violation of Article 5 § 4 did not necessarily result in a violation of Article 5 § 1. He considered this Court’s judgment in James, Wells and Lee , cited above, not to be directly relevant to the applicant’s case since that judgment concerned lack of access to rehabilitation courses and the just satisfaction awards made were for the feelings of distress and frustration resulting from continued detention without access to courses, and not for loss of liberty. Lord Reed noted that the delay in the applicant’s case appeared to have been the result of errors by administrative staff, “of a kind which occur from time to time in any system which is vulnerable to human error”. While it was extremely unfortunate that the errors had occurred and had resulted in the prolongation of the applicant’s detention, they were not of such a character, and the delay was not of such a degree, as to warrant the conclusion that there had been a breach of Article 5 § 1.
On the matter of damages for the violation of Article 5 § 4 of the Convention, Lord Reed reviewed relevant case-law of this Court where a violation of Article 5 §§ 1, 3 or 4 had been found, focusing in particular on cases concerning a delay in holding a hearing intended to address the question whether a convicted prisoner should be released. He considered that no clear guidance could be derived from the cases since none concerned an award for loss of liberty resulting from a violation of the speedy decision guarantee in Article 5 § 4. He explained:
“74. In considering these awards, it is necessary to bear in mind that unlawful detention in violation of article 5(1) is often a particularly serious violation of the Convention, and is of a different nature from a violation of article 5(4). It is also necessary to take into account that the freedom enjoyed by a life prisoner released on licence is more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen, as the European court has recognised ( Weeks v United Kingdom (1988) 10 EHRR 293 , para 40). The risk that a prisoner may be recalled to custody, even where no further offence has been committed, is real, as the facts of Weeks and of Mr Faulkner’s case ... amply demonstrate. Although the European court does not make precise adjustments to reflect inflation, it is also necessary to bear in mind that some of these awards were made many years ago. For these reasons, none of the awards which I have mentioned offers any clear guidance. That said, the most helpful is perhaps the award in the Kolanis case [ Kolanis v. the United Kingdom , no. 517/02 , ECHR 2005-V], since it related to a breach of article 5(4). As I have explained, in that case €6000 was awarded in 2005 as compensation for the loss of a real opportunity of release 12 months earlier from a psychiatric hospital. A higher award would no doubt have been appropriate if there had been a definite loss of liberty for 12 months; but a lower award would have been appropriate if, instead of a patient losing her liberty, the case had concerned a convicted prisoner who had lost an opportunity of earlier release on licence. The award in Weeks , considered in the context of the facts of that case, similarly suggests a level of awards for breaches of article 5(4) in respect of convicted prisoners which is much lower ...
Allowing for the various factors which I have mentioned, and in particular for the important differences between conditional release and complete freedom, the cases which I have discussed suggest that awards where detention has been prolonged for several months, as the result of a violation of article 5(4), could reasonably be expected to be significantly above awards for frustration and anxiety alone, but well below the level of awards for a loss of unrestricted liberty. It is however impossible to derive any precise guidance from these awards ... [A] judgment has to be made by domestic courts as to what is just and appropriate in the individual case, taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act [the Human Rights Act], in comparable cases.”
While, he said, an appellate court would not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance, in the applicant’s appeal the court was being invited to give guidance as to the appropriate level of awards in cases of this character. For that purpose, the court had undertaken a fuller analysis of the case-law of this Court than the Court of Appeal. Lord Reed concluded:
“87. ... In the light of that analysis, and applying the general approach which I have described in paragraph 75, it appears to me that an award in the region of £6500 would adequately compensate Mr Faulkner for his delayed release, bearing in mind the conditional and precarious nature of the liberty foregone. That amount falls well short of the award of £10,000 made by the Court of Appeal. In the circumstances, it is in my view appropriate for this court to allow the Board’s appeal and to reduce the award accordingly.”
B. Relevant domestic law and practice
A prisoner detained sentenced to custody for life is entitled to be released on parole after the expiry of his tariff if the Parole Board, being satisfied that it is no longer necessary for the protection of the public that he should be detained in prison, directs his release. If the Board gives such a direction, then the Secretary of State is required to release him (see section 28 of the Crime (Sentences) Act 1997).
COMPLAINTS
The applicant complained that his detention for a period of ten months pending his delayed Parole Board review, in violation of Article 5 § 4 of the Convention, was arbitrary and in breach of Article 5 § 1 of the Convention.
QUESTION TO THE PARTIES
Was the applicant deprived of his/her liberty in breach of Article 5 § 1 of the Convention (see, for example, Erkalo v. the Netherlands , 2 September 1998, Reports of Judgments and Decisions 1998-VI; Rutten v. the Netherlands , no. 32605/96 , 24 July 2001; Schönbrod v. Germany , no. 48038/06 , 24 November 2011; H.W. v. Germany , no. 17167/11 , 19 September 2013) ?