TH v The Crown Court Wood Green & Ors [2006] EWHC 2683 (Admin)

Case No CO/3964/2006

[2006] EWHC 2683 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/10/2006

Before

LORD JUSTICE AULD

MR JUSTICE WILKIE

Between

“TH”Claimant

The Crown Court Wood GreenDefendant

The Crown Prosecution ServiceInterested Parties

The Secretary of State for Constitutional AffairsInterested Party

Stephen Field (instructed by Needham Poulier & Partners) for Claimant

Tim Ward (instructed by Treasury Solicitor) for Secretary of State

Simon Wild (instructed by Crown Prosecution Service) for Crown Prosecution Service

Hearing Hearing dates: 9 October 2006

Judgment

[1]This is the judgment of the Court. This claim was launched on 11 May 2006 as a claim for judicial review of the decision of HH Judge Ansell on 10 May 2006 to remand the claimant into custody purportedly pursuant to section 4(3) of the Criminal Procedure (Attendance of Witnesses) Act 1965 ( the 1965 Act). The relief sought was five fold namely: 1. a declaration that the detention of the claimant was unlawful; 2. an order quashing the decision to remand the claimant into custody; 3. the discharge of the witness summons said to be the authority for his detention; 4. an order for the immediate and final release of the claimant from custody; and, in the alternative, 5. an interim order for the release of the claimant on bail pending the outcome of those proceedings.

[2]On 11 May 2006 Mr Justice Crane considered the matter urgently on the papers. He ordered that the application for bail should be listed urgently on 12 May. He observed that the parties should be prepared to deal with section 29(3) of the Supreme Court Act 1981 ( the 1981 Act). The issue whether a Crown Court decision may not be subject to judicial review by virtue of the provisions of Section 29(3) of the 1981 Act 1981 has repeatedly proved to be troublesome. This issue is currently the subject of work being conducted by the Law Commission. In the meantime, however, this Court has to do what it can to achieve justice in the face of what, at times, appears to be a thicket of technical procedural obstacles.• . The facts

[3]The underlying facts of this claim are not in dispute. The claimant is a 17 year old youth who appeared before the Crown Court as a prosecution witness in a multi handed trial alleging violent disorder and serious assault against ten defendants. The charges arose from an incident in which the claimant had allegedly been threatened and chased by the defendants. He had jumped into his car and driven away from the defendants in such a manner as to collide with a young girl causing her serious injuries. He was charged in relation to those injuries and pleaded guilty to offences resulting in a sentence of 12 months detention in a young offenders institute. He provided the police with a number of witness statements naming nine out of the ten defendants and the Crown took the view that his evidence would assist their prosecution of them. The claimant expressed reluctance to attend their trial. Accordingly, a witness summons was applied for by the Crown and was granted by the trial judge on 24 April 2006. Pursuant to that witness summons the claimant was arrested and brought to the court but was granted bail to attend court to give evidence on 3 May 2006. He failed to do so and was re-arrested. Upon his reappearance at the court he was remanded into custody pursuant to section 4(3) of the 1965 Act. He was called to give evidence on Friday 5 May 2006. His replies to questions from the Crown led them to apply to the court to be allowed to treat him as hostile which application was granted. His previous written statements and his previous interview were put to him in cross-examination and became part of the evidence pursuant to section 119 of the Criminal Justice Act 2003. The claimant was giving evidence during 5, 8, 9 and 10 May. During that period he was repeatedly remanded in custody overnight and over the weekend. The claimant’s evidence was to the effect that he was frightened and had been threatened by the defendants. He felt pressurised by the police to give evidence and he answered all questions to the effect that he could not remember the incident or the participants. When the opportunity came to cross-examine him four of the defendants, through their counsel, did not ask him any questions at all. At the conclusion of that process, after the opportunity had been given to the Crown to re-examine the claimant, the judge remanded him in custody pursuant to section 4(3) of the 1965 Act.

