Wright v Lord Chancellor

On 23 April 2007 in the Crown Court sitting in Northampton HHJ Bray sentenced the Claimant imprisonment for public protection with a minimum term of 3 years and 6 months for assault causing grievous bodily harm and affray. That sentence was varied on 25 April 2007 as neither offence was a serious specified offence punishable with a sentence of 10 years or more. HHJ Bray instead substituted extended sentences which were purportedly set to run for consecutive custodial terms of 3 years and 6 months followed by concurrent extension periods of 5 years.

On 14 January 2013 his appeal against those sentences was allowed and the original sentence was quashed and a total determinate sentence of 3 years and 6 months was imposed ([2013] EWCA Crim 70). The original sentences were held to be unlawful, in that the part that related to the charge of affray exceeded the maximum term permitted for that offence. Further to that, under s.227 (5) of the Criminal Justice Act 2003 (herein “CJA 2003”), since repealed, the sentencing Court had no power to take a different approach to the custodial and extension components of the two sentences when deciding whether they should run consecutively or concurrently. His immediate release was ordered; he had by then served almost 6 years.

He now brings a claim for damages under s.6(1) and s.7(1)(a) of the Human Rights Act 1998 (herein “HRA”) and Art. 5(1)(a) of the European Convention on Human Rights (“the Convention”). This trial is to determine liability only. He has no claim in tort.

There is no issue that the sentence was unlawful. The broad issue to be determined is whether the Claimant’s detention under the flawed order was incompatible with his Convention rights.

The claim form named the “Secretary of State for Justice” as the Defendant. It is accepted that this claim should have been brought against the Lord Chancellor, as it is brought on the basis of a judicial act and not against the Secretary of State for Justice in his capacity as Minister for prisons. However, it has been agreed that it can proceed.

The Defendant argues that to succeed the Claimant has to show not simply that the sentence was wrong in law, which is accepted. He has to demonstrate that it was so flawed as to be in excess of the jurisdiction of the Crown Court.

The Claimant maintains that the sentence is unlawful and therefore any detention, at least from the point established by the Court of Appeal as the end of the determinate term, is unlawful and in breach of Art. 5.

HRA s.6(1):

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right”

For these purposes, “public authority” includes “a court or tribunal” (s.6 (3) (a)) and “an act” includes “a failure to act” (s.6(6)).

HRA, s.7(1)-(2):

“(1)

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, or

(b)

rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.

(2)

In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.”

In cases falling within HRA, s.7(1), a court or tribunal which finds that a public authority has acted or proposes to act unlawfully contrary to HRA, s.6(1) “may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate” s.8(1) and (6).

Damages for the unlawful act of a public authority may be awarded “only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings” s.8(2) and (6) and only where “the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made” s.8(3) and (6).

HRA, s.9 deals with judicial acts.

“(1)

Proceedings under section 7(1)(a) in respect of a judicial act may be brought only —

(a)

by exercising a right of appeal;

(b)

on an application (in Scotland a petition) for judicial review; or

(c)

in such other forum as may be prescribed by rules.

(2)

That does not affect any rule of law which prevents a court from being the subject of judicial review.

(3)

In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.

(4)

An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined.

(5)

In this section—

“appropriate person” means the Minister responsible for the court concerned, or a person or government department nominated by him;

“court” includes a tribunal;

“judge” includes a member of a tribunal, a justice of the peace (or, in Northern Ireland, a lay magistrate) and a clerk or other officer entitled to exercise the jurisdiction of a court;

“judicial act” means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge; and

“rules” has the same meaning as in section 7(9).”

Accordingly, a claimant wishing to claim that a judicial act is or was incompatible with his or her Convention rights contrary to HRA, s.6(1) may do so by bringing proceedings under HRA, s.7(1)(a):

The Convention Article 5.

“Right to liberty and security

1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court;

(b)

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law...

...

5.

Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

In R (Bayliss) v. Parole Board [2014] EWCA Civ 1631 the Court of Appeal Civil Division revisited the basic principles of the lawfulness of detention outside the rules of the sentencing regime. In that case the Court of Appeal Criminal Division had quashed an indeterminate sentence imposed under s.225(3) of the CJA 2003 on an appeal brought long out of time on the ground that there had been no proper basis for the original finding that the Applicant posed a significant risk of serious harm to the public by the commission of further specified offences. Sir Brian Leveson, President, reviewed the authorities;

“29.

