Sun, 26 Jul 2015
A recent Court of Appeal case concerning false imprisonment should have been led by ECHR case law, instead of relying on common law, argues Laura DavidsonDue to an error in the law, in Lee Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79, Mr Bostridge was unlawfully detained for 15 months under the Mental Health Act 1983 (MHA). On realising, the Trust immediately discharged, readmitted, and detained him lawfully under section 3 of the MHA. Compensation was refused because he had continually fulfilled the criteria for detention, as an independent psychiatrist confirmed. Bostridge received nominal damages of £1 at first instance, as he would have suffered the same unhappiness and distress had he been detained lawfully. The Court of Appeal (CoA) dismissed his appeal, approving the applicability of two immigration cases, R v SSHD, ex parte Lumba [2011] UKSC 12 and R v SSHD, ex parte Kambadzi [2011] UKSC 23.
'False Imprisonment, part 1: A Right to Compensation?' discussed how this is not your typical deprivation of liberty case. Part 2, however, argues Bostridge focused on the wrong cause of action. Rather than relying on the tort of false imprisonment, the appellant ought to have emphasised the European Convention on Human Rights (ECHR).
False imprisonment versus ECHR
Although Bostridge sought damages under the Human Rights Act 1998 (HRA), the cause of action relied upon was false imprisonment, as in Lumba and Kambadzi. However, as Lord Bingham noted in R (Faulkner) v SSJ; R (Sturnham) v Parole Board [2013] UKSC 23, the HRA 'is not a tort statute', and the CoA 'should have been led by ECHR case law'.
Article 5(1) of the ECHR enshrines the universal right to liberty, with strict exceptions which include the right to detain someone on the basis of 'unsoundness of mind'. By way of article 5(5), 'Everyone who has been the victim of…detention in contravention of the provisions of this article shall have an enforceable right to compensation' in the national courts. Such compensation must be available in both theory and practice (Chitayev and Chitayev v Russia (2007) Application No 59334/00).
Compensation versus just satisfaction
The European Court of Human Rights (ECtHR) own guidance says compensation is 'primarily financial' (although, unhelpfully, no case law for that proposition is cited). Further, contrary to common misconception, the phrase 'just satisfaction' does not feature in article 5. Rather, it is article 41 which states that where there is 'a violation of the convention or the protocols thereto, and if the internal law… allows only partial reparation to be made, the court shall, if necessary, afford just satisfaction to the injured party' . This will be appropriate where both article 41 conditions apply (an
ECHR violation is found, and only partial reparation is available).
This is reinforced by article 46(2): 'The final judgment… shall be transmitted to the committee of ministers, which shall supervise its execution.' That presupposes a judgment not yet in effect, whereas if a declaratory judgment were sufficient, it would require no execution. Where domestic law provides for no satisfaction at all, then article 41 is inapplicable, as there is a breach of article 5(5). Thus, an award of 'just satisfaction' is separate from the right to compensation under article 5(5).
The HRA and ECHR principles
In contrast to the convention, section 8(3) of the HRA is phrased in negative terms and appears to elide articles 5(5) and 41 of the ECHR: 'No award of damages is to be made unless, taking account of all the circumstances of the case… the court is satisfied that the award is necessary to afford just satisfaction.' Section 8(4) of the HRA requires that 'in determining (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the [ECtHR] in relation to the award of compensation under article 41'. Yet article 41 is only triggered on consideration of article 5(5). In any event, unfortunately, ECHR principles on quantum are ill defined.
Quantum
The Supreme Court in Faulkner held that quantum under section 8 of the HRA should 'broadly reflect the level of awards' made by the ECtHR in 'comparable cases' brought against the UK or 'other countries with a similar cost of living'.
Recently, significant damages have been awarded for arbitrary detention arising from guardianship in Eastern Europe. Higher awards might be expected for similar breaches in the UK. In Stanev v Bulgaria (Application No 3760/06, 17 January 2012), a violation of, inter alia, article 5 resulted in damages of €15,000. Kedzior v Poland [2012] ECHR 1809 (Application No 45026/07) yielded €10,000 for the applicant for unspecified non-pecuniary damage due to breaches of articles 5(1), 5(4), and 6(1).
In the very recent case of Yaikov v Russia (Application No 39317/05, 18 June 2015) the ECtHR awarded €10,000 to the applicant, Mr Yaikov, who, an unlawfully detained accused, was forced to remain in a specialised psychiatric hospital. The award was given 'on an equitable basis' because he 'must have suffered anguish and distress… which cannot be compensated by a mere finding of a violation'.
Notably, no assessment was undertaken as to whether or not any of these applicants would have been detained anyway. Indeed, Yaikov would still have been treated in psychiatric hospital, albeit of a different category.
Non-pecuniary damage
So, was the Bostridge decision on quantum wrong? In HL v UK (2004) 40 EHRR 761, the ECtHR discussed Nikolova v Bulgaria [1999] ECHR 16, noting that although 'relatively small awards in nonpecuniary damage' had been ordered in some earlier cases, more recently the court had 'declined to accept such claims'.
The HL court considered Nikolova to have endorsed a ‘principle…that just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had the benefit of guarantees of articles 5(3) or 5(4)’. However, the Lords in Faulkner denied such principle, emphasising that repeated damages have been awarded for violations of article 5(4) absent any finding of a deprivation of liberty, such as to psychiatric patients in Delbec v France (Application No 43125/98, 18 June 2002), and Laidin v France (No 1) (Application No 43191/98, 5 November 2002) for distress and frustration due to unreasonable delay, and in Mitchell and Holloway v UK (Application No 44808198, 17 December 2002).