[4]From the transcript of the court proceedings it appears that between 4.01 and 4.29pm on 10 May there was a discussion between the judge and prosecution counsel and counsel, Ms Vallejo, appointed to act for TH for the purposes of potential contempt of court proceedings and in connection with his remand in custody. The judge said at the commencement of that discussion:

“I made an order last night that he will remain in custody on the basis that he remains a potential witness in the case, liable to be recalled, more particularly so in view of the stance he took and the way he gave his evidence.”

In the course of that discussion there was an exchange between the judge and Mr Wild for the Crown. In the course of that exchange the judge said as follows:

“The point that has some weight, I suppose, is that I am stretching a point to say, “we are still receiving his evidence”

. That is really the core of the application.” And a little later on:

“Judge - Yes. The point is have we not effectively received his evidence as unhelpful as it is? Mr Wild – There is a real possibility that he will be required to give evidence. Prosecutions often get summonses against people. It is executed, and then we think, “Oh heavens we don’t need him after all because!”

It does not make the granting of the warrant unlawful in the first case.”

The judge ruled as follows:

“I am not prepared to vary my decision, save to the extent that I will appoint a time, two weeks to-morrow, for him to attend court again to give evidence so that the court is seen to appoint a day. In my view I retain the view that there is a real risk that either side may recall him to put further matters to him. This risk arises purely out of his own mouth, and his failure to co-operate in giving evidence, and the nature of his answers. He only really has himself to blame, I am afraid. I appreciate there are background reasons, but the reason for his remand in custody is because of the totally unsatisfactory nature of the evidence that he has given thus far.”

[5]On 12 May 2006, following an oral hearing which included argument on the question of the Court’s jurisdiction by reason of section 29(3), Mr Justice Holman granted permission to seek judicial review and granted bail. An issue arose whether the terms of the order made by Mr Justice Holman meant that the order of the Crown Court which required the claimant’s attendance on 25 May had ceased to have any effect. Accordingly, on 21 May 2006, an application pursuant to part 23 of the CPR was issued seeking an order that the claimant had no obligation to attend Wood Green Crown Court on 25 May 2006. There was discussion between the claimant’s counsel and counsel for the prosecution in which it appears that by the end of 22 May counsel for the prosecution was satisfied that there would be no application to have the claimant recalled as a witness in the light of what had occurred during the various defendants’ cases. Accordingly, on 22 May 2006 the original witness summons of 24 April 2006 was set aside by the trial judge. The claimant therefore withdrew his part 23 application.• Jurisdiction

[6]The Secretary of State for Constitutional Affairs has been joined as a second interested party. He has raised afresh the question of jurisdiction of this court to entertain a claim for judicial review. He relies on the provisions of section 29(3) of the 1981 Act. That sub-section reads as follows:

“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to a trial on indictment, the High Court shall have all such jurisdiction to make order of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.”

It is said by the Secretary of State that the decision of the judge in this case was a matter relating to a trial on indictment. Accordingly, by virtue of section 29(3) no claim for judicial review can be made. He points out, and it is not in dispute, that this includes where the claim for judicial review seeks a declaration (R v Chelmsford Crown Court ex parte Chief Constable of Essex

1994 1WLR 359

[7]The Secretary of State says that, as a matter of ordinary language, the order in question plainly relates to a trial on indictment. It was made in the course of such a trial, during the hearing of the evidence. The purpose of section 4(3) of the 1965 Act is to ensure a witness will be present in order to give evidence, if required, in the course of such a trial. The Secretary of State relies on a number of pointers towards this conclusion in passages from speeches in a number of decision of the House of Lords dealing with this statutory provision. The first is in Re Smalley 1985 AC 622 at p.642 in the speech of Lord Bridge of Harwich in which he said:

“ It is not difficult to discern a sensible legislative purpose in excluding appeal or judicial review of any decision affecting the conduct of a trial on indictment, whether given in the course of the trial or by way of pre-trial directions…”

And at p.643:

“I can, however, discover no intelligible legislative purpose which would be served by giving to the words “relating to trial on indictment” a wider operation than that indicated in the foregoing paragraph…”

He also relies on the following passage later in p.463:

“Reverting to the judgments in Brownlow’s case 1980 QB 530 I am of opinion with all respect that Lord Denning MR at p.540 took too narrow a view when he suggested that the words “relating to trial on indictment” should be read as equivalent to “in the course of trial on indictment” thus enabling him to conclude that review should be allowed of any order which was made preparatory to a trial on indictment. I think the decision of the majority in that case was right that the order in question, potentially affecting, as it did, the composition of a jury for a forthcoming trial, was …”closely related to trial on indictment,” or as I would prefer to say, was an order affecting the conduct of the trial.”

And a little later:

“It must not be thought that in using the phrase “any decision affecting the conduct of a trial on indictment”

I am offering a definition of a phrase which parliament has chosen not to define. If the statutory language is, as here, imprecise it may well be impossible to prescribe in the abstract the precise words to determine on which side of the line any case should fall and, therefore, necessary to proceed, as Mr Henderson for the appellant submitted that we should, on a case by case basis, but it is obviously desirable that your Lordships’ house should give as clear guidance as the statutory language permits, and I hope that the criterion that I have suggested may provide a helpful pointer to the right answer in most cases.”

[8]This pointer explicitly informed the decision of the Divisional Court in ex parte Rees and others: Times 7 May 1996 in which the Divisional Court concluded that it had no jurisdiction to grant judicial review of a witness summons issued requiring a witness to attend at the Crown Court since that action by the Crown Court was an exercise of its jurisdiction in a matter relating to trial on indictment.

[9]The Secretary of State also relied on a further pointer identified by Lord Bridge in re Sampson

1987 1 WLR 194

at p. 196 where he said:

“It is in any event clear, I apprehend, that certain orders made at the conclusion of a trial on indictment are excluded from judicial review as “relating to trial on indictment” not because they affect the conduct of the trial but rather because they are themselves an integral part of the trial process…”

And at p.197:

“…the Court is exercising a discretion in the light of what it has learned in the course of the trial as to the nature of the case, both for the prosecution and the defence, and in the light of the conduct and outcome of the trial itself…it follows that all such decisions are so intimately bound up with the trial process that they must be treated as an integral part of it and thus must be considered as made in the exercise of the Crown Court’s jurisdiction “relating to trial on indictment” and accordingly are not subject to judicial review.”

[10]The Secretary of State also relies on the case on in re Ashton and others 1995 1AC 9 and in particular a passage in the lead speech of Lord Slynn of Hadley which explicitly referred to the helpful pointers given by Lord Bridge in the cases of in re Smalley and in re Sampson.

[11]Mr Field for the claimant first says that the jurisdiction point is not open for further discussion as, he says, Mr Justice Holman decided conclusively that the court had jurisdiction when granting permission when the issue of s.29(3) was fully canvassed in argument. We reject that contention. It is plain that Mr Justice Holman was only required to consider whether to give permission and, in so doing, whether it was arguable both that the court had jurisdiction and that the claimant had a case. He was not deciding finally that the court had jurisdiction.

[12]Mr Field acknowledges that the Divisional Court inre Rees decided that the issue of a witness summons was a matter relating to a trial on indictment and so excluded from the purview of the Divisional Court exercising its judicial review jurisdiction. He submitted, however, that the landscape had since changed in a number of respects. First, he says that the House of Lords decision in R v Manchester Crown Court ex parte Director of Public Prosecutions

1993 1WLR 1524

provides a further pointer which highlights the fact that, apart from in re Rees, many of the decisions on section 29(3) have concerned claims made by defendants, who have a right of appeal in the event of a conviction. His client is not a party to the proceedings and has no rights of appeal. He says that this pointer is described in the lead speech of Lord Browne Wilkinson at p.1530 as follows:

“In my judgment, the case by case method of elucidating the meaning of 29(3) has now gone far enough to make it possible to detect a further possible “helpful pointer”…it may therefore be helpful and a further pointer to the true construction of the section to ask the question “is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated in the indictment (including the costs of such issue)?”