In R v Cain [1985] AC 46, the House of Lords considered jurisdiction to appeal a criminal bankruptcy order where it was contended that the Crown Court had exceeded the power conferred by Parliament. Lord Scarman (with whom the other members of the House agreed) set out the approach (at 55C):

"The terms used to formulate the law by the judges of the Court of Appeal (which include myself in Wehner's case) have not been happy. They have spoken of orders being void or null for lack of jurisdiction in the court to make them. But you cannot describe as a nullity an order made by a superior court of record, which is what the Crown Court is: section 4(1) of the Courts Act 1971. Nor is the question really one of jurisdiction: it is a question whether the court has exceeded its power. An order of the Crown Court, once made, may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellate tribunal to which the appeal is taken."

30.

This reasoning was applied in R v Reynolds and ors [2008] 1 WLR 1075 in which the Crown Court had passed an extended sentence when the legislation mandated a (more severe) sentence of imprisonment for public protection. Being unable to increase the sentence, Latham LJ put the matter in this way (at para.23):

"If the sentence in question had not been appealed, the sentence would have been a perfectly valid and effective sentence. As Lord Scarman explained in R v Cain [1985] 1 AC 46, at page 55, a sentence of a Crown Court cannot be a nullity. It remains an effective order unless and until varied or quashed. An extended sentence, for example, passed when there should have been an indeterminate sentence, therefore remains a perfectly valid and effective sentence. … Further… an extended sentence is within the powers of the court. In that sense, also, it is not an 'unlawful' sentence."

31.

Finally, following the same line, in R (Modhej and anr) v Secretary of State for Justice [2012] EWCA Civ 957, sentences of imprisonment for public protection passed prior to changes to the 2003 Act were replaced in the Court of Appeal by extended sentences after the change in the law which mandated automatic release after half the custodial term. It was argued that the release provisions in place at the time of the hearing in the Court of Appeal applied. In this court, it was held that the effect of s.11(3)(b) of the 1968 Act was that the sentences of the Court of Appeal effectively replaced those of the lower court: this did not render the original sentences void ab initio. Lord Judge CJ observed (at para.14):

"The question for decision is whether the claimants were 'sentenced' under the dangerous offender provisions in the 2003 Act when the amendments were brought into force. The short answer is that they were. They continued in force and governed the detention of the appellants until the moment when they were substituted by the sentence ordered in the Court of Appeal. The appeals against sentence, although successful on the grounds that the sentence was excessive, did not nullify the sentences imposed in the Crown Court. They simply replaced them. Accordingly the provisions in the 2008 Act were 'of no effect' in the relation to them."

32.

In the light of this analysis, I have no doubt that the appellant remained subject to imprisonment for public protection until the Court of Appeal allowed his appeal and reduced the sentence to the determinate term. Furthermore, the other domestic authorities cited in support of the proposition that a quashed sentence is unlawful and rendered of no effect do not support the contrary proposition.

…

35.

Benham also makes it clear that detention following sentence by a magistrates' court is capable of being unlawful although error will not necessarily retrospectively affect the lawfulness of detention. Thus, although detention following an order which has no foundation in law because of a failure to observe a statutory condition precedent is in excess of jurisdiction, acts of a magistrates' court which were within its jurisdiction were valid and effective unless or until they were overturned by a superior court: see para. 43. This decision is not inconsistent with the decision in Cain and, for the reasons set out above, does not assist the appellant.

36.

More on point is Krzycki v Germany [1978] 13 DR 57 in which the Commission was concerned with compensation for preventative detention after a successful appeal against revocation of provisional release from detention. Although factually different from the present case, the principles were expressed in these terms (at page 11):

"This Commission is of the opinion that the situation is comparable to that of a person who has been imprisoned after having been convicted and sentenced and whose conviction is later quashed following an appeal or a request for a retrial.

"Art. 5(1)(a) does not require a 'lawful conviction' but only speaks of 'lawful detention'. This detention must be ordered 'in accordance with a procedure prescribed by law' as Art. 5(1) lays down. Consequently the Commission has always refused to consider applications of prisoners who have been convicted and sentenced in accordance with a procedure prescribed by law and who complain that their conviction was based on error of law or fact (Decisions on the admissibility of Applications Nos 45859, Yearbook 3, pp. 222, 232; 1140/61, Coll. of Dec. 8, pp. 57, 62).

"The Commission has also held that a national court's decision setting aside a conviction did not retroactively affect the 'lawfulness' of the detention following that conviction (Decision on the admissibility of Application No. 3245/67, Yearbook 12, pp 208, 236; cf. also Decisions on the admissibility of Applications Nos. 367/58 and 2932/66, Coll. of Dec. 31, pp. 8, 14)."

