Wayne Truter v The Secretary of State for Justice

This is a claim for damages brought by Mr Truter, a serving prisoner, primarily in respect of his period under restrictions of movement in Approved Premises. This was when he was released on licence from his original custodial term on 30 September 2019 to his discharge from Approved Premises on 30 January 2020. I say ‘primarily’ as the claim actually covers the whole period where Mr Truter was in the community until his recall on 19 May 2020, but he has primarily and sensibly focused on that essentially four-month period when he was in Approved Premises from 30^th September 2019 to 30^th January 2020.

It is accepted the conditions under which Mr Truter occupied the Approved Premises were unlawful, for reasons I will explain. The Defendant Secretary of State also does not stringly contest those conditions were consequently not in accordance with the law for the purposes of Art.8(2) of the European Convention on Human Rights (‘ECHR’) and interfered with his private life under Art.8(1) ECHR. Accordingly, Mr Truter says this is a straightforward claim for damages for breach of human rights under s.7 Human Rights Act 1998 (‘HRA’). Whilst the period of alleged breach ended at the latest in May 2020 (as I will also explain), the claim itself was brought in April 2021 - just within the one-year time limit. I previously decided the claim was effectively in time or, in the alternative, I would have extended time.

However, Mr Truter goes further than a breach of Art.8 ECHR. He contends the conditions in the Approved Premises also amounted to a ‘deprivation of liberty’ under Article 5 ECHR or, in the alternative, that it was False Imprisonment at Common Law.

The Defendant’s response to Mr Truter’s claim as now presented gives rise to five issues:

I have been assisted by extremely helpful skeleton arguments from Mr Rainsbury for the Defendant and from Mr Truter himself, who has shown his usual command of the legal principles, it not being the first time I have dealt with one of Mr Truter’s cases.

Unlike some of Mr Truter’s other cases, this case turns not only on legal submissions but also on my findings of fact based on evidence. I heard oral evidence from Mr Truter himself; and three witnesses for the Defendant: Mr Ian Yorke (until his relatively recent retirement, Head of Public Protection Casework Section (‘PPCS’) at the Defendant), Mr Sean Westcott, at the material time Mr Truter’s Probation Officer; and Mr Michael Rayfield, at the material time the manager of the relevant Approved Premises in Northampton. I remind myself that despite the Defendant’s concession that the restrictions there were unlawful, the burden of proof remains on Mr Truter to prove his case on the balance of probabilities.

As I have detailed in other judgments (including earlier this week) and need not repeat in detail, Mr Truter was convicted in September 2014 of child sex offences and was made subject to an Extended Determinate Sentence (‘EDS’). The sentence was imposed in October 2014 but revised on appeal by the Court of Appeal in October 2018 year to a custodial term of 4 years and extended licence period of 7 years. The expiry of the sentence will be in October 2028, but Mr Truter had a conditional release date in September 2019.

At the material time for Mr Truter, the provisions of the Criminal Justice Act 2003 (‘CJA’) I analysed in Taylor and Nwagwu v Ministry of Justice [2025] EWHC 3007 (KB) (and need not set out again) meant that EDS prisoners could apply for release on parole at the two-thirds mark of their custodial term; and were entitled to release even without Parole Board permission at the end of their custodial term: in Mr Truter’s case, September 2019. However, if EDS prisoners were recalled for breach of licence conditions (as I shall explain Mr Truter was), they were liable to serve the rest of their sentence (in his case until October 2028) unless the Parole Board allowed their application for re-release.

As Mr Yorke accepted, as at Mr Truter’s conditional release in September 2019, s.250(5)(b) CJA in 2019 prohibited the Secretary of State from imposing particular forms of licence conditions falling into s.254(b)(ii) - conveniently called ‘additional licence conditions’ - in relation to EDS prisoners unless the Parole Board directed the Secretary of State to do so. It is common ground at the time Mr Truter was in that category.

As I explained in my judgment in Taylor, it seems likely this provision was an unintended result of rapid and repeated amendment to the CJA, producing a highly odd state of affairs. Whilst a Parole Board could release an EDS prisoner early with additional licence conditions, if the Board considered their risk was so high that they should remain in custody until the expiry of their initial custodial term, as the board had no statutory involvement in such automatic release, those higher risk prisoners could only be released with standard licence conditions which by definition were less restrictive than those the Parole Board could authorise. As I explained in the Taylor judgment at [48], earlier amendments to s.250 CJA appeared to overlook s.246A(7) CJA, which provided that at the end of the custodial term the Secretary of State was required to release the prisoner on licence and there was no mechanism written into the legislation to re-refer an EDS prisoner back again to the Parole Board at that point (see Taylor at [44]). So, there was at the material time no locus for the Parole Board to recommend additional licence conditions. If there had been, it would have been unecessary for Parliament to amend s.250 as it did in 2022, as I said in Taylor at [49] (which meant that Mr Taylor and Mr Nwagwu were in a different situation than Mr Truter).

Indeed, the best evidence that this result was unintended was that the Home Office had sponsored the relevant legislative changes but then issued Guidance to its own staff that contradicted it. Although Mr Yorke did not put it quite in these terms, he effectively accepted the practical effect of the Guidance issued to Probation Officers, in Prison Service Instruction 12/2015 (‘PSI 12/15’) at paragraphs 2.9 to 2.10 was that PPCS could itself impose ‘additional licence conditions’ without the Parole Board for EDS prisoners when s.250 CJA said that they could not. There was no explanation to Officers that such conditions had to be approved by the Parole Board, nor how such a referral could be made. Mr Truter’s case in 2019/2020 brought this to light, be he was aware of the issue in 2018.

Mr Westcott took over Mr Truter’s case as his Probation Officer in September 2018, about a year before Mr Truter’s entitlement to release at the end of his custodial term. Mr Westcott met Mr Truter on a couple of occasions, the first being on 7 March 2019, shortly before the hearing of the Parole Board in March 2019 at which Mr Truter sought release. I accept Mr Truter’s evidence that he argued to the Parole Board they should release him because they could impose additional licence conditions which the Defendant at the end of the custodial term six months later could not. I do not criticise Mr Westcott for this given the inaccurate Guidance, but he understood as arrogance what was actually a correct statement of law by Mr Truter. It was not the first or the last time where Mr Truter has pointed out to the Defendant a particular point which is, in fact correct, but its officers do not accept it, thinking they understand the system better than a prisoner. In this particular case, they did not. In fairness to Mr Westcott and the Parole Board, nor did the author of PSI 12/15.

Be that as it may, the Parole Board in March 2019 took the view that Mr Truter should not be released. Mr Westcott was also concerned about what Mr Truter had said, given his previous professional IT experience and his offending including sexual images of children. So, Mr Westcott in good faith and understandably proposed several additional licence conditions (set out below) including residence and curfew at Approved Premises, believing he could do so as that is what PSI 12/15 told him he could do. He therefore recommended the conditions be approved by the Multi-Agency Public Protection Authority (‘MAPPA’).