If the answer is ‘yes’ then to permit the decision to be challenged by judicial review may lead to delay in the trial; the matter therefore is probably excluded from review by this section. If the answer is ‘no’ the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial; therefore it may well not be excluded by the section. I must emphasise that, again, this is not an attempt to give a comprehensive definition of the meaning of the statutory words; it is merely a third helpful pointer. There may be cases where it points in the wrong direction.”

[13]Mr Field contends that the decision in the present case, concerning a witness, was, in the light of this further pointer, one which was “truly collateral” to the indictment, that judicial review would not delay the trial, and so is not excluded by the section.

[14]The second change in the landscape relied on by Mr Field is the assertion by the Divisional Court of its jurisdiction to judicially review decisions of the Crown Court in respect of bail. The direct jurisdiction of the High Court to entertain an application for bail was abolished by section 17 of the Criminal Justice Act 2003.

(b) of that Act provides:

“Nothing in this section affects…any right of a person to apply for a writ of habeus corpus or any other prerogative remedy.”

The Divisional Court in the case of M v Isleworth Crown Court

2005 EWHC 363

Admin concluded that a combination of section 17(6)(b) and an application of the further pointer identified by Lord Browne-Wilkinson in Manchester Crown Court ex parte DPP resulted in the Divisional Court having jurisdiction to subject a decision of the Crown Court on bail to judicial review in that “ a decision as to bail at an early stage of criminal proceedings does not relate to trial on indictment as that expression has been interpreted…” (paragraph 7 of the judgment of Lord Justice Maurice Kay in M).

[15]Mr Field relies further on a subsequent decision of the Administrative Court in the Queen on the application of Shergill v Harrow Crown Court

[2005] EWHC 648 (Admin)

in which the Administrative Court decided it had jurisdiction to review a decision of the Crown Court on bail even though taken after arraignment and therefore, formally, after the commencement of trial on indictment. In his judgment in that case Mr

Justice Collins said as follows:

“6. I am bound to say that I am not entirely happy with the expression used by Maurice Kay LJ referring to an early stage of criminal proceedings because it seems to me that if the principle referred to by Lord Browne Wilkinson is applicable, there is no reason to limit it to a early stage of the proceedings. The only thing I would say is that obviously if the trial has commenced and the decision is made in the course of the trial to refuse bail then I can well see that it may be that the situation is somewhat different because clearly if there is an application made to this court, that could affect the continuing progress of the trial itself and that should not be permitted to occur. But I see no reason why an application should not be made provided the trial goes on in the meantime, because the nature of the application and whether it does indeed relate to trial on indictment does not seem to me to be a matter which ought to be determined by the stage which the proceedings have reached. 7. It is perhaps not necessary to form any concluded view about that. Suffice it to say that I am persuaded that any application that arises, certainly before the trial itself actually starts, is one which can be dealt with by the court. I do not reach any final decision, as I do not need to, as to what the position would actually be had the trial itself commenced. ”

[16]Mr Field contends that the question of detention of the claimant pursuant to section 4(3) of the 1965 Act is not one “arising in the issue between the Crown and the defendants”. In the light of the Divisional Court’s willingness to undertake judicial review of decisions as evidenced by M and Shergill he contends that this court is not precluded by section 29(3) from considering this decision of the Crown Court at Wood Green.

[17]The third change in the landscape is the Human Rights Act 1998. He contends that judicial review of the decision constitutes the only effective remedy which the claimant has for what is said to be a breach by the Crown Court of

Article 5 of the European Convention on Human Rights

. Accordingly, he contends, section 29(3) should be “read down” pursuant to section 3 of the Human Rights Act 1998 so as to interpret it in such a way as enables this decision of the Crown Court to be susceptible to judicial review. To that end permission is sought to re-amend the grounds of claim. Initially the grounds of claim were amended to add a sixth remedy, namely, damages in respect of unlawful detention. Permission is now sought, which we grant, to re-amend to claim damages pursuant to section 8(4) of the Human Rights Act 1998.

