Mr Justice Stanley Burnton:
- The Claimants are or were patients detained under powers conferred by the Mental Health Act 1983 ("the MHA"). They made applications to the Mental Health Review Tribunal for the review of their respective detentions. There were delays in the hearings of their applications. In R on the application of KB and ors v Mental Health Review Tribunal  EWHC 639 (Admin) ("the first judgment"), I held that their rights under Article 5.4 of the European Convention on Human Rights to speedy hearings of their applications had been infringed. I ordered that the issues between the Claimants and the Defendant as to whether the Claimants were entitled to awards of damages, and if so their amounts, should be determined at a later hearing.
- In R on the application of B v Mental Health Review Tribunal  EWHC 1553 (Admin), Scott Baker J, as he then was, held that the tribunal had failed to hear B's application speedily. He directed that the issues as to damages to which B might be entitled should be heard subsequently. B's damages claim was heard by me together with the claims of KB and others.
- The damages claims of all of the Claimants were heard by me between 2 and 5 December 2002. They raise issues of principle concerning awards of damages under the Human Rights Act 1998 ("the HRA"). As far as I am aware, this is only the second judgment on such issues: the other is that of Sullivan J in R (Bernard) v London Borough of Enfield  EWHC 2282 (Admin), the facts of which differ in important respects from the present cases. A number of other cases await the determination of the claims in the present cases.
- I consider the facts of each Claimant's case below. At this point it is sufficient to note that none of them makes a claim for pecuniary loss. The only claims of PD, KB and TB are for the frustration and distress they allege they suffered by reason of the delay to the hearings of their applications. LB, GM, JR and MK claim, in addition, that the breaches of Article 5.4 resulted in deprivation of their liberty and/or damage to their mental health. B's claim relates to his feelings of frustration and distress only, but Mr Bowen submitted on his behalf that an award of exemplary damages could and should be made.
- It was also submitted that even if a claimant could not establish that on a balance of probabilities he would have been discharged if there had been an earlier hearing of his application, damages could and should be awarded for his or her loss of the chance to be so discharged. If such damages may be awarded, the court would have to assess the percentage prospects of a tribunal having directed the discharge of a claimant at an earlier hearing and award as damages that percentage of the damages that would be awarded if it were established that there would have been a discharge from detention: c.f. Allied Maples Group v Simmons & Simmons  1 WLR 1602. Given that substantial damages should be awarded for loss of liberty, this approach could lead to relatively large awards of damages to those whose prospects of release were always low.
- This is my judgment on the damages issues.
The relevant provisions of the HRA
- Section 1 defines "Convention rights" as the rights and fundamental freedoms set out in, among others, Article 5 of the European Convention on Human Rights. Section 2 requires the court "determining a question which has arisen under this Act in connection with a Convention right" to "take into account" any judgment, decision, declaration or advisory opinion of the European Court of Human Rights and the other authorities listed in subsection (1).
- Section 6 renders it unlawful for a public authority to act in a way that is incompatible with a Convention right. This court, as well as the Mental Health Review Tribunals, are public authorities within the meaning of the Act.
- Section 7 confines claims against public authorities for acts alleged to be incompatible with their Convention rights to the victims of the unlawful acts concerned. It is not disputed that the Claimants are victims within the meaning of section 7.
- Section 8, headed "Judicial remedies", is as follows:
"(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.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and 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.
(4) In determining whether to award damages, or 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.
(6) In this section—
"court" includes a tribunal;
"damages" means damages for an unlawful act of a public authority; and
"unlawful" means unlawful under section 6(1)."
- Section 9(3) provides:
"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."
Counsel for the Claimants accepted that "act" in section 9(3) includes omission, that the Mental Health Review Tribunal is a judicial body for these purposes, and that none of the acts or omissions of the tribunals in the present cases was done otherwise than in good faith,. The present claims all arise from acts or omissions of the tribunal. Article 5.5 is therefore central to their claims.
- The relevant provisions of Article 5 are as follows:
"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:
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
5.4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5.5 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."
- It was not suggested that Article 5.5 is limited to cases where there has been wrongful arrest or wrongful detention, in other words to cases where the victim has been unlawfully deprived of his liberty. It was common ground that it applies to a claim for breach of Article 5.4 even though the delay in obtaining a decision of a court did not prolong the victim's detention.
- Some of the authorities to which I was referred concerned the analogous rights under Article 6.1 of a defendant in criminal proceedings and of the parties to civil proceedings to "a fair and public hearing within a reasonable time".
- Article 13 provides:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
Article 13 has not been incorporated into English law by the HRA.
- Article 41 of the Convention (previously numbered 50) provides:
"If the Court (i.e., the European Court of Human Rights) finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
Article 41 is not one of the Articles listed in section 1 of the HRA, doubtless because it is inapplicable directly to a national court. "Reparation" in this context means restitution for injury: the French text is: "… si le droit interne de la Haute Partie contractante ne permet d'effacer qu'imparfaitement les conséquences de cette violation …" It is common ground that the European Court of Human Rights applies Article 41 in cases in which national law allows no reparation at all, as well as where national reparation is only partial. There is no formal definition of "just satisfaction", but it is clear from the jurisprudence of the European Court that a finding of the infringement of a Convention right can, in certain circumstances, constitute just satisfaction. One of the principal questions before me is: what are those circumstances, and are they found in any of the cases before me?
The issues of principle in summary
- The principal issues of principle raised on behalf of the parties were the following:
(a) To what extent must the High Court follow the rules applied by the European Court of Human Rights in awarding damages?
(b) Given there has been a breach of the Claimants' rights under Article 5, are awards of damages obligatory in order to give them "just satisfaction" within the meaning of section 8 or by reason of section 9(3) and Article 5.5?
(c) Are feelings of frustration and distress occasioned by delay in tribunal hearings recognised by the European Court as justifying awards of damages?
(d) Is there power to award exemplary damages in an appropriate case?
(e) Should the measure of damages be a European measure or should an English and Welsh domestic measure should be applied?
(f) If a domestic measure of damages is applicable, should awards be modest and lower than in comparable English tort cases (to the extent to which sensible comparisons are available).
(g) What is the relevant period in respect of which damages are to be awarded?
(h) Where there is a real possibility that a hearing within the time required by Article 5.4 would have resulted in a discharge of a Claimant from detention, and damages are claimed for loss of liberty, are damages to be assessed on the basis of loss of a chance, or must the Claimant establish on a balance of probabilities that he would have been discharged?
(i) Apart from any considered under the above heads, are there any special principles applicable to mental health cases?
- I had before me a spectrum of submissions. In general, Mr Bowen's were at one end, and Mr Sales' and Miss Laing's at the other; Mr Gledhill's and Mr Mullins' tended to be between these extremes. Mr Bowen submitted:
(a) An award of damages is compulsory: a declaration that a claimant has been the victim of a violation of his rights under Article 5.4 can never be an adequate remedy.
(b) The award of damages should be substantial.
(c) Exemplary damages may be awarded, and should be in the case of B.
(d) The period in respect of which damages should be awarded is (in order of preference) the period between the detention of the claimant and the date of the tribunal's decision, or the period between the making of the application to the tribunal and its decision, or from the date required by rule 31 (relating to patients detained under section 2) or by rule 29(cc) of the Mental Health Review Tribunal Rules (in the case of a restricted patient who has been recalled following a conditional discharge) or the period from the date 8 weeks after the making of the application to the date of the tribunal's decision.
- Mr Gledhill and Mr Mullins allied themselves with Mr Bowen's submissions with varying degrees of enthusiasm. Their primary submissions were less extreme, and I shall mention them in their context where necessary. Mr Sales disputed each of Mr Bowen's submissions. As to the period to which an award of damages should relate, Mr Sales submitted that it was the period between the date when a hearing complying with Article 5.4 should have taken place and the date of the actual hearing. This too was Mr Gledhill's and Mr Mullins' primary submission.
- Before addressing these issues, it is convenient to set out the principles for the award of damages under the HRA suggested by Lord Woolf LCJ in his contribution to Liber Amicorum Slynn, published in 2000, before the coming into force of the Act, on which I shall have to comment:
"Turning to possible principles, the first principle could well be that if there is any other appropriate remedy in addition to damages, that other remedy should usually be granted initially and damages should only be granted if and to the extent that an additional award of damages is necessary to afford just satisfaction. This principle appears to accord with the approach envisaged by section 8 itself. In many cases what will be primarily required is an order which will result in the decision being taken again or an injunction to restrain the unlawful conduct or a declaration to establish the unlawfulness of that conduct. There should be no automatic right to compensation.
The second principle may be that the court should not award exemplary or aggravated damages. This does not mean there should be no award for anxiety, distress, injured feelings or other forms of non-pecuniary loss.
The third principle may be that an award should be of no greater sum than that necessary to achieve just satisfaction. If a public authority is required to take a decision again it may be necessary to adjourn the question of damages until it is known what the new decision is. If, for example, a retrial is necessary of a criminal offence the decision as to whether to make an award of damages could well depend on the outcome of the retrial.
The fourth principle may be that quantum of the award should be moderate. Certainly, the award should not exceed analogous awards made in the case of tortious claims and normally they should be on the low side by comparison to tortious awards.
The fifth principle may be that the court should restrict the award to compensating the victim for what has happened so far as the unlawful conduct exceeds what could lawfully happen. If for example there is a complaint of a failure under Article 6 to provide a public hearing within a reasonable time, the compensation will be limited so that it only applies to the period which exceeds what is reasonable.
The sixth principle is likely to be that any failure of the claimant to take action promptly to remedy or avoid the situation of which complaint is made will reduce the amount of damages payable.
The seventh principle is that there is no reason to distinguish between pecuniary and non-pecuniary loss. What matters is that the loss complained of should be real loss clearly caused by conduct which is contrary to the Act and not whether it is pecuniary loss.
The eighth principle is that our domestic rules as to costs will probably cover any costs or expenses incurred by the complainant."
The relevance of the jurisprudence of the European Court
- No one submitted that the decisions of the European Court are binding on an English court. Sections 2 and 9 require them, or the principles applied by the Court, to be "taken into account". Lord Slynn of Hadley said in Alconbury  UKHL 23,  2 WLR 1389, at paragraph 26 of his speech:
"Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence."
- There is a subtle and possibly significant difference between the wording of section 2(1) and that of section 8(4). The former requires the Court to take into account any judgment, decision etc. of the European Court; the latter requires the court to take into account "the principles applied" by the European Court. The significance of this difference is not obvious, and counsel for the Claimants understandably made no submission on it. The only possible significance I can see is that Parliament may have wanted the UK court to have somewhat greater freedom in relation to decisions of the European Court on the amount of damages awarded in particular cases, quantum normally being a matter for the forum. This view is consistent with that expressed by the Law Commission in paragraph 4.11 of its Report on Damages under the HRA (Cm 4853) of October 2000:
"Therefore, at least where the normal rules of domestic law are consistent with the results which would be reached by the Strasbourg Court, and with the terms of the HRA, the obligation of the domestic courts to have regard to Strasbourg "principles" should lead to little difficulty in practice and should leave the domestic courts reasonably free to follow their existing practices as to the evidence, calculation and the measure of damages in individual cases."
- There is, however, a real difficulty that must be mentioned at this point. It is common ground that in considering the award of damages the European Court applies the principle of restitutio in integrum, a principle also generally applied by common law courts. In Kingsley v UK (2002) 35 EHRR 10 the Court expressed the principle as follows:
"40. The Court recalls that it is well established that the principle underlying the provision of just satisfaction for a breach of Article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements (Piersack v. Belgium (Article 50) judgment of 26 October 1984, Series A no. 85, § 12). The Court will award monetary compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found (see the authorities cited in paragraph 43 below), since the State cannot be required to pay damages in respect of losses for which it is not responsible."
While this statement related to breach of Article 6, there is no doubt that the same principle applies to breach of Article 5.
