AM & Ors, R (on the application of) v Secretary of State for the Home Department & Ors

Following the handing down of judgment we were able to make an order dealing with all consequential matters save one - the claimants’ application for an award under s.8 of the Human Rights Act 1998 by way of just satisfaction for the Home Office’s breach of the duty of inquiry under art.3 of the ECHR. We invited written submissions on this and now give our decision on it.

The claimants’ position is that, through no fault of their own, they have lost the important adjectival benefit of an independent inquiry afforded by art.3. The fault lay principally with the Home Office, which turned its back on more than one opportunity to fulfil the state’s obligation, and beyond that with a legal system whose delays ultimately made the difference between the grant and the withholding of mandatory relief. The consequent want of any proper inquiry, their counsel submit, amounts to a compensable wrong on the part of the state distinct from any damages which the claimants may recover for harm done to them personally in the course of the disturbances. They put a proper award at £2000 each.

The position of the Home Office as defendant is that the failure to hold an inquiry does not constitute a separate wrong. Not only is it an aspect of the art.3 claims which have been stood over by consent for trial: it may well turn out to have merged in them if the claimants establish an individual right to damages. If this is wrong, any discrete award can only be set at a token level – say £100 each – in the absence of any proven harm beyond the bare failure to institute an independent inquiry.

However, the jurisprudence of the European Court of Human Rights demonstrates that in some cases token compensation is not enough; just satisfaction may include such things as the sheer distress and frustration brought about by the state’s refusal to examine impartially what has happened: see Iliev v Bulgaria (10 May 2007), Dzeladinov v Macedonia (10 April 2008). Moreover, as Ms Simor submits, even this cannot be elevated to the status of a restrictive principle of ECHR law; sometimes fuller compensation is required. The principles developed by the court illustrate the pragmatism which characterises this difficult area.

The claims here have two unusual characteristics. First, they are public law claims, requiring no more than a sufficient interest to give the claimants standing. Such an interest may exist in circumstances which fall well short of a cause of action. Secondly, the claims include civil causes of action which have been stood over for trial. If any of the claimants is found to have suffered personal injury, false imprisonment or inhuman or degrading treatment, it may be that the want of a formal inquiry will recede in importance. It may equally be that, for other reasons, the want of an inquiry may assume real significance.

It seems to us in the circumstances that both the making and the amount of any award by this court would be a shot in the dark. By contrast, to remit the question to the trial judge (and thus to any intervening negotiations) will facilitate a reasoned and factually-based decision as to whether, in the light of s.8(3) of the Human Rights Act, it is necessary to award damages, and if so how much, by way of just satisfaction for the breach of art. 3 which the majority of this court has found established.

We therefore propose to add to the court’s formal order a direction that the issue of just satisfaction be remitted to the Queen’s Bench Division for determination with the individual claims for damages.