[18]Mr Ward for the Secretary of State makes the following points in answer to those of Mr Field.

[19]First, he points out that Lord Browne-Wilkinson in the Manchester Crown Court case emphasised that what he had identified was merely a helpful third pointer and there may be cases where it points in the wrong direction. Further, he contends that the decision to detain the claimant as a witness was one which did “arise in the issue between the Crown and the defendant”. It concerned his availability as a witness for the prosecution in circumstances where it was envisaged that there was a real possibility that he might have to be recalled in order to deal with matters which had not been canvassed with him by counsel for four defendants who had failed to cross-examine him.

[20]Second, he points out that in Shergill the Divisional Court drew a distinction between the formal commencement of the trial by virtue of arraignment and the practical commencement of the trial such that a decision might be judicially reviewable at the first stage but not at the latter. He says that in this case the decision was made in the middle of the trial and so section 29(3) applies.

[21]Thirdly, he says that the claimant is not deprived of remedies by virtue of the Divisional Court not having jurisdiction pursuant to 29(3). First, he says that it is common ground that where he is detained habeus corpus is available in order to get him released. That is well established (see R v Maidstone Crown Court ex parte Clark

1995 1 WLR 831

). Furthermore, a damages claim under the Human Rights Act can proceed by action under part 7 of the CPR. By section 6(1) of the Human Rights Act it is unlawful for a public authority to act in such a way which is incompatible with a convention right. Section 7(1) provides that a person who claims that a public authority has acted or proposes to act in a way which is made by unlawful by section 6(1) may (a) bring proceedings against the authority under this act in the appropriate court or tribunal. Section 9 provides:

“(1) proceedings under section 7(1)(a) in respect of a judicial act may be brought only (a) by exercising a right of appeal; (b) on an application…for judicial review; or (c) in such other forum as may be prescribed by rules (2) that does not affect any rule of law which prevents the Court from being the subject of judicial review.”

[22]The Secretary of State contends that section 29(3) of the 1981 Act is a rule of law within the meaning of section 9(2) of the Human Rights Act. Moreover the Civil Procedure Rules by rule 7.11 provide that:

“ A claim under section 7(1) of the Human Rights Act 1998 in respect of a judicial act may be brought only in the High Court.”

Thus, the Secretary of State contends, the claimant has remedies both in terms of obtaining his release by way of habeus corpus and by way of a claim for damages brought in the High Court.

[23]We are persuaded by the Secretary of State’s submissions. In our judgment the ordinary meaning of section 29(3) as applied to this case is that the decision taken in the course of the trial by the trial judge to detain the claimant as a witness pending receipt of further evidence was a matter relating to a trial on indictment. There is no need for section 29(3) to be read in any other way. In particular there is no need under section 3 of the Human Rights Act 1998 to give it anything other than its ordinary meaning.

[24]That is an end of the claim for judicial review for declaration and a quashing order which must be dismissed. That would leave a claim in judicial review for damages alone which, for that reason, must also be dismissed.• . Hearing a claim for damages under the HRA

[25]All the parties have, sensibly, urged us to consider the damages claim brought under the HRA if it is open to us to do so. We have decided that we may do so. We were informed in the course of the hearing that the claimant had framed a claim pursuant to part 7 of the CPR for damages under s.8 of the HRA and has served it on the Secretary of State as defendant. We agreed to abridge time in respect of all procedural matters so as to permit us to consider the claim sitting as part of the Administrative Court. The Secretary of State undertook to serve his defence within 24 hours of having been served in the course of the hearing. He also undertook that the terms of his defence would reflect the terms of his skeleton argument on the substance.