- The European Court places the burden on the applicant to prove his damage, unless it finds that damage was a necessary consequence of the breach. If damages are awarded, they will take account of any conduct of the applicant that contributed to his damage or injury (as in Johnson v UK (1999) 27 EHRR 440 and DG v Ireland (2002) 35 EHRR 33). In such cases, the injury or damage or its aggravation resulting from the applicant's own conduct is not regarded as a consequence of the respondent state's infringement of his Convention right. Beyond these basic principles, however, with some exceptions it is impossible to identify a relevant set of principles consistently applied by the European Court when considering awards of damages:
"It is rare to find a reasoned decision articulating principles on which a remedy is afforded. One former judge of the ECHR privately states: 'We have no principles'. Another judge responds, 'We have principles, we just do not apply them'. (Dinah Shelton, Remedies in International Human Rights Law (OUP 1999 p.1, cited in the Law Commission Report 266 Damages under the Human Rights Act 1998 para. 3.12)."
See too paragraph 3.13 of the Law Commission's Report, and Scorey and Eicke, Human Rights Damages (2002) at A2-002. The Law Commission Report provides a very helpful summary of the jurisprudence of the European Court and the inconsistencies between its judgments.
- The Court tends to award global sums on an "equitable" basis, and its judgments do not analyse the basis of calculation (often not identifying the period of delay which is the basis of the claim) or give a breakdown between different items of damages. They may even not distinguish between damages and the costs and the expenses of the proceedings (as in Van der Leer, referred to below). These characteristics render it difficult to identify more than very general principles. It may be understandable that a court of so many members from different legal backgrounds should express its conclusions on damages in such general terms. Our own jurisprudence and legal culture require a more analytical approach.
Is an award of damages compulsory?
- Parliament provided, in section 8(3) of the HRA, that awards of damages should not be made in every case in which there has been a breach of a Convention right, but only where the court is satisfied that such an award is "necessary". It thus envisaged that there would be cases of breach where an award of damages would not be necessary. However, the Claimants submitted that special considerations apply to breach of Article 5. Their counsel submitted that Article 5.5 creates an enforceable right to compensation that the High Court, as a public authority, must enforce. Accordingly, even if a patient suffers no discernible injury or damage or distress as a result of a breach of Article 5.4, an award of damages must be made. They distinguished the obligation of the State under Article 5.5 with that of the European Court under Article 41, which arises only in the event of a failure by the national authorities to meet their obligations under the Convention. As many of its judgments recognise, when considering the exercise of its powers under Article 41, the European Court may conclude that a declaration of the infringement of a Convention right is sufficient to afford just satisfaction, so that it is not "necessary" to award damages in addition. It was submitted that such an option is not open to a national court.
- Mr Sales submitted that Article 5.5 requires that there should be an enforceable right to compensation, but not that compensation should necessarily be awarded. There may be a right to compensation even if a particular claimant whose rights have been infringed has suffered no or no sufficient loss and therefore does not satisfy the requirements for its award. Article 5.5, he submitted, must be read consistently with Article 41: it would be anomalous if the rights conferred by Article 41 should be less than those created by Convention articles that are directly enforceable within member states.
- Apart from authority, I should unhesitatingly accept Mr Sales' submission. The Convention must be read and interpreted as a whole. The purpose of Article 41 is to enable the European Court to give reparation where no, or only partial, reparation is available from the national authority. In effect, Article 41 enables the Court to act as guarantor of the compliance by national authorities with their Convention obligation to make full reparation where that is necessary to give just satisfaction to a victim of an infringement of a Convention right. It follows that where the national court is able to award full reparation one would expect the power of the European Court under Article 41 to be co-extensive with the power and duty of the national court. It would be anomalous if the national court were required by the Convention to award damages in cases in which the European Court, under Article 41, is not. Since it is accepted that in exercising its powers under Article 41 the European Court may decline to award damages, on the basis that a finding that there has been an infringement of a Convention right is sufficient and just satisfaction, national courts must have the same power. Since the European Court has so declined in cases in which it has found infringements of Article 5, it must follow that Article 5.5 does not compel the award of damages in every case. Put more shortly, if Article 5.5 required an award of damages for any substantive breach of the preceding provisions of Article 5, the European Court could not have concluded in such cases that anything less than an award of damages could constitute "just satisfaction".
- Mr Bowen submitted that there is a contrast between the discretionary power of the Court under Article 41 with the mandatory requirement of Article 5.5. This submission involves a misreading of Article 41. In my judgment, Article 41 requires the European Court to award reparation if the internal law in question does not provide for full reparation, if the claimant has suffered damage beyond that which can be fully compensated under that internal law. If he has suffered no such damage, it will not be "necessary" to award damages under Article 41 in order to afford just satisfaction.
- Furthermore, this is clearly how Parliament construed the Convention when it enacted the HRA. In referring in section 8(3) to "just satisfaction", it impliedly referred to Article 41, and it expressly referred to it in section 8(4). It follows from section 8(3) that there may be findings of infringement of Convention rights without a consequential award of damages. The reference in section 8(4) to "the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention" would be inexplicable if those principles were inapplicable to awards of damages by the High Court. It is not easy to see that the High Court can take those principles into account, as required by the Act, if it treats them as inapplicable to its decisions.
- Mr Bowen submitted that if damages under Article 5.5 and under Article 41 are in principle identical, it was unnecessary for Parliament to incorporate Article 5.5. I do not accept this submission, particularly given the specific reference to Article 5.5 in section 9, which rendered the incorporation of the former inevitable.
- The jurisprudence of the European Court and of the Commission is consistent with this approach. The statement of the basic principles in Wassink v The Netherlands  ECHR 1253/86 is helpful:
"36. The applicant alleged a violation of Article 5 § 5, according to which:
'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 his opinion, the sole provision of Netherlands law which he could have relied on in order to obtain compensation, Article 1401 of the Civil Code, only applied where damage could be shown. In this case, the existence of damage would have been almost impossible to prove because it could not be affirmed with absolute certainty that proceedings conducted in conformity with Article 5 of the Convention would have led to the desired result.
37. Unlike the Commission, the Government did not subscribe to this view. They considered that the right to compensation guaranteed in paragraph 5 of Article 5 was restricted to persons who had sustained damage, whether pecuniary or non-pecuniary, on account of the violation of another of the paragraphs of the Article; this was clear, in particular, from the use of the word 'victim'. Article 1401 of the Civil Code was therefore fully consistent with the Convention.
38. In the Court's view, paragraph 5 of Article 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. It does not prohibit the Contracting States from making the award of compensation dependent upon the ability of the person concerned to show damage resulting from the breach. In the context of Article 5 § 5, as for that of Article 25 (see, inter alia, the Huvig judgment of 24 April 1990, Series A no. 176-B, pp. 56-57, § 35), the status of 'victim' may exist even where there is no damage, but there can be no question of 'compensation' where there is no pecuniary or non-pecuniary damage to compensate.
More generally, the evidence provided to the Court does not lead to the conclusion that an action based on Article 1401 of the Netherlands Civil Code would have failed to satisfy the requirements of Article 5 § 5 of the Convention. This finding is without prejudice to the Court's competence under article 50 in the matter of awarding compensation by way of just satisfaction (see the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 35, § 67)."
- On this basis, the award of damages under Article 5.5 depends on there being proof of damage. Damage may be pecuniary or non-pecuniary. In respect of the latter, there are, as Counsel for the Claimants candidly pointed out, two lines of European authority. In some cases, feelings of distress and frustration have been considered insufficient to amount to compensatable damage; in others such feelings have been treated as requiring an award of damages, even where they have not been specifically proved. Of the former, the clearest example is the judgment of the majority of the Court in Nikolova v Bulgaria  EHRR 3:
"74. The applicant claimed US$15,000 in respect of the violations of Article 5 of the Convention and US$5,000 in respect of the alleged violation of Article 13.
75. The Government submitted that the claims were excessive and referred to the Assenov and Others judgment where the Court awarded approximately the equivalent of US$3,500. The Government insisted that the standard of living and the average income in Bulgaria where a District Court Judge earns the equivalent of about US$140 per month, should be borne in mind. The Delegate of the Commission considered that the finding of a violation could not constitute sufficient just satisfaction and invited the Court to award an equitable amount.
76. The Court recalls that in certain cases which concerned violations of Article 5(3) and (4) it has granted claims for relatively small amounts in respect of non-pecuniary damage. However, in more recent cases concerning violations of either or both paragraphs 3 and 4 of Article 5, the Court has declined to accept such claims. In some of these judgments the Court noted that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of Article 5(3) and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered.
In the present case the Court see no reason to depart from the above case law. The Court cannot speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention. As to the alleged frustration suffered by her on account of the absence of adequate procedural guarantees during her detention, the Court finds that in the particular circumstances of the case the finding of a violation is sufficient."
- The Court used the same formula in Niedbala v Poland (2001) EHRR 48, at paragraph 88 of its judgment. Both Nikolova and Niedbala are relatively recent authorities. In the earlier case of Fox, Campbell and Hartley v UK (1990) 13 EHRR 157 (merits), (1991) 14 EHRR 108 (Article 50) the Court refused to award damages for non-pecuniary loss although the applicants had been detained in contravention of Article 5.1: i.e., they were refused damages for the deprivation of their liberty, even though:
"The Court does not rule out that the applicants may have suffered some non-pecuniary injury as a result of the breaches of Article 5."
Thus this judgment is authority for the proposition that there may be just satisfaction even though there may be uncompensated injury.
- The Nikolova formula was most recently used by the Court in Migon v Poland (App. no. 24244/94), in which judgment was given on 25 June 2002 by a panel of whom the chairman was Sir Nicholas Bratza. The Court held that there had been a breach of Article 5. On the issue of damages, it stated:
"91. As regards the claim for the alleged damage suffered as a result of the violation of art 5(4) of the Convention, the Court recalls that in certain cases which concerned violations of art 5(3) and (4) it has made modest awards in respect of non-pecuniary damage (see Van Droogenbroeck v Belgium (art 50)  ECHR 7906/77 at para 13, and De Jong, Baljet and Van den Brink v Netherlands  ECHR 8805/79 at para 65). However, in more recent cases, it has declined to make any such award (see Pauwels v Belgium  ECHR 10208/82 at para 46; Brogan and Others v UK (art 50)  ECHR 11209/84 at para 9; Huber v Switzerland  ECHR 12794/87 at para 46; Toth v Austria  ECHR 11894/85 at para 91; Kampanis v Greece at  ECHR 17977/91 at para 66; Hood v UK  ECHR 27267/95 at paras 84-87; and Nikolova v Bulgaria  ECHR 31195/96 at para 76; Niedbala v Poland  ECHR 27915/95 at para 89). In certain of these judgments, for instance in the cases of Hood, Huber, Niedbala v Poland  ECHR 27915/95 and Nikolova v Bulgaria  ECHR 31195/96 the Court stated that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the procedural guarantees of art 5 of the Convention and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered.
92. In the present case, the Court cannot speculate as to whether the applicant would have been detained if the procedural guarantees of art 5(4) of the Convention had been respected in his case. Consequently, the Court considers that the non-pecuniary damage claimed is adequately compensated by the finding of a violation of this provision."
- I read this as holding that damages for distress cannot be recovered in the absence of a finding of unlawful detention: a proposition which goes beyond the submissions of the Secretary of State before me. These cases justify the Law Commission's statement, at paragraph 3.41 of their Report:
"This passage seems to confirm that the Court will not make awards of damages to reflect the mere fact of a violation. Indeed, it suggests that, in the current practice of the Court, at least under Article 5, awards for non-pecuniary loss of any kind are likely to be the exception, not the rule.
But the Commission correctly added:
However, even in the short period since Nikolova the Court's practice not been wholly consistent, and it is possible that this issue will be subject to further consideration by the Court."