On 24^th April 2019, MAPPA made those conditions slightly more onerous than Mr Westcott had originally proposed. MAPPA adopted a curfew of 7pm to 7am in Approved Premises; and reporting three times a day even in the 12 hours when Mr Truter would not have to present there. The consequence, as Mr Truter has explained in his evidence yesterday, was that on release, whilst he would be free to leave the Approved Premises between 7am and 7pm, he would have to return three times in those 12 hours (at school and lunch times), which made it difficult for him to go very far, as indeed was the clear intention.

In any event, on 12 June 2019, Mr Westcott met Mr Truter who at that stage certainly told Mr Westcott that he and MAPPA had no power to adopt those additional licence conditions. That meeting could have done little to assuage Mr Westcott’s concerns, as Mr Truter took the view, which he was legally entitled to take, that he would only comply with conditions that were lawfully imposed. When a Probation Officer hears a convicted child sex offender say he is not going to comply with conditions intended to protect children, that is going to be a matter of considerable concern. In evidence Mr Westcott said that if he had been aware of the true legal position, he would have re-referred Mr Truter’s case to the Parole Board. However, as I have explained, there was no statutory mechanism to do that and he did not.

The additional licence conditions as adjusted by MAPPA and approved by PPCS were imposed on Mr Truter as part of his licence on release from HMP Leyhill by its Governor on 26 September 2019, prior to Mr Truter’s release, but were slightly varied by Probation.

Turning to the licence conditions themselves, I start with a paragraph in the licence stating:

“On release from prison, you must report to Approved Premises.”

Like Mr Rainsbury, I see that as a straightforward reporting condition where Mr Truter was expected to report, not necessarily reside. The standard licence conditions on Mr Truter’s licence, that it is common ground were lawfully imposed by the Governor, were as follows:

“1.

Under supervision you must be of good behaviour and not behave in a way which undermines the purpose of the licence period.

2.

You must not commit any offence.

3.

You must keep in touch with the supervising officer in accordance with the instructions given by the supervising officer [Mr Westcott].

4.

You must receive visits from the supervising officer in accordance with the instructions given by the supervising officer.

5.

You must reside permanently at an address approved by the supervising officer and obtain the prior permission of the supervising officer for any stay of one or more nights at a different address.

6.

You must not aim to take work or a particular type of work unless it is approved by the supervising officer and notify the[m] in advance of any proposal to undertake work or a particular type of work.

7.

You must not travel outside the United Kingdom, Channel Islands or Isle of Man expect with the prior permission of the supervising officer or for the purposes of immigration, deportation or removal.”

I pause there to observe that Mr Truter has dual British and South African citizenship and so his plan on release had in fact been to ask for permission under that standard licence condition to go and live in South Africa and serve his licence period there.

However, that was not possible for Mr Truter due to his ‘additional licence conditions’ which it is common ground were not lawfully imposed. They were as follows:

“8.

Not to seek or approach or communicate with [three named individuals who I need not name, the particular children involved in the original offending] without the prior approval of your supervising officer and/or the appropriate Social Services department.

9.

Not to have any unsupervised contact with any children under the age of 18 without prior approval of your supervising officer and/or the appropriate Social Services department, except where that contact is inadvertent and not reasonably avoidable in the course of lawful daily life.

10.

Not to enter the area of Hemel Hempstead, as defined in the attached map, without the prior approval of the supervising officer [which reflects the area of Mr Truter’s previous offending].

11.

To notify your supervising officer of any developing personal relationships, whether intimate or not, with any person you know or believe to be resident in a household containing children under the age of 18. This includes persons known to you prior to your time in custody with whom you are renewing or developing a personal relationship.

12.

To surrender your passport to your supervising officer and notify your supervising officer of any intention to apply for a new passport.

13.

Not to reside, not even to stay for one night, in the same household as any child under the age of 18 without prior approval of your supervising officer.

14.

Not to delete the usage history on any internet-enabled device or computer used and to allow such items to be inspected as required by the police or your supervising officer. Such inspection may include removal of the device for inspection and the installation of monitoring software.

15.

Not to use or access any computer or device which is internet-enabled without prior approval of your supervising officer and only for the purpose and only at a public location specified by the officer.

16.

To make any device capable of making or storing digital images, including a camera and a mobile phone with a camera function, available for inspection on request by your supervising officer and/or police officer.

17.

Not to contact or associate with a known sex offender other than when compelled by attendance at a treatment programme or at Approved Premises without prior approval of the supervising officer.

18.

To report to staff at Bridgewood Probation Hostel in Northampton at 10am, 1pm and 4pm unless otherwise authorised by your supervising officer. This condition will be reviewed by the supervising officer on a fortnightly basis and may be amended or removed if it is felt the level of risk you present has reduced appropriately.

19.

To confine yourself to an address approved by your supervising officer between the hours of 7pm and 7am daily unless otherwise authorised by your supervising officer. This condition will be reviewed by your supervising officer on a fortnightly basis and may be amended or removed if it was felt the level of risk you present has reduced appropriately.

20.

Not to undertake work or other organised activity which will involve a person under the age of 18 either on a paid or unpaid basis without the prior approval of the supervising officer.”

The most relevant additional licence conduitions are: 14 (which I shall call ‘the usage history condition’) and 16 (‘the digital images condition’), which were both key to Mr Truter's recall; along with 19 (‘the curfew condition’) and 18 (‘the reporting condition’). The combined effect of the latter two was Mr Truter was confined to the Approved Premises for 12 hours a day and had to return there to report 3 times in the other 12 hours in the day: at 10am, 1pm and 4pm, specifically chosen to coincide with the public movement of children in and out of schools local to the Approved Premises, understandable given Mr Tuter’s offending. He argues the combination of conditions 18 and 19 were ‘imprisonment’ at Common Law and/or a ‘deprivation of liberty’ under Art.5 ECHR. This is denied by the Defendant, although it does not strongly dispute the combination of conditions 18 and 19 interfered with Mr Truter’s private life under Art.8(1) ECHR and was not justifed under Art.8(2) ECHR as it was not ‘in accordance with the law’: i.e. s.250(5)(b) CJA as it was then. (As I explained in the Taylor case, it has since been amended to remove this effect).

On Mr Truter’s release on 30^th September 2019, he duly attended at the Approved Premises, where Mr Rayfield was manager, although they did not in fact meet. Mr Rayfield explained that Mr Truter signed a resident induction, including agreement to the rules of the Approved Premises. These included a requirement to remain in the building under the relevant curfew hours; to write a weekly diary about planned activities and where the resident had been, to let staff search their room, personal items, or vehicle in the grounds of the Approved Premises; and finally not to bring anyone onto the Approved Premises at any time.

