Wright, R (on the application of) v Secretary of State for the Home Department [2006] EWCA Civ 67

Case No C1/2005/0086[2006] EWCA Civ 67
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
THE HON. MR JUSTICE BENNETT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 15 th February 2006
Before
THE RIGHT HONOURABLE LORD JUSTICE WARDTHE RIGHT HONOURABLE LADY JUSTICE ARDENTHE RIGHT HONOURABLE LADY JUSTICE HALLETT
Between
THE QUEEN (ON THE APPLICATION OF ERNEST LESLIE WRIGHT)AppellantSECRETARY OF STATE FOR THERespondentHOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Stephen Cragg (instructed by Lester Morrill) for appellantPushpinder Saini (instructed by Treasury Solicitors) for respondent
Judgment

The factual background

[1]On 24 May 1973 the Appellant, Ernest Leslie Wright, was convicted of and sentenced to life imprisonment for the murder of the husband of his mistress whom he battered to death with an iron bar. As was the practice in those days no tariff was set. By the time the Lord Chief Justice did recommend in 1985 that he serve 13 to 14 years, the Secretary of State decided that by then he had spent long enough in prison to satisfy the punitive element of his mandatory life sentence.[2]The Parole Board kept his case under review. In July 1982, August 1983 and April 1984 they considered his case but did not recommend his release or his transfer to an open prison. On 13 December 1985 the Parole Board did recommend release, subject to his completing nine months on the pre-release employment scheme and the Secretary of State accepted that recommendation. He was accordingly transferred to the Wakefield pre-release employment scheme hostel on 6 May 1986 and at his request work was found for him on the night shift at a carpet mill. On 13 June 1986 he returned to the hostel during his shift and complained that the work was too hard for him and the shifts too long. He was informed that he might be returned to the main prison. He absconded later that day. He was arrested on 8 July 1986 and subsequently convicted of various offences of theft, taking a motor vehicle without consent and handling stolen property for all of which he was sentenced to 18 months imprisonment. He was sent to HMP Wakefield, a high security prison where he was detained as a category B prisoner.[3]The Parole Board next considered his case in September 1988 and recommended release via open conditions and a further period in a pre-release employment scheme hostel. The recommendation was accepted by the Secretary of State in December 1988. He was given a pre-release date set at 5 October 1990. In April 1989 he was transferred to HMP Sudbury an open prison but he stated on arrival that he could not cope with open conditions and dormitories and threatened to abscond. He was persuaded to stay. It did not last long. On 19 April 1989 he absconded from prison and when recaptured later in the day again was found in possession of property taken from more than one burglary. This time he was not prosecuted. His early release was cancelled and he was eventually allocated to HMP Ranby, a closed category C prison.[4]In March 1991 the Parole Board reviewed his case and recommended he remain in those closed conditions for a further 18 months. Before the decision could be passed to him he escaped whilst on an escorted visit to his sister’s home. He was arrested a month or so later again, driving a stolen motor car. No prosecution followed. He was, however, transferred to HMP Blundeston, a category B prison.[5]The next review by the Parole Board took place in June 1993 when the board recommended his staged release from prison because he was no longer a risk and was past tariff. The Secretary of State rejected that recommendation on 1 July 1993 explaining that:
“The Secretary of State is not prepared to agree to the Parole Board recommendation. He has taken this decision because you have failed to satisfactorily confront and tackle your offending behaviour and you have displayed a lack of insight into your original offence and into the reasons behind your absconds from prison. Furthermore, the Secretary of State is not confident that you are likely to comply with the conditions of a life licence and the requirements of supervision. You will be transferred to a category C prison and your next Parole Board review will begin in October 1994.”
He was then transferred to HMP Lancaster, a category C prison. He had by then been in prison for 20 years.[6]It is part of the Appellant’s case that the Secretary of State failed to heed the reports prepared for the Board which stressed that he did not present a risk of danger to the public and that previous failures to comply with the conditions for his release arose as much from the unsuitability of the release plans as from his own unsuitability for release. The psychiatric evidence was that release into open conditions created anxiety and depression and that it would be preferable to find some other route for his freedom.[7]When the review was held in December 1994 the Parole Board recommended that he be released after a period on pre-release employment and, in apparent agreement with the reports before it, the Board noted that he “does not benefit from open conditions”. The Secretary of State did accept the recommendation to release him but, despite the reports, imposed the condition that he first completed six months in an open prison and six months in a pre-release employment scheme hostel. For this purpose he was transferred on 30 May 1995 to an open prison, HMP Layhill, and given the release date of 29 May 1996. On 14 September 1995 he absconded once again. By now that ought not to have been a surprise. He was arrested a month later in Blackpool, apparently saying he was attempting to return to Lancaster prison where he had been happy. No charges were laid against him for any offences committed during that period and so he returned to the closed conditions which he seemed to prefer.[8]Finally on his review in September 1998 the Parole Board exceptionally recommended his release after completion of nine months as a category D prisoner whilst remaining in category C conditions at HMP Wymott. The recommendation was accepted by the Secretary of State. He was given a pre-release date of 10 November 1999 and duly released on life licence on that date. He had spent 26 years in prison, nearly fourteen of them after the first recommendation for release. Apart from a short period when he was recalled between March and June 2005, he has remained on licence ever since.