37.

Thus, an appeal decision quashing a sentence does not render detention pursuant to that sentence unlawful within Article 5(1). ”

The basic principles as applied within the Strasbourg jurisprudence were laid down in Benham v UK (1996) 22 EHRR 293. In that case committal to custody was quashed as the required terms for the making of the order had not been met. No breach of Art. 5(1) was found to have occurred in that instance.

“42.

A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see the Bozano v. France judgment of 18 December 1986, Series A no. 111, p. 23, para.55, and the report of the Commission of 9 March 1978 on application no. 7629/76, Krzycki v. Germany, Decisions and Reports 13, pp. 60-61).”

In distinguishing between a decision to impose custody which is within jurisdiction and those in excess of jurisdiction the ECtHR went back to Re McC (A Minor) [1985] AC 528and held that a court acts in excess of jurisdiction “in three circumstances only,”

The Court in Mooren v Germany (2010) 50 EHRR 23dealt with the lawfulness of a detention order and reviewed the European jurisprudence, it provides a useful guide to the relevant cases,

“72.

Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, inter alia, Erkalo v. the Netherlands, Steel and Others v. the UK, and Saadi v. the UK.. The Court must further ascertain in this connection whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein, notably the principle of legal certainty…

73.

Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with (see, inter alia, Benham v. UK).

74.

However, the Court has clarified, particularly in its more recent case-law, that not every fault discovered in a detention order renders the underlying detention as such unlawful for the purposes of Article 5 § 1. A period of detention is, in principle, “lawful” if it is based on a court order. A subsequent finding of a superior domestic court that a lower court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention (see, inter alia, Benham).

75.

In its more recent case-law, the Court, referring to a comparable distinction made under English law (compare Benham, and Lloyd and Others v.UK, …further specified the circumstances under which the detention remained lawful in the said underlying period for the purposes of Article 5 § 1: For the assessment of compliance with Article 5 § 1 of the Convention a basic distinction has to be made between ex facie invalid detention orders – for example, given by a court in excess of jurisdiction (see Marturana v. Italy or where the interested party did not have proper notice of the hearing (see Khudoyorov and Liu v. Russia,) – and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court (ibid.). A detention order must be considered as ex facie invalid if the flaw in the order amounted to a “gross and obvious irregularity” in the exceptional sense indicated by the Court's case-law (compare Liu, Garabayev v. Russia and Marturana). Accordingly, unless they constitute a gross and obvious irregularity, defects in a detention order may be remedied by the domestic appeal courts in the course of judicial review proceedings.

76.

The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied (see Baranowski Ječius and Khudoyorov. In laying down that any deprivation of liberty must be “lawful” and be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 does not merely refer back to domestic law; like the expressions “in accordance with the law” and “prescribed by law” in the second paragraphs of Articles 8 to 11, it also relates to the “quality of the law”, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. “Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur v. France, and Nasrulloyev).

77.

No detention which is arbitrary can be compatible with Article 5 § 1, the notion of “arbitrariness” in this context extending beyond the lack of conformity with national law. As a consequence, a deprivation of liberty which is lawful under domestic law can still be arbitrary and thus contrary to the Convention. While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. It is moreover clear from the case-law that the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved (see Saadi).

78.

One general principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (compare Bozano v. France and Saadi,) or where the domestic authorities neglected to attempt to apply the relevant legislation correctly (see Benham, Liu and Marturana).

79.

Furthermore, in the context of sub-paragraph (c) of Article 5 § 1, the reasoning of the decision ordering detention is a relevant factor in determining whether a person's detention must be considered as arbitrary. The Court has considered the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time to be incompatible with the principle of the protection from arbitrariness enshrined in Article 5 § 1 (see Stašaitis v. Lithuania, Nakhmanovich v. Russia, Belevitskiy v. Russia). Conversely, it has found that an applicant's detention could not be said to have been arbitrary if the domestic court gave certain grounds justifying the continued detention on remand (compare Khudoyorov,), unless the reasons given are extremely laconic and without reference to any legal provision which would have permitted the applicant's detention (compare Khudoyorov).”

In considering the test as identified by the Defendant, namely that the Claimant has to establish one of the four requirements;

The Claimant contends;

The Defendant contends;

There can be no doubt that the Crown Court had the jurisdiction to hear this case and to pass sentence, including an extended sentence under the CJA 2003. The fact that the sentence passed was outside the terms of the statute cannot deprive the Court of its jurisdiction. Particularly as, even on that argument, that jurisdiction must exist until the point at which an unlawful sentence is passed. The weakness in that submission is demonstrated by the fact that the Claimant’s contention means that an immediate appreciation and correction of the mistake would take the case back within the jurisdiction.