Mr Rayfield stressed the practical effect of the lawful Approved Premises rules and lawful standard licence conditions (leaving aside the additional licence conditions) was that Mr Truter could not have guests without permission in the Approved Premises, he had to allow searches of his room, he could not have a landline telephone in his room and was limited to a non-smart mobile phone (although Mr Truter said his did not have a SIM card). If there was any suspected breach of any of those or the additional licence conditions (including curfew and reporting), there was a risk of recall. However, suspected breach did not automatically lead to recall, since on 28 October 2019, a month after Mr Truter arrived at the Approved Premises, he was given a verbal warning for use of computers in the local library without permission. This was said to breach additional licence condition 15.

Whilst Mr Truter appealed the additional licence conditions to Probation, that was refused in November 2019 and again on re-appeal in March 2020, although he did not technically ask Mr Westcott to vary them, this was because he had appealed. However, by March, he had left the Approved Premises where he had stayed between 30^th September 2019 and 30^th January 2020. At the time Mr Truter did not have an alternative address and he accepted he was homeless for a few days before he was accommodated at the New Hope Sanctuary.

Mr Truter also accepted that shortly after his release from the Approved Premises, at the beginning of February 2020, he bought an Amazon Fire tablet and a few days later a smartphone. As he was aggrieved being subject to onerous additional licence conditions which he (rightly) considered unlawful, he prepared and filed a judicial review claim using his smart phone, issued by the Court on 30 April 2020, just after the Pandemic erupted.

Mr Truter was recalled by the Defendant on 19 May 2020, nineteen days after his claim was issued. He contends one caused the other. However, that issue is not before me, as I will explain. In any event, the Probation Service received a report of contact by Mr Truter to one of the people he was forbidden from contacting under additional licence condition 8 (and a restraining order). Officers attended his address on 15^th May and requested (under additional licence condition 14) to inspect internet-enabled devices, which he declined citing legal privilege due to his judicial review claim. Officers considered this breached additional licence conditions 14 and 16 on usage history of any internet-enabled device and allowing such items to be inspected as required; and to make any device capable of storing digital images available for inspection on request. I will come back to that in a moment.

The allegation in relation to contacting the previous victim was the subject of a later police procedution in which Mr Truter was acquitted, as I explained in one of my earlier judgments this week. Therefore, under Article 6(2) ECHR and its presumption of innocence, as explained by in the case of Allen v UK (2016) 63 EHRR 10 (ECtHR), nothing I say in any of these judgments, including this one, undermines the fact that Mr Truter was acquitted and must be treated as not having contacted that individual or to have breached condition 8. But there is no actual dispute before me that he had relevant devices and refused access to them on the grounds, firstly there was legal privileged material on them; and secondly, that the condition which required him to provide access to those devices was unlawful.

In any event, for those reasons, as I said, Mr Truter was recalled on 19 May 2020. The reasons for recall from the Defendant (not Mr Westcott’s decision) record that the Secretary of State was satisfied that Mr Truter had breached the standard licence condition 1: ‘To be of good behaviour and not behave in a way which undermines the purpose of the licence period’; and three additional conditions: (8) non-contact with the named individuals; (14) the usage history and inspection condition; and (16) the digital image devices and inspection condition. In those circumstances, the Defendant concluded:

“In view of the offences for which you were originally sentenced, the risks suggested by your offending history and your behaviour as described in the recall report completed by the Probation Service.. the Secretary of State revokes your licence and recalls you to prison.”

It is relevant to note briefly that, as I discussed in more detail in a separate judgment earlier this week in Mr Truter’s claim against the Parole Board, in its (I found unlawfully-delayed) decision of November 2022, the Board found that Mr Truter’s recall was ‘appropriate’ even if only for breach of the standard licence condition. It said this at paragraph 1.11 and 1.12:

“This panel does not seek to go behind [Mr Truters acquittal for contacting an individual named in additional licence condition 8], but does make a finding that the allegations did contribute to the decision to recall Mr Truter, as there was at least credible evidence linking to further offending which then would have breached another standard licence condition had it been proven. The panel have no view as to whether the decision to recall was lawful and Mr Truter is seeking to challenge this through litigation.

Having heard and read all the evidence available and listened to Mr Truter and his representations, there was no doubt left in the panel’s mind that the decision to recall was appropriate. The panel thought that there would have been little alternative to recall available to professionals to consider in their management of a high risk of serious harm offender who was refusing to engage on any meaningful level in respect of identifying and mitigating the risk he may present of further sexual offending in the community at the time. Even with his later acquittal at court, this would not have changed the appropriateness of the decision to recall him faced with the circumstances at the time.”

I should say the reference to the litigation about Mr Truter’s recall was to his judicial review claim issued in April 2020, for which permission had been refused by the Administrative Court in November 2020. The Defendant had conceeded the additional licence conditions were unlawful, but the Judge found that the claim was not made sufficiently promptly and given that the licence had been revoked, the claim was also academic. The Judge certified that judicial review claim totally without merit. However, he also referred to the possibility of an alternative remedy by a damages claim in the County Court under s.7 HRA.

That is the context for the present claim, which originally encompassed not only a challenge to the imposition of the unlawful licence conditions which I am adjudicating today, but also a challenge to the lawfulness of the recall, which as I shall explain, has since fallen away. I now turn to the litigation history of this claim, entwined with various other litigation since that initial claim between Mr Truter and the Defendant and Parole Board, some of which concluded in my other judgments earlier this week to which I have already referred. In considering that history, I shall also consider whether False Imprisonment is before me.

On 7^th April 2021, Mr Truter issued the present claim under s.7 HRA under Arts. 5, 7, 8 and 11 ECHR and for False Imprisonment at Common Law. The Defence was entered on 15 June 2021 which denied the claim; and on 17 January 2022 the Defendant applied to strike it out. That was not heard for 18 months. In the meantime, Mr Truter got permission to amend and paragraph 20 of his Amended Particulars of Claim of 5^th February 2022 said:

“…[W]hilst compelled to be in the Approved Premises….[s]uch deprivation of liberty was not lawful and an unarguable instance of false imprisonment at common law and/or a breach of Art.5 rights…”

Shortly afterwards, on 16^th March 2022, Mr Truter was acquitted of contacting the named person in the licence (a charge of breach of a restraining order). In August 2022, he claimed judicial review of the Parole Board dossier, for which I refused permission on 18 October 2022, saying it was a matter for the Parole Board to consider (as it did at the hearing on 9^th November 2022). On 25^th October 2022 in this claim, Mr Truter withdrew the Art.7 and 11 ECHR claims and DDJ Gleeson struck out the rest of the Particulars of Claim as not properly particularising the claim and on the basis there was no realistic prospect that Mr Truter could establish that he was a victim under s.7 HRA. Mr Truter appealed that decision.