- In other recent decisions the Court has awarded damages where the only claim relates to frustration and distress: see Delbec v France (18 June 2002, App no. 43125/98), LR v France (27 June 2002, App no 33395/96), DM v France (27 June 2002, 00041376/98) and Laidin v France (5 November 2002, 43191/98) (all Article 5.4 mental health cases); and c.f. the very recent judgments in Waite v UK (53236/99, 10 December 2002), in the Article 6 case Mitchell and Holloway v UK (44808/98, 17 December 2002) and most recently Kubiszyn v Poland (App. No. 37437/97, judgment 30 January 2003) (EUR 3750 awarded for distress and frustration caused by breach of Article 6.1 where divorce and custody proceedings, including appeals, began in June 1994 and ended in January 2001, which included over 3 years of inactivity attributable to the state). Parenthetically, it is not obvious what "feelings of frustration, uncertainty and anxiety" were suffered by the applicant in Waite as a result of the breach of Article 5.4, since the only breach found concerned the procedure adopted by the Parole Board. I do not think that this line of authority can be reconciled with the cases in which Nikolova has been followed. My impression is that the Delbec line of cases exceeds in number the Nikolova line of authority.
- Mr Sales placed particular reliance on the judgment of the full chamber of the European Court of Human Rights in Kingsley v UK, referred to above. The applicant claimed that a decision of the Gaming Board to revoke certificates of consent to his operation of gaming casinos had been made in breach of his rights under Article 6.1 on the ground that the Board was not an independent and impartial tribunal. The Court upheld his claim that his Article 6 rights had been violated, in that the Board did not have the necessary appearance of impartiality. There was no evidence that the substantive decision of the Board had been incorrect. The UK Government pointed out that the applicant had not adduced any independent evidence to suggest that the stress he suffered as a result of the proceedings before the Board (and presumably the ensuing judicial review proceedings) was unusual or was specifically caused by the breach of Article 6.1 rather than by the revocation of his certificate. The Court concluded:
"43. In all the circumstances, and in accordance with its normal practice, in civil and criminal cases, as regards violations of Article 6 § 1 caused by failures of objective or structural independence and impartiality, the Court does not consider it appropriate to award monetary compensation to the applicant in respect of loss of procedural opportunity or any distress, loss or damage allegedly flowing from the outcome of the domestic proceedings. …."
While this statement provides support for Mr Sales' submission that the Court does not award damages for loss of procedural opportunity, it is of no assistance on the issue whether in cases such as the present damages should be awarded for distress. The Court was careful to limit the scope of its statement to breaches of Article 6.1 caused by "failures of objective or structural independence and impartiality". The Government had expressly distinguished such cases from cases in which the complaint was of delay in proceedings:
The Government suggested that the cases in which the Court had awarded compensation for undue length of proceedings could be distinguished from cases such as the applicant's by reason of the exacerbation of stress suffered by parties to litigation which continues for an unreasonably long period, together with the need to provide a financial disincentive to States tempted to under-fund their domestic legal systems."
This reference is perhaps made more pertinent by the fact that Mr Sales was the author of the UK Government's submissions to the Court.
- It is apparent that the Court may infer that there was sufficient non-pecuniary damage without medical evidence. For example, in Van der Leer v Netherlands  12 EHRR 567, the Court awarded damages because:
"42. In the Court's view, the applicant must have suffered some non-pecuniary injury. The fact that she was not heard by the Cantonal Court Judge could have led to a feeling of frustration, to which was added the fear of being sent back to the hospital during the delay resulting from the failure to take the relevant decision 'speedily'.
Making an equitable assessment in accordance with Article 50, the Court awards the applicant, in respect of all the heads of claim, the overall amount of Fl. 15,000 proposed by the Government."
In that case, however, the Court awarded the very sum offered by the Netherlands Government.
- The objections to the "finding of breach is just satisfaction" principle are cogent. In Engel and others v The Netherlands (no. 2) 1 EHRR 524, paragraph 46, Judges Ganshof, Van Der Meersch and Evrigenis said:
"It seems difficult to accept the proposition that the finding by the Court of a breach of the substantive provisions of the Convention, whilst constituting a condition for the application of Article 50 [now Article 41], can at the same time be the consequence in law following from that same proposition."
See too the critique of this "hapless formula" and the failure of the Court to support it with reasons in the dissenting judgment of Judge Bonello in TW v Malta: Aquilina v Malta (2000) 29 EHRR 185:
"I consider it wholly inadequate and unacceptable that a Court of Justice should satisfy the victim of a breach of fundamental rights with a mere handout of legal idiom…"
- I conclude that there is no "clear and constant jurisprudence" of the European Court on the recoverability of damages for distress under Article 5.5 in the absence of a deprivation of liberty. There are two principles applied by the Court: that damages are not recoverable in the absence of a deprivation of liberty, and that damages are recoverable for distress which may be inferred from the facts of the case. It follows that this Court must itself determine the principles it is to apply.
- As stated above, Parliament has in effect enacted in section 8(3) that in some circumstances an award of damages is unnecessary, and I therefore consider that I should accept that principle, particularly since it was accepted by Sullivan J in Bernard: see paragraph 39 of the judgment. So far as damages for distress are concerned, in my judgment the basic principle is that set out in paragraph 73 below.
A European measure of damages or a UK measure?
- The European Court purports to apply a European measure of damages to cases coming before it, rather than the measure of damages that would be applied by the national court. In Osman v UK (1998) 29 EHRR 245, the Court stated:
"164. The Court notes that it conducts its assessment of what an applicant is entitled to by way of just satisfaction in accordance with the principles laid down in its own case law under Article 50 and not by reference to the principles or scales of assessment used by domestic courts. The applicants accept this to be the case. The Court does not consider it necessary therefore to answer the Government's objections to the admissibility of its supplementary submissions.
In any event, the Court cannot speculate as to the outcome of the domestic proceedings had the applicants' statement of claim not been struck out. It considers nevertheless that the applicants were denied the opportunity to obtain a ruling on the merits of their claim for damages against the police. Deciding on an equitable basis it awards each of the applicants the sum of £10,000."
This passage is relied upon by the Secretary of State in support of the submission that this court should apply a European measure of damages. Parenthetically, it is inconsistent with his submission that there should be no award of damages for loss of opportunity.
- In Curley v UK (2000) 31 EHRR 14, which is similarly relied upon by the Secretary of State, the applicant, a convicted murderer serving a life sentence whose tariff had expired, complained that he had not been able to take proceedings to decide the lawfulness of his continued detention as required by Article 5.4, because the decision as to his continued detention was made by the Home Secretary. He made no complaint that his detention had been contrary to Article 5.1. The Court dealt with the claim for damages as follows:
"44. The applicant claimed that he should be compensated for the loss of liberty resulting from the failure to introduce a proper system of review, and also for the absence of any enforceable right to compensation in the domestic courts. He submitted that domestic scales of compensation relative to unlawful detention should apply, otherwise the Government would profit from the breach of Article 5(5). He claimed that this should be calculated either from the first recommended date of release given by the Parole Board – as of August 1996 – or from the second recommendation for release on 14 February 1997, and amounted to £50,000 or £25,000 respectively.
45. The Government disputed that domestic scales were applicable in this context and referred to the Court's approach in previous cases in reaching its own assessment of the proper level of just satisfaction.
46. The Court observes that in this case the Parole Board twice recommended the applicant's release, setting a provisional release date for August 1996 and following an oral hearing on 7 February 1997. It also notes the length of time – 10 years – during which the applicant did not receive a review by a body complying with the requirements of Article 5(4) of the Convention. In these circumstances, it considers that the applicant must have suffered feelings of frustration, uncertainty and anxiety which cannot be compensated solely by the findings of violations. It does not, however, consider that the domestic scales of compensation applicable to unlawful detention apply in the present case where there has been no equivalent finding of unlawfulness. Making an assessment on an equitable basis, it awards £1,500 for non-pecuniary damage."
- On the other hand, governments of states with low costs (and standards) of living ask the court to take that into account when assessing damages. Scorey and Eicke state, at paragraph A4-053:
"(2) This inconsistency is exacerbated by the fact that the quantum of awards made by the European Court of Human Rights undoubtedly take into account the Contracting State in which the recipient is domiciled. An award of a certain amount to a victim in one Contracting State may be an insignificant amount to a victim in a more affluent, alternatively, inflation plagued Contracting State and yet a small fortune to a victim in a poorer and less developed Contracting State. A certain uplift may therefore have to be applied to victims in certain Contracting States to give them any real value in the United Kingdom."
However, no authority is cited for this statement.
- The award of £1,500 in Curley for 10 years of "frustration, uncertainty and anxiety" is modest in the extreme. I do not think that the judgment in that case bears the interpretation placed on it by the Secretary of State for Health: indeed, on one view it is unhelpful to him. The Court was saying no more than that where there has been no finding by the domestic court of unlawful detention, the domestic scale of damages for unlawful detention is inapplicable. One might read the judgment as suggesting that if there had been such a finding, the domestic scale of damages might have been applicable. Osman is more helpful to the Secretary of State for Health, but apart from the fact that the point was not argued, I do not read the judgment of the European Court as suggesting that a national court should necessarily apply the same scales of assessment as it does.
- While I do not find the answer to this issue entirely easy, it seems to me that the overriding object of an award of damages is to compensate the claimant for his injury. Compensation that might be adequate in one country, with a low cost of living, might well be inadequate in the UK; conversely, it is possible that compensation that would be no more than adequate in another country might be excessive in UK social and economic conditions. It is understandable that the European Court should apply a constant scale of damages to all cases that come before it. The English court should take account of the scale of damages awarded by the European Court, but should be free to depart from it in order to award adequate, but not excessive, compensation in UK terms.
The general level of damages
- Counsel for the Claimants accepted that awards of damages should be "modest", but they took issue with Lord Woolf's fourth principle, to the extent that he opined that normally damages under the HRA should be on the low side by comparison to tortious awards. Rather, they submitted that awards "should not be out of proportion to the general level of damages awarded by domestic courts for other wrongs". They suggested that awards should be sufficiently high to reflect "the fundamental nature of the right under Article 5.4 breached and demonstrate the seriousness with which the Court views breaches of this right", and should "Take into account the wider circumstances of the breach including their systemic and long term nature". It was submitted that the State should not be able to calculate that it would be cheaper to pay damages than to prevent the breach of Convention rights – a submission which echoed that of the UK Government in Kingsley.
- The Secretary of State agreed that if awards of damages were appropriate, they should be modest. Otherwise, not surprisingly, the submissions on his behalf were to the contrary effect. Mr Sales submitted that the court should bear in mind that there are competing interests pursuing limited resources: the interests of individual Claimants in receiving damages and the interest of the wider community in ensuring that public money is spent on improving services. In response, counsel for the Claimants pointed out that there was no evidence that a reduction in damages would increase expenditure on services.
- I do not think that either of these rival approaches is correct. The object of an award of damages under Article 5.5 is to provide compensation for injury: no more, no less. Parliament requires the court to make an award of damages under Article 5.5 where that is required by the Convention. It must be taken to have provided the resources to meet such awards. Conversely, it is in general not the function of an award of damages to mark the court's disapproval of the conduct complained of, or to compel future compliance with the Convention, or to reflect the importance of the right infringed. It is true that one can see in certain decisions of the European Court a tendency to award greater damages where it disapproves of the conduct of the state in question, or where there have been repeated infringements of Convention rights: see paragraph 4.44 of the Law Commission report. However, this tendency is not expressly reflected in any principle applied by the Court. In any event it may be that it can be accommodated by the latitude (or "margin of discretion") available to the court in awarding damages for non-pecuniary loss, or even, in an exceptional case of deliberate or persistent infringement, by an award of aggravated damages, which in principle are compensatory rather than penal: see Thompson v. Commissioner of Police of the Metropolis (C.A.)  QB 498, 516.
