Wright, R (on the application of) v Secretary of State for the Home Department [2004] EWHC 3084 (Admin)

"Please inform the above-named prisoner as follows: 'The Secretary of State has referred your case to the Parole Board which has recommended your staged release from Blundeston for the following reasons: "

"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."

"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 (not 1996 as you note) 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) that Article 5(4) did not apply to post-tariff adult mandatory lifers. While Stafford held the opposite in 2002, clearly there was no breach of Convention before 1994. "

"We are aware that your letter was written before the High Court gave its judgment on 24th January 2004 in the case of Richards ... In Richards Silber J held 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. "

"We are fully aware of the decision in Richards, and the finding in that case that the ECtHR 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 ECtHR decision of Wynne in 1994. Whilst 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. "

"The Secretary of State resists the claim on three independent grounds: (i) The Claimant can have no claim for damages under the Human Rights Act 1998 in respect of detention which pre-dates the coming into force of the Human Rights Act. That is a complete answer to this claim. (ii) If the Court rejects the first submissions, the Secretary of State submits that the Claimant's detention between June 1993 and November 1999 was in fact lawful under Article 5(1) during the period over which he was detained; it was only on the subsequent change in Convention law in the European Court's ruling in Stafford v UK [2002] 35 EHRR 1121 (delivered on 28 May 2002), that the detention after rejection of a recommendation became unlawful. Silber J's decision in Richards that Stafford had retrospective effect was wrong and should not be followed. (iii) Third, as in Richards, the Claimant cannot in fact show that he has suffered any loss by reason of his non-release in June 1993. This is because the evidence shows that when he had been released on recommendations both before and after the June 1993 decision, he had committed offences and absconded. The Claimant would accordingly have been detained, as he was on these occasions, if he had been released in June 1993."

"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 the 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."

"(1) In this Act 'the Convention rights' means the rights and fundamental freedoms set out in -- (a) Articles 2 to 12 and 14 of the Convention, (b) Articles 1 to 3 of the First Protocol, and (c) Articles 1 and 2 of the Sixth Protocol, as read with Articles 16 to 18 of the Convention. (2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15). (3) The Articles are set out in Schedule 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."

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if -- (a) as the 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 the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -- (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."

"(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) The other provisions of this Act come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes. (4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."

"46. Sub-issue (iii) raises the question of whether the defendant will contravene the Article 5(5) obligation by not paying compensation to the claimant. I consider that the right conferred under Article 5(5) of the Convention will only be triggered 'if there has been a declaration by the domestic courts, either expressly or impliedly that Article 5 has been contravened' (Human Rights Law and Practice (1999) Lord Lester QC and David Pannick QC paragraph 4.5.58). This right will only arise if the claimant succeeds in establishing a right to damages or compensation but, as I have explained, at this juncture, I am assuming that such a claim will succeed. Thus if the continued detention of the claimant at any time after 17 November 2001 was a breach of Article 5 because of the decision in Stafford and the claimant can establish a right to damages or compensation, then the defendant will have been in breach of Article 5(5) of the Convention by not paying compensation or damages. In other words, the claimant succeeds on this issue but he still has to show, among other things, that he suffered loss. 47. Sub-issue (iv) requires consideration of whether the claimant can bring a claim if the failure of the defendant to pay him damages is a breach of the claimant's Convention rights. Section 6(1) of the HRA makes it unlawful for the defendant as a public authority 'to act in a way which is incompatible' with a Convention right of the claimant, which in this case is the Article 5(5) right to an 'enforceable right to compensation'. Thus, the claimant will succeed on this point unless this claim is precluded by section 6(2) of the HRA, which I have set out in paragraph 15 above. To my mind, section 6(2) of the HRA does not assist the defendant in respect of his claim because, as is common ground, the defendant could have lawfully made a payment of compensation to the claimant. 48. In those circumstances, I consider that the claimant can obtain either an assessment by the court of the appropriate level of compensation payable by the defendant and a mandatory order that he pays such sums or damages under Article 5(5) of the Convention, provided that he can show first that he has suffered some form of damage and second, that he can establish a breach of Article 5, on which he can rely and this entails determining the effect of Stafford, which is the next issue, to which I now turn."