[26]The reason that this course is open to us is that the Court of Appeal in the case Anufrijeva v Southwark LBC 2004 QB 1124 at para 81(ii) indicated that, as a claim for damages alone cannot be brought by judicial review proceedings, a claim for damages alleging maladministration against public bodies should still be brought in the Administrative Court by ordinary claim.• The substantive claim

[27]The 1965 Act provides, insofar as is material, as follows: “2.(1) This section applies where the Crown is satisfied that – (a) a person is likely to be able to give evidence likely to be material evidence,…for the purpose of any criminal proceedings before the Crown Court, and (b) the person will not voluntarily attend as a witness…

(2) In such a case the Crown Court shall…issue a summons (a witness summons) directed to the person concerned and requiring them to – (a) attend before the Crown Court at the time and place stated in the summons, and (b) give the evidence… S. 4(1). If a judge of the Crown Court…is satisfied by evidence on oath that a witness in respect of whom… a witness summons is in force is unlikely to comply with the..summons, the judge may issue a warrant to arrest the witness and bring him before the court before which he is required to attend. Provided that a warrant shall not be issued under this sub-section…unless the judge is satisfied…that the witness is likely to be able to give evidence likely to be material evidence…in the proceedings. (2) Where a witness who is required to attend before the Crown Court by virtue of…a witness summons fails to attend in compliance with the…summons that Court may – (a) in any case, cause to be serve on him a notice requiring him to attend the court forthwith or at such time as may be specified in the notice; (b) if the Court is satisfied that there are reasonable grounds for believing that he has failed to attend without just excuse, or if he has failed to comply with a notice under para (a) above, issue a warrant to arrest him and bring him before the court.

(3) Witness brought before a court in pursuance of a warrant under this section may be remanded by that court in custody or on bail (with or without sureties) until such time as the court may appoint for receiving his evidence…where a witness attends a court in pursuance of a notice under this section the court may direct that the notice shall have effect as if it required him to attend at any later time appointed by the court for receiving his evidence or dealing with him as aforesaid.” (a) a person is likely to be able to give evidence likely to be material evidence,…for the purpose of any criminal proceedings before the Crown Court, and (b) the person will not voluntarily attend as a witness… (2) In such a case the Crown Court shall…issue a summons (a witness summons) directed to the person concerned and requiring them to – (a) attend before the Crown Court at the time and place stated in the summons, and (b) give the evidence… (a) in any case, cause to be serve on him a notice requiring him to attend the court forthwith or at such time as may be specified in the notice; (b) if the Court is satisfied that there are reasonable grounds for believing that he has failed to attend without just excuse, or if he has failed to comply with a notice under para (a) above, issue a warrant to arrest him and bring him before the court.

[28]The first contention of Mr Field on behalf of the claimant is that the purported detention pursuant to section 4(3) of the 1965 Act was unlawful in that there was no power to detain him. It is submitted by Mr Field that the Crown Court’s power to detain a witness pursuant to that sub-section subsists only until such time as the court may appoint for receiving his evidence. He contends that such time expired upon completion of the cross-examination by all parties and re-examination by the Crown and that the judge did not appoint a time for the reception of further evidence but merely appointed a future date until which the claimant must remain in custody.

[29]In our judgment that contention is unsustainable. There is no dispute but that the judge lawfully remanded the claimant in custody overnight on more than one occasion during the course of his giving evidence. Thus, the power to remand in custody did not expire merely upon the commencement of his evidence on the first day. Rather, the power to remand continued for as long as it was anticipated that the claimant may be required to give evidence on subsequent days. It is a commonplace of the conduct of criminal trials that, whenever a witness has given his evidence in chief, has been cross-examined and then re-examined, the question arises whether that witness can be released from further attendance at court. In the vast majority of cases the witness is released but in some cases it may be that there is some outstanding issue upon which that person may be required to give further evidence and, accordingly, he is told that he may be required to attend on that future occasion and to hold himself available to do so. In the very rare case, such as the present in our judgment, the court has power to remand the witness in custody pursuant to section 4(3). That power does not expire until such time as he is released from further attendance at court. Accordingly, the exercise by the judge on 10 May of the power to detain was no different from his exercise of the same power on the evenings respectively of 5, 8 and 9 May.

