Judgments - Regina v. Secretary of State for the Home Department (Respondent) ex parte Greenfield (FC) (Appellant)

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    18.  It was submitted for the appellant that courts in England and Wales, when exercising their power to award damages under section 8 of the 1998 Act, should apply domestic scales of damages. It was also suggested, in reliance on an article by Sir Robert Carnwath ("ECHR Remedies from a Common Law Perspective" (2000) 49 ICLQ 517, 524), that the European Court had relied on English scales when calculating the sum of damages payable to Mr Perks. It appears that that may have been so. Counsel also relied on the decisions of Sullivan J in R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin), [2003] HRLR 111, para 45, Stanley Burnton J in R (KB) v South London and South and West Region Mental Health Review Tribunal [2003] EWHC 193 (Admin), [2004] QB 936, paras 47 and 53 and the Court of Appeal in Anufrijeva v Southwark London Borough Council [2004] QB 1124, paras 73 and 74, to suggest that awards under section 8 should not be on the low side as compared with tortious awards, that English courts should be free to depart from the scale of damages awarded by the European Court and that English awards by appropriate courts or bodies should provide the appropriate comparator. In calculating awards for anxiety and frustration, counsel suggested, the scales of damages awarded by English courts and tribunals in discrimination cases provided an appropriate comparison.

    19.  None of the three English cases cited involved a violation of article 6, and to that extent they have only a limited bearing on the present problem. But there are in my opinion broader reasons why this approach should not be followed. First, the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official. Secondly, the purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg. This intention was clearly expressed in the White Paper "Rights Brought Home: The Human Rights Bill" (Cm 3782, 1 October 1997), para 2.6:

    "The Bill provides that, in considering an award of damages on Convention grounds, the courts are to take into account the principles applied by the European Court of Human Rights in awarding compensation, so that people will be able to receive compensation from a domestic court equivalent to what they would have received in Strasbourg."

Thirdly, section 8(4) requires a domestic court to take into account the principles applied by the European Court under article 41 not only in determining whether to award damages but also in determining the amount of an award. There could be no clearer indication that courts in this country should look to Strasbourg and not to domestic precedents. The appellant contended that the levels of Strasbourg awards are not "principles" applied by the Court, but this is a legalistic distinction which is contradicted by the White Paper and the language of section 8 and has no place in a decision on the quantum of an award, to which principle has little application. The Court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the Court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the Court might be expected to be, in a case where it was willing to make an award at all.

The appeal

    20.  On 16 October 2000 the appellant underwent a mandatory drugs test which proved positive. He was charged with an offence under rule 51(9) of the Prison Rules 1999 (SI 1999/728), which provides that "A prisoner is guilty of an offence against discipline if he … (9) administers a controlled drug to himself or fails to prevent the administration of a controlled drug to him by another person (but subject to rule 52)". Rule 52 provides that it shall be a defence for a prisoner charged with an offence under rule 51(9) to show that "…(b) the controlled drug was administered by or to him in circumstances in which he did not know and had no reason to suspect that such a drug was being administered".

    21.  The appellant appeared on 20 October 2000 before Mr Parry, a deputy controller, who was authorised to conduct adjudications such as this under the Prison Rules then in force. The appellant pleaded not guilty to the charge and claimed that he had smoked a cigarette which, without his knowledge or consent, had been spiked with heroin by another prisoner. The adjudication was adjourned for the drug test result to be confirmed and to allow the appellant to seek legal advice. At the reconvened hearing on 27 October the appellant was shown the result of the confirmatory test result, which was again positive. The hearing was adjourned again to enable the appellant to seek legal advice.

    22.  The hearing was reconvened on 10 November 2000 but the proceedings were again adjourned so that the appellant could have the test result verified independently. This independent test confirmed the presence of opiates in the appellant's urine.

    23.  At a resumed hearing on 24 November 2000 the proceedings were adjourned again. On 7 December 2000 the appellant's solicitor wrote to the controller, relaying the results of the independent analysis and requesting an adjournment so that the appellant could be legally represented. On 12 December, when the hearing resumed, Mr Parry considered whether, in addition to having had access to legal advice, the appellant should have legal representation at the substantive hearing. He sought to direct himself in accordance with earlier Court of Appeal authority and decided that the appellant should not have legal representation.