Legal developments affecting this claim

[9]Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides as follows: “1. Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; … 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. 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.” (a) the lawful detention of a person after conviction by a competent court; …[10]On 18 July 1994 the European Court of Human Rights decided in Wynne v United Kingdom (1994) E.H.R.R 333 that there had been no violation by the United Kingdom of Article 5(4). In summary it was held that a mandatory life sentence to which Wynne had been the subject belonged to a different category from a discretionary life sentence, which was also imposed upon him for a subsequent offence of manslaughter, because the mandatory sentence was imposed by reason of the inherent gravity of the offence of murder and not because of factors likely to change over time, such as the dangerousness of the prisoner. Accordingly the guarantee in Article 5(4) was satisfied by the original trial and by the appeal proceedings with the result that it conferred no additional rights on a mandatory life sentence prisoner to challenge subsequently the lawfulness of the continuing detention under the mandatory life sentence. This decision was to the same effect as the earlier decision of the Strasbourg Court in Thynne, Wilson & Gunnel v United Kingdom (1991) 13 E.H.R.R 666. The underlying basis of these decisions was that the mandatory life sentence for murder was a sentence which prescribed life-long detention for punitive reasons.[11]The release of prisoners serving mandatory life sentences was then dealt with by Section 29 of the Crime (Sentences) Act 1997 (“the 1997 Act”) which provides that:
“(1) If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial Judge if available, release on a licence a life prisoner who is not one to whom Section 28 above applies. (2) The Parole Board shall not make a recommendation under sub-section (1) above unless the Secretary of State has referred the particular case … to the Board for its advice.”
[12]On 28 May 2002, the Strasbourg Court took a different view of the operation of a mandatory life sentence and decided in Stafford v United Kingdom (2002) 35 E.C.H.R 112 that the mandatory sentence could no longer be regarded as being wholly punitive: in reality it was partly punitive but also partly preventative. This preventative stage started after the punitive tariff had expired and that meant that the grounds for the continued detention of the prisoner must be considerations of risk and dangerousness. Consequently the prisoner had the right to take proceedings for the lawfulness of his continued detention to be decided speedily by a court and no such procedure was in place.[13]In Regina (Anderson) v Secretary of State for the Home Department [2003] 1 A.C. 837, the House of Lords explained that when the Secretary of State set the tariff he was exercising a sentencing function and that was incompatible with Article 6(1) of the Convention. It equally followed that because Section 29 imposed no duty on the Secretary of State either to refer a case to the Board or to release a prisoner serving a mandatory life sentence there was also a breach of Article 5(4).[14]In Regina (Richards) v Secretary of State for the Home Department [2004] EWHC 93 Silber J held that the decision in Stafford should be applied retrospectively. The Claimant’s Article 5 rights had been infringed and so he held that pursuant to Article 5(5) the Claimant was entitled to obtain an assessment by the court of the appropriate level of compensation to be paid to him. I shall have to consider these cases in a little more detail later.

The claim in this case

[15]On 6 November 2003 solicitors on the Appellant’s behalf made a claim for compensation pursuant to Stafford for refusing to agree to the Appellant’s release from prison earlier than November 1999 despite the recommendations for his release made in 1988, 1993 and 1994. The Secretary of State’s response in his letter of 6 December 2003 was:
“I should also point out that the Secretary of State in fact only rejected one recommendation for release in 1993. The recommendations in 1988 and December 1994 … were in fact accepted, but Mr Wright subsequently absconded after being moved to a pre-release hostel. The rejection came one year before Strasbourg held in Wynne (1994) Art 5(4) did not apply to post-tariff adult mandatory lifers. While Stafford held the opposite in 2002, clearly there was no breach of the convention before 1994.”
The claim was rejected accordingly.[16]On 1 March 2004 the Appellant’s solicitors wrote again now referring to the Richards decision and contending that:
“(a) there is a freestanding convention right under Art 5(5) of the convention so that victims of breaches of Art 5 will have “an enforceable right to compensation”; (b) the decision in Stafford has retrospective effect.”
On that basis it was contended that the Secretary of State’s refusal on 6th December 2003 to consider the claim for compensation was a breach of Article 5(5).[17]The response of the Secretary of State was this:
“We are fully aware of the decision in Richards, and the finding in that case that the E Ct HR decision in Stafford has retrospective effect. However, the point that we made in our previous letter is that the only rejection of a recommendation for release in your client’s case occurred prior to the E Ct HR decision of Wynne in 1994. While Stafford may have some retrospective effect, the European Court made it clear that they were not overruling the earlier Wynne decision, but that the position had merely changed over the intervening years. Accordingly, any executive decision on the release of a mandatory lifer pre-Wynne (and arguably up to 1998 – the time of the executive release decision in Stafford) cannot be said on any basis to be a breach of Article 5(4). The Richards case does not change this fact. Article 5(5) depends on a breach of the other provisions of that Article. For the above reasons, there is no such breach in your client’s case, and accordingly we do not accept that there is any right to compensation, quite apart from the obvious time limitations.”
[18]The Appellant sought judicial review of those refusals by the Secretary of State to consider his claim for compensation. On 30 November 2004 Bennett J dismissed his claim on the basis, as we shall see, that no claim could lie in respect of alleged wrongful detention which pre-dated the coming into force of the Human Rights Act 1998. He gave permission for this appeal.

