Faulkner, R (on the application of) v Secretary of State for Justice & Anor

Factual and Procedural Background

Two consolidated appeals concerned indeterminate-sentence prisoners (“Appellant 1” and “Appellant 2”) who complained that Entity A (the parole authority) failed to hold review hearings within a reasonable time after each had completed the tariff portion of a life/IPP sentence. The delays arose against a statutory backdrop that had greatly expanded the number of life and IPP prisoners, significantly increasing Entity A’s workload without a corresponding rise in resources. Both Appellants sought damages under section 8 of the Human Rights Act 1998 for alleged breaches of Article 5(4) of the European Convention on Human Rights. The High Court and Court of Appeal reached divergent conclusions on liability and quantum, prompting the present appeals to the Supreme Court.

Legal Issues Presented

1. Whether an award of damages under section 8 should be made only if a prisoner can show he would have been released earlier but for the delay, or whether compensation is also appropriate where the prisoner merely suffered frustration and anxiety.
2. Whether prolonged detention caused by delayed review constitutes (a) false imprisonment at common law or (b) a violation of Article 5(1) as “arbitrary detention.”
3. The proper principles and methodology for assessing quantum—particularly the relevance of European Court of Human Rights (“ECtHR”) awards and the threshold length of delay required for non-pecuniary damages.
4. Application of those principles to Appellant 1 (ten-month delay, eventual earlier release) and Appellant 2 (six-month delay, no earlier release).

Arguments of the Parties

Appellants’ Arguments

• Article 5(4) guarantees a “speedy” review; violations give rise to damages even absent proof of earlier physical release.
• Frustration and anxiety are compensable non-pecuniary losses; ECtHR practice demonstrates awards for such harm.
• The delays broke the causal link between sentence and detention, rendering continued custody arbitrary and in breach of Article 5(1).

Entity A / Entity B Arguments

• Damages should be restricted to cases where a prisoner establishes on the balance of probabilities that earlier release would have occurred.
• Article 5(1) remains satisfied because domestic statute makes release contingent on a positive direction from Entity A; therefore detention is lawful until that point.
• Any award for mere distress should be exceptional and subject to a de minimis threshold; a declaratory judgment normally suffices.

Table of Precedents Cited

Court's Reasoning and Analysis

False Imprisonment & Article 5(1): Judge Reed held that detention remained lawful under domestic statute until Entity A directed release; therefore no false-imprisonment tort arose. Article 5(1) would only be violated in “exceptional” circumstances of arbitrariness, which were absent here; administrative errors did not sever the causal link between conviction and detention.

Damages Framework: Section 8 HRA creates a discretionary, sui generis remedy. Domestic courts must be “guided” by clear and consistent ECtHR practice, particularly on quantum, but may resolve disputed facts in the ordinary way. Awards should broadly mirror the level granted by Strasbourg to applicants from jurisdictions with similar living costs.

When to Award Damages:

• If it is proven on the balance of probabilities that the prisoner would have been released earlier, compensatory damages for lost liberty are “ordinarily” due.
• Even without lost liberty, a strong (but rebuttable) presumption exists that delays of roughly three months or more cause compensable frustration and anxiety.
• No award should be made for “mere loss of a chance,” nor should quantum be discounted by probabilistic percentages of release.

Quantum Principles:

• Loss-of-liberty awards should be higher than pure distress awards but lower than sums for unlawful detention of a free citizen.
• Frustration/anxiety awards are to be “modest”; ECtHR practice suggests around £1,000 for delays of about a year, scaled proportionally.
• Pecuniary loss (e.g., lost earnings) must be proven and compensated in full.
• Subsequent recall does not ordinarily mitigate damages unless causally and demonstrably linked.

Application to Appellant 1: A 10-month unlawful delay unequivocally caused 10 months’ extra detention. On a balance of probabilities he would have been released in March 2008. Considering ECtHR benchmarks and the conditional nature of licence, £6,500 adequately compensates the loss of liberty and associated distress (reducing the Court of Appeal’s £10,000).

Application to Appellant 2: There was a six-month delay with no proven earlier release prospect, but compensable frustration/anxiety arose. The first-instance award of £300 was consistent with ECtHR practice (approx. £50 per month) and should not have been disturbed.

Holding and Implications

HOLDING: The Supreme Court (1) allowed Appellant 1’s appeal in part, reducing damages to £6,500; (2) dismissed Appellant 1’s cross-appeal on liability; (3) allowed Appellant 2’s appeal, restoring the £300 award; and (4) rejected claims of false imprisonment and Article 5(1) violation.

Implications: The judgment establishes domestic guidance on when and how to award damages for Article 5(4) delay:

• Sets a presumptive damages threshold at approximately three months’ delay.
• Clarifies that frustration/anxiety alone can justify modest awards.
• Confirms that common-law false-imprisonment doctrine is not engaged where statutory authority conditions release on a parole decision.
• Provides a domestic tariff for calculating both loss-of-liberty and non-pecuniary awards, likely to govern future prisoner-delay litigation.