The passing of a sentence of imprisonment as a criminal penalty will justify detention unless and until that sentence is varied by the Court or quashed by the Court of Appeal. Such a quashing or variation does not, generally, even in the case of “unlawful” sentences retrospectively render them invalid. That principle is redefined in Bayliss v Parole Board. There may be decisions imposing custody which are based on such egregious flaws that the detention would be in breach of Article 5. A sentence passed in bad faith might be an example of that. All the jurisprudence, domestic and European, points directly to the proposition that a sentence passed in good faith, even if in error, does not, without more, amount to such a gross and obvious an error to meet the high threshold required. The distinction between an unlawful sentence, in the sense of outside the terms of the statute and one which is quashed because a judicial discretion was exercised in an unreasonable, and therefore unlawful, manner is not one enough to meet the requirements of being “gross and obvious”.

The principle is clear but the practical consequences are equally obvious. As the President observed in was unlawful at [42]

“Further, the implications of the submission are striking for I can see no basis for distinguishing this case from any other in which the Court of Appeal (Criminal Division) reduces a custodial sentence below that which the prisoner has then served: that is a greater risk when appeals are mounted out of time. If ....... is right, in every such case, a claim for damages for unlawful detention could arise. Such an outcome would be surprising and unsatisfactory.”

A sentence passed in excess of a statutory maximum term, without more, creates no greater liability under Art 5 than one passed in an unreasonable exercise of discretion. The right of appeal against an unlawful sentence is the remedy. The failure to identify the availability of such a right cannot be cured by a claim under the Convention, in these circumstances.

It is not enough to support an allegation that the Court has acted in an arbitrary fashion or that the detention imposed was arbitrary simply to identify the fact that the Court was in error. The Court in Benham looked at the detention to see if it was arbitrary; the test they applied was to see if the Magistrates had acted in bad faith or with no attempt to apply the law correctly. Again the fact that the Judge got the sentence wrong does not alone make the sentencing process or the consequent detention arbitrary.

There was no required statutory condition precedent to the imposition of a custodial sentence in this case. The Claimant was an adult, properly committed to the Crown Court and no other mandatory statutory requirement has been identified as having been omitted or breached in the original sentencing exercise.

HRA, s.7 (5) provides as follows:

“(5)

Proceedings under subsection (1)(a) must be brought before the end of —

(a)

the period of one year beginning with the date on which the act complained of took place; or

(b)

such longer period as the court....considers equitable having regard to all the circumstances…”

The imposition of the sentence in this case was either 23 April 2007 or 25 April 2007. Either the date of the original exercise or the subsequent variation. Given that these proceedings were not brought for six years, the precise date may not matter. The original claim was brought in the West London County Court on 23 December 2013. That was struck out. Given this is an action arising out of a claim against a judicial act it should have been brought in the High Court. That was done and this claim was issued on 6 March 2014.

The Claimant quite correctly observes that this court has a wide discretion in extending time. Time should be extended if it is equitable to do so.

The Claimant argues;

The Claimant in this case was represented by solicitors and counsel at the time of the original sentencing exercise. The appropriate remedy of an appeal to the Court of Appeal Criminal Division was available to him and should have been pursued within 28 days of the imposition of the original sentence. Even out of time, that court would have entertained and allowed the appeal, as it did on 14 January 2013. The mistake could have been remedied before the unlawful detention even began or at any point afterwards.

Those representing him should have been aware of the extent to which the sentence imposed was outside the statutory power of the Crown Court.

In any event this claim was initially brought in the wrong court and against the wrong Defendant.

The letter relied upon by the Claimant to raise the issue of estoppel has been misconstrued or misunderstood by the Claimant. It is clearly dealing with the position in relation to the “re-issued claim”. In other words no point will be taken on the delay occasioned by the re-starting of proceedings in the proper forum.

It follows that there would be prejudice to the Defendant in allowing this claim to proceed outside the limitation period. Had there been merit in the claim then that prejudice would not have outweighed the equity in allowing the claim to proceed so far out of time.

The sentence passed in this case was unlawful. The remedy lay in an appeal to the Court of Appeal Criminal Division within time, or in any event during the period of the sentence which the Claimant was bound to serve. The sentence was passed by a competent court, acting within its jurisdiction, within due procedure and without arbitrariness. The claim could not succeed.

In any event the claim is met by a defence under the limitation period. The claim fails.