"A claim for compensation for unlawful deprivation of liberty may be made in the United Kingdom in respect of a breach of domestic law (see para 41 above on false imprisonment). As Article 5 is not considered part of the domestic law of the United Kingdom, no claim for compensation lies for a breach of any provision of Article 5 which does not at the same time constitute a breach of United Kingdom law. The Government argued, inter alia, that the aim of paragraph 5 is to ensure that the victim of an 'unlawful' arrest or detention should have an enforceable right to compensation. In this regard, they have also contended that 'lawful' for the purposes of the various paragraphs of Article 5 is to be construed as essentially referring back to domestic law and in addition as excluding any element of arbitrariness. They concluded that even in the event of a violation being found of any of the first four paragraphs, there has been no violation of para 5 because the applicants' deprivation of liberty was lawful under Northern Ireland law and was not arbitrary. 67. The Court, like the Commission, considers that such a restrictive interpretation is incompatible with the terms of paragraph 5 which refers to arrest or detention 'in contravention of the provisions of this Article'. In the instant case, the applicants were arrested and detained lawfully under domestic law but in breach of Article 5(3). This violation could not give rise, either before or after the findings made by the European Court in the present judgment, to an enforceable claim for compensation by the victims before the domestic courts; this was not disputed by the Government. Accordingly, there has also been a breach of paragraph 5 in this case in respect of all four applicants."

"Having had the advantage of much fuller arguments I respectfully consider that some of these courts, including the Divisional Court in the Hurst's case and the Court of Appeal in Khan's case, fell into error by failing to keep clearly in mind the distinction between (1) rights arising under the Convention and (2) rights created by the 1998 Act by reference to the Convention. These two sets of rights now exist side by side. But there are significant differences between them. The former existed before the enactment of the 1998 Act and they continue to exist. They are not as such part of this country's law because the Convention does not form part of this country's law. That is still the position. These rights, arising under the Convention, are to be contrasted with rights created by the 1998 Act. The latter came into existence for the first time on 2 October 2000. They are part of this country's law. The extent of these rights, created as they were by the 1998 Act, depends upon the proper interpretation of that Act. It by no means follows that the continuing existence of a right arising under the Convention in respect of an act occurring before the 1998 Act came into force will be mirrored by a corresponding right created by the 1998 Act. Whether it finds reflection in this way in the 1998 Act depends upon the proper interpretation of the 1998 Act."

"The context powerfully supports this interpretation. One would not expect a statute promoting 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."

"It is now settled, as a general proposition, that the 1998 Act is not retrospective. The Act itself treats section 22(4) as an exception. This general proposition, however, raises almost as many questions as it answers. Past events have continuing effects."

"The position is not so clear where the violation comprises 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 reach 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 the 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 now under consideration, of treating all the obligations arising under article 2 as parts of a 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). For this reason I consider these judicial review proceedings are misconceived so far as they are sought to be founded on the enabling power in section 7 of the 1998 Act."

"It should no longer be necessary to cite authority for the proposition that the Convention, as an international treaty, is not part of English domestic law ... That proposition has been in no way altered or amended by the 1998 Act. 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 for domestic courts, not the court in Strasbourg."

"If one keeps the distinction between international and domestic obligations firmly in mind, the fallacy in the applicant's reasoning becomes apparent."

"But the fallacy of the reasoning lies in the notion of a 'continuing breach' of articles 2 and 3. The judge was concerned with the rights of the claimants in domestic law. Before 2 October 2000, there could not have been any breach of a human rights provision in domestic law because the Act had not come into force. So there could be no continuing breach. There may have been a breach of article 2 as a matter of international law and this may have 'continued' after 1 October 2000, although, for the reasons given by my noble and learned friend, Lord Brown of Eaton-under-Heywood, I think it unlikely. But that is irrelevant to whether the claimants had rights in domestic law, for which there can be no source other than the 1998 Act. The Act did not transmute international law obligations into domestic ones. It created new domestic human rights. The simple question is whether as a matter of construction, those rights applied to deaths which occurred before the Act came into force."

"Why then should the ancillary right to an investigation of the death apply to a person who died before the Act came into force? In my opinion it does not. Otherwise there can in principle be no limit to the time one could have to go back into history and carry out investigations."

"What the applicant is really saying, therefore, is that, when the Act came into force, it conferred on him a right under article 2 to have his father's death investigated even though his killing was not, and is not to be regarded as having been, in breach of any article 2 Convention right under the Act. Therefore, the applicant is not asking the courts to apply the Act according to its terms, but to amend them so as to fit this case. That cannot be done. If Parliament had intended the rights under article 2 to be split up, with the Act applying differently to the different aspects, then it would have provided for this expressly."

"The duty to investigate is, in short, necessarily linked to the death itself and cannot arise under domestic law save in respect of a death occurring at a time when article 2 rights were enforceable under domestic law, i.e. on and after 2 October 2000." 90. Such is the argument and to my mind it is irresistible. To say, as Mr Treacy, for this applicant does, that the procedural obligation, once engaged, is a continuing one, regarded by the European Court here as still continuing at the date of their decision in 2001, is nothing to the point. Even were it so (and, as I shall shortly come to explain, for my part I doubt it is), that would be the position only on the international plane. It would say nothing as to whether, on the true interpretation and application of the 1998 Act, a pre-2 October 2000 death could give rise to a procedural obligation to hold an article 2-compliant investigation enforceable under domestic law on and after 2 October 2000."