CASE OF DANIEL FAULKNER v. THE UNITED KINGDOM

1. The case originated in an application (no. 68909/13) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Daniel Faulkner (“the applicant”), on 23 October 2013.
2. The applicant, who had been granted legal aid, was represented by Chivers Solicitors, a firm of solicitors based in Bingley. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Macmillan, of the Foreign and Commonwealth Office.
3. The applicant alleged, in particular, that the delay from March 2008 until January 2009 in holding a Parole Board hearing to review the lawfulness of his detention rendered his detention during that period arbitrary and thus unlawful under Article 5 § 1 (a) of the Convention.
4. On 26 May 2015 the complaint under Article 5 § 1 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1982 and is detained in HM Prison Dovegate, Uttoxeter.
6. On 3 August 2001 the applicant was sentenced by the Crown Court to custody for life for causing grievous bodily harm. The minimum period (“tariff”) was set at two years, eight and a half months, less time spent on remand. The tariff expired on 18 April 2004 and he became eligible for parole.
7. The Parole Board subsequently examined his case in order to review whether his detention remained necessary for the protection of the public. On 26 May 2005 it decided not to direct his release but recommended that he be transferred to open conditions. That recommendation was rejected by the Secretary of State.
8. A second recommendation to the same effect was made, following the applicant ’ s second Parole Board review on 31 January 2007 and rejected by the Secretary of State on 23 May 2007. At the conclusion of its statement of reasons for rejecting the Board ’ s recommendation, the National Offender Management Service (“NOMS”) wrote:
“The Secretary of State has therefore decided that you should remain in closed conditions and your next review will conclude in January 2008.”
9. The accompanying letter stated:
“It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in JANUARY 2008.
You will be notified by the Parole Board nearer the time about the exact date of that hearing.
At your next review the Parole Board will consider your suitability for release by way of a paper panel. This consideration will take place approximately 12 weeks prior to your provisional hearing [in January 2008]. If you are not content with the paper panel ’ s decision you may request that the case proceeds to the arranged oral hearing.”
10. The case was referred to the Parole Board on 21 December 2007. On 6 May 2008 the applicant and the Parole Board were sent relevant reports as required by the applicable rules. On 16 May 2008 the Parole Board gave case - management directions requiring additional reports. On 8 October 2008 the Parole Board received the further reports requested. The hearing took place on 8 January 2009. On 23 January 2009 the Parole Board directed the applicant ’ s release. He was released from prison four days later.
11. Meanwhile, in autumn 2008, the applicant commenced judicial review proceedings against the Secretary of State and the Parole Board seeking damages for the delay in holding the hearing. He relied on Article 5 § 4 of the Convention. He was granted permission to bring proceedings on 13 October 2008.
12. On 5 June 2009 the claim was dismissed by the High Court. Leave to appeal was granted by the Court of Appeal on 27 October 2009.
13. On 14 December 2010 the Court of Appeal handed down its judgment. After carefully reviewing the facts and the individual periods of delay encountered, it concluded that there had been a delay of ten months, from March 2008 to January 2009, in the holding of the Parole Board hearing which was unjustified and for which the Secretary of State was responsible. This delay had prevented the applicant from having the lawfulness of his continued detention decided in accordance with Article 5 § 4. On the question of damages, the court was satisfied that the applicant had shown, on a balance of probabilities, that he would have been released had the review taken place in March 2008. Damages on the basis of a loss of liberty were therefore appropriate.
14. 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 had been 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.
15. 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 to both parties, 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 on this Court ’ s findings in James, Wells and Lee v. the United Kingdom, nos. 2511 9/09, 57715/09 and 57877/09, 18 September 2012.
16. 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.
17. 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.
18. 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 awards for loss of liberty resulting from a violation of the speedy decision guarantee in Article 5 § 4. 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 ..., it appears to me that an award in the region of £6, 500 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.”
19. A prisoner 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). A prisoner is entitled to request the Secretary of State to refer his case to the Parole Board for a review every two years (section 28(7) of the 1997 Act).
20. On 10 December 2014 the Supreme Court handed down its judgment in Kaiyam and Others v. Secretary of State ([2014] UKSC 66), in which it considered this Court ’ s judgment in James, Wells and Lee. It accepted that the State was under a duty to provide an opportunity reasonable in all the circumstances for a prisoner serving an indeterminate sentence for the public protection to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. However, it did not consider that this duty could be brought within the express language of either Article 5 § 1 (a) or Article 5 § 4. Instead, the court concluded that the duty should be implied as an “ ancillary duty ”, not affecting the lawfulness of the detention, in the overall scheme of Article 5 (for more details, see Kaiyam and Others v. the United Kingdom (dec.), nos. 28160/15, 28103/15 and 28443/15, 12 January 2016 ).
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
21. In the applicant ’ s submission, his detention from March 2008, for a period of ten months pending his delayed Parole Board review in January 2009, had not merely resulted in a violation of Article 5 § 4 but was also arbitrary and in breach of Article 5 § 1 of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court. ”
“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.”