- This approach is consistent with that of May LJ in Alexander v Home Office  1 WLR 968, 975, dealing with damages for unlawful racial discrimination, referred to by Sullivan J in Bernard at paragraph 57:
"As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards."
- In Bernard, Sullivan J sought guidance from English authorities on damages in analogous cases. In other words, he did not adopt Lord Woolf's suggestion that damages under the HRA should be lower than tort damages. The Law Commission too were unhappy about this aspect of Lord Woolf's fourth principle: see paragraph 4.61 of their report, cited by Sullivan J in Bernard at paragraph 44, on the basis that it involved a departure from the principle of full reparation for damage suffered.
- On this issue, I respectfully agree with the approach of the Law Commission and Sullivan J. I see no justification for an award of damages being lower under the HRA than it would be for a comparable tort. For example, the tort of false imprisonment, if committed by a public authority, will normally, if not invariably, coincide with infringement of Article 5.1. I see no reason why there should be any difference between the measure of damages for the wrongful detention of an individual under the two causes of action: in both cases, the object of the award is to compensate the individual for the same wrongful detention. (Whether the heads of recoverable consequential damage under the two heads are identical [for example, whether damages for injury to reputation are recoverable] is a different question, which I need not consider.)
- In the present cases, there is no comparable tort or other wrong under purely English law. Nonetheless, in my judgment damages awarded should so far as possible reflect the English level of damages. The decision in Bernard is instructive. The defendants' breach of the claimants' Article 8 rights involved the claimants living in deplorable conditions for a period of about 20 months. The total sum awarded was £10,000, divided between the claimants as £8,000 for the severely disabled wife and £2,000 for her carer husband. The injury so compensated was far greater than those suffered by any of the Claimants in the present case. There was no criticism of the decision in Bernard before me, and I shall therefore seek to determine awards of damages that are compatible with the decision in that case.
- In addition, in the cases in which the unnecessary prolongation of detention is an issue, I derived considerable assistance from the decision of the Court of Appeal on damages in R v Governor of Brockhill Prison, ex parte Evans (No. 2)  QB 1043, to which Mr Gledhill and Mr Mullins helpfully drew my attention. That case concerned the wholly innocent but unlawful detention of the claimant as a result of the miscalculation of the date for his release from his prison sentence. The period of wrongful imprisonment was 59 days. The trial judge had awarded damages of £2,000. The Court of Appeal increased this to £5,000. Lord Woolf said, at 1059-60, in a passage with which the other members of the Court were in agreement:
"In awarding £2,000 Collins J. pointed out that there is singularly little help to be obtained from the authorities as to the correct amount to award in these circumstances. It is accepted by the appellant that this is not a case for an award of aggravated or exemplary damages. Nor are we concerned with special damages. The judge accepted a submission on behalf of the governor that there can be two elements to an award of damages for false imprisonment; the first being compensation for loss of liberty and the second being the damage to reputation, humiliation, shock, injury to feelings and so on which can result from the loss of liberty. In this case the second element is absent.The judge was referred to two cases: Lunt v. Liverpool City Justices (unreported), 5 March 1991; Court of Appeal (Civil Division) Transcript No. 158 of 1991 and Thompson v. Commissioner of Police of the Metropolis  QB 498. In the former case the Court of Appeal increased an award of £13,500 to £25,000 for a period of 42 days' false imprisonment in respect of an alleged default in the payment of rates. While there is nothing significant about the circumstances in which the appellant lost his liberty in that case, the facts are very different from here. In Lunt's case the court was concerned with someone of good reputation and none of the imprisonment was justified. The experience was described by Bingham L.J. as "horrific" to a person of previous good character. The situation is also different from those considered by this court in Thompson's case. As a result of the period she was lawfully imprisoned, the appellant would have already made the necessary adjustments to serving a prison sentence. She was someone who had been properly sentenced to a term of two years' imprisonment for serious criminal offending and, until the court gave its decision in Reg. v. Secretary of State for the Home Department, Ex parte Naughton  1 WLR 118, she had no reason to think that she was not perfectly properly incarcerated. Collins J. declined to propose an amount for each extra day imprisoned. He considered that a global approach was correct. He was right in doing so. Mr. Emmerson none the less pointed out that the sum of £2,000 was the "equivalent of less than £35 per day" and was even lower than the daily figure contended for by the governor. He suggested that, as a guide for other cases, it would be useful for the court to indicate a daily or weekly amount so as to provide a guide for the many other cases which will also result from the Divisional Court's and our decisions in this case. We accept that an award of £2,000 is well below the appropriate figure for 59 extra days of imprisonment. We increase the award to £5,000. This is a global figure. We recognise that it is possible to work out a daily, weekly or monthly figure from this amount for the approximately two months' extra imprisonment of this case but we discourage such an exercise. No two cases are the same. The shorter the period the larger can be the pro rata rate. The longer the period the lower the pro rata rate. The length of sentence lawfully imposed is clearly similarly significant. The fact that the appellant was prepared to risk postponing her release date by committing disciplinary offences while in prison is also relevant."
The House of Lords (reported at  2 AC 19) declined to interfere with the Court of Appeal's decision on damages.
- The judgment of the Court of Appeal in Evans emphasises the need to determine the precise consequences of any false imprisonment. As well as involving consideration of any distress caused, it is necessary to compare the conditions in which the claimant was detained with what his or her circumstances would have been if he or she had not been so detained.
- I cannot reconcile the decision on the amount of damages in Evans with two of the European authorities to which I was referred, Johnson v UK (1999) 27 EHRR 296 and Perks v UK (1999) 30 EHRR 33, or those two European authorities with each other. In Johnson, the Court awarded damages for non-pecuniary loss of £10,000 to an applicant who had been wrongly detained in a maximum security psychiatric hospital for some 3½ years. Although not all the delay in his release could be attributed to the state (see paragraph 77 of the judgment of the Court), the damages figure appears very low. On the other hand, in Perks the applicant was awarded £5,500 for non-pecuniary loss where his imprisonment for 6 days was accepted to be the result of a breach of Article 6.
- Mr Bowen was alone in seeking an award of exemplary damages.
- Exemplary damages are by definition not compensatory. Their award would be additional to any damages awarded to afford full restitution for any damage or injury suffered by the victim of a breach of a Convention right.
- Section 9(3), by prohibiting any award of damages otherwise than by way of compensation, expressly prohibits the award of exemplary damages. It is therefore unnecessary to burden this judgment with a discussion of the jurisprudence of the European Court on this subject. In fact, it refuses to award such damages: see the cases cited in the Law Commission report at paragraph 3.47.
- Furthermore, the facts of none of the present cases could justify an award of exemplary damages on common law principles. Mr Bowen suggested that an award of exemplary damages was necessary to deter the chairmen of tribunals from failing to fulfil their duties. There is no evidence to support that suggestion: nothing to begin to suggest that the threat of exemplary damages is required in order to compel them to fulfil their duties conscientiously. Such an award is not only unnecessary: it might justifiably be regarded by tribunal members and regional chairmen as excessive and offensive.
Loss of opportunity and loss of a chance
- The jurisprudence of the European Court is replete with refusals to award damages for loss of a chance to obtain a favourable court or tribunal decision. The Court refuses to speculate on the prospects of success: see, e.g., the extract from the judgment in Migon v Poland set out above. The judgment of the Court in Findlay v UK (1997) 24 EHRR 221 is a striking example of such a refusal. On the other hand, in a case in which the government conceded that one of the applicants would have had a favourable decision if his Convention right had been respected, it awarded him alone damages: Perks v UK (2000) 30 EHRR 10. The Court refused to speculate as to the chances of the other applicants considered in that judgment not having been imprisoned if their Article 6 rights had been respected: see paragraphs 80 and 82 of its judgment. Perks was followed in Ezeh and Connors v UK  35 EHRR 28 in which the Court stated that it:
"recalls that it will not speculate as to what might have occurred had there been no breach of the procedural guarantees of Article 6 of the Convention unless it finds special features in the case amounting to a 'real loss of opportunity'."
It is not clear what does amount to a "real loss of opportunity".
- In Osman, the sum of £10,000 was awarded "on an equitable basis" to each of the applicants who had been deprived of the opportunity to obtain a ruling on the merits of their claims for damages claims against the police for negligence in failing to prevent the commission of the manslaughter of the father of their family. As usual, the judgment contains no indication of the calculation of this sum, which may simply have been regarded as the value of the access to the courts of which the applicants had been deprived. That was a case in which access to the national court was precluded because of the non-liability of the police under English law, and not merely delayed. It is difficult to see that the sum awarded represented the value of the cause of action of which the claimants were held to have been deprived. Rather it would seem to represent damages for the loss of an opportunity to present a meritorious case. In this respect, the decision is similar to that in Goddi v Italy (App. no. 8966/80, 1984): see paragraph 35 of the judgment in that case: the Court rejected the contention that the applicant would have received a lesser sentence if his Convention rights had been respected, but nonetheless awarded damages for "a loss of real opportunities". Goddi and Perks were distinguished in Ezeh and Connors, in which the Court reiterated that its normal approach is that a finding of violation constitutes sufficient just satisfaction for loss of opportunity.
- I conclude that it would be contrary to the principles applied by the European Court to award damages for loss of a chance of a favourable tribunal decision or for loss of opportunity as such. On the other hand, a claimant must be able to establish a meritorious case that he would have had an earlier favourable decision by evidence. The award of damages in such cases cannot rationally or fairly be restricted to those cases (such as Perks) where the state concedes the relevant facts. It follows, in my judgment, that a claimant who seeks damages on the basis of an allegation that he would have had a favourable decision at an earlier date if his Convention right had been respected must prove his allegation on the balance of probabilities. The court will, however, bear in mind that in practice a relatively low proportion of applications to tribunals succeed, and that a finding that a tribunal would have directed the discharge of a patient involves a finding that the RMO (and often other medical staff and the ASW) were wrong in their opinion that he or she should not be discharged. Convincing evidence is required to justify such findings.
The relevant period
- The period to which any award of damages relates is that between the time when the tribunal should have determined a patient's application and the date when it is actually determined: i.e. the period of unlawful delay. This follows from the general principle that damages are restitutionary. I reject Mr Bowen's submissions to the contrary. It is true, as counsel for the Claimants point out, that it may be difficult to identify the precise date when the patient's application should have been heard. However, this cannot justify a radical departure from the normal basis of the assessment and purpose of damages. Furthermore, damages are not calculated by an arithmetic calculation of a rate per day to the period of delay. The assessment of the period of delay is bound to be somewhat impressionistic.
- A further point needs to be made in the present connection. There was an understandable tendency in submissions to equate a cancellation or postponement of a tribunal hearing with a breach of Article 5.4, and to treat feelings of disappointment or distress or frustration caused by a cancellation as resulting from such a breach. However, Article 5.4 does not prohibit the cancellation or postponement of hearings as such. There may be a cancellation or postponement without any breach of Article 5.4, provided the eventual decision is "speedy". Furthermore, if the postponement takes place at a time when there could still be a "speedy decision" on the patient's application, what is unlawful is not the postponement as such, but its duration. On the other hand, in some cases an unjustified cancellation of a hearing is the cause of the infringement of the applicant's rights under Article 5.4.
- Mr Sales submitted that where the Court finds that the cancelled tribunal hearing would not have resulted in the discharge of the patient, the disappointment and distress caused by the cancellation have to be considered against the possibility that the negative (from the point of view of the patient) tribunal decision would in any event have caused disappointment and distress, and possibly a feeling of frustration at his or her inability to leave the hospital. But it must be borne in mind that a cancelled tribunal hearing followed by a later effective hearing and refusal by the tribunal to direct the discharge of the patient involves two instances of disappointment and, possibly, distress, rather than one.
- For these reasons, some care is required when considering whether the cancellation or postponement of a hearing gives rise to an entitlement to damages.
