ECHR award damages for judicial error
On 17th March 2016 the European Court of Human Rights published the long awaited decision in the above case where GN Law represented the applicant.
We will adopt the helpful summary provided by the ECHR to set out the background to the claim –
The applicant, William Hammerton, is a British national who was born in 1954 and lives in London.
The case concerned his complaint about his committal to prison for civil contempt of court in family proceedings. In the context of child contact proceedings, Mr Hammerton gave an undertaking not to contact his former wife except through his solicitor and an injunction was issued preventing him from using violence against her. In July 2005, the County Court committed Mr Hammerton to prison for three months for breaching the undertaking and injunction. He was released in September 2005 after six and a half weeks’ imprisonment and lodged an appeal. He had not been represented at the committal hearing.
In March 2007 the Court of Appeal overturned the committal decision and also the sentence imposed, finding that it was likely that he would only have served a week if he had been legally represented. It found that the County Court had violated Article 6 of the European Convention on Human Rights. He subsequently brought proceedings for damages for wrongful imprisonment and for the violation of his Convention rights. Guile Nicholas represented him in this action.
The High Court dismissed his claim in February 2009. His request for leave to appeal was refused in August 2009. Mr Hammerton then took the matter to the European Court of Human Rights.
Relying on Article 5 § 1 (right to liberty and security), Mr Hammerton complained about his committal to prison, alleging in particular that his detention had been unlawful. Also relying on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing) and Article 13 (right to an effective remedy), he complained that, although the UK courts had acknowledged that there had been a violation of his rights, they had failed to award him financial compensation and that domestic law had prevented him from receiving such damages.
The court found that Articles 6 and 13 had been breached but not Article 5. Mr Hammerton only lost the Article 5 argument by 4 votes to 3: the majority holding was that the deficiencies in the committal hearing were not so bad as to make his detention arbitrary, whereas the minority reached a contrary conclusion.
However, the court was unanimous in holding that a finding of a breach of Article 6 alone was insufficient to properly compensate Mr Hammerton for having spent six and a half weeks in prison when, had he been legally represented, he would most likely have only been imprisoned for one week. As he had been denied compensation in the UK for the Article 6 breach, this led to a breach of Article 13.
The court awarded 8,400 Euros for the extra five weeks spent in prison in order to afford Mr Hammerton adequate ‘just satisfaction’ for the purposes of Article 41. The award also covered the Article 13 breach which, they found, was likely to have caused Mr Hammerton some frustration. Undoubtedly, the lion’s share of the award was for the five weeks detention. This was essentially what Mr Hammerton claimed was necessary to compensate him.
While it is disappointing that the court did not find a breach of Article 5(1), Mr Hammerton has now secured the damages he should have been entitled to in this country. The problem this case illustrates is that judges remain immune from suit to all intents and purposes in the UK. Section 9(3) of the Human Rights Act 1998 (HRA) ensures that damages can only be awarded domestically when a judge acts in bad faith or where compensation is required under Article 5(5).
Article 5(5) establishes an enforceable right to compensation for any breach of Article 5(1). As the court did not find a breach of Article 5(1), the case fell short of becoming an authority to assist victims of judicial errors from claiming compensation in the UK against Her Majesty’s Court Service. However, the judgment from the European Court of Human Rights indicates that the Human Rights Act 1998 does not go far enough because it should be possible to claim damages for a breach of Article 6 as well. At the moment, that will only be secured by taking a case to Europe, though it is to be hoped that the government will settle any further such cases rather than, as they did with Mr Hammerton, delaying him compensation until required by pay by the Strasbourg court.