The issues in this appeal

[19]We have been asked to deal with two main issues. The first is whether there is a free-standing autonomous right to compensation conferred by Article 5(5) and, if so, whether the Secretary of State is in breach of it by failing after the HRA came into force to implement a scheme to compensate victims of detention in contravention of Articles 5(1) and 5(4). The second question is raised by the Secretary of State’s Respondent’s notice seeking our decision on whether or not Stafford operates retrospectively or only prospectively.

The Human Rights Act 1998 (“ the HRA”)

[20]The material provisions of the Act are these:
“1(1) In this Act “the convention rights” mean the rights and fundamental freedoms set out in – (a) Articles 2 to 12 and 14 of the Convention … 2(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any – (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights … whenever made or given … 6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Sub-section 1 does not apply to an act if – (a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with Convention rights, the authority was acting so as to give effect to or enforce those provisions. 7(1) A person who claims that a public authority has acted … in a way which is made unlawful by Section 6(1) may – (a) bring proceedings against the authority under this act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is … a victim of the unlawful act. 8(1) In relation to any act … of a public authority which the court finds is … 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 award the payment of compensation, in civil proceedings.”
The Act came into force on 2 October 2000 and on that day the material Articles of the European Convention on Human Rights became part of the domestic law of England and Wales. The judgment under appeal[21]There were a number of issues raised before Bennett J. but he very wisely cut through to the quick because he recognised that if the submission advanced by Mr Saini, counsel for the Secretary of State, that the claimant could have no claim for damages under the HRA in respect of detention which pre-dated the coming into force of the Act was correct, such a submission was a complete answer to the claim. That, therefore, was the only point addressed by him in his judgment.[22]The nub of his judgment is contained in the following paragraphs:- “43. In my judgment the submissions of Mr Saini are much to be preferred to those of Mr Cragg. The European Convention on Human Rights was made part of English domestic law by the 1998 Act. Prior to 2nd October 2000 it was not part of the English domestic law. It must therefore follow that no breach of Articles 5(1) and/or 5(4) in respect of a claimant’s detention between 19993 and 1999 was actionable in English domestic law; and thus no compensation could have been payable under Article 5(5). The only recourse available to the claimant would have been for him to have gone directly to the European Court of Human Rights.44. In Wilson [Wilson v First County Trust Limited (2) [2003] UK HL 40, [2004] 1 AC 816] and McKerr [In re: McKerr [2004] UKHL 12, [2004] 1 WLR 807] the House of Lords said, save for certain exceptions which do not apply in the instant case, the provisions of the 1998 Act were not intended to apply to matters which occurred before 2nd October 2000. I accept that McKerr was concerned with section 6. Mr Cragg has submitted that section 6(2) operates in the instant case as it did in Richards to take the matter out of section 6(1). But even on the assumption that that is correct, I do not see how the very strong and powerful dicta of the House of Lords in Wilson and McKerr can thereby be circumvented. Furthermore, the logic of Mr Cragg’s argument (which he readily accepted) is that Article 5(5) could be used by convicted murderers, in respect of detention following the refusal of the Secretary of State to accept the Parole Board’s recommendation for release, going back to the abolition of the death penalty and the provision that a person convicted of murder shall be sentenced to life imprisonment, pursuant to the Murder (Abolition of the Death Penalty) Act 1965. That, to my mind, is a startling proposition.45. I accept Mr Saini’s submissions that Article 5(5), which, as with the other parts of Article 5, only became part of English domestic law with effect from 2nd October 2000, is parasitic on Article 5. There is no enforceable right to compensation unless there has been a “contravention of the provisions of this Article”. In my judgment it is logical and consistent with Wilson and McKerr to hold that compensation is payable under Article 5(5), provided that breach under Article 5(1) and/or 5(4) occurred after 2nd October 2000, whether or not a cause of action under section 6(1) could be defeated by reason of section 6(2) of the 1998 Act. For, if section 6(2) did not apply, a claimant would be within section 6(1) and McKerr would, in my judgment, prevent a claimant from claiming compensation under Article 5(5) in respect of breaches under Article 5(1) and 5(4) which took place prior to 2nd October 2000. I see no reason why, if section 6(2) applies, which it is said to do in the instant case, a claimant such as a claimant in this case should be able to circumvent the clear decisions of the House of Lords and thus be in a better position.” Discussion[23]The initial stages of the argument are these:- i) If it was not conceded by the Secretary of State, it was the common assumption upon which the argument proceeded that there were breaches of Articles 5(1) and 5(4) because the appellant was not released when recommended for release in 1993 and he had no entitlement then to take proceedings for a court to determine the lawfulness of his detention. ii) It is always necessary to bear in mind the distinction which Lord Hoffmann drew in paragraph 62 of his speech in McKerr, namely the distinction- “between the obligations under international law which the United Kingdom (as a state) accepted by accession to the Convention and the duties under domestic law which were imposed upon public authorities in the United Kingdom by section 6 of the 1998 Act. These obligations belong to different legal systems; they have different sources, are owed by different parties, and have different contents and different mechanisms for enforcement.” He went on to add in paragraph 63:- “Although people sometimes speak of the Convention having been incorporated into domestic law, that is a misleading metaphor. What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state. And their meaning and application is a matter of domestic courts, not the court in Strasbourg.” He went on to add in paragraph 63:- iii) It is now beyond dispute that the HRA does not operate retrospectively. Lord Nicholls of Birkenhead explained in paragraph 12 in Wilson that:- “Section 6 to 9 are forward looking in their reach. Section 6(1) provides that it “is unlawful for a public authority to act in a way which is incompatible with a Convention right”. On a natural reading this provision is directed at post-Act conduct. The context powerfully supports this interpretation. One would not expect a statute permitting human rights values to render unlawful acts which were lawful when done. That would be to impose liability where none existed at the time the act was done. Sections 7 to 9 are concerned with conduct outlawed by section 6(1). They prescribe remedial consequences which ensue when a public authority has acted, or proposes to act, in a way “which is made unlawful by section 6(1)”: section 7(1). It follows therefore that, like section 6(1), sections 7 to 9 are concerned with post-Act events.” iv) It follows that the appellant cannot bring an action for damages under section 7 as the acts of the Secretary of State were not unlawful within the meaning of section 6(1) because the breaches occurred before the Act came into force and so, as a matter of domestic law, the Secretary of State was not acting in a way incompatible with the appellant’s Convention rights set out in Articles 5(1) and 5(4). v) In any event, and pursuant to section 6(2), even if the Act were incompatible with those Convention rights, section 6(1) would not apply because the Secretary of State, being under no duty to release the prisoner if the Parole Board recommended it, could not have acted differently so long as section 29 of the Crime (Sentences) Act 1997 remained on the statute book. It matters not, for this purpose, that section 29 has since been declared to be incompatible with the Act: see Regina (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837. vi) If sections 6 and 7 give no remedy in damages for the breaches of Articles 5(1) and 5(4), then the appellant’s only claim for compensation, if he has one, will lie under Article 5(5).