- A further complication concerns the issue whether an earlier hearing would have resulted in discharge: what date is to be taken as the date of the hypothetical hearing? To take a date fixed by the tribunal for a hearing that in the result was cancelled may conceivably be to take a date that is earlier than that required by Article 5.4. On the other hand, where there has been delay in arranging an effective tribunal hearing, it cannot be right to treat every date during the period of delay as the date of a hypothetical hearing, and to ask at every date whether, if a hearing had taken place at that date, the patient would have been released, and if at any date the answer to that question is affirmative, to award damages for, in effect, wrongful detention. The issue may be complicated by the fluctuation in the mental health and presentation of the patient during the period in question. One must also bear in mind that if a tribunal hearing takes place at an early date, and the patient is not discharged, he cannot then apply for a further hearing for a period of 6 months. If, therefore, the Court confines its examination to the first date when an effective hearing should have taken place, it may conclude that the claimant would not then have been discharged, although he or she improved subsequently and would have been discharged by a tribunal hearing at a later date. Mr Sales and Miss Laing submitted that in such circumstances the failure to secure a hearing after the first date cannot be considered to have caused delay to the discharge of the patient. I do not accept this submission: the breach of Article 5.4 is a continuing breach, and its continuation cannot be ignored in the assessment of damages. The complexities are such that, again, an impressionistic approach to the assessment of damages is likely to be necessary in most cases.
Special principles in mental health cases
- The jurisprudence of the European Court of Human Rights does not suggest that any special legal principles apply to mental health cases as distinguished from other cases in which the lawfulness of detention falls to be determined under Article 5. There are however special factual considerations which must be taken into account, the principal of which is the generally vulnerable condition and circumstances of mental patients who are compulsorily detained.
- I do not think that every disappointment and all feelings of distress constitute compensatable damage for present purposes. In Silver v UK (1983) 6 EHRR 62, a case on unlawful interference with correspondence by prison authorities, the Court stated:
"It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage." (Emphasis added.)
A similar approach may be seen in Wassink at paragraph 41 of the judgment of the Court. Under English law, disappointment, distress and feelings of frustration are not normally free-standing heads of damages: the law applies an overtly restrictive approach, even to the extent of excluding many claims for nervous shock or distress caused by a lack of care: see Frost v Chief Constable of South Yorkshire  2 AC 455; see too Calvely v Chief Constable of Merseyside  AC 1228. Distress and disappointment are part of everyday life, and do not necessarily lead to claims for damages. Convention rights are important basic rights, and it is doubtless arguable that damages for their breach may be awarded for injuries that would not be recognised as deserving of compensation in other areas. It is nonetheless significant that Lord Woolf CJ's opinion was that damages for their breach should be lower than damages for tort, rather than higher. There is a risk of creating anomalies between damages recoverable for breach of Convention rights and those for other civil wrongs. The Court should be reluctant to do so.
- On the other hand, in the present cases, full account must be taken of the fact that the Claimants were patients, detained on account of the state of their mental health, and thus in a vulnerable mental condition. Damages may be awarded to such persons under Article 5.5 although in analogous circumstances no award would be made to a healthy person, because they may suffer compensatable injury in circumstances where those of more robust health would not.
- Thus, even in the case of mentally ill claimants, not every feeling of frustration and distress will justify an award of damages. The frustration and distress must be significant: "of such intensity that it would in itself justify an award of compensation for non-pecuniary damage". In my judgment, an important touchstone of that intensity in cases such as the present will be that the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes.
- I do not think that the cases on unlawful racial or sexual discrimination afford a reliable analogy for the award of damages in cases such as the present. Such discrimination is often intended to be insulting and hurtful; even where it is unintended, it is likely to hurtful, and it is likely to be perceived and felt to be insulting, hurtful and distressing by the victim. A principal object of the statutory torts is protection from distress. In contrast, in the present cases it cannot be and is not suggested that there was any intention on anyone's part to cause distress.
The evidence: (a) general
- The evidence before me consisted of:
(a) relevant hospital records;
(b) medical reports prepared for the hospital or for tribunal hearings;
(c) witness statements of the Claimants;
(d) written expert psychiatric reports prepared for the purposes of the claims for damages; and
(e) in some cases, the testimony of the expert psychiatrists.
In none of the cases before me was there any testimony, or indeed any witness statement, from the Claimant's RMO. This was a significant omission. A tribunal hearing serves as a check on the RMO. If the RMO is of the opinion that the patient should be discharged, he will normally discharge him without the need for a tribunal hearing. In general, a hearing is required only where the patient disputes the opinion of his RMO. In some cases, such as that of PD, the Claimant was discharged by his RMO before an effective tribunal hearing took place. It was contended that if there had been an earlier hearing, he would have been discharged at its earlier date. In effect, this contention disputes the opinion of the RMO: it suggests that he should have discharged PD at an earlier date. While the testimony of the RMO and his cross-examination may not be a precondition of a finding that there would have been an earlier release if there had been an earlier tribunal hearing, it seems to me that the court should be cautious before making such a finding in the absence of the RMO's evidence.
- There is a further point to be made in this connection. The expert witnesses acknowledged that the Claimants' RMO's were likely to be in a better position than them to determine whether a particular Claimant should have been discharged at any particular time, simply because of the RMO's greater knowledge and experience of the patient and access to other members of the hospital staff. Indeed, in some cases the expert psychiatrist had not met the Claimant, and was basing his opinion on contemporaneous documents and reports. This is not to say that the RMO is always right: if he were, the tribunal would have no role to play. But the court, like the tribunal, must give due weight to the RMO's knowledge and experience, and should be cautious before preferring the opinion of an expert to that of the RMO. The decision as to whether an RMO should give evidence is primarily the parties'. One would expect the tribunal to wish to adduce his evidence, and it must bear the consequences if it chooses not to call him. But just as the RMO is normally a witness in proceedings before a tribunal, so in my view he should be in judicial review proceedings in which it is alleged that he or she should have discharged a patient but did not do so.
- The likelihood of persons such as the Claimants suffering anxiety and distress as a result of the cancellations of and delays to the hearings of their applications was acknowledged in the evidence before me in the hearing that led to the first judgment:
(a) At paragraph 21 of her statement, Margaret Burn (senior official at the Department of Health) stated that they accepted that cases had not been heard as quickly as patients wished and "We regret the distress and inconvenience that those patients have suffered."
(b) At paragraph 10 of his statement, Michael Christie (MHRT London North and East Regional Chair) stated "The frequency with which the Tribunal hearings are cancelled at the last moment in my region is a matter of great concern to me. I regret the obvious distress this causes to patients."
(c) In a letter to Mr Christie, Dr Peter Carter, the Chief Executive of the Brent, Kensington & Chelsea and Westminster Trust wrote of patients whose Tribunals were cancelled: "It is having an adverse effect upon the care provided by this Trust, as well as the confidence of the Trust's clients in the appeals process."
(d) In a letter to the Gordon Hospital, Mr Christie wrote: "Of course, it is the patients who suffer most and become distressed when there are cancellations. This is regrettable, particularly when they have an entitlement to a hearing of their application."
(e) In a letter to a patient's solicitor, Dr Needham-Bennett, Consultant Forensic Psychiatrist of the South London and Maudsley Trust, wrote of late cancellations of Tribunals, "Whilst this can be wasteful of professionals' time, it does have a marked detrimental effect on the patient's state of mind. Clearly a tribunal can be a highly stressful process for the patients and much of the anxiety they experience is in anticipation of the tribunal. For it to be cancelled at the last moment leaves them feeling upset, cheated and resentful."
- Nonetheless, in an environment in which notes are made of significant matters concerning a patient's mental condition, I think that the court should pay particular attention to contemporaneous medical records and reports and to their mention, or omission of mention, of distress or other effects of delay in tribunal hearings.
The individual cases: (1) PD
- The facts relating to PD were summarised by me in the first judgment as follows:
94. PD was detained under section 2 on 18 October 2001. His application was received by the North London Tribunal on 19 October. A hearing was fixed for Friday 26 October. It was cancelled because it was not possible to secure a full panel. The case was relisted for 5 November; this hearing was also cancelled, again owing to the unavailability of a panel. It was relisted, ignoring the suggestion of 9 November, for 12 November. That hearing too was cancelled for lack of a panel. A hearing was then fixed for 19 November, over 4 weeks after receipt of the application, and over 3 weeks in excess of the time permitted by rule 31. PD was discharged by his RMO on 16 November 2001, 4 weeks after his detention.
- I think it right to equate the requirement of rule 31 of the Mental Health Review Tribunal Rules in relation to patients detained under section 2 of a hearing within 7 days of receipt of their application with that of Article 5.4 that there should be a speedy decision of their application. On this basis, the period after which PD's application should have been heard until his discharge was about 3 weeks. Because of his discharge by his RMO, his application was never heard.
- PD's judicial review proceedings were commenced on 13 November 2001, 3 days before his discharge. The claim form sought primarily a speedy hearing by a tribunal of his application. The grounds asserted a right to damages, but did not allege any injury or damage. In his witness statement in support of the application for judicial review, Mr Conroy, the legal executive responsible for PD's case, stated:
"I am very concerned about this. Not only is Mr D not receiving his Tribunal hearing, but the effect of the constant arranging and rearranging of the hearings is stressful to him. It is also not conducive to a trusting and helpful professional relationship between lawyer and client, since information conveyed turns out to be misleading to the client. This stress and confusion would be bad enough for any client but is especially important when the client is thought to have mental problems."
I read the last two sentences as a general description of the effect of repeated re-arrangement of tribunal hearings, rather than a description of the effect in PD's case specifically. The evidence does not justify a finding that the RMO should have discharged PD at an earlier date, or that a tribunal hearing if held at an earlier date would have directed his discharge, and the claim for loss of opportunity was not pursued. There is no evidence of injury to his health resulting from the delay in the hearing of his application, and no specific evidence of distress or frustration. Nonetheless, such a long delay, and the repeated cancellations of hearings, must have been upsetting, and caused uncertainty as to his position. A modest award of damages is necessary in order to give just satisfaction, in the sum of £1,000.
- At the times relevant to his claim, KB was detained under s 3 of the MHA. The facts of his case were summarised by me in my first judgment as follows:
96. By way of background KB was first detained on 8 September 2000. He immediately applied to the Tribunal for review of his detention. Judicial review proceedings were issued in order to obtain a hearing, which ultimately took place on 21 December 2000, 15 weeks after his application. His detention was continued.
97. He again applied to the South London Tribunal on 29 March 2001. On 8 April 2001 a hearing was fixed for 22 May 2001, just short of 8 weeks from the receipt of his application. At the time the Tribunal was operating an 8-week target period for hearings. The date of 22 May was regarded as provisional, and those concerned were normally given a period of 7 days to object to it, after which the Tribunal would confirm the date in writing. Due to an oversight, the Tribunal staff failed to confirm the date. On 23 April the Tribunal received an objection from the RMO stating that she and her Registrar would be on holiday on the 22 May. It was the practice to refer to the Chairman any application for an adjournment that would result in a hearing beyond the 8-week target. The staff cancelled the provisional date for the hearing without referring to her. On 10 May, 2½ weeks after the receipt of the RMO's letter, a new date of 30 May 2001 was proposed by the Tribunal office. On 15 May, a further objection was received from the RMO, who had a full out-patient clinic scheduled for that date. On 18 May the Chairman authorised a change of date, to 5 June. The Claimant's solicitors then requested an earlier date, because the Claimant was due to be on leave, under section 17, on the new date. The Chairman felt obliged to reject their request, because there were no panels available at the Claimant's hospital at an earlier date (although there were several panels sitting at other venues). The hearing therefore ultimately took place on 5 June. KB was not discharged.