Mr Truter also judicially reviewed the Parole Board’s decision of 9^th November 2022 refusing to re-release him and finding recall ‘appropriate’. But the Court refused permission in May 2023 and dismissed his Habeas Corpus claim. In February 2024 Lewison LJ refused permission to appeal in relation to those challenges. He decided the November 2022 Parole Board decision had found (as had the Parole Board reconsideration decision in early 2023) that Mr Truter’s recall was not just ‘appropriate’ but lawful, which Lewison LJ found in the circumstances amounted to the same thing. As I pointed out in previous judgments, that decision binds Mr Truter and it is now settled that he cannot bring a claim about his recall.

However, before that, on 30^th October 2023, HHJ Murch allowed the appeal against strike out of Mr Truter’s present claim on ‘the release issue’, defined in the recital to his Order as

“(a)

the period when the appellant was released from custody, namely 30 September 2019 to 19 May 2020 and (b) in relation to the claims under Articles 5 and 8 ECHR.”

This was the basis on which HHJ Murch had granted permission to appeal in July 2023 and (it seems by consent as he vacated the appeal hearing) on 30^th October 2023 he set aside the strike out on ‘the release issue’ and gave Mr Truter permission to amend limited to it.

Mr Rainsbury submits this means the present claim can only include the s.7 HRA claim under Arts.5 and 8 ECHR, not for False Imprisonment at Common Law. Mr Truter replied that his previously-struck out claim included a False Imprisonment claim in the alternative to Art.5 and it was implicit in Judge Murch’s order the ‘release claim’ also included this. That is why, consistent with his understanding of Judge Murch’s order, a month later when he redrafted Re-Amended Particulars of Claim in November 2023, Mr Truter specifically pleaded False Imprisonment at Common Law alternatuve to Art.5, at paragraphs 15 and 19:

“The Claimant’s deprivation of liberty and/or False Imprisonment, while subject to the unlawful residence requirement and unlawful curfew, were not an authorised interference of the Claimant’s Article 5 Convention Rights was not done in accordance with the law, or the rule of law. There was no judicial supervision required to make the detention and deprivation of liberty lawful under Articles 5(1)(a) to (f)….

Reliance is made on..Jollahv [SSHD] [2020] UKSC 4 [at [24]-[27]]… The Claimant was undoubtedly subject to imprisonment and therefore a deprivation of liberty under Art.5 [ECHR], while being required to stay or be where the Defendant’s agents stipulated under the threat of return to prison in the event of not complying with that instruction.”

As I shall explain, in Jollah at [24]-[27] Lady Hale was discussing Common Law False Imprisonment, which she went on to distinguish from Art.5 ‘deprivation of liberty’. The Amended Defence filed in January 2026, following various extensions I granted last year, did (as I have) quote HHJ Murch’s recital of 30^th October 2023 and said the Claimant had been ‘limited to pursuing the release claim’ it had defined, adding: ‘His original claims in relation to the recall decision on 19 May 2020, as well as the claims under Articles 7 and 11 ECHR, remain struck out’. The Amended Defence also pleaded a new data protection claim (not pursued) should be struck out. However, it did not plead that it was not open to Mr Truter to pursue the Common Law False Imprisonment claim in his Re-Amended Particulars, or that it should be struck out as an abuse of process, or on any other basis.

In my judgement, the true interpretation of the wording in context of Judge Murch’s Order, including that it was agreed, is that what he had defined as the ‘release issue’ which was ‘in relation to the claims under Articles 5 and 8 ECHR’ included the claim of False Imprisonment at Common Law in the alternative to Art.5 ECHR. After all, Judge Murch’s order was focussed on confining the claim to ‘the release issue’ rather than ‘the recall issue’. ‘The release issue’ already included an alternative claim of False Imprisonment when struck out by DDJ Gleeson in 2022, which can only have been on the basis it was inadequately particularised, as it is obviously not necessary to be a ‘victim’ under s.7 HRA to claim False Imprisonment. Mr Rainsbury did not explain why Judge Murch would have restored the Art.5 claim but not its direct alternative claim in false imprisonment (which I shall explain is clear from Jollah usually has a lower threshold). It is likely Judge Murch focussed more on the Art.7 HRA victim issue and his recital ‘in relation to the claims under Articles 5 and 8 ECHR’ was simply shorthand for those claims related to the period of release, including False Imprisonment in the alternative to Art.5. This reading of Judge Murch’s order also seems to be reflected in the parties’ understanding at the time, such as Mr Truter including False Imprisonment in his re-Amended Particulars of Claim, not challenged in the Amended Defence or at any of the earlier interlocutory hearings before me over more than a year.

Even if I am wrong and Mr Truter needs to amend to claim False Imprisonment, he effectively sought that in his Re-Amended Particulars two years ago, to which objection has only specifically been taken at trial. Whilst not an ‘ambush’, it is extremely late for the Defendant to raise this against a litigant-in-person, even one as experienced as Mr Truter. He applied in submissions to amend if necessary. I do not consider it necessary as I said, but if I am wrong, I grant permission under CPR 17.3 (or refuse to disallow his amendment under CPR 17.2). Firstly, if an amendment at all, it is extremely modest on a pure point of law on facts already pleaded and trailed for over two years. Secondly, it is still within limitation of six years if it ran from recall in May 2020 (even if the period after January 2020 is not strongly pursued), or if time started running in January 2020, the claim is less than a fortnight out of time and arises out of already-pleaded facts, so is covered by CPR 17.4. Thirdly, Mr Rainsbury accepted amendment made no difference to evidence either called or adduced at the trial. I do not accept his submission that amendment after Judge Murch’s order would be an abuse of process: it is the Defendant which could and should have raised its objection earlier; and if it had, I would have given permission to amend. It is plainly in accordance with the overriding objective, does not affect the trial date, or even the evidence given at it. I am satisfied the claim for False Imprisonment can be pursued.

The law on False Imprisonment was reviewed authoritatively by the Supreme Court in two important cases. I have already referred and will return in a moment, to Jollah which is highly factually relevant to this case. But I start with the general principles earlier confirmed by the Supreme Court in Lumba v SSHD [2011] 2 WLR 671. Lumba was a very different case, where foreign national prisoners were detained under an unpublished policy, that was held a breach of public law as they could not make representations that it should not apply. The real issue in Lumba was what remedy lay for that unlawful False Imprisonment, given there was an unchallenged finding that had the policy have been published and the offenders made representations, they would still inevitably have been detained for exactly the period that they were. In other words, the unlawfulness made no difference to the outcome.