He went on to add in paragraph 63:-

[24]With regard to Article 5(5) some preliminary observations need to be made. i) Article 5(5) is itself a Convention right as defined by section 1(1) of the Act. ii) On the assumption that it would be unlawful within the meaning of section 6(1) for the Secretary of State as a public authority to deny the appellant’s right to compensation under Article 5(5), the Secretary of State expressly conceded before us, as he had done in Richards, that he could have acted differently and could have paid compensation with the result that he could not have escaped liability by reliance on section 6(2). There was some debate about the correctness of that concession and we were referred to Regina (Hooper) v Secretary of State for Work and Pensions [2003] EWCA Civ. 813, [2003] 1 WLR 2623 and [2005] UKHL 29, [2005] 1 WLR 1681. Interesting though the debate was, for my part I do not propose to go behind the concession which the Secretary of State did not seek to withdraw.[25]The key question is whether, as the appellant contends, the right to compensation under Article 5(5) can be regarded as a separate, freestanding autonomous right capable of giving rise in itself to cause of action under the HRA in the event of a refusal to pay compensation or whether, as the Secretary of State contends, the right to compensation under Article 5(5) is “parasitic” and, as a result, arises only if a breach of Articles 5(1) and/or 5(4) can first be established. Discussion[26]I am grateful to counsel for their well-presented written arguments and their concise oral submissions.[27]Mr Cragg submits that the fact that the breaches of Articles 5(1) and 5(4) occurred before the HRA was implemented is irrelevant because the material breach of Article 5(5) is the refusal to give an enforceable right to compensation evidenced by the refusal to meet the claim. That refusal occurred after the Act was enforced.[28]He seeks to distinguish McKerr where the issue was whether there was an implied ancillary obligation continuing after the Act was enforced which arose under Article 2 to hold an investigation into an unlawful death which occurred before the Act came into effect. The reasoning of Lord Nicholls, with emphasis added by me to highlight phrases deployed in the argument was:- “19. Thus Article 2 may be violated by an unlawful killing. The application of section 6(1) of the Human Rights Act to a case of an unlawful killing is straightforward. Section 6(1) applied if the Act, namely, a killing, occurred after the Act came into force. Section 6(1) does not apply if the unlawful killing took place before 2nd October 2000. So much is clear.20. The position is not so clear where the violation comprises of a failure to carry out a proper investigation into a violent death. Obviously there is no difficulty if the death in question occurred post-Act. The position is more difficult if the death occurred, say, shortly before the Act came into force and the necessary investigation would fall to be held in the ordinary course after the Act came into force. On which side of the retrospectivity line is a post-Act failure to investigate a pre-Act death?21. In my view the answer lies in appreciating that the obligation to hold an investigation is an obligation triggered by the occurrence of a violent death. The obligation to hold an investigation does not exist in the absence of such a death. The obligation is consequential upon the death. If the death itself is not within the remit of section 6, because it occurred before the Act came into force, it would be surprising if section 6 applied to an obligation consequential upon the death. Rather, one would expect to find that, for section 6 to apply, the death which is the subject of investigation must itself be a death to which section 6 applies. The event giving rise to an Article 2 obligation to investigate must have occurred post-Act.22. I think this is the preferable interpretation of section 6 in the context of Article 2. This interpretation has the effect, for the transitional purpose under consideration, of treating all the obligations arising under Article 2 as parts of single whole. Parliament cannot be taken to have intended that the Act should apply differently to the primary obligation (to protect life) and a consequential obligation (to investigate a death).”