98. The period between the receipt of the application and the first date fixed for the hearing reflected Tribunal practice before the decision of the Court of Appeal in C. Given adequate availability of Tribunal members and staff, on the evidence before me, there is no reason why an earlier hearing could not have been held. The period between application and effective hearing was 9 weeks 5 days. I find, and indeed Ms Kane effectively accepts, that the failure to send out the letter confirming the first hearing date was due to the lack of sufficient staff and the lack of adequate training. The RMO's objections to the 22 and 30 May were understandable, and it is difficult to fault the staff for accepting them. However, in the context of an application by a section 3 patient, 2½ weeks is an excessive time between receipt of an objection to a date and the fixing of a new date. That delay is likely to postpone a substitute date, and in this case was bound to postpone it beyond the 8 week target.
- The claim for judicial review considered by me in my first judgment was filed on 14 June 2001. It sought declarations that the adjournments and the delay before the hearing of 5 June 2001 were unlawful. In addition, damages under section 9(3) of the HRA were sought, but no injury or damage were then alleged. It is not suggested that a prompt hearing would have resulted in KB's discharge. The fixing of the hearing on 5 June 2001 led to the postponement of KB's transfer from an acute psychiatric unit to a community home. In his witness statement dated 6 March 2002, he stated:
"… the delay … in my moving into a community environment caused me significant agitation and distress and I believe affected my mental health. Further this was the second time that my right of appeal against a period of detention had been treated with apparent total disregard of my rights and well being and this causes (sic) me to feel despondent and worthless."
There is, however, no medical evidence that the delay caused injury to KB's mental health. Given that KB's witness statement was made so long after the event, I think it right to treat his statement with a degree of caution. In addition, the postponement of his transfer to a community environment seems to me not to be something to be taken into account in assessing damages. It was an adventitious consequence of the fixing of the date of the hearing; a postponement of the hearing date might also have avoided interfering with that transfer.
- Given the relatively short period of delay in KB's case and the absence of any contemporaneous record of significant (or any) distress or the like, in my judgment the finding of breach of his rights under Article 5.4 is sufficient just satisfaction, and no award of damages is necessary in his case.
- The facts relating to LB were summarised in the first judgment as follows:
"100. LB was initially detained under s 2. On 8 June 2001 her detention was continued under section 3. Her application was received by the North London Tribunal on 13 June 2001. The hearing was initially fixed for 12 July 2001, just over 4 weeks later. On 11 July, that hearing was cancelled because no medical member could be found. By letter dated 13 July LB's solicitors were informed that the hearing would take place on 8 August. That hearing was cancelled by telephone on 7 August, again because no medical member could be found. By letter dated 9 August 2001 LB's solicitors were informed that the hearing would be on 30 August, just over 11 weeks after the date of her application. On 10 August 2001, 8 weeks after her application, LB's RMO discharged her.
101. LB was deprived of an independent review of her detention. The evidence indicates that with adequate tribunals LB's detention would have been reviewed some 4 weeks after her application. …"
- Evidence was given by independent psychiatrists as to the prospects of LB being discharged by a tribunal if the hearing had proceeded on 12 July 2001 and if there had been a hearing on 8 August. Neither of them had examined her or thought it necessary to do so. (Any examination would have taken place considerably after the relevant period.) In their joint statement, Dr Sumners, instructed by LB's solicitors, and Dr Boyd, instructed by the solicitors for the Defendants, agreed that LB had been quite psychotic during May 2001, and that her mental state improved thereafter, although in July 2001 she still showed occasional temper and agitation, was labile in her mood and was still suffering from a mental illness as defined by the MHA. Dr Boyd thought that at 12 July 2001 her mental state was still unstable, and her compliance with medication would have been questionable, and that in those circumstances she would not have been discharged. Dr Sumners thought that on balance she would have been discharged: an argument would have been presented that her mental state was being aggravated by difficulties experienced by her in the ward with other patients: home would have been a less stressful environment, and with appropriate community support it would have been safe to discharge her. Dr Sumners and Dr Boyd agreed that LB would have been discharged by a tribunal if there had been a hearing on 8 August 2001.
- In her report of 10 July 2001, prepared for the expected tribunal hearing and a hospital managers' hearing, LB's RMO, Dr Coleman, pointed out that there were difficulties as to where she might stay if released. She concluded:
"We will need to look at where she will be living in the longer term, but at present she still requires monitoring of medication and change of medication within a hospital setting. Thus, she needs to be kept in hospital, with interests to (sic) her own self and her vulnerability. If discharged I believe that it will be difficult to maintain a coherent care plan and her health would deteriorate."
The approved social worker's report dated 2 July 2001 also referred to problems of accommodation in the community, and to her objection to returning to live with her stepfather. I was told by Mr Gledhill, on instructions, that when she was subsequently discharged she in fact went to live with her stepfather.
- The hospital's medical notes show that in early July LB was still volatile. The notes of the RMO's ward round on 13 July 2001 state that she was "presenting in a manic way" and was disinhibited. LB stated then that she was doubtful if she could return to live with her stepfather.
- My conclusion is that there was a less than 50 per cent chance of LB being discharged by a tribunal if it had heard her application on 12 July. Although her improvement had been fairly constant, she had only recently been clearly too ill to be discharged, and even on 13 July presented in a way that made her discharge unlikely. In addition, there were then unresolved problems with her accommodation in the community. I find Dr Coleman's report, although short, well reasoned and convincing. There was no medical evidence to contradict it. I do not think that the evidence justifies a finding that Dr Coleman was unduly protective of LB or over-cautious, whether in her report of 10 July or subsequently.
- There is no allegation or evidence that the delay caused any injury to her mental health. No such injury was alleged in her claim form filed on 9 October 2001 or suggested in the witness statement of her solicitor filed in support of her claim. I infer from her solicitor's statement that the primary reason for the proceedings was to seek improvement to the alleged systemic inadequacies in the tribunal system.
- In her witness statement, dated 10 December 2001, LB stated:
"Upon hearing (on 11 July 2001) that my Tribunal had been cancelled, I was very distressed and upset. I did not like it on the ward and I did not want to be there. I felt like I was in prison even though I had done nothing wrong, and I felt that the Tribunal was my only way of getting out. When it was cancelled I felt extremely frustrated and very tearful. I also feel that the cancellation of the Tribunal did not help my mental state as I believed that I may have been discharged at the Tribunal, but then had my hopes dashed when I was told that the Tribunal was cancelled."
However, the medical notes seem to me to be inconsistent with her recollection. The evidence does not show precisely when she was informed of the cancellation of the July hearing. The notes show that she was anxious and agitated in mood in the early part of the morning of 11 July, but that afternoon (by when she might have been informed of the cancelled hearing) she was "Much more settled and pleasant". Next morning, she was up at 6.00 a.m. and was "pleasant". Later notes on 12 July read:
"(LB) has been more settled this morning. Tribunal was cancelled / postponed, new date to be arranged. (LB) has been out into town with her mother remains settled."
"Went out for a walk, acknowledged feeling calmer generally."
- Where there is inconsistency between contemporaneous notes and a subsequent witness statement, I prefer the former unless there is reason to doubt their accuracy. It is understandable that anyone should in retrospect unconsciously exaggerate her reaction to a cancelled hearing. I find that LB suffered no significant distress or anxiety as a result of the cancellation of the July hearing. Furthermore, at the date of the cancellation, there might have been a postponement of the tribunal hearing without any necessary breach of LB's right to a speedy hearing.
- During the period before the cancelled August hearing, LB was given considerable leave from hospital. She was on overnight leave between 21 and 22 July, was given additional leave on 24 July, and had day leave on 25 July. She was given weekend leave on 27 July (when both she and her mother considered that she had improved), and then was given a week's leave from 31 July.
- With regard to the cancellation of the August hearing, LB states in her witness statement:
As soon as I found out (on 7 August 2001) that my second Tribunal hearing had been cancelled I felt extremely low. I felt extremely frustrated at the cancellation as I knew that there was little I could do, I even thought that I could possibly be detained for a lot longer. I was very tearful and felt very vulnerable because I thought I would be taken off Section at the Tribunal the following day. Additionally, I felt nothing but despair as my Solicitor had informed me that I had a very strong case for being taken off Section 3 at the Tribunal.
- LB does not mention that she was not then at the hospital, but was out on leave. The hospital note for 7 August timed at 11.30 a.m. states:
"Sylvia Jeffries contacted ward. Wednesday's (tomorrow) tribunal has been cancelled. Mother informed as no telephone number for (LB), she will pass message on."
The note for 8 August reads:
"Seen Dr …
Back from 1 week leave
Good self care
Cooperative good eye contact
Eating + sleeping well
No abnormal beliefs
(Patient) is on leave until Friday. To attend Friday's ward round with stepfather."
The note for 10 August reads:
"Ward round with stepfather – doing well. (Patient) discharged from section."
- It is difficult to reconcile these notes with LB's statement. It would be unlikely, but not impossible, for LB to have said she had no complaints if the cancellation of the second hearing had the emotional effect she describes. In addition, since she was on leave at the time, she was not detained in any physical sense, although she did have to return to hospital on 10 August.
- The restriction on her liberty caused by the second cancellation was insubstantial. Given that the total delay in LB's case was not substantial (compare paragraph 37 of my first judgment), and the contemporaneous evidence of her mental state, and the fact that she was on leave for much of the latter period of her section, I conclude that the finding of infringement of LB's Convention right is sufficient just satisfaction.
- In the first judgment, I summarised the facts relating to the delay in the hearing of GM's application as follows:
"102. GM was detained under section 3 on 24 November 2000. His detention was renewed on 23 May 2001 until 23 November 2001. His application for the review of his detention was received by the North London Tribunal on 15 June 2001. By letter dated 25 June 2001, the Tribunal informed GM's solicitors that the hearing of his application would be on 16 July. On 13 July (the Friday before the Monday of the hearing), his solicitors were informed by telephone that the hearing was cancelled due to the lack of a medical member. On 25 July, his solicitors were informed by telephone that the hearing would be on 6 August. On 3 August (again, the Friday before the Monday of the hearing), the hearing was cancelled again for lack of a full panel. The next date fixed was 4 September. It too was cancelled, this time on the previous day, due to the lack of a full panel. GM's solicitors complained by letter dated 5 September 2001 that it was already 13 weeks since his application had been presented. Another hearing was fixed for 27 September. It too was cancelled due to the lack of a medical member: the medical member scheduled to hear the application was engaged in a case concerning a restricted patient that overran, and no substitute was available. A hearing was fixed for 18 October 2001; it took place and GM was discharged with effect from 15 November 2001 to permit aftercare arrangements to be put in place. The time between application and hearing was almost 19 weeks."
- Thus there were 4 cancellations. While the first cancellation may not have caused a breach of GM's Convention right, the subsequent cancellations certainly did. If one takes the appropriate time between application and hearing as 8 weeks, the period of delay was 11 weeks, nearly 150 per cent longer. Moreover, to take a period of 8 weeks is favourable to the tribunal: there is nothing to indicate that an effective hearing could not have taken place on 16 July, if a tribunal had been available: on this basis the delay was 15 weeks. This was a bad case.
- GM's claim form, filed on 9 October 2001, stated that his immediate interest was in obtaining an early hearing of his application to the Tribunal, and asserted that he also had a personal interest in ensuring that the Tribunal complied with its wider duties under the MHA and HRA. No damage or injury was alleged in the claim form or in the solicitor's supporting witness statement. No point on this was taken on behalf of the Secretary of State. In his witness statement dated 15 February 2002, GM stated:
"I waited 4 months before I went to Tribunal. On each occasion I prepared for the Tribunal I was upset and annoyed every time it was cancelled and I felt cheated that I hadn't had my tribunal. … I knew that the tribunal was my only chance of getting discharged."
