“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right”
“38. What we are being asked to consider is whether just satisfaction demands compensation to someone in the position of Thomas Bannister where fault has been established, where common law damages have been awarded to his parents, the property owners, and where his claim is under Article 8(1) i.e. the allegation is that a public authority has positively interfered with his right to respect for "private and family life" or "his home" without the defence contemplated by the remainder of Article 8(2). ”
“45. We have considerable sympathy for the judge's conclusion …that there should be no separate award under Article 8 to Thomas Bannister. However, in the state of the law which we have set out, we would disagree with the judge that it is possible to give an answer at this stage. If one takes the case of Thomas Bannister as the test case, it seems to us that those representing him can show that he has not, personally, had "reparation" under English law (see Article 41). But we do not think it can be regarded as irrelevant whether his parents recover damages in nuisance or what sums they recover because all the circumstances need to be taken into account in considering whether an award is necessary. Furthermore s.8(3) seems to us expressly to require to be taken into account any remedy granted "in relation to the act in question" and "the consequences of any decision … in respect of that act" without limiting the same to remedies awarded in favour of the person alleging infringement of his rights. The vital question will be whether it is necessary to award damages to another member of the household or whether the remedy of a declaration that Article 8 rights have been infringed suffices, alongside the award to the landowner, especially when no pecuniary loss has been suffered. If, for the reasons explained above in paragraphs 32-34, the effects of the odour and mosquitoes upon Thomas Bannister personally were in practice taken into account in determining the diminution in the amenity value of the property, and therefore in determining the amount of damages awarded to his parents in nuisance, we would regard that as a highly significant consideration when determining whether an award of damages was necessary to afford Thomas just satisfaction under Article 8. In any event the fact of an award to the parents, if made, and its amount, must be a circumstance relevant to whether an award is necessary.”
“49. The real question is whether it can ever be necessary to make an additional award of damages for breach of Convention rights in order to afford just satisfaction to a person with a proprietary interest in the home who has already obtained an award of damages in nuisance in respect of the injury to the amenity value of the home.”
“50. It follows from what we have said that, despite the fact that damages for private nuisance are awarded as damage to "land", it is highly improbable, if not inconceivable, that Strasbourg would think it appropriate or just or necessary to award a further sum on top for breach of Article 8. … 52. Accordingly we would answer … as follows: “11(b) It is most improbable, if not inconceivable, that damages at common law will be exceeded by any award to the same claimant for infringement of Article 8. Accordingly the award of damages at common law to a property owner will normally constitute just satisfaction for the purposes of section 8(3) Human Rights Act and no additional award of compensation under that Act will normally be necessary."” “11(b) It is most improbable, if not inconceivable, that damages at common law will be exceeded by any award to the same claimant for infringement of Article 8. Accordingly the award of damages at common law to a property owner will normally constitute just satisfaction for the purposes of section 8(3) Human Rights Act and no additional award of compensation under that Act will normally be necessary."”
“…that the focus of the Convention is on the protection of Human Rights and not the award of compensation” (ibid paragraph [9]). He further observed (ibid paragraph [19]) that: “The 1998 Act is not a tort statute. Its objects are different and broader”
“… have one feature which distinguishes them from violations of articles such as article 3, where an applicant has been tortured, or article 4, where he has been enslaved, or article 8, where a child had been unjustifiably removed from its family; that it does not follow from a finding that the trial process has involved a breach of an article 6 right that the outcome of the trial process was wrong or would have been otherwise had the breach not occurred.”
“… their anxiety and frustration following the expropriation of their properties….” ([45]). Not surprisingly the Government denied the existence of a causal link between the breach and the claim for non-pecuniary loss. It pointed out, with (one might think) considerable justification, “that legal efforts normally made by a party to judicial proceedings did not entail, per se, any “moral suffering” capable of giving rise to reparation underArticle 41 of the Convention ” (ibid [46]). In short the State argued that at the culmination of judicial proceedings (including therefore at the Strasbourg level) the Claimants had been vindicated and their pecuniary compensation substantially increased and that therefore any frustration that they experienced along the way was simply that which was intrinsic to any system of justice. Yet the Grand Chamber held: “47. The Court agrees with the Government in taking the view that the powerlessness and frustration felt by an owner who has been unlawfully dispossessed of his property (see Guiso-Gallisay, cited above, § 110) is not comparable to the feelings of a former owner who is simply not satisfied with the amount of compensation awarded by the State. It acknowledges, however, that the applicants did sustain a degree of non-pecuniary damage on account of the violation found, such that an award on that basis can be regarded as justified. Ruling on an equitable basis, as required byArticle 41 of the Convention , it decides to award EUR 3,000 to each of the applicants under this head.”