[29]Mr Cragg submits that Article 5(5) is different because the obligations of Articles 5(1) and 5(4) not to deprive a person of liberty are separate from the obligation imposed by Article 5(5) to provide an enforceable right to compensation. Article 5(5) is unique in providing an express right to compensation for substantive breaches of Article 5(5) itself.[30]He submits that the obligation to compensate is not dependent upon showing that the detention was unlawful as a matter of domestic law (and he seems to acknowledge that section 29 of the Crime (Sentences) Act 1997 prevents the Secretary of State’s action being treated as unlawful). It is, he says, sufficient if there was a breach of Articles 5(1) and 5(4) under our international obligations as that would pull the trigger to fire the claim under Article 5(5).[31]That the requirement to pay compensation under Article 5(5) does not depend on the appellant’s detention between 1993 and 1997 being unlawful under domestic law is the essential plank of his argument. This was not the case in Richards where the alleged unlawful detention occurred after the HRA was implemented. The appellant case rests on the post-HRA breach of Article 5 (5), not pre-HRA breaches of Articles 5(1) and 5(4).[32]His subsidiary argument is that far from his case leading to a “startling” result, it would be more surprising if an Act designed “to bring rights home” failed to give a domestic remedy when one will still be available in Strasbourg.[33]He makes a further point which I hope I do not disparage too much if call it his jury point that if and insofar as fairness is the touchstone for their being no retrospective application of legislation (see Wilson), the unfairness to the Secretary of State in having liability imposed on him retroactively is nothing compared to the unfairness to the appellant who languished in prison much longer than he should have done.[34]Mr Saini’s counter-argument is that the right under Article 5(5) is expressly tied to proof of a contravention of the provisions of Article 5 and so it is just as ancillary or consequential upon proof of those breaches as the right to an investigation into an unlawful killing is dependent upon the breach of the duty to protect life under Article 2. There is no difference in substance between an ancillary implied obligation to investigate under Article 2 and an express duty in respect of liberty in Articles 5(1) and 5(4). He submits that it would be illogical and would give unintended retrospective effect to Article 5(5) if the actual detention cannot be impugned under the Act because it is not retrospective but the State is nonetheless required to pay damages for that detention. In a sentence, the nub of this submission is that the appellant is not a “victim” for the purposes of the Act. Conclusions[35]Like Bennett J. I prefer the arguments of Mr Saini. Since the source of the right conferred by Article 5(5) is the statute, the meaning of Article 5(5) is, per Lord Hoffmann supra, a matter for this court not the court in Strasbourg. As a matter of construction of Article 5(5), treating it as a domestic right, I am of the view that a person can only “the victim of … detention in contravention of the provisions of this Article” if there were a breach of Articles 5(1) and/or 5(4) recognised by our domestic law. Because the HRA does not apply retrospectively, there is no breach for violations before the Act was in force. Any violation of the appellant’s right to liberty occurred pre-Act between 1993 and 1997. Consequently the appellant has no “enforceable right to compensation” which can be recognised by the domestic court. In my judgment it is as short and simple as that.[36]Applying what Lord Nicholls said in McKerr, Parliament cannot have intended that the Act should give a different meaning for Article 5(5) purposes to a “contravention of the provisions of this Article” (namely a breach of Articles 5(1) and 5(4)) from the meaning it gives for section 6 purposes to acts “incompatible with a Convention right” (again breaches of Articles 5(1) and 5(4)). Logic and consistency demand that all obligations under the Act arise alike after implementation of the Act. The trigger for the “enforceable right to compensation” is an unlawful detention. The trigger does not fire the remedy if pulled before the Act is enforced.[37]In my judgment the Judge was correct in his approach for the reasons he gave and I would dismiss this appeal.