The majority of the Supreme Court in Lumba were clear the fact unlawfulness made no difference to the outcome was not a defence to the tort of False Imprisonment. However, they held it was relevant to remedy, as in that situation, the Common Law would only award nominal damages. The Court rejected the claimants’ novel argument for ‘vindicatory damages’ and said the facts (even with a deliberately hidden policy) did not justify exemplary damages. I will come back to some of those principles later, but the key point on liability for False Imprisonment is that even Mr Rainsbury is right to say that Mr Truter would have had the same conditions imposed had there been a referral to the Parole Board, that goes not to liability but to damages, as I consider in a moment. Given it is conceded at Common Law there was no power to impose the additional licence conditions, the real issue is whether or not those conditions amounted to ‘imprisonment’ at Common Law.

As I have just discussed in relation to the procedural issue about False Imprisonment, the evidence relevant to whether there was Common Law ‘imprisonment’ was the same at the trial as the evidence in relation to ‘deprivation of liberty’ under Art.5 ECHR and it was not suggested any additional evidence would have been necessary for the Common Law claim. For example, Mr Rayfield’s description of the conditions in the Approved Premises and what Mr Truter could and could not do, is the same evidence whether one is analysing Common Law imprisonment or Art.5 ECHR deprivation of liberty. However, as Lady Hale explained in Jollah at [29]-[34], the tests for Common Law imprisonment and Art.5 deprivation of liberty (which I discuss later) are different, so there can be imprisonment at Common Law without there being a deprivation of liberty under Art.5, although she doubted that was true vice versa. This is what I meant a moment ago in saying that Imprisonment at Common Law usually has a lower threshold than Art.5 ECHR.

Jollah was a case where there was a curfew unlawfully imposed under immigration powers between the hours of 11pm and 7am every day, that was monitored by electronic tagging. This was held to amount to Common Law imprisonment. As Lady Hale said at [24]-[26]:

“24.

False Imprisonment involves an act of the Defendant which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the Defendant. The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process….

The Defendant in a Magistrates’ Court who had surrendered to his bail was in custody even though there was no dock, no usher, nor security staff and thus nothing to prevent his escaping (as indeed he did). The point is that the person is obliged to stay where he is ordered to stay whether he wants to do so or not.

25.

In this case there is no doubt that the Defendant defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the Defendant’s permission. …

26.

The fact that the claimant did from time to time ignore his curfew for reasons that seemed good to him makes no difference to his situation while he was obeying it. Like the prisoner who goes absent from his open prison, or the tunneller who gets out of the prison camp, he is not imprisoned while he is away. But he is imprisoned while he is where the Defendant wants him to be.”

Lady Hale also noted in a case of a curfew enforced by electronic tagging, to which I return in a moment - Secretary of State for the Home Department v JJ [2008] AC 385 (HL) - the Lords observed that a curfew monitored by electronic tagging, clocking in and clocking out, with arrest and imprisonment for breach, was itself ‘imprisonment’ at Common Law.

Turning to this case, the similarities with Jollah in terms of restriction are clear. Mr Jollah’s electronically-monitored curfew of 8 hours overnight amounted to ‘imprisonment’. Whilst Mr Truter’s curfew was not electronically-monitored, as Lady Hale explained in Jollah, someone can be ‘imprisoned’ if obliged to remain somewhere they do not wish to be, irrespective of the practical means by which that is enforced. Indeed, Mr Truter’s ‘confinement’ was more extensive than that of Mr Jollah, because he was required to remain at the Approved Premises for 12 hours overnight and then had to return to it three times in the remaining 12 hours. Moreover, given Mr Truter’s repeated objections to the conditions, even before they were imposed, he cannot be said to have complied volunarily: see Jollah at [27]. Therefore, I have no doubt the curfew and reporting conditions together amounted to ‘imprisonment’ at Common Law. As it is common ground that they were unlawful, it follows that Mr Truter has proved there was False Imprisonment, so that claim succeeds.

However, as I have just explained, Lady Hale went on in Jollah to explain why the test for False Imprisonment at Common Law was not the same as the test for deprivation of liberty udner Art.5 ECHR. In Jollah at [29], she quoted the classic definition of that concept in the the European Court of Human Rights decision in Guzzardi v Italy [1983] EHRR 333 [92]:

“In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.”

Lady Hale also noted in Jollah at [29] that:

“The ECHR distinguishes between the deprivation and restriction of liberty and the Court [in Guzzardi] emphasised this was a matter of degree rather than nature or substance. This multi-factorial approach is very different from the approach of the Common Law to imprisonment”

Picking up on that distinction between ‘deprivation of liberty’ under Art.5 ECHR on one hand; and ‘restriction of liberty’ on the other, in the ECHR, there is not only Article 5 in the original Convention which has been incorporated into our law by the HRA, there is also, Article 2 Protocol 4 ECHR ‘Freedom of movement’ and its obverse: ‘restriction of liberty’:

“2.1

Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”

2.2

Everyone shall be free to leave any country, including his own.

2.3

No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of order public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

2.4

The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

The reason that Art.2 Protocol 4 is unfamiliar to British lawyers is because it has not been incorporated into our law by the HRA. However, it is well-established that the Convention Rights incorporated by the HRA (including Art.5 ECHR) mean the same in our Courts as in Strasbourg: as the White Paper that led to the HRA said, it was to ‘bring rights home’. As Lord Reed put it in Faulkner v SSJ [2013] 2 WLR 1157 (SC) (to which I return) at [6]:

“In the [HRA], Parliament required the Courts to give effect to Convention rights corresponding to those guaranteed by the Convention. Those rights include the rights conferred by article 5.1 and 5.4…”

Whilst the ECHR rights incorporated in the HRA did not include Article 2, Protocol 4, just as ‘deprivation of liberty’ under Art.5 ECHR sin Strasbourg till does not include ‘restriction of liberty’ under Art.2 Protocol 4, so too in our law, Art.5 ‘deprivation of liberty’ does not include mere ‘restriction of liberty’. So, to pin down the threshold for Art.5 (in Strasbourg and here) of ‘deprivation of liberty’ in Art.5, it is still helpful to contrast it with the meaning (in Strasbourg but not here) of ‘restriction of liberty’ under Art.2 Protocol 4. There are some illustrative Strasbourg cases exploring this distinction arising out of restrictions during the Pandemic. Also in the unreported European Court decision of Domenjoud v France (2024), a curfew of protestors for 16 days when Paris was hosting the COP summit in 2015 under anti-terrorism laws after its appalling terrorist attack earlier that year engaged Art.2 Protocol 4 (and was complied with in one case given the individual’s risk of violent protest but breached in another, given there was no such risk), but did not engage Art.5 ECHR.

One can also see this distinction drawn by the ECtHR Grand Chamber in a case to which I referred the parties, De Tommaso v Italy [2017] 65 EHRR 19. A man with serious Mafia-related but old convictions was made subject to a preventative curfew from April 2008 until his appeal was allowed in January 2009 on grounds of insufficient current risk. The terms on which he had previous had to live were summarised by the Grand Chamber at [17]:

“Not to return home later than 10 p.m. or to leave home before 6 a.m., except in case of necessity and only after giving notice to the authorities in good time.”