23. The Government noted that the applicant had benefited from a declaration that a breach of Article 5 § 4 had occurred and had been awarded damages. Further, his complaint under Article 5 § 1 had been heard and dismissed by the Supreme Court, such that respect for human rights did not require an examination of the application on its merits. They therefore argued that he had suffered no significant disadvantage connected to his Article 5 § 1 rights and invited the Court to declare the complaint inadmissible under Article 35 § 3 (b) of the Convention.
24. The applicant did not comment on the Government ’ s admissibility objection.
25. Article 35 § 3 provides, in so far as relevant:
“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
26. The admissibility criterion in Article 35 § 3 (b) reflects the view that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant ’ s subjective perceptions and what is objectively at stake in a particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010; and Van Velden v. the Netherlands, no. 30666/08, § 36, 19 July 2011 ). An alleged violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting an applicant ’ s pecuniary interest ( Korolev, cited above; and M.N. and Others v. San Marino, no. 28005/12, § 37, 7 July 2015). It may also be that, even in the absence of a “significant disadvantage”, a question of principle raised by an application is of a general character affecting the observance of the Convention, such that, under the terms of the second element in Article 35 § 3 (b), “respect for human rights defined in the Convention ... requires an examination of the application on its merits”.
27. In calling on the Court to reject the application as inadmissible under Article 35 § 3 (b), the Government argued that because the national courts had given a ruling finding a violation of Article 5 § 4 on account of the delay in holding a Parole Board hearing and awarding damages, the applicant had suffered “no significant disadvantage” in connection with his Article 5 § 1 right. The Court is not, however, satisfied that the conditions for inadmissibility stated in Article 35 § 3 (b) are satisfied. The nature of the guarantees afforded by Articles 5 § 1 and 5 § 4 is significantly different, the latter being concerned exclusively with safeguards subsequent to deprivation of liberty and the former encapsulating the more comprehensive right not to be detained in an arbitrary fashion. The applicant ’ s submission is that the delay in his case was such as to give rise not merely to a denial of access to a review of the lawfulness of his continuing detention (contrary to Article 5 § 4) but also to a period of unjustified deprivation of liberty (contrary to Article 5 § 1). While the applicant received financial compensation of GBP 6,500 as redress for the “disadvantage” resulting from his delayed release (see paragraphs 17-18 above), the applicant ’ s complaint as formulated in his application raises a novel issue of principle going to the relationship between paragraphs 1 and 4 of Article 5, an issue which warrants consideration by the Court. Consequently, without needing to determine whether the applicant can be said to have suffered a “significant disadvantage”, the Court is in any event led to dismiss the Government ’ s objections on the basis of the second element in Article 35 § 3 (b) of the Convention.
28. The Government further contended that the applicant ’ s complaint under Article 5 § 1 was manifestly ill-founded. However, as intimated above, the Court is satisfied that the applicant ’ s Article 5 § 1 complaint raises sufficiently complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.
29. In the applicant ’ s submission, his was not a case where detention was always justified by the original judicial decision imposing the sentence. That decision permitted his detention so long as it was justified on the basis of the risk posed. After March 2008, his detention was not justified on the basis of risk because he had reduced his risk. There was a stark difference between people deemed no longer to pose a risk to the public (in respect of whom the causal connection between sentence and detention had been broken) and those deemed to pose a continuing risk to the public. A finding that his Article 5 § 1 rights had been violated would not imply that persons who continued to pose a risk to the public should be released. The applicant argued that the facts of his case were so radically distinct from those in James, Wells and Lee that it was unnecessary for the Court to consider whether that case was correctly decided. The Government ’ s attempts to re ‑ argue James, Wells and Lee (see paragraph 3 3 below) were not only misconceived but irrelevant to the facts of his case.
30. The applicant relied on the cases of Erkalo v. the Netherlands, 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, Schönbrod v. Germany, no. 48038/06, 24 November 2011, and H.W. v. Germany, no. 17167/11, 19 September 2013, in support of his case. He argued that they demonstrated the importance of administrative review in the Article 5 framework. It was only by reviewing the substantive merits of the continuing detention that the State could demonstrate compliance with Article 5. Where there had been a failure to comply with procedural safeguards under domestic law, there would be a breach of Article 5 § 1 (citing Nakach v. the Netherlands, no. 5379/02, 30 June 2005; and Schenkel v. the Netherlands, no. 62015/00, 27 October 2005). The Government ’ s attempt to distinguish the cases was absurd and would lead to a situation in which a prisoner could be lawfully detained indefinitely without any Parole Board review. This could not possibly be correct. The applicant accepted that the mere fact of a breach of Article 5 § 4 did not necessarily cause detention to be unlawful as there might be an underlying justification for detention: the prisoner might pose a risk. However, where there was no such justification, unlawful delay was no excuse for a failure to release.
