Banking on judicial error?
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Marc Bloomfield
In July 2005, William Hammerton was committed for contempt arising from his conduct in family proceedings. The judge who ordered his committal made a number of errors, including a failure to ensure that he had access to legal representation. In September 2016, the European Court of Human Rights (ECtHR) awarded him €8,400 in damages. In Hammerton v UK App No 6287/10, 17 March 2016, the court refused to order damages pursuant to article 5 of the European Convention on Human Rights (ECHR). The government accepted that there had been a violation of article 6(1) and (3), although argued that the finding of a violation was adequate to provide just satisfaction. The court found Mr Hammerton had been deprived of a fair hearing in violation of article 6(1) in conjunction with article 6(3)(c) and damages were awarded in light of the additional time he spent in prison as a result. In addition, as Human Rights Act 1998 (HRA) s9(3) meant the domestic courts were unable to award him damages for those breaches, there was a separate violation of article 13 and the right to an effective remedy.
The government has published a draft Remedial Order on changes to HRA s9(3) (A proposal for a Remedial Order to amend the Human Rights Act 1998, Ministry of Justice, July 2018) to expand the circumstances when judicial errors can attract damages. The Joint Committee on Human Rights (JCHR) will report on the Order in the autumn and has called for evidence. Without amendment, this Order is unlikely to bring relief to many beyond those who find themselves in circumstances nearly identical to those of Mr Hammerton.
The Human Rights Act 1998 (Remedial) Order 2018
The draft Human Rights Act 1998 (Remedial) Order 2018 proposes the circumstances when damages can be recovered for judicial error – in HRA s9(3) – will be widened, but only slightly. Damages will only be recovered in cases involving a contempt of court, where a person is deprived of legal representation due to a judicial act incompatible with ECHR article 6, and the person is committed to prison either in circumstances where they would not otherwise have served time, or where the time served is longer than it would have been if they’d been represented by a lawyer (see the proposed new s9(3A)).
This neglects any other case where damages might be awarded in Strasbourg for a violation of ECHR article 6, but yet is barred by the reformed s9(3) in proceedings at home. There is nothing in the reasoning of the ECtHR in Hammerton that means the impact of the judgment on article 13 need be so confined. Beyond committal, there remain a range of scenarios where a judicial error – albeit in good faith – might amount to a violation of article 6 and the imprisonment of an individual (see, for example, R (MA) v Independent Adjudicator [2014] EWHC 3886 (Admin) at para 118, where Laing J concluded that s9(3) would provide a complete answer to an article 6 claim for damages in the context of a challenge to extra days imposed by an independent adjudicator).
Is the Remedial Order effective?
The power to make Remedial Orders in HRA s10(1)(b) is in broad terms. It must appear to a minister – having regard to a finding of the ECtHR – that a provision of legislation is incompatible with an obligation of the UK under the ECHR. The requirement in s10(2) that there be ‘compelling reasons’ for the use of the Remedial Order constrains ministers to consider carefully whether an Order is an appropriate mechanism for reform. However, where a judgment plainly identifies a legal barrier to an effective remedy in the application of a general immunity or a blanket procedural bar, it appears illogical to conclude that there are compelling reasons only to fast-track removal of the bar in one specific set of facts, in this case, committal proceedings.
The purpose of any Remedial Order must not be to overreach. However, where a judgment does give ministers a basis to consider that further violations will arise because of the way that domestic law operates, taking too narrow an approach would waste both parliamentary and court time by inviting further litigation.
By maintaining the wider bar in HRA s9(3), the government removes the capacity for the domestic courts to consider when damages might be required by ECHR article 6 and defers any question of an effective remedy in these cases to Strasbourg. The government argues that the bar must be carefully circumscribed to protect the principle of judicial immunity. However, s9(3) currently trusts judges to consider when article 5(5) requires financial compensation. The courts have taken a careful approach. For example, in LL v Lord Chancellor [2017] EWCA Civ 237; [2017] 4 WLR 162, a case involving multiple judicial errors, the Court of Appeal confined a rare award of damages to its facts (see paras 116–120). Leaving the task of also ascertaining when damages attach to violations of article 6 is unlikely to result in any judicial enthusiasm to stray beyond the bounds of the requirements of the ECHR, or the case law from Strasbourg.
What next?
The draft Order is now subject to scrutiny by the JCHR before a final version is laid before parliament. Anyone with clients aggrieved by unlawful judicial decision-making that led to their imprisonment might highlight the effects of the s9(3) bar on recovery of damages, for which the only viable remedy would still remain in Strasbourg.
The government’s proposals for change should be welcomed. However, they don’t go far enough. Mr Hammerton had to wait over a decade for compensation. The legacy of his claim should not be to provide a remedy at home for only a few and the guarantee of a repeat trip to the ECtHR for others.

About the author(s)

Description: Angela Patrick - author
Angela Patrick is a barrister at Doughty Street Chambers, a member of the Equality and Human Rights Commission panel and sits on the LAG board of...