[30]The second contention is that, if there were such a power, it was exercised unreasonably. This is put on two bases. The first is that it was an irrational or unreasonable exercise of the power in domestic law. The second is that it was a breach of

Article 5 of the ECHR

. Article 5 insofar as it is relevant provides as follows:

“5(1). Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:…. (b) the lawful arrest or detention of a person for non compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law…” (b) the lawful arrest or detention of a person for non compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law…”

[31]In Engel and others v Netherlands (1979-80) 1 EHRR 647 at paragraph 69 the European Court of Human Rights said as follows:

“The Court considers that the words “secure the fulfilment of any obligation prescribed by law” concern only cases where the law permits the detention of a person to compel him to fulfil a specific and concrete obligation which he has until then failed to satisfy. A wide interpretation would entail consequences incompatible with the notion of the rule of law from which the whole convention draws its inspiration.”

[32]Mr Field contends that the judge, by saying; “I will appoint a time two weeks to-morrow for him to attend court again to give evidence so that the Court is seen to appoint a day. In my view I retain the view that there is a real risk that either side may recall him to put further matters to him”, either misdirected himself or acted perversely or irrationally. First, Mr Field says that the judge acted unlawfully by detaining him where there was only a real risk that he may be required to give evidence rather than a certainty that he would be so required. Second, he says that the power to remand under section 4(3) can only be exercised where the judge is satisfied to the same degree as the Court has to be satisfied before issuing a witness summons pursuant to section 2 or issuing a warrant for the arrest of a witness pursuant to section 4(1), namely that the Court “is satisfied that the person is likely to be able to give evidence likely to be material.” Mr Field says that this precludes the lawful exercise of the power to remand where, as here, the witness was by virtue of his previous behaviour likely not to be willing to give evidence.

[33]Mr Ward for the Secretary of State contends that Mr Field has misconstrued the test. The test is not whether he will be “likely to give evidence” but whether he is “likely to be able to give evidence”. The judge had already declared the claimant a hostile witness and, by so doing, had implicitly found that he was able to give material evidence but was declining to co-operate because he was hostile. Accordingly, Mr Ward says, if the threshold for the exercise of the section 4(3) power is the same as the threshold for the issue of a witness summons or warrant for arrest then that threshold has been met as it was open to the judge to conclude that the claimant was likely to be able to give material evidence even though, in the event, he might choose not to do so. Mr Ward further contends that the judge by expressing himself in terms of a real risk that either side may recall him to put further matters to him was applying the correct level of test. Furthermore, he was entitled to be satisfied that the test had been met by virtue of the indication from Mr Wild that there is a real possibility that he would be required to give evidence.

[34]We agree with Mr Ward’s submissions. There is no basis to conclude either that the judge misdirected himself in law or that his decision was perverse or irrational. He applied the correct test and was entitled to agree with the prosecution’s assessment that there was a real possibility that the claimant would be recalled to give evidence once the defendants’ cases had been closed.

[35]It follows therefore that in terms of the European Convention the claimant’s deprivation of liberty was in accordance with a procedure prescribed by law. It was in order to secure the fulfilment of an obligation prescribed by law upon him namely - to attend court for the purpose of receiving evidence.

[36]Mr Field argues that to remand the claimant for a period of two weeks on the basis that he may be required to give evidence exceeds what was reasonably necessary to compel him to fulfil a specific and concrete obligation. He contends that a specific and concrete obligation can only arise if it is certain that he will be required to give evidence. Mr Ward contends that the specific and concrete obligation is the obligation to give evidence if so required in connection with this specific trial. Furthermore, the fixing of a specific date on which that eventuality may arise gives sufficient specificity and concreteness to the obligation so as to satisfy the requirements identified by the European Court in Engel and Others v Netherlands.