- GM was born on 19 May 1960. He was first admitted to hospital in 1984, with a diagnosis of hypomania. Between 1984 and March 2000 he was admitted to a number of hospitals with various diagnoses, with reference being made to drug and alcohol abuse. Previous discharges had been unsuccessful, and been rapidly followed by readmission. In March 2000 he was admitted under section 2; his detention was continued under s 3 until he was discharged in September 2000. He was readmitted on a new section 3 on 24 November 2000. In February 2001 a proposed discharge failed because on leaving the hospital for a high-support nursing home he immediately started drinking heavily. Dr Gijsman's report dated 29 June 2001 stated:
"Our current behavioural strategy on the ward is to try and dissuade GM from abusing his Section 17 leave. This proves very difficult, mainly because GM's behaviour is strongly influenced by the people he meets as well as by his craving for alcohol and drugs."
His diagnosis during the period relevant to his claim was bi-polar affective disorder.
- I had individual reports on GM from Dr O W Hill, instructed by his solicitors, and Dr C E Boyd, instructed by the Defendants' Solicitor, and a joint report of their discussions. Both gave oral evidence. Neither considered that GM had had a chance of discharge by a tribunal on any of the dates of cancelled hearings that was greater than 50 per cent. Dr Hill's view was that he had a 30 per cent chance of discharge at a tribunal held on 16 July 2001. Dr Boyd, who queried the hospital's diagnosis of GM, thought that he had no chance of discharge at any of the dates of the cancelled tribunal hearings.
- I find that there was no significant prospect of GM's discharge at any of those dates. His history was of repeated absconsions, of drug, substance or alcohol abuse, and swift deterioration on release due at least in part to such abuse. He improved after he had been put on a behavioural programme in a high dependency unit: see the hospital notes of 25 September and 28 September 2001. Comments on him in the notes reflect his improvement: I refer to those for 2, 4 and 7 October 2001, and to that for 17 October 2001. The tone of the CPN's report of 17 October 2001 differs markedly from earlier reports, and it expressly envisaged his discharge.
- Having been discharged on 15 November 2001, GM remained in hospital as an informal patient. He was again detained under s 3 on 24 December 2001 after becoming increasingly aggressive and agitated on the ward.
- I do not find that the cancellations led to absconsion or to drug, alcohol or substance abuse or to deterioration in GM's mental health. He absconded and abused drug, alcohol and other substances regularly both before and after cancellations. Furthermore, Dr Hill accepted that it was not possible to say whether a cancellation would have affected him more adversely than a negative decision.
- I do find that the cancellations caused GM distress. He told Dr Hill that they had done so, and staff nurse Perlie Richardson confirmed it. The notes for 13 and 14 July 2001 appear to be missing, and must therefore be regarded as neutral. The notes for 3 August show that he absconded for 1½ hours after learning of the cancellation, but after his return was in a good mood and seemed fine with no problem. He absconded on 2 September, before learning of the next cancellation. The hospital notes do not refer to the cancellation of 3 September, and I infer that it did not unduly distress GM.
- Bearing in mind the period of delay, the repeated cancellations, and the confirmation by a member of staff of distress caused by one or more cancellations, I conclude that the breaches of Article 5 must have caused sufficient distress and frustration to make necessary an award of damages. The appropriate sum is £1,000.
- In the first judgment I summarised the facts relating to JR's claim as follows:
"104. JR was detained under section 3 on 12 April 2001. His application to the North London Tribunal was received on 4 May 2001. The hearing was fixed for 6 June. It was cancelled on 5 June to accommodate a s 2 hearing for which the medical member was required. On 11 June 2001, JR's solicitors were informed that a hearing would take place on 11 July. This hearing took place, but as a result of the last-minute receipt of a new report by the RMO, JR's counsel applied for and was granted an adjournment to enable his independent psychiatrist to consider it. The Tribunal adjourned the hearing to 15 August 2001, and gave directions, including one that "Case to proceed on 15/8/01". However, that hearing was cancelled on 14 August. The Tribunal records indicate that the reason was that the medical member was required for a section 2 hearing. The explanation given to JR's solicitors was different, and indicates that his hearing was overlooked. On 15 August, his solicitors sent a letter before action to the Tribunal requesting a hearing by 22 August. A hearing was fixed for 6 September. It was cancelled on 5 September owing to the lack of a full panel, probably by reason of the unavailability of a medical member. Another hearing was arranged, for 21 September. It too was cancelled owing to the lack of a full panel, again probably because of the unavailability of a medical member. A hearing was arranged for 8 October 2001. It was effective. JR was not discharged.
105. Over 22 weeks had elapsed from the Tribunal's receipt of JR's application to the date of his effective hearing. If one leaves out of account the whole of the adjournment requested on 11 July (and I am not sure that it is appropriate to do so), the period was over 18 weeks. The basic reason was the lack of panel members. This was exacerbated by the need to accommodate section 2 hearings in circumstances where there was no panel able to take those cases without cancelling section 3 cases, and by the apparent failure to give appropriate priority to JR's case once there had been excessive delay and a cancelled hearing."
- Thus there were 4 cancellations and in the region of 12 weeks' or more delay (depending how one treats the delay caused by the adjournment at JR counsel's request).
- JR's claim form was filed on 7 November 2001. It alleged that following the 5 September cancellation he was "becoming increasingly distressed and frustrated" by the fact that his application was not being heard. The only remedies sought were declarations of the unlawfulness of the delay and of the cancellations. In his witness statement in support JR did not allege that he had suffered any distress: he asserted that he had a very strong case for discharge, which he wanted to be heard. In his second witness statement, he stated:
"7. When I was told of the cancellation of the third tribunal I felt let down. I was becoming more and more depressed in the hospital environment. I did not feel angry, it was more a feeling of hopelessness. The only outlet where I could get my arguments across was to the nursing staff in the Kestrel Ward office. They could not offer me the help that I wanted. The whole situation became desperate. My relationship with the nursing staff deteriorated significantly at this stage."
- JR was born on 27 November 1969. He suffers from a schizophrenic illness. He was first admitted to a psychiatric hospital and diagnosed in 1991. On 2 April 2001 he was visited at home by his CPN for the injection of his depot medication. He tried to inject her with the medication by force. This incident was clearly serious, and gave rise to concerns as to the risk he presented to others. Dr Kahtan, the forensic psychiatrist who subsequently saw him, stated that "On the face of it, his behaviour was uncharacteristically aggressive, and seems to be attributable to delusional beliefs associated with non-compliance with prescribed mediation over the last few months." On 12 April 2001 he was detained under s 3. He was delusional and superstitious. On 26 April he was noted to be extremely paranoid and thought disordered.
- The RMO's report prepared for the 6 June hearing stated that he remained very psychotic, very deluded and without any insight. He convincingly advised against discharge. The ASW's report was to similar effect. Dr Hill, instructed by JR's solicitors, was more positive, but did not advise discharge, hoping that there would be a programme of progressive leave. The senior house officer's report for the anticipated 11 July tribunal hearing stated that there had been some improvement but again advised against discharge. Dr Kahtan, a forensic psychiatrist reviewed JR on 2 July 2001 (he had previously reviewed him in May 2001) and concluded that despite his improvement it remained appropriate to detain him under s 3. The ASW's report of 28 August 2001, for the anticipated 6 September tribunal hearing, concluded:
"JR still shows signs of thought disorder and is vulnerable to exploitation. He is accepting medication at present but is ambivalent about how he wants to receive this. He will need assertive follow-up in the community but I am in agreement with the team that he is not ready for discharge at present."
In August 2001, Dr Hill again examined JR; he noted an improvement in his condition and stated that he did not believe that he should be liable to detention. Trial leaves had passed without incident. However, the tribunal on 8 October 2001 preferred the contrary opinion of his new RMO, Dr Salih.
- A nursing case note for 5 September 2001 records: "Tribunal cancelled – J upset." The entry for the following day records: "Sleeping most of the day – too busy to discuss cancellation with him but sympathetic re his third cancellation." JR remained withdrawn for the next 3 days. Generally, Dr Hill concluded, in his report dated 17 January 2002:
"… the prolonged frustration with the Tribunal process is likely to have affected (JR) adversely, not only as evidenced by his withdrawal after the news of the cancellation but the frequent periods of anticipation of the Tribunal that never came were a further strain upon him."
- Having been supplied with Dr Hill's account of a page of case notes that he had not seen, and JR's witness statement, Dr Higgins accepted that there was "evidence to support the contention that JR was frustrated at the cancellation of Tribunals". Dr Higgins commented:
"There is therefore evidence of a considerable change in his attitudes in behaviour which nursing staff (for the only time recorded in the notes) attribute to the cancellation of an MHRT."
Dr Higgins considered that there was no evidence of a similar reaction to the other cancellations. He thought that the cancellations had not damaged JR's mental health.
- Drs Hill and Higgins agreed that there was insufficient or no evidence that JR overstayed his leave on 24 August 2001 as a result of the cancellation of the tribunal hearing earlier that month.
- Both Dr Hill and Dr Higgins gave evidence orally. Dr Hill is an obviously sympathetic and able psychiatrist. He would be inclined to recommend discharge of a patient into the community in circumstances where others would be, rightly or wrongly, more cautious. I found Dr Higgins to be a very impressive witness, a finding that is consistent with the thoroughness of his reports and his willingness to reconsider his views in the light of additional information, as demonstrated by the addendum of 12 August 2002 to his original report of 4 July 2002. Where they differed, I prefer the opinions of Dr Higgins. On the prospects of JR being released at the dates of the cancelled tribunal hearings, their opinions were as follows.
(a) 6 June 2001
Dr Hill and Dr Higgins agreed that he would not have been discharged. The chances of his being discharged were remote.
(b) 15 August 2001
Dr Hill thought that JR would have been released if a tribunal hearing had taken place. In the joint report of Drs Hill and Higgins, Dr Higgins stated:
"As I understand it the question for me to answer is not whether I would have discharged him but the likelihood of an MHRT discharging him on 15 August 2001. The Tribunal would have had Dr Hills clear account of the involvement in JR's condition, the extensive unescorted leave with staff and his supportive family, his recently started unescorted leave, compliance with medication and no management problems. But on the other hand, there was continuing psychosis, the circumstances of the index behaviour remained uncertain, Dr Khatan was expressing 'considerable concern' about this, unescorted leave had just started and the clinical team was against discharge. It may be that the RMO and clinical team were being over cautious and that Dr Hill's supportive and optimistic views were correct to the extent that he has no doubt that the MHRT should have rescinded his section. But the factors I have indicated above would surely have also weighted notably in the judgement, even when the benefit of the doubt has to be given to the patient. The evidence was far from being all the one way and there must have been room for substantial doubt. I therefore think that the likelihood of JR being discharges on 15/08/2001 was 50%."
In evidence before me, however, Dr Higgins retreated from this view. He said that if he had been JR's RMO he would not have discharged him in August 2001, and would have argued on the cautious side, though he would not have been surprised if the tribunal thought him over-cautious.
(c) 6 September 2001
In the joint report, Dr Hill opined that the chance of discharge would have been less than in August, though still substantial. He referred to JR having been upset by the previous cancellation; he had been more disturbed and was probably drinking alcohol. Dr Higgins, on the other hand, thought that the chances of release were greater than on 15 August, perhaps 60 to 65 per cent. He stated:
"JR had been having unescorted leave since 09/08/2001, for almost two months. This had been generally going well but there had been a number of instances of late return and probable drinking. However these things happen regularly with patients on leave and none of the episodes were major or indicated increased risk and they have, I feel, to be seen against a background of slow progress. His mental state and behaviour was slightly less stable but there were no ideas which might have led to a repeat of the index incident.
On the other hand his clinical team was still taking a cautious view and were not supportive of discharge. Further work does not seem to have been done on 'offence related' work and the issue seems to have been fading in the light of generally favourable experience of JR."
(d) 21 September 2001
Dr Higgins stated, in the joint report:
"JR continued much as before. However he had been distressed and withdrawn following the cancellation of the MHRT on 6/09/2001 and had been upset by the events of 11/09/2001. His clinical team had remained cautious, magnified by the transfer of 'senior medical responsibility and further medical involvement' from RMO Dr Posse to Dr Salih, who was not a consultant. Besides this being a misunderstanding of RMO responsibility, the introduction of a new senior doctor would, no doubt, have introduced greater caution until this new doctor had experience of JR.