The Respondent’s notice and the retrospective/prospective effect of judgments

[38]The issue arises in this way. The law declared by the European Court of Human Rights in Wynne on 18th July 1994 was to the effect, as I have set out, that the United Kingdom’s treatment of prisoners subject a mandatory life sentence did not give rise to a violation of Article 5(4). On the strength of that authority no claim for compensation would lie under Article 5(5) for breaches of Articles 5(1) and 5(4) on the part of the Secretary of State in his handling of the appellant’s release between 1993 and 1997. Then on 28th May 2002 the full court in Strasbourg took a different view and held in Stafford that his continued detention was in breach of Articles 5(1) and 5(4). The question is whether Stafford operates retrospectively so as retroactively to impugn the decision lawfully taken while Wynne was thought to be good law. Silber J. in Richards decided that it did. Bennett J. wisely held he did not have to decide the question.[39]For the Home Department, however, this is said to be in practical terms a much more important issue than the issue in the appeal itself. I am not sure I agree with that but be that as it may. The Secretary of State pleaded with us to hear him on the respondent’s notice and I very much regret that we did. I was seduced by the fascinating arguments that are thrown up by the issue when I should have been more robust. Since Bennett J. did not dip his toes into this murky water, there is nothing in his order or his judgment which deals with this question at all. In truth, therefore, there is nothing capable of being appealed to us and the respondent’s notice should be dismissed for that reason. This is a vain attempt to appeal Silber J’s decision in Richards which the Secretary of State was unable to do given the way that that case was decided.[40]Our judgment on this question is, therefore, obiter from beginning to end and I am reluctant to pronounce upon it at all. Nevertheless, and in deference to the sustained arguments put to us, I proffer these few not very valuable thoughts.[41]The issue concerns the retrospective/prospective operation of the judgment of the European Court of Human Rights in Stafford. It does not concern the prospectivity of English decisions wherein lay my real fascination and interest for the argument.[42]The English law in this respect is developing rapidly. Prospective rulings seemed anathema to Lord Wilberforce in Launchbury v Morgans [1973] AC 127, 137 and Lord Goff of Chieveley in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 379. By the time of Regina v Governor of Brockhill Prison, ex p Evans(No. 2) [2001] 2 AC 19, Lord Slynn at p. 26 H considered that the effect of judicial rulings being prospective might in some situations be “desirable and in no way unjust”, though Lord Steyn at p. 28 B thought the point was a “novel one”. With some perspicacity Lord Hope of Craighead foresaw at p. 36 that “the issue of retrospectivity is likely to assume an added importance when the Human Rights Act 1998 is brought into force”. Lord Hobhouse at p.48 F would have none of it. The latest in this line of authority seems to be In re Spectrum Plus Ltd(in liquidation) [2005] UKHL 41, [2005] 3 WLR 58 where the danger was acknowledged that prospective overruling “would amount to judicial usurpation of the legislative function”, per Lord Nicholls at para. 28 but nonetheless he noted that, especially in the human rights field, “ ‘Never say never’ was a wise judicial precept”, (para. 42).[43]The question has attracted interest in the academic journals. See Arden L.J., “Prospective Overruling”, (2004) LQR 7; Lord Rodger of Earlsferry, “A Time for Everything under The Law; Some Reflections on Retrospectivity”, (2005) 121 LQR 57 and Duncan Sheehan and T. T. Arvind, “Prospective Overruling and Fixed/Floating Charge Debate”, (2006) 122 LQR 20.[44]As I have said, these are interesting and important questions for the development of English Law but I say no more about them. The real question is not about the prospective effect of our decisions but of Strasbourg’s decisions in general and Stafford in particular.[45]Mr Saini points out that it is far from clear that the court acknowledged that it was wrong in the way it decided Wynne. On the contrary, he submits the court approached the question in the tradition of interpreting the Convention as a “living instrument” which places obligations on States that may change over time as conditions and circumstances change. In that tradition the court, although respecting its earlier rulings in accordance with the principle of legal certainty, is not bound by them and may adopt different interpretations of the Convention appropriate to the changing times. He relies on these passages in the judgment:- “68. While court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in the previous cases. Since the Convention is first and foremost a system for the protection of Human Rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to standards to be achieved. It is of crucial importance that the convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement. 69. Similar considerations apply as regards the changing conditions and any emerging consensus discernible within the domestic legal order of the respondent Contracting State. Although there is no material distinction on the facts between this and the Wynne case, having regard to the significant developments in the domestic sphere, the Court proposes to re-assess “in the light of present-day conditions” what is now the appropriate interpretation and application of the Convention.”