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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Home Office v Stellato [2009] EWHC 1719 (QB) (7 April 2009) URL: https://www.bailii.org/ew/cases/EWHC/QB/2009/1719.html Cite as: [2009] EWHC 1719 (QB) |
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QUEEN'S BENCH DIVISION
Strand London WC2A 2LL |
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B e f o r e :
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THE HOME OFFICE | Applicant | |
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STELLATO | Respondent |
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101 Finsbury Pavement London EC2A 1ER
Tel No: 020 7422 6131 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com
(Official Shorthand Writers to the Court)
MR STELLATO appeared in person
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Crown Copyright ©
Introduction
This case concerns the calculation of damages for those unlawfully detained in prison. The respondent to this appeal, Mr Stellato, was awarded some £55,000 at the Oxford County Court. Those were damages for false imprisonment and breach of his rights under Article 5 of the European Convention on Human Rights. The defendant, the Ministry of Justice, appeals to this court on the basis that the learned judge erred in his assessment of the damages, firstly because of his approach to the relevance of Mr Stellato's unlawful behaviour; and secondly, in awarding Mr Stellato anything for loss of opportunity to obtain employment. Moreover, the Ministry of Justice contends that the judge was wrong to hold that he had a discretion to award the defendant less than the judgment rate of interest on costs orders which the Ministry of Justice had obtained against Mr Stellato and which had been set off against the award of £55,000.
Background
"... that there be a stay of paragraph 2 of the Court of Appeal order of 1 December 2006 and implementation thereof continued until withdrawn or determination of the appeal or further order."
Subsequently, the House of Lords heard the appeal. On 28 February 2007 it held that Mr Stellato's argument had been correct ([2007] UKHL 5; [2007] 2 AC 70). At that point, Mr Stellato was released unconditionally.
"10. The claimant's position in the instant case. He had a very bad record, largely for offences of dishonesty, and was at the end of a substantial sentence for arson. He was no stranger to prison, and had so acted in the past as to return to it often. He had no real reputation to lose. While not enjoying prison, he has to his credit made good use of his time there, and almost wholly avoided bad behaviour, and completely avoided drugs. He has had an acute sense of the impropriety and injustice of what happened to him because he had an excellent understanding of the law in what was a difficult field. It was submitted by the defendants that had he been at large he would have been likely to have re-offended and been re-imprisoned. I bear that possibility in mind, especially since he did indeed re-offend after his eventual release by being involved in a burglary in September 2007, for which he is currently serving a three-year sentence imposed in April 2008. It is also pointed out that he was in breach of the conditions of bail, which he was granted on the 1st December 2006 by the Court of Appeal, which was why the bail was revoked. However, as he points out, there should have been no question of bail at all. There is some rather slight evidence that latterly he had been in such a condition that he has needed to received some treatment for depression.
11. It was suggested on the defendant's behalf that an appropriate award might be £35,000 to £40,000, so a mid-figure of say £37,500, with no additional for potential loss of earnings. The claimant submitted that a sum in the order of £56,000 would be appropriate, plus a figure for loss of earnings net of expenses, for which he suggests £10,000, making a total of at least some £66,000.
12. Looking at the matter broadly and taking into account the factors outlined, I have concluded that the proper sum is one of £50,000. To this I add a sum of £5,000 in respect of the loss of a chance to obtain employment. The claimant is an able, fluent and persuasive person, and though his record would be a very heavy and manifest disadvantage to him, he has in the past obtained work once or twice, most recently as a window salesman. He indicated that he could easily have earned £25,000 per annum doing that. Alternatively he might, he says, have done some gardening work. I do not feel able to conclude that on balance of probabilities he would have got a particular job at a particular salary, but do find that there was a respectable chance of him doing some work. Against his net pay, credit would have to be given for living expenses. £5,000 represents the lost chance of some net earnings. It is not a large sum."
Ground 1: Mr Stellato's Damages for Non-Pecuniary Loss
(a) The Law.
There was no difference between the parties as to the overriding principle which should apply in calculating non-pecuniary damages. These were stated by Lord Woolf MR in R v Governor of Her Majesty's Prison Brockhill, ex parte Evans (No. 2) [1995] QB 1043, at page 1060A-B:
"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."
(b) Period of unlawful detention
"Here there are two important considerations. The first is that the order was made by the High Court and, therefore has to be treated as a perfectly valid order and one which has to be obeyed until it is set aside."
The contention of Mr Kovats is that a person is not entitled to ignore a lawful order of a superior court even if he believes, correctly, that the order is unlawful, and notwithstanding that the order is subsequently set aside on appeal. Mr Stellato refutes that argument. In his view, whatever the position at common law laid down in Re M, Article 5 of the European Convention on Human Rights ("the ECHR") means that his detention pursuant to the orders of Hughes LJ was unlawful.
"Article 5(1) of the European Convention, so far as relevant, provides:
'No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court ...'
It seems to me plain that in cases such as the appellants' the sentence of the trial court satisfies article 5(1) not only in relation to the initial term served by the prisoner but also in relation to revocation and recall, since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court. This view may have founded the court's recent admissibility decision in Brown v United Kingdom (Appn No 968/04, 26 October 2004), p.6. The same result was reached in Ganusauskas v Lithuania (Appn No 47922/99, 7 September 1999), where no break was found in the causal link between the original conviction and the re-detention. But the revocation decision must comply with article 5(4), to which I now turn."
(c) The section 116 point
"[31] I have, and may perhaps express, some reservations about the operation of section 133(4A)(c), although these do not bear on the disposal of either issue in this appeal. Auld LJ, in para 113 of his judgment, well described the purpose of the provision:
'The mischief at which the provision is directed - the reason for enabling a deduction to be made for criminality from the entirety of the non-pecuniary suffering (save for personal injury) caused by the miscarriage of justice - is, in my view, two-fold. First, it enables account to be taken of the concurrent effect of any punishment for criminal offences of which the claimant has been rightly convicted and sentenced. Second, it allows an Independent Assessor to reflect the fact that an undoubted or hardened criminal may not suffer so greatly as a person of previous good character from many of the incidents of wrongful conviction and loss of liberty, in particular as to harm to reputation, injury to feelings, inconvenience, separation from family and other unpleasant aspects of incarceration …'
The factors referred to are all, in my opinion, likely to be very relevant. But they are, as it seems to me, factors which can and should be inherent in any assessment of the non-pecuniary loss suffered by any wrongly-imprisoned claimant: it is of the highest relevance that a claimant would have been in prison in any event or had a very bad criminal reputation independently of the offence of which he was unjustly convicted. Thus I would expect account to be taken of these matters at the first stage of the assessment rather than to base that assessment on assumed and fictional facts. But if account is taken of such matters at the first stage of the assessment, I am unclear what justification there can be for making a percentage deduction at a later stage. This matter, not raised by counsel in argument, perhaps merits consideration."
(d) Assessment
Ground 2: Mr Stellato's Damages for Loss of Employment Opportunity
Ground 3: The Counterclaim