“3.55 However, even where not contributing directly to the loss, the applicant’s conduct or character may be taken into account, in the same way as the conduct of the respondent State, in determining whether or not to award just satisfaction. This is most likely where the applicant has been engaged in reprehensible conduct at the time of the breach, though it has also been suggested that the criminal character or record of the claimant is more generally considered to be relevant by the Strasbourg Court.”
“We also consider that it would be wrong to allow the sanction imposed by the disciplinary panel to influence the amount of the award. That panel has a quite distinct function to perform, to which the consequence of DC Ridley's misconduct was no doubt relevant, but it was only one factor among many, the main one being the degree of culpability of the misconduct in question. That is itself relevant to the different question of liability for breach of article 2, and compensation, but it seems to us wrong in principle to regard the sanction itself as relevant”
“55. The Court accordingly considers that the applicants denied themselves access to the best means – and one that, in the special circumstances of the instant case, would have satisfied the positive obligations arising under Article 2 – of elucidating the extent of the doctor's responsibility for the death of their child. In that connection, the Court reiterates, mutatis mutandis, that “where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim” (see Powell, decision cited above).”
“The net sale proceeds shall, together with the sum of£56,822.30 already paid by the First Defendant to the Claimants solicitors, be paid by the First Defendant and accepted by the Claimants in full and final settlement of all claims to damages, interest and costs raised in the proceedings by the Claimants against the First Defendant.”
“186. In the instant case each Claimant claims compensation for non-pecuniary loss. The Claimants do not assert that they were caused to suffer psychiatric illness in the strict sense in consequence of the failure to investigate; they assert, however, that they each suffered distress and frustration on account of that failure. 187. The European Court recognises substantial distress and frustration as being conditions which justify an award of compensation where there has been a failure to investigate breaches of Article 3. I see no reason to suppose that it would take a different approach where the frustration and distress arises from a breach of a duty to investigate an infringement of Article 4. I have reached the conclusion that an award of damages is necessary in this case so as to afford just satisfaction to the Claimants. 188. Ms Kaufmann submits that the appropriate range of damages for non-pecuniary loss in this case is£7,500 to£10,000 . She bases that submission on the decision of the European Court of Human Rights in MC v Bulgaria(2005) 40 EHRR 20 where an award of 8,000 euros was made in 2003. 189. I am not persuaded that this decision provides suitable guidance. The facts are very different and the proven breach ofArticle 3 ECHR went beyond a failure to carry out an effective investigation. Further, the court found, expressly, that MC had suffered psychological trauma as well as frustration and distress. 190. In the instant case each Claimant suffered frustration and anxiety over a period of approximately 12 to 15 months. As I have said there is no reliable evidence that any of the Claimants suffered distress and frustration over the failure to investigate in the period July 2006 to July 2007. By December 2008 the Defendant had made an unequivocal offer to investigate each Claimants' case. The fact is that only one of the Claimants was prepared to go forward with an investigation at that stage and while the attitude adopted by the others was understandable I do not consider that the Defendant should be ordered to pay damages in such a sum that takes account of any distress, frustration, or anxiety suffered beyond December 2008. In any event specific evidence of distress or frustration continuing beyond December 2008 is not available. In all the circumstances, I have reached the conclusion that the appropriate award of damages for each Claimant is£5,000 ”
“74. A psychiatric report was prepared on NBV by Dr Tony Davies on behalf of the Defendant. He met with NBV on4th June 2013 for approximately 1 hour and 15 minutes. His report does not differ substantially from that of Professor Maden. He concluded that at the point in time when he assessed NBV she did not reach the threshold for a current diagnosis of a Depressive Disorder/Episode or Post-Traumatic Stress Disorder. He did, however, conclude that NBV: "has been significantly emotionally affected by her experiences, and that it is likely that for significant periods during the time that followed on from her attack, she has fulfilled criteria for both conditions. She continues to be emotionally troubled by her experience". He observed that NBV did not report any significant emotional health issues prior to the assault (which was supported by medical records) and that her: "subsequent difficulties appear to be related to the emotional impact of the incident, including psychological trauma". In relation to causation he stated: “[NBV's] claim relates to the initial police investigation of her case, and its subsequent impact on her emotional health. There is no reliable objective way of separating the contributions of the sexual assault and of its subsequent investigation. At interview I formed the impression that they are closely linked in the Claimant's mind, and emotionally she is unable to separate one from the other. Should the court find in her favour with regard to her allegation regarding the initial police investigation, I would suggest that the attack and its subsequent investigation might reasonably be said to have contributed equally to [NBV's] difficulties with her emotional health since”