[46]This technique was applied in the case of Goodwin v UK (2002) 35 EHR 447 on the rights of transsexuals. The House of Lords considered the implications of that decision in Bellinger v Bellinger and Lord Nicholls observed at para. 24 that:- “This decision of the Court was essentially prospective in character. The Court made this plain. … By the Goodwin decision the Court found that “the situation, as it has evolved, no longer falls within the United Kingdom’s margin of appreciation”; paras. 119-120 (emphasis added).”[47]Mr Saini urges us to take the same view of Stafford. In my judgment, however, it is not for us to second guess how the European Court of Human Rights understood its own decision. We know what they thought about the matter because Stafford itself decides it. They treated their own judgment as having retrospective effect - that is why they awarded damages for violations of Articles 5(1) and 5(4) which occurred after Wynne and before their decision. Subsequent awards have been made in Von Bulow v UK (Application No. 75362/01, 7 October 2003, and Wynne v UK (No.2) (Application No. 67385/01, 16 October 2003. Remarkably Mr Wynne recovered compensation despite the court’s 1994 decision.[48]The European Court of Human Rights could in those cases have declared in the interest of certainty that their ruling was prospective only as they did in Marckx v Belgium (1979) 2 EHRR 330. They chose not to do so. They treated their ruling as having retrospective effect. However unfair it may be that the Home Secretary should now retrospectively be condemned to pay compensation for violation of a prisoner’s human rights when, at the time he acted, he was acting in accordance with the law declared by the highest court in the field of human rights, how can I say the European Court of Human Rights were wrong? Section 2(1) of the HRA requires me to take their decisions into account and I simply cannot discard them.[49]In my judgment the proper place to test this question is in Strasbourg not in this appeal. Since the Appellant is likely to seek his compensation for the violation of Article 5(5) in Strasbourg, the Government may then have their chance to address its challenge to that court and persuade them they have gone wrong again. I would dismiss the respondent’s notice.[50]I am grateful to my Lord, Lord Justice Ward, for setting out the facts and submissions in this matter. I agree with him that this appeal should be dismissed and that the respondent’s notice should also be dismissed.[51]As to my reasons for dismissing this appeal, I see the question in issue as one of whether the Human Rights Act 1998 has retrospective operation rather than arising from any difficulty arising out of the meaning of article 5(5) of the Convention. As my Lord has put it, the trigger to the ‘enforceable right to compensation in article 5(5) is the unlawful detention. The trigger does not fire the remedy if pulled before the Act is enforced’ (judgment para 36). The question of the retrospective operation of the Human Rights Act 1998 has been considered at length in a number of authorities in the House of Lords: the issue has arisen in several contexts as claims about Convention rights frequently involve facts occurring before 2 October 2000 (the commencement date of the Act). The general principle to be applied was identified by the House of Lords in Wilson v FirstCounty Trust Limited [2004] 1 AC 816 as essentially one of fairness. It is not to be presumed that the Act renders unlawful conduct which took place before the commencement of the Act and which was lawful when it took place. Applying that principle here, there can be no claim under article 5(5) of the Convention based on detention occurring before 2 October 2000, which was lawful when it took place. In those circumstances, it is not unfair to the appellant (as forcefully submitted by Mr Cragg) that he should not be entitled to compensation for that detention. The position might well be different if the issue was one as to the application of Convention rights to criminal proceeding, after the Act in respect of events occurring before its commencement, but that is not this case. The appellant’s claim must therefore fail. It follows that I see the question in this appeal as one of retrospectivity, not as to the meaning of Article 5 of the European Convention on Human Rights. If that had been in issue, this court would have been bound to take into account the jurisprudence of the Strasbourg court (Human Rights Act 1998, section 2).[52]As to the respondent’s notice, I take the view that the question of whether a decision of the Strasbourg court has prospective effect only would have to be decided by this court in any case where it was necessary to do so in order to determine the rights of the applicant. Although my Lord refers to the question of the prospective effect of judicial decisions having become of academic interest, it should be noted that two out of the three contributions to which he refers come from members of the judiciary. Prospective overruling raises fundamental issues as to the nature of the judicial role and the function of the courts, and has become of more acute interest since the commencement of the Human Rights Act 1998.