    24.  At the substantive hearing on 14 December the appellant called as a witness a fellow prisoner who testified that he had accidentally given to the appellant a cigarette containing heroin. He said that he was on the frequency test programme but had never tested positive for drugs. When asked by Mr Parry how he had not tested positive after smoking the cigarette he claimed accidentally to have given the appellant, he said that this had occurred before he had been put on the frequency test programme. The hearing was then adjourned for a week. Before the next hearing Mr Parry investigated whether the evidence given by the witness about his own drug history was correct and he found that it was.

    25.  On 21 December 2000 Mr Parry found the charge against the appellant proved and ordered the appellant to serve 21 additional days of imprisonment.

    26.  The appellant's complaints that the charge against him had involved the determination of a criminal charge, that article 6 of the Convention required that charge to be determined by an independent and impartial tribunal, that Mr Parry was not such a tribunal and that he should not have been denied the right to be legally represented are now vindicated by a finding in his favour at the highest judicial level based on a public concession by the Secretary of State. This would seem on its face to be pre-eminently a case in which the finding in the appellant's favour affords just satisfaction and in which, applying Strasbourg principles, the award of damages is not necessary.

    27.  But counsel for the appellant seeks to advance a claim for loss of the opportunity to achieve a different result which the appellant might have achieved had he been allowed, as he should have been, to be legally represented. It was said that there were questions of law on the standard of proof required of a prisoner relying on the defence under rule 52 of the Prison Rules, and that the appellant was somewhat immature and had mental health problems.

    28.  I would reject these arguments. It is now accepted that Mr Parry lacked the structural independence and impartiality required for such adjudications. But he appears to have conducted this adjudication with exemplary conscientiousness, patience and regard for the appellant's interests. The standard of proof would have been very familiar to him if not to the appellant. The appellant struck Mr Parry as articulate and alert, and the contrary was not suggested when legal representation was sought before the substantive hearing. The issue for Mr Parry was whether he believed the appellant and his witness. Clearly he did not. A legal representative might have persuaded Mr Parry or another tribunal to take a different view or he might not. It is inappropriate to speculate.

    29.  A claim to damages for anxiety and frustration was also advanced, on the basis that the appellant did not think the charge against him would be fairly tried, because the prison authorities were biased against prisoners. It may readily be accepted that the appellant did think this, as many other prisoners have no doubt done. At the time, however, adjudication by a governor or deputy governor (or their private prison counterparts, also Crown servants) was the norm. The appellant had no expectation of any other procedure, and was treated no differently from anyone else. The conduct of the adjudication itself, as already noted, appears to have been exemplary. There is no special feature of this case which warrants an award of damages.

    30.  The House was urged, because of the course the case had taken and because the appellant had not been able to deploy his full case on damages, to remit this issue to a judge for consideration. I would not accede. The appellant claimed damages almost from the outset. It was open to him to put forward such material as he chose to support his claim, and in the absence of any contrary procedural order it was his duty to do so. But the pursuit of damages should rarely, if ever, be an end in itself in an article 6 case, and the Court of Appeal's strictures in Anufrijeva, above, para 79, are very much in point.

    31.  For reasons already given, declarations will be made:

      (1) that the Secretary of State for the Home Department acted unlawfully by failing to provide the appellant with a hearing before an independent tribunal, contrary to article 6(1) of the European Convention;

      and

      (2) that the Secretary of State for the Home Department acted unlawfully by refusing to allow the appellant to be legally represented, contrary to article 6(3) of the Convention.

Written submissions on costs, in the House and below, are invited within 14 days.

LORD RODGER OF EARLSFERRY

My Lords,

    32.  I have had the privilege of considering in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I agree with it and, for the reasons he gives, I too would make the order which he proposes.

BARONESS HALE OF RICHMOND

My Lords,

    33.  For the reasons given in the opinion of my noble and learned friend, Lord Bingham of Cornhill, with which I agree, I would make the declarations which he proposes but make no order for damages under section 8 of the Human Rights Act 1998.

LORD CARSWELL

My Lords,

    34.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Bingham of Cornhill. For the reasons which he has given I would make the order which he proposes.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    35.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons which he gives I too would make the order proposed.

 
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