31. Further, the Government ’ s argument that the applicant was being progressed through the system (see paragraph 3 5 below) was untenable. The delay was entirely the fault of the authorities and occurred because they had failed to ensure that systems were in place which would have enabled timely determination of whether there was an ongoing justification for detention. The Government had not explained what concrete steps were taken during the ten-month period and the Court of Appeal had clearly found that there was no material change in the applicant ’ s risk level during the ten months.
32. In the applicant ’ s view, the Government ’ s interpretation of arbitrariness was untenably narrow and inconsistent with the Court ’ s case ‑ law. A lengthy delay, as in this case, did not reflect the strict standards set out in the case-law. Further, arbitrariness involved consideration of whether, inter alia, the order to detain and execution of detention genuinely conformed to the purpose of the restrictions in Article 5 § 1. In the applicant ’ s case, there was no basis in law for his detention during the ten ‑ month period.
33. The Government accepted that there had been a breach of Article 5 § 4 of the Convention in the applicant ’ s case but did not agree that this had resulted in a violation of Article 5 § 1. While the Court in James, Wells and Lee had considered that a failure to provide rehabilitative courses gave rise to an issue under Article 5 § 1, it was significant that the Supreme Court in Kaiyam and Others had preferred to view the duty to provide access to courses as an ancillary duty of a more procedural nature under Article 5 rather than a matter going to lawfulness under Article 5 § 1 (a) (see paragraph 20 above). The concerns expressed by the Supreme Court in Kaiyam concerning the application of Article 5 § 1 in that case applied equally in a case such as this based on delay: absent bad faith, delay on the part of the judicial body responsible for determining whether to release a prisoner did not render detention arbitrary.
34. The Government distinguished the cases on which the applicant relied (see paragraph 30 above ) on the ground that they were cases in which the Court was asked post facto to validate a period of detention which had not, at the time of its commencement, been judicially determined or approved. In contrast, in the present case, the applicant ’ s detention had always been justified by the judicial decision imposing a life sentence. His release was contingent on demonstrating to the satisfaction of the Parole Board that he no longer posed a risk to the public. It was incorrect for him to suggest that his conviction and detention only continued to retain the requisite connection if the Parole Board considered that he posed a sufficient risk to the public: it was for him to demonstrate that his risk had reduced, and his detention would continue pending a decision of the Parole Board as to whether in fact there had been a sufficient reduction in risk.
35. The Government emphasised that from March 2008 to January 2009, the applicant ’ s case was pending before the Parole Board. There was nothing arbitrary about his detention: he was simply awaiting a decision by the relevant judicial body for the purposes of Article 5 § 4. During that period, reports were being prepared and were submitted to the Parole Board on 8 October 2008 (see paragraph 10 above). He was therefore being assessed during the period as to the risk he posed and was benefiting from rehabilitative opportunities offered to him by the Government. The applicant placed too much weight on the finding of the Court of Appeal that, on a balance of probabilities, he would have been released had the review taken place in March 2008. It was noteworthy that in May 2008 the Parole Board had decided, on the basis of the papers before it, that it needed further papers in order properly to consider the case (see paragraph 10 above). There was nothing arbitrary about the Parole Board seeking such documentation, notwithstanding that the Court of Appeal, with the benefit of hindsight, had later decided that the documents were unnecessary.
36. In conclusion, the Government emphasised that the logical conclusion of the applicant ’ s argument was that every breach of Article 5 § 4 would result in a breach of Article 5 § 1. Such a conclusion would render Article 5 § 4 redundant. There were plainly sufficient safeguards against arbitrary detention in a case such as the applicant ’ s. The 1997 Act provided for reviews to take place every two years (see paragraph 19 above) and Article 5 § 4 offered a protection which could be enforced in the domestic courts by a mandatory order requiring the Parole Board to convene a hearing. The purpose and effect of Article 5 § 4 was precisely to deal with the types of delay that had occurred in this case. Although it was possible to envisage a situation where a flagrant and unjustified failure to give a prisoner an Article 5 § 4 compliant hearing could result in detention becoming arbitrary, such cases were likely to be rare and the applicant ’ s was plainly not such a case.
37. The substantive right to liberty is set out in Article 5 § 1 of the Convention, whose object and purpose is to ensure that no one is dispossessed of his liberty in an arbitrary fashion (see, among many other authorities, M. v. Germany, no. 19359/04, § 89, ECHR 2009; and James, Wells and Lee, cited above, § 187). It is well established in the Court ’ s case ‑ law that any deprivation of liberty must fall within one of the exceptions set out in sub-paragraphs (a)-(f) and must also be “lawful”.
38. For detention to comply with Article 5 § 1 (a), there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114; Kafkaris v. Cyprus [GC], no. 21906/04, § 117, 12 February 2008; and M. v. Germany, cited above, §§ 87-88). With the passage of time, the link between the initial conviction and a later deprivation of liberty gradually weakens. The causal link required by sub ‑ paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the decision by the sentencing court or on an assessment that was unreasonable in terms of those objectives (see Weeks, cited above, § 49; and James, Wells and Lee, cited above, § 189).