In De Tomasso, the Grand Chamber held these conditions were a ‘restriction of liberty’ under Art.2 Protocol 4 ECHR, but not a ‘deprivation of liberty’ under Art.5 ECHR, drawing at [80] on the distinction in Guzzardi (another Mafia case) as being a distinction of ‘degree or intensity, not nature or substance’. The Grand Chamber concluded at [88]-[89]:

“The Court observes, however, that in all the cases it has examined [where]…the applicants were under an obligation not to leave home at night…this was found to constitute interference with liberty of movement. It cannot find any sufficiently relevant grounds for changing this approach, especially as it appears that in the present case, having regard to the effects of the applicant’s special supervision and the manner of its implementation, there were no restrictions on his freedom to leave home during the day and he was able to have a social life and maintain relations with the outside world. The Court further notes that there is no indication in the material before it that the applicant ever applied to the authorities for permission to travel away from his place of residence. The Court considers that the obligations imposed on the applicant did not amount to deprivation of liberty within the meaning of Art.5(1)…but merely to restrictions on liberty of movement [under Art.2 Protocol 4].”

By contrast, there was Art.5 ECHR ‘deprivation of liberty’ in the domestic case of JJ in 2008 (discussed in Jollah as noted earlier), with an 18-hour curfew with additional restrictions on associations, under an anti-terrorism ‘Control Order’. However, Lord Brown observed in JJ that a 16-hour curfew would not be a ‘deprivation of liberty’, but only a ‘restriction of liberty’, which was not enforceable under the HRA. But Lord Brown returned to this point in Secretary of State for the Home Department v AP [2010] 3 WLR 51 (SC), one of the first cases in the then-new Supreme Court. Lord Brown held that a 16-hour curfew in that case was a ‘deprivation of liberty’ under Art.5, because of the combination of the ‘restriction of liberty’ under the 16-hour curfew together with its isolating effect on the individual’s family life (even if it would be justified under Art.8 ECHR). He said at [4]:

“I nevertheless remain of the view that for a control order with a 16-hour curfew (a fortiori one with a 14-hour curfew) to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive of the life the controlee might otherwise have.”

It is clear the effect on Mr Truter’s liberty of the unlawful licence conditions falls more towards the De Tommaso end of the scale than the AP and JJ end of the scale. I am satisfied that, examining Mr Truter’s ‘concrete situation’, the conditions were not a ‘deprivation of liberty’ under Art.5 but only a ‘restriction of liberty’ for the purposes of Art.2 Protocol 4, but that does not assist him domestically. What does is that conditions in the Approved Premises also plainly ‘interfered with private life’ under Art.8(1) and were unjustified as ‘not in accordance witrh the law’ under Art.8(2) even if ‘proportionate’. My reasons are:

Even if I am wrong and the conditions also amounted to ‘deprivation of liberty’, I am not convinced they violated Art.5 ECHR. In AP, the Supreme Court held a curfew which was both lawful and ‘proportionate’ under Art.8 could nevertheless violate Art.5, but did not hold that breach of Art.8 inevitably violated Art.5 ECHR. Mr Truter has previously cited Brown v Parole Board for Scotland [2018] AC 1 (SC) which held ‘deprivation of liberty’ in prison for EDS prisoners is lawful under Art.5(1) ECHR because it was authorised by the Court’s sentence, but if re-imprisoned on recall, that was a fresh ‘deprivation of liberty’ which required fresh Court authorisation under Art.5(4) ECHR. But that is different from whether additional licence conditions before recall were authorised by the original sentence, as they could lawfully have been imposed through the Parole Board, even if in fact they unlawfully were not. That is debateable, but I need not determine it, as I find Mr Truter’s restrictions in the Approved Premises did not amount to Art.5 deprivation of liberty.

I turn, therefore, to the next issue, which Mr Rainsbury aptly called the inter-related sub-issues of whether Mr Truter was a victim under s.7 HRA and whether compensation is required for just satisfaction under s.8 HRA in relation to the clear breach of Art.8 ECHR.

s.7 HRA provides, so far as material to the ‘victim’ issue’:

“A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal...but only if he is (or would be) a victim of the unlawful act.”

The concept reflects Art.34 ECHR, not technically incorporated by the HRA, stating:

“The Court may receive applications from any person…claiming to be the victim of a violation…of the rights set forth in the Convention …”.

Mr Rainsbury relied on Francis v Home Office [2006] EWHC 3021 (QB) at [67-[71], Davis J (as he then was) held that a prison inadvertently opening three letters to a prisoner, two from an MP and one from solicitors (not read) and for which apology and remedial steps were immediately made, although interfering with his Art.8 ECHR rights to correspondence did not mean that he was a ‘victim’ for the purposes of s.7 ECHR. Davis J said at [68]:

“Relevant factors may be the number of incidents of breach and the lack of apology or assurances or action as to future conduct [for] correcting mistakes. Always important in such a context is the question of whether or not any letters were wrongly opened deliberately. All the same, it is difficult, it seems to me, to establish any clear principle: it seems to be the case that each matter has to be considered on its own facts.”

However, Francis was decided well before higher authority defining a ‘victim’ under s.7 HRA: Rabone v Pennine Care NHS Trust [2012] 2 WLR 381, to which I referred the parties. Like most of the cases about ‘victim status’ (for example, Daniel v St George’s NHS Trust [2016] 4 WLR 32 (QB)), Rabone concerned so-called ‘indirect victims’: there the parents of a woman psychiatric patient who had died in custody (the ‘direct victim’), who brought a claim for their own bereavement under Art.2 ECHR. This issue was dealt with briefly by Lord Dyson who held at [44]-[48] the parents were ‘indirect victims’ in principle. Given Mr Truter was affected directly not indirectly by the violation of Art.8(1), he was even more clearly a ‘victim’, essentially for the reasons I found the violation of Art.8(1) ECHR and Strasbourg would have found ‘restriction (but not ‘deprivation’) of liberty’ under Art.2 Protocol 4. Whilst Mr Truter did not dwell on the impact, it was obvious and very different than inadvertently opening letters in Francis, which as Davis J said, turned on its own facts.

However, Mr Rainsbury skilfully changed tack, relying on the analysis by Lord Dyson in Rabone about when an individual could lose ‘victim status’ under s.7 HRA at [49]-[58]. This could either be if an individual settles the s.7 claim or its equivalent (which the parents in Rabone had not done simply by settling the claim in negligence for their daughter’s estate), or a public authority in violation ‘acknowledged’ that and made ‘adequate redress’ for it (which may be another basis on which the decision in Francis could be justified). In Rabone, Lord Dyson observed at [61] the estate settlement and apology ‘acknowledged’ the breach of Art.2 even if not expressly; but did not make any redress to the parents in their own right, only to their daughter’s estate; and in any event, even looking at the settlement in the round, it was not ‘adequate redress’, so the parents remained ‘victims’ under s.7 HRA.

