Right to Liberty and Review of Detention

Faulkner, R (on the application of) v Secretary of State for Justice the Parole Board [2010] EWCA Civ 1434 (14 December 2010)

The recent decision in Faulkner v Secretary of State for Justice provides guidance concerning the parole board system.  In Faulkner, the Court concluded that where a prisoner’s parole is unjustifiably delayed, they may be entitled to compensation under art 5(4) of the European Convention on Human Rights.  The decision may have ramifications for Victorian prisoners whose parole is ‘unjustifiably delayed’.


The key facts of Faulkner are as follows:

  • Faulkner was sentenced to custody for life for the offence of causing grievous bodily harm with intent.  The minimum period was set at 2 years and 8.5 months.  Faulkner became eligible for parole on 18 April 2004.
  • On 26 May 2005, the Parole Board did not direct his release, instead recommending that he be transferred to open conditions.  This recommendation was rejected.  A second recommendation to the same effect was made on 31 January 2007, but was again rejected.  Faulkner then became entitled to a hearing before the Board, the result of which would be known by January 2008.
  • In order to achieve the hearing by January 2008, the 'Lifer Review and Recall Section' ('LRRS') of the prison had to send the Board 'the note' and a skeleton dossier, which would formally refer the case.  The oral hearing would not take place until about six months from the date of the receipt of 'the note'.
  • The skeleton dossier and 'the note' were sent in September 2007, four months later than they should have.  In turn, Faulkner's case was listed for oral hearing in May 2008, five months late.  The full dossier was then not received until May 2008, eight months late.  All in all, the oral hearing did not take place until January 2009.
  • On 23 January 2009, the Board directed Faulkner's release from custody.


Decision at First Instance

Faulkner commenced proceedings against the Board seeking damages for an infringement of his rights under art 5(4) of the ECHR.  Faulkner's primary argument was that his hearing, and thus his release, was unduly or unjustifiably delayed by a year.  In other words, but for the delay on the part of the Board, his hearing would have taken place in January 2008.

Justice Blair dismissed Faulkner’s claim, determining that a breach of art 5(4) would only occur if the detention had become ‘arbitrary’.  Blair J held that it would only become ‘arbitrary’ if the system broke down entirely and he deemed that this was not the case here.  Blair J held that even if there had been a breach of art 5(4), it was ‘not possible to draw the inference from the January 2009 decision that the claimant would have been released earlier’ and therefore Faulkner was not entitled to damages.

Faulkner appealed to the England & Wales Court of Appeal.


The COA allowed the appeal, which concerned two key issues:

  • whether there had been a breach of art 5(4) as a result of the delays imposed on Faulkner; and
  • whether Faulkner would have been released in January 2008, had his hearing gone ahead at the proper time.

The Secretary of State for Justice, argued that the review of the ‘lawfulness of Faulkner's detention was regrettably delayed by reason of events that were unfortunate but in essence were specific to the facts of his individual case and did not involve anything approaching a breakdown of the system.’  The Secretary also argued that Faulkner was in a stronger position in January 2009 to be released than he would have been had the hearing taken place in 2008.

By contrast, Mr Faulkner, argued that when the Board report is read it is plain that the position would have been precisely the same in January 2008 had a review taken place at that time.  Faulkner also argued that Blair J was wrong in asking whether he would have been released earlier, rather than whether he lost the chance of earlier release.

Having considered the relevant authorities, Lord Justice Hooper agreed that damages may be payable for the loss of a real chance of release.  On the issue of whether Faulkner would have been released in January 2008, a number of reports were taken into account.  The reports all supported the release of Faulkner in January 2008.  Lord Justice Hooper concluded that the ‘unjustified delays in the case, for which the Secretary of State for Justice is responsible, prevented the appellant from having the lawfulness of his continued detention decided in accordance with Article 5(4)’.

Faulkner was therefore awarded damages to reflect the fact that, in breach of art 5(4), he ‘spent some 10 months in prison when he ought not to have done’.

Relevance to the Victorian Charter

The decision in Faulkner turned very much on the specific facts of that case.  Nonetheless, the decision may have implications for Parole Board hearings in Victorian given the close parallels between provisions of the ECHR and the Victorian Charter.

Article 5(4) of the ECHR is similar to s 21 of the Victorian Charter (the human right to liberty and security), which states that ‘(1) Every person has the right to liberty and security...(2) A person must not be subjected to arbitrary arrest or detention...(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law’.

Hence, it may possible for Victorian prisoners to invoke s 21 of the Victorian Charter where that prisoner's detention becomes 'unjustifiably delayed' and remains in breach until his or her effective release from custody.  Determining what will amount to 'arbitrary detention' under s 21, and what constitutes an 'unjustifiable delay', will of course turn of the facts of each particular case.  But the decision in Faulkner does send a strong signal that unexplained delays by parole boards that result in prisoners being delayed for periods of time they should not have been, may constitute a breach of human rights.  It is worth noting, however, that pursuant to s 39(3) of the Charter, damages are not payable for a breach of human rights in Victoria.

The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/1434.html.

Daniel Creasey is Senior Associate & Pro Bono Coordinator and Aleco Lazaridis is a Summer Clerk with DLA Phillips Fox