[53]Turning to the Stafford case, the Strasbourg court noted in its judgment that this court had in R (Anderson and Taylor) v Secretary of State for the Home Department (2002) UKHRR 261 already expressed the view that the tariff-fixing exercise for mandatory life-prisoners violated articles 6(1) and 5(4) but that the decision of the Strasbourg court in Wynne (1995) 19 EHRR 333 had to be regarded as determinative of the matter. (Following the Stafford decision, the House of Lords went on to make a declaration of incompatibility in the Anderson and Taylor case: [2003] 1 AC 837). Although the Strasbourg court held that it could “no longer” be concluded that the process for mandatory life prisoners satisfied article 5(4), there is no indication that it considered that this ruling should take effect only from the enunciation of that decision. Domestic law suggested consensus on what the law should be had already been achieved in R (Anderson and Taylor) v Secretary of State for the Home Department. In addition, as my Lord points out, the Strasbourg court has made awards for non-pecuniary damage by way of just satisfaction in two subsequent cases in respect of facts arising before the Stafford decision was handed down. Furthermore, in the Stafford decision itself the applicant was awarded a sum for pecuniary andnon-pecuniary damage for his unlawful detention which had occurred some years previously.[54]In relation to the question as to whether a decision of the English court on a Convention rights issue may be expressed so as to be prospective only, two types of case at least arise. The first case is where the question of human rights was decided by the Strasbourg court but only with prospective effect. In these circumstances, the English court would no doubt wish to consider carefully whether to give the same effect to its own decision though it would not be bound to do so.[55]In other cases, it is important to recall that, save in special circumstances, this court will apply the same jurisprudence as established by the Strasbourg court on questions about Convention rights. As Lord Bingham said in R (Ullah) v theSpecial Adjudicator [2004] 2 AC 323:
“20. In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. Whilst such case law is not strictly binding, it has been held that the court should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R(Alconbury Developments Limited) v Secretary of State for the Environment, Transport & the Regions [2003] 2 AC 295, para 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoratively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with the Convention rights. It is of course open to member states to provide for rights more generous to those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts since the meaning of the Convention should be uniform throughout the states party to it. The duty of the national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”
[56]The English courts must bear in mind that, as Lord Slynn said in the Alconbury case cited by Lord Bingham, if an applicant who relies on human rights is not successful in this jurisdiction he may well receive a remedy in the Strasbourg court itself. It may be said to defeat the object of the Human Rights Act 1998 if an applicant (whose claim is not excluded on the basis of the non-retrospective operation of the Act) is compelled to take that course.[57]That is not to say of course that the Strasbourg court is not “entitled to have the benefit of the views of our courts on the effects which the Convention has on our law” (per Lord Woolf LCJ in the Anderson and Taylor case at para 23). Indeed, while this may only occasionally be appropriate, such expression is an essential part of the relationship between a national court and a supranational court. The Human Rights Act 1998 put the relationship between the Strasbourg court and the courts of England and Wales on a formal footing for the first time. As a result, there are greater opportunities for interaction between the jurisprudence of such courts and this interaction is likely to yield benefits over time.[58]There may conceivably be cases in which there are no special circumstances which would justify not following Strasbourg jurisprudence but the courts of England and Wales wouldwant to make orders which do not have full retrospective effect. Provisionally, it seems to me that such a case would have to be very exceptional. However, I note that in Re Manitoba Language Rights [1985] 1 SCR 721, for example, the Supreme Court of Canada retrospectively recognised laws which it had held were in breach of the Canadian Constitution Act 1867 as temporarily valid and enforceable in order to prevent a legal void and to preserve the rule of law. In view of the division of opinion among the members of the House of Lords in Re Spectrum PlusLtd (in liquidation) [2005] 3 WLR 58 as to whether it could ever be appropriate to make an order with prospective effect in respect of a decision about the effect of a statutory provision, it may perhaps be noted that this case, and that of Murphy v Attorney General [1982] IR 241 a decision of the Supreme Court of Ireland, summarised in (2004) 120 LQR 7, both involved giving prospective effect to a ruling on a statute.[59]In the present case, for the reasons given above, the decision of the Strasbourg court in the Stafford case was not, in my judgment, itself prospective in its effect. Counsel has not suggested that there are special circumstances justifying this court in not applying the Stafford case in England and Wales, or alternatively that there are any circumstances which would justify not giving the Stafford case retrospective effect even if it has retrospective effect for the purpose of Strasbourg jurisprudence. In those circumstances I would dismiss the respondent’s notice.[60]For these reasons I agree with the order that Ward LJ proposes.[61]I too am indebted to Ward L.J. for his analysis of the facts and the issues that arise on this appeal. For the reasons that he gives I too would dismiss the appeal and the respondent’s notice.