In this case, there has been no prior settlement of Mr Truter’s s.7 HRA claim or anything else. Moreover, unlike Rabone, I do not consider the Defendant’s 2020 concession that the additional licence conditions were unlawful - and even Mr Rainsbury effectively conceding violation of Art.8(1) ECHR at trial - was a real ‘acknowledgement’ given Art.8 was still contested in the Amended Defence last month and there is no apology. In any event, even more clearly than in Rabone, Mr Truter has not yet had any ‘redress’ at all, whether or not ‘adequate’. I accept Rabone suggests there can be overlap between issues of ‘adequate redress’ and ‘just satisfaction’ if there has been some redress. But Lord Dyson still dealt separately with those (at [59]-[63] and [81]-[88]). Certainly, he did not collapse into one the related but analytically distinct analyses in s.7 and s.8 HRA in cases where there had as yet been no redress, as here. Therefore, I hold Mr Truter remains a ‘victim’ and so I find his HRA claim succeeds, alongside his Common Law False Imprisonment claim.

However, that does lead to the question of just satisfaction under s.8 HRA, which states:

“(1)

In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate….

(3)

No award of damages is to be made unless, taking account of all the circumstances of the case, including (a) any other relief or remedy granted, or order made, in relation to the act in question …, and (b) the consequences of any decision (of that or any other court) in respect of that act, the Court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

8(4) 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 European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.”

As Lord Dyson also explained of s.8(3) HRA in Rabone at [82]:

“The power to award damages for breach of a Convention right derives from section 8(3) of the HRA. No award of damages should be made unless, taking account of all the circumstances of the case, including any other relief or remedy granted, the court is satisfied that the award is necessary to afford just satisfaction … In R(Greenfield) v SSHD [2005] 1 WLR 673 para 9, Lord Bingham approved the observations …that ‘the remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations…..[W]here an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance…”

Lord Dyson added at [82] of Rabone that given s.8(4) HRA:

“As Lord Bingham said in Greenfield (para 19), our courts should..look to Strasbourg for precedents on the levels of compensation.”

Whilst Rabone was a very different case, that principle was applied in the closer context of delay in prisoners’ referrals to the Parole Board in Faulkner, that I have already mentioned, where Lord Reed made similar observations about Greenfield at [24]-[25] and said at [26]:

“In Greenfield…Lord Bingham…noted at [6]…four preconditions to an award of damages under s.8: (1) a finding of unlawfulness…based on breach…by a public authority of a Convention right; (2) that the court should have power to award… compensation in civil proceedings; (3) the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (4) that the court should consider an award of damages to be just and appropriate. In relation to the third and fourth of these requirements, Lord Bingham observed that it would seem to be clear that a domestic court could not award damages unless satisfied that it was necessary to do so; but, if satisfied that it was necessary to do so, it was hard to see how the court could consider it other than just and appropriate to do so.”

Clearly, the first and second Greenfield conditions are satisfied here. I have found a violation of Art.8 ECHR and the High Court clearly has power to award compensation. Therefore, the remaining – and overlapping - questions are whether or not compensation is ‘necessary’ (and ‘just and appropriate’) for ‘just satisfaction’. As Lord Bingham noted in Greenfield, the s.8 HRA principles are different from Common Law, where compensation also plays a more prominent role. For that reason, it is helpful to analyse Common Law damages first, in particular whether Mr Truter is entitled to substantial as opposed to nominal damages on the ‘no difference’ principle in Lumba. If he is only entitled to nominal damages at Common Law because the unlawfulness made no difference, that same point may also point against compensation being ‘necessary for just satisfaction’ under s.8 HRA. However, if Mr Truter is entitled to substantial damages at Common Law, the argument becomes whether additional compensation is ‘necessary for just satisfaction’ under s.8. Moreover, whilst Rabone and Faulkner stressed the respective principles are different, it may be helpful to ‘cross-check’ the ‘appropriateness’ of s.8 HRA compensation against the Common Law. Therefore, I turn first to the appropriate level of damages at Common Law.

Logically the first question, on the principles I have summarised in Lumba, is whether this is an appropriate case for nominal damages at Common Law for False Imprisonment. In Lumba, Lord Dyson noted at [90] that the Court of Appeal had concluded that:

“…[If] it was clear that, even assuming a lawful consideration [of the application for release from detention], there was no realistic possibility of a different decision having been reached and no realistic possibility of earlier release, then we do not see why that should not be reflected in an award of nominal damages only.”

That analysis was endorsed in Lumba by Lord Dyson at [95]:

“Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, on the assumption [they] had been properly applied … it is inevitable the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages.”

Mr Rainsbury’s submission is that the same applies here. He argued firstly that the breach for Mr Truter was a’technical breach’, as at the time of his release in September 2019 there was a lawful procedure for referring his case to the Parole Board to approve additional conditions and it is highly likely that had this procedure been followed, Mr Truter would have been made lawfully subject to exactly the same additional licence conditions. Secondly Mr Rainsbury stressed that Mr Truter was subject to lawful standard licence conditions in any event. Thirdly, Mr Rainsbury argued this was an inadvertent error and Mr Truter was not singled out or targeted. I will take those three points in reverse order.

It is true the unlawfulness was not deliberate and Mr Truter was not singled out or targetted. Certainly, it is not an appropriate case for exemplary damages, especially as not even the deliberate conduct in Lumba was. But inadvertence and lack of targetting does not mean that Mr Truter would have received the same treatment but for the unlawful conduct. In any event, Mr Truter had specifically warned the Parole Board and Mr Westcott the conditions would be unlawful and yet they were still imposed regardless. Therefore, whilst the unlawfulness was not deliberate or targetted, this does not itself justify nominal damages.

It is also true Mr Truter was subject to lawful standard licence conditions in any event, but as I explained earlier, those were very different from the additional licence conditions. As Mr Truter argued, there is a difference between being subject to a standard condition of a Proabtion Officer having to approve your choice of accommation; and having to live in Approved Premises in a particular location, subject to a curfew and reporting conditions. Whilst those requirements lasted only four months, whilst they did last, the unlawful additional licence conditions constituted the ‘imprisonment’ which the standard conditions alone would not have done. So, this point does not justify nominal damages either.