Articles 5(3) and 5(4) were inapplicable in Bostridge; the fundamental right to liberty under article 5(1) was breached. This is ‘a particularly serious violation of the convention… of a different nature from a violation of article 5(4)’ (Faulkner at paragraph 74). The ECtHR in HL wrongly linked the alleged principle to the court’s finding that no award was necessary, and extended it to an article 5(1) breach without providing reasons. In fact, Nikolova did not even consider the issue of compensation in terms of article 5(1), a breach of which – whether procedural or substantive – is arguably more blameworthy, warranting higher compensation.
Ms Nikolova had been brought before an investigator who was insufficiently independent from the prosecutor, and who was not ‘a judge or other officer authorised by law to exercise judicial power’ as article 5(3) requires.
The government conceded (based on Assenov and others v Bulgaria (1999) 28 EHRR 652) that domestic legislation was not ECHR-compliant. The ECtHR found the detention to be procedurally unfair with an absence of adequate guarantees (including inequality of arms). The procedure, scope, and nature of the review failed to satisfy article 5(4) requirements.
While the court noted variation within cases as to whether or not ‘just satisfaction’ included compensation for non-pecuniary damage, unhelpfully it merely said it saw ‘no reason to depart from the above case-law'. It refused to ‘speculate as to whether or not the applicant would have been detained if there had been no violation’, without explaining why. Furthermore, no reasons were provided for holding that the applicant would be sufficiently compensated for ‘alleged frustration suffered… on account of the absence of adequate procedural guarantees during her detention’ by the finding of a breach.
Thus, the ECtHR’s reasoning on compensation in Nikolova was singularly deficient. Neither HL nor Nikolova properly analysed the jurisprudence on whether, and, if so, in which circumstances, a claim for non-pecuniary damage arising from a procedural breach should succeed. Further, and importantly, ‘The applicability of article 5(5) is not dependent on a domestic finding of unlawfulness or proof that, but for the breach, the person would have been released’ (see Blackstock v UK [2005] All ER (D) 218 (Jun)). Yet, inexplicably, this key distinction between domestic and European law was not even mentioned in Bostridge – and neither was article 5(5).
Interestingly, the court in Nikolova was split 11 to six on just satisfaction, with two partly dissenting judges unable to find in the judgment or case law ‘any plausible justification’ for the decision. They identified Golder v UK (21 February 1975, Series A, Application No 18) as the genesis of the line of cases in which no awards for non-pecuniary damage were made, but criticised the decision for failing to ‘suggest one single reason why the finding should also double up as the remedy’. The ECtHR should decide if there has been a fundamental breach, and if so, ensure just satisfaction. Instead of making an award to serve ‘as a concrete warning to erring governments’, it had improperly combined the two functions, with the offending state getting off ‘virtually scot-free’. Four other judges would have awarded Nikolova compensation, with Judge Greve noting frequent ECtHR awards made ‘in respect of non-pecuniary damage including… uncertainty, anxiety and/or distress, sense of isolation, confusion, neglect, frustration and/or helplessness and feelings of injustice’. In his view, an injured party should be awarded ‘some equitable satisfaction’. In all probability, upon discovering the violation of his rights, Bostridge suffered feelings of ‘confusion…frustration and/ or helplessness and feelings of injustice’ – particularly after receiving no compensation for it.
The need to award compensation for a loss of procedural protection was Bostridge’s third ground of appeal, which, oddly, was ‘not much pressed’ by the appellant’s counsel. It was dismissed on the basis that Lumba and Kambadzi had ruled out compensation for loss of procedural and substantive protections arising from unlawful detention. As I argued in part 1, Lord Justice Vos erred, since an analysis reveals that neither case ruled out financial awards.
Despite its deficiencies, Bostridge could rely upon Nikolova on an appeal to argue that he did not have the ‘benefit of the guarantees’ of article 5, the purpose of which is to prevent arbitrary detention. The denial of his opportunity to challenge the validity of his detention – which is ‘the whole point of procedural requirements’ (Lumba at paragraph 211) – by way of a habeas corpus application based on the MHA breach caused him tangible damage; the benefits of the article 5 guarantees were lost to him.
Article 8 ECHR
In an unlawful psychiatric detention claim, damages for trespass to the person due to enforced medication are frequently sought. Article 8 of the ECHR provides protection against unlawful interference with a person's autonomy. In a successful article 5 claim, usually no separate award under article 8 is made. However, a breach of article 8(1) caused by an unlawful detention cannot be justified under article 8(2), even due to a mistake rather than an abuse of power (as in Bostridge's case). Accordingly, while the CoA judgment in Bostridge stands, claimants ought to give more emphasis to their article 8 claims.
If damages are warranted for a breach of article 8, how much more appropriate is compensation for a violation of the fundamental right to liberty under article 5(1)? A declaration is little comfort to a patient who has been unlawfully detained. While money is a crude compensatory tool for state violations of rights, it has persuasive power to ensure proper future application of the law. Dissenting Judges Bonello and Maruste in Nikolova considered it ‘wholly inadequate and unacceptable that a court of justice should “satisfy” the victim of a breach of fundamental rights with a mere handout of legal idiom’. I agree.
There is no general ECHR principle that compensation for non-pecuniary damage arising from a violation of article 5(1) is inappropriate. Should Bostridge reach the Supreme Court, the appellant’s chances of success may be greater if he focuses more on the ECHR and less on the tort of false imprisonment. Perhaps a more rigorous consideration of the convention will result in the kind of satisfaction that truly is just.
Article written by Laura Davidson.