[37]In our judgment Mr Ward is correct. It was necessary, as the judge concluded, for a specific date to be fixed for the claimant to be returned to court for the purpose of receiving evidence from him. It was sufficient, for the purposes of the requirement of a specific and concrete obligation, that the judge was of the view that there was a real possibility or a real risk that, on that date, he would be required to give further evidence. Furthermore, in the light of the history of the claimant’s failure to attend when required to do so and to fail to co-operate when he did attend it was reasonably necessary for the judge to remand him into custody so as to ensure that on the date fixed for the receipt of further evidence in the course of the trial he was present at court for that purpose.

[38]We therefore dismiss the claim for damages arising under section 8 of the Human Rights Act 1998.• Damages

[39]We received submissions on the proper approach to adopt when considering the question of whether, and if so at what level, damages should be awarded had we found for the claimant pursuant to the Human Rights Act 1998. We think it right to express, briefly, our conclusions on that basis.

[40]Mr Field contended that the measure of damages should be the equivalent of those awarded in a domestic claim for false imprisonment. We had cited to us the cases of Thompson v Commissioner of Police of the Metropolis 1998 QB 498 and R v Governor of Brockhill Prison ex parte Evans (No2) 1999 QB 1043 as approved by the House of Lords in 2001 2AC 19.

[41]Mr Ward contends that where the claim arises under the Human Rights Act a different approach must be taken. The question arises whether there should be any award of damages at all. Mr Ward contends that it is open to the Court to conclude that a judgment finding violations of Article 5 may, in itself, constitute sufficient just satisfaction for the purpose of Article 50 such that no further remedy need be awarded. He cites in support of this proposition the decision of the European Court of Human Rights in Fox Campbell and Hartley v United Kingdom1990 13 EHRR 157 at para 11 page 11-112. He also cites Anufrijeva v Southwark LBC

2003 EWCA Civ 1406

and, in particular, paras 65 to 66 in the judgment of Lord Woolf CJ in which he says as follows:

“65. Where there is no pecuniary loss involved the question whether the other remedies that have been granted to a successful complainant are sufficient to vindicate the right that has been infringed, taking into account the complainant’s own responsibility for what has occurred, should be decided without a close examination of the authorities or an extensive or prolonged examination of the facts. In many cases the seriousness of the maladministration and whether there is a need for damages should be capable of being ascertained by an examination of the correspondence and the witness statements. 66. In determining whether damages should be awarded, in the absence of any clear guidance from Strasbourg, principles clearly laid down by the HRA may give the greatest assistance. The critical message is that the remedy has to be “just and appropriate” and “necessary” to afford “just satisfaction”

. The approach is an equitable one. The “equitable basis” has been cited by the Court of Human Rights both as a reason for awarding damages and as a basis upon which to calculate them…. ” And at paragraph 74:

“We have made plain that the discretionary exercise of deciding whether to award compensation under the HRA is not to be compared with the approach adopted where damages are claimed for breaches of an obligation under civil law. Where, however, in a claim under the HRA, the Court decides that it is appropriate to award damages, the level of damages awarded in respect of torts as reflected in the guidelines issued by the Judicial Studies Board, the level of awards made by the Criminal Injuries Compensation Board…may all provide some rough guidance where the consequences of the infringement of human rights are similar to that being considered in the comparator selected.”

[42]Having regard to all the circumstances of this case, had we concluded that there was a breach of Article 5, we would have further concluded that such a finding would, of itself, constitute just satisfaction so that no award of damages would have flowed. Even if we were wrong in that, having regard to the respective cases of Thompson and Evans, the measure of damages would be in the hundreds rather than in the thousands of pounds. However for the reasons we have already given we dismiss the claim made by the claimant under Section 8 of the European Rights Act 1998 pursuant to part 7 of the CPR. LORD JUSTICE AULD: I agree.