Therefore, the ‘nominal damages’ argument comes down to the question of what would have happened absent unlawfulness, as in Lumba: here what would have happened if there had been referral to the Parole Board. However, there are three difficulties with this point:

However, I do consider all those factors are relevant to the level of substantial damages. They are differentiating features on the impact of the loss of liberty on Mr Truter by comparison to (a) being in prison and (b) a more onerous curfew requirement and for longer. That point was made in the Court of Appeal in Jollah v SSJ [2018] EWCA Civ 1260 (not discussed in the Supreme Court) by Davis LJ (as he had become since Francis). He did not accept that in an unlawful curfew case, the Court should simply ‘discount’ the normal ‘false imprisonment tariff’ for detention in prison, originally set in Thompson v Commissioner of Police of the Metropolis [1997] 3 WLR 403 (CA). In Jollah, Davis LJ said at [97]:

“I reject the suggestion that the judge erred in principle in failing to take a starting-point figure appropriate for ‘full’ wrongful detention before discounting for the significantly more limited restraint on liberty involved in the night-term home curfew as imposed in the present case. The qualitative difference between the two situations is simply too pronounced for that to be the required approach.”

Davis LJ rejected a cross-appeal against £4,000 damages. That was not further appealed.

Accordingly, rather than adjusting the Thompson tariff, in submissions yesterday I suggested to Mr Rainsbury that if I upheld the False Imprisonment claim (as I have), one approach might be to proportion mathematically the £4,000 awarded for 2½ years in the Jollah case to the four months of Mr Truter’s case of four months and uprate it for inflation since 2018, reaching a figure of about £750. However, overnight it occurred to me that the Common Law Thompson approach takes a ‘sliding scale’ with more in General Damages for the first hour (for ‘the clang of the cell door’) than for later hours, tapering down over time. Davis LJ in Jollah rejected a discount from the Thompson rate for a curfew, but he did not adopt a different ‘curfew tariff’: in fact, he rejected that approach at [90]. So, mathematically proportioning the £4,000 in Jollah Davis LJ approved as within the High Court Judge’s discretion would be to treat it as a tariff which Davis LJ expressly rejected. So, I invited further submissions today on treating Jollah as a ‘comparator’ and yardstick for Mr Truter’s award, as Courts commonly do with General Damages. I did not understand Mr Rainsbury to dissent from that approach, but he said it should still come to c.£750.

I certainly agree Mr Truter’s damages should be significantly less than the £4,000 awarded to Mr Jollah. Whilst Mr Truter’s restrictions were more significant than Mr Jollah’s, they were for a much shorter period of time and in circumstances where Mr Truter had advance warning of the inadvertent unlawful imprisonment (he called it a ‘slow-motion train crash’). This was bureaucracy not listening to him, then putting and leaving him in the unlawful conditions for four months from September 2019, instead of the Parole Board applying similar additional licence conditions six months earlier as he had suggested. I have rejected this as justifying nominal damages, but it certainly reduces the level of substantial damages. Moreover, there is no detailed evidence from Mr Truter about the effect of the unlawful conditions upon him: certainly no evidence of any significant psychological effect on him.

On the other hand, c.£750 would be too low and minimise the extent of unlawful restriction on Mr Truter for four months, and the fact Probation wrongly rejected his representations and appeal, causing him real frustration and ongoing unlawful daily practical restriction.

Doing the best I can in all the circumstances, in my judgment, an award of damages for the False Imprisonment of £2,500 is appropriate, consistent with the authorities and reflects the Common Law’s ‘frontloading’ of damages on a sliding scale reflected in Thompson, but without adopting he same ‘tariff’, given this is a case of curfew not prison. In those circumstances, the figure of £2,500 is an appropriate award for False Imprisonment.

Finally, I turn to whether compensation is required for ‘just satisfaction’ under s.8 HRA for breach of Art.8 ECHR. For the same reasons as for rejecting Common Law nominal damages, I find if there had been no damages at Common Law, compensation would, in principle, be required as just satisfaction under s.8 HRA. As Mr Truter said, the violation had a direct effect on him for a significant period, for which compensation is in principle necessary to afford just satisfaction, as the Strasbourg Court found in De Tomasso. The fact that was a finding under Article 2 Protocol 4 not Art.8 ECHR does not change that point.

However, there is then the issue whether it is necessary to give just satisfaction to make any other form of additional award beyond the £2,500 that I have awarded at Common Law. In my judgment, it is not; and indeed, if I am wrong to award any compensation at Common Law, the level of compensation necessary to give just satisfaction under s.8 HRA would actually be the same figure of £2,500. I reach that conclusion for the following reasons.

As I explained in rejecting Mr Truter’s Art.5 ECHR claim, this case is much closer to the circumstances of De Tommaso than those in JJ and AP. Albeit the restrictions in Mr Truter’s case were more intense than in Mr De Tommaso’s case, it lasted half the time, Moreover, unlike Mr Truter’s case and Mr Jollah’s case, in Mr De Tommaso’s case there was no valid reason for a curfew in the first place – there was no current risk. By contrast, in Mr Truter’s case, there was an obvious current risk justifying additional licence conditions. If they had been imposed lawfully in domestic law, there would have been no breach of Art.8.

The award in De Tommaso would, in current money and in pounds be £5,700. I agree with Mr Rainsbury the award in this case should be significantly lower. As he said, De Tomasso compensated a breach of Art.6 and Art.2 Protocol 4, neither applying here. Whilst it is ‘just and appropriate’ to focus on the substance not the form of the violation, the impact on Mr Truter may have been comparable in daily effect with De Tommaso, there were no additional violations of Art.6 by the Court and the period was much shorter. Moreover, unlike De Tommaso, there was a valid reason for a curfew in Mr Truter’s case, he was lawfully subject to standard conditions anyway and had the Parole Board released him in March they were likely to have imposed some of the same additional licence conditions. These are also distinctions with the curfew breaching Art.2 Protocol 4 in Domenjoud, but in that case the curfew only lasted three weeks yet the award was the equivalent of £1,275. Despite those differences, the much shorter period suggests a higher award for Mr Truter.

In those circumstances, applying the principles of just satisfaction in s.8 HRA as explained in Greenfield, Rabone and Faulkner and using De Tomasso and Domenjoud as comparators, I again reach the figure of £2,500 for ‘just satisfaction’ for breach of Art.8 under s.8 HRA. However, that is not because the principles are the same at Common Law and under s.8 HRA, as stressed in Greenfield. It is simply because the Strasbourg Court makes comparable awards on similar criteria. So, £2,500 reflects Strasbourg principles as well as English principles. Here, the two different approaches happen to reach the same result.

For those reasons, even if I had not awarded any figure for Common Law damages, I would still have awarded the figure of £2,500 in respect of just satisfaction under s.8 HRA for the violation of Art.8 ECHR. However, since I have already awarded that same amount of £2,500 for the Common Law claim, which Mr Truter pleaded as a direct alternative to the HRA claim rather that as in respect of any separate violation, I find that £2,500 is in itself ‘just satisfaction’ so that no further level of compensation is ‘necessary’ under s.8 HRA. For those reasons, I uphold Mr Truter’s claim and I enter judgment for him for £2,500.