So, there is again a combination of continuing progress with episodes of short lived deterioration of mental state and continuing, if not increased, caution on behalf of his clinical team.
All of this would have caused an MHRT to weigh matters carefully. I feel that the increasing favourable features would just outweigh the unfavourable ones. My estimate of the likelihood of discharge remains roughly the same, perhaps 70%."
- On 18 August 2001, JR's mother wrote to the hospital reiterating a request that she be permitted to take him away on holiday. Her request was refused. During her absence, there was an incident on 1 October 2001 that affected his presentation and probably his health. It was described by Dr Hill as follows:
"His mother was on holiday and her request that JR should be allowed to holiday with her was refused. While she was away JR visited the parental home with a girlfriend and wishing to prolong the evening he says that he phoned the ward and was told that it would be all right to stay out longer. His sister appeared at the house and felt that he should not be there and got in touch with the hospital. He has always resented his sister's bossiness and lack of sympathy towards him. The ward said that he had not been given permission to stay longer and he returned feeling very let down by the nurse to whom he said that he had spoken and angry with his sister for interfering. His Section 17 leave was cancelled which compounded his distress and feeling of injustice."
Dr Hill continued:
"(JR) was very upset by the events of 1st October and the loss of his leave. There were angry words about the nursing staff and his sister and he became generally more disturbed. The MHRT stated that as it could not establish the facts about the telephone request for the extension of leave that it would disregard the episode in its determination. He had nonetheless become more disturbed because of the episode and it is likely that his more disturbed state just before the MHRT influenced the decision. The Tribunal could not know that it proved to be a very transient disturbance."
- Dr Higgins commented:
"The actual incident on 1/10/2001 and its consequences must surely have come into the calculations of the MHRT, despite its assurance that it could not make a decision on the facts of what actually took place. This together with the deterioration of JR's mental state, his performance at the interview and the obviously cautious views expressed by Dr Salih, must have played a part in its decision not to discharge JR."
- JR was discharged by his RMO on 8 January 2002 and left hospital on 10 January 2002. As far as I am aware, he has not been readmitted.
- My conclusions are as follows. There was no significant chance of JR being discharged by a tribunal on 6 June 2001. Although there was a significant chance of discharge on 15 August, he would not have been discharged by a tribunal hearing on that date. The tribunal would have been influenced by the seriousness of the incident of 2 April 2001, and the view expressed by Dr Kahtan in his first report that he should not be discharged from hospital until he was completely better; and he was not. A cautious approach to his discharge was appropriate. If he had not then been released, he would have been released at one or other of the September hearings, if one had taken place: in this connection, I accept the opinions of Dr Higgins. The cancellations induced frustration in JR, and the cancellation of the 6 September hearing caused real distress that affected his mental state and behaviour, if not his mental health. The decision of the tribunal on 8 October 2001 not to release him was to some extent caused by his reaction to the incident of 1 October.
- In their written submissions on behalf of the Defendants, Mr Sales and Miss Laing submitted that JR would not have been discharged on 15 August, and that the subsequent cancellations in September had no causal significance, since, as I understand the argument, the 15 August hearing would have complied with JR's Convention rights, and if it had taken place there could not have been any hearing in September. I do not think that this is the correct approach to the assessment of damages. There was a continuing breach of JR's rights under Article 5.4. The 15 August date having been cancelled, there should have been a tribunal hearing in September. Damages must take into account the fact that because no hearing was held in September, JR lost the opportunity to be discharged. On the other hand, I do not think it right to assume that if he had been discharged in September, he would necessarily have stayed out of hospital until January, when he was in fact discharged. His reaction to the incident of 1 October 2001 was indicative of the fragility of his mental health.
- A substantial award of damages is necessary, bearing in mind the length of the delay before an effective hearing, the number of cancellations, the effect of the cancellations on JR, the fact that, as I find, he would have been discharged by a tribunal hearing in September. Mr Gledhill and Mr Mullins submitted that the damages which should be awarded to the Claimants were in the range £1,000 to £4,000. The damages to which JR is entitled are at the top of this range. The damages in his case will be in the sum of £4,000.
- In the first judgment, the facts relating to MK's claim were summarised as follows:
"119. MK was detained under s 37. In September  she had set fire to a flat. She was arrested and charged with arson with intent to endanger life. She was found to be unfit to plead.
120. She applied to the South London Tribunal for the review of her detention on 11 June 2001. On 4 July, her solicitors were informed that her application would be heard on 2 August. On 1 August, the hearing was cancelled. A new hearing date was fixed, for 22 August. Her claim for judicial review was filed on 8 August 2001, seeking among other relief an order that a hearing be held within a reasonable time. The hearing date was moved forward to 17 August 2001, and her case was heard on that date. MK was discharged. 9 weeks and 4 days had elapsed since the date of her application.
121. Between 23 and 26 July 2001, 7 section 2 applications had been made to the South London Tribunal, all of which had to be heard within 7 days. The Regional Chairman had to cancel the 3 section 3 hearings due to take place on 2 August at the hospital where MK was detained so that the section 2 hearings could take place within the statutory time limit. The Chairman understandably and reasonably thought that she had no choice but to cancel MK's and the other section 3 hearings. While such cancellations can occur without any infringement of Article 5.4, I read the Chairman's statement in this case as attributing the cancellation of MK's (and the other 2) hearings to a lack of sufficient tribunal members. Furthermore, the original period between application and first fixed hearing was 7½ weeks; and the period between cancellation and effective hearing over 2 weeks. MK's right to a speedy hearing was infringed."
- MK contends that the period of delay in her case was 4 weeks and 4 days, on the basis that her hearing should have taken place on 16 July 2001. Her claim form claimed damages for unlawful detention, but did not allege that the cancellation of the hearing of 2 August damaged her health. The purpose of her proceedings was to obtain an expedited hearing of her application, which she achieved. The evidence in support did not suggest that she had suffered distress or injury to her health as a result of the postponement of the hearing.
- MK was born on 13 March 1982. She was diagnosed as suffering from schizoaffective psychosis. The tribunal that heard her application concluded that her illness was not of a nature or degree that made it appropriate for her to be detained. She could move into an open ward on an informal basis, and eventually into the community. Dr Boyd, who prepared two reports on the instructions of the Defendants' solicitors, and whose evidence was not controverted, was of the opinion that there was no evidence of any distress or deterioration to her mental health resulting from the cancellation of the hearing fixed for 2 August 2001. He thought that there was an 80 per cent chance that a hearing on that date would have resulted in her discharge, there being no evidence of any significant change in her mental health between 2 and 17 August 2001.
- On the basis of this evidence, MK was unnecessarily detained for at least 2 weeks. It is not easy to determine whether there was any real possibility of a tribunal hearing before 2 August, given that the independent psychiatrist instructed by her solicitors did not report until 26 July 2001, and her RMO had to produced his report for the tribunal until 14 July 2001. It may be, of course, that an earlier hearing date would have led to the psychiatrists producing their reports earlier: I do not know. For the purposes of the assessment of damages, I take as the relevant period 2 weeks.
- The Defendants accept that an award of damages is necessary in this case. MK must be compensated for having remained detained in a minimum secure ward (Hume Ward at Springfield Hospital), rather than an open ward, in which she had agreed to remain as an informal patient. The impact of her wrongful detention was considerably less serious than in Evans, where but for the wrongful detention of the claimant he would have been released from prison. In my judgment, the appropriate amount is £1,000.
- The facts relating to TB's case were stated in the first judgment to be as follows:
"110. TB is a restricted patient, detained under sections 37 and 41. His application for the review of his detention was made on 11 July 2001. There was then a standard target of 20 weeks for a restricted application. A provisional hearing date was fixed for 30 October 2001. On 29 October his solicitors were warned that the hearing might not go ahead, and the cancellation of the hearing was confirmed on the morning of 30 October itself. On 12 November, a new date, of 12 December, was given by the Tribunal. On 13 December, this was changed to 18 December. On 17 December, TB's solicitors were informed by the Tribunal that no panel was available for the following day. Judicial review proceedings were begun on 8 January 2002, at which date no new date for the hearing of his application had been arranged. Six months had passed since he had made his application. A hearing was arranged for 16 January 2002, and was effective, and the Regional Chairman acted as chairman of the panel. However, at the hearing TB's counsel asked and was given leave to withdraw his application on the basis of a change in his circumstances: his RMO had changed and he had been put on new medication.
111. The hearing fixed for 30 October was cancelled because of the lack of a legal member for the tribunal. The legal member due to participate in TB's hearing was engaged in a part-heard case, and no other legal member could be found. No legal member could be found for 12 December, and subsequently no medical member for 18 December, by reason of the very limited number of medical members who are available to sit in Kent (where TB was detained). A legal member who might have been available sat on a section 2 case, which was given priority to TB's. The eventual effective hearing took place 27 weeks after the date of the application, as against the 12 to 14 weeks that is, according to Mary Kane, 'the earliest realistic time that a restricted case can be heard'. The effective cause of the delay was the shortage of medical and legal members for the tribunal. TB's application did not receive a speedy hearing as required by Article 5.4, and his right to such a hearing was infringed."
- TB's judicial review proceedings were commenced on 8 January 2002. Their purpose was to secure the hearing of his application. No allegation of distress or injury to health was made. It is not suggested that an earlier hearing of his application would have resulted in his discharge, or any greater chance of discharge than in January 2002. TB sought a decision from the tribunal that he be conditionally discharged. The independent psychiatrist instructed by his solicitors, Dr Pierzhchniak, reported on 22 October 2001 that he continued to suffer from a mental illness of a nature and degree that warranted his detention in hospital. Neither the ASW nor his RMO supported conditional discharge. There were three cancellations, and the period of delay was considerable. While TB could have had no great expectation of a conditional discharge, the period of uncertainty must have had a sufficient effect on him to make an award of damages necessary to give just satisfaction. The amount of damages appropriate is modest: in my judgment, the sum of £750.
- The relevant facts are set out in the judgment of Scott Baker J. In 1992 he had been made subject to order under s 37 and s 41 of the MHA. In 1997 he was discharged from hospital to prison. On 2 February 2001, when he was due to be discharged from prison, the Secretary of State recalled him to hospital under s 42(3). On 8 February 2001 the Secretary of State referred his case to the tribunal. Rule 29(cc) of the Mental Health Review Tribunal Rules required the tribunal to fix a date for the hearing not later than 8 weeks nor earlier than 5 weeks from the date of receipt of the reference. After a number of adjournments, an effective hearing of the application took place between 8 and 10 October 2001. The tribunal concluded that B was suffering from a treatable personality disorder, and refused to discharge him. The period between application and effective hearing was eight months, an unjustified multiple of the 8 weeks laid down in the Rules (This period is not necessarily a maximum for an effective hearing: adjournments may be required, as was the first adjournment in B's case.) The delay was caused by multiple adjournments, and resulted from a failure of case management. Scott Baker J said, at paragraph 26 of his judgment:
"It is impossible, on the evidence that has been produced, to analyse in any detail the fault for the delay. Clearly the Claimant's solicitors needed time to instruct an expert and it is well known that suitable experts may not be available to produce a report within a reasonably short period of time. What is clear in my judgment is that with proper hands-on management by the tribunal after the receipt of the Secretary of State's application to adjourn the eventual hearing should have taken place a great deal earlier than it did."
- The uncertainty experienced by B over such a considerable period of time requires a modest award of damages to afford just satisfaction. The amount of damages is £1,000.
- The task of producing this judgment has been made considerably easier by the very considerable amount of work done by all counsel in producing excellent written summaries of submissions, authorities and facts, and by the copying the numerous authorities to which I was referred. I express my appreciation to counsel and to the other members of the parties' legal teams concerned.