Stellato v The Ministry of Justice  EWCA Civ 1435 (14 December 2010)
The England and Wales Court of Appeal recently considered the application of art 5.1(b) of the European Convention on Human Rights (the right to liberty) to the detention of a person released on license and subsequently on bail, who refused to comply with the license and bail conditions imposed on him.
In a unanimous decision, the Court held Mr Stellato’s detention was unlawful within the meaning of art 5.1(b) and that he was entitled to damages for wrongful imprisonment.
In 1998, Mr Stellato was sentenced to 10 years’ imprisonment. In December 2005 he was released on licence. Just prior to his release, Mr Stellato brought judicial review proceedings contending that his release should be unconditional on the grounds of a particular provision of the Criminal Justice Act 1991 (UK). Once released, Mr Stellato breached the conditions of his license because he maintained he should have been released unconditionally. The Home Secretary purported to revoke his license and he was returned to prison in January 2006.
Mr Stellato subsequently issued a claim for damages for false imprisonment and for the infringement of his rights under art 5 of the Convention against the Ministry of Justice (which was responsible for prisons) on the basis that his release on license was unlawful.
The claim was dismissed at first instance. On 1 December 2006 the Court of Appeal overturned this decision, ordering that the detention was unlawful and Mr Stellato was entitled to immediate release. However, this order was stayed for a period of 20 days to allow the Secretary of State time to appeal to the House of Lords. Pending this application, the Court of Appeal released Mr Stellato on bail with conditions.
Once released, Mr Stellato breached his bail conditions on the basis he could not be on bail if he was not on license and there was no authority for his detention. The Court of Appeal then ordered his arrest and detention for breach of bail conditions and, on 7 December 2006, Mr Stellato was again returned to prison.
On 28 February 2007, the House of Lords determined the substantive appeal, finding that the Ministry of Justice had not been entitled to impose licence conditions on Mr Stellato in December 2005 and ordering that Mr Stellato be released unconditionally.
The present matter concerned the payment of damages for Mr Stellato’s detention between 7 December 2006 and 28 February 2007.
On appeal in relation to damages, the critical issue was whether Mr Stellato’s detention, from 7 December 2006 to 28 February 2007 for breach of his bail conditions, was unlawful and in breach of Article 5.
Mr Stellato contended that the stay ordered by the Court of Appeal and continued by the House of Lords did not authorise his detention and neither did his breach of his bail conditions.
The Ministry of Justice contended the period of Mr Stellato’s detention was lawful since that detention was pursuant to the Court of Appeal’s orders, arrest warrant and revocation of bail.
Article 5 protects the right to liberty and security of person. However, the right is subject to a number of exceptions, including art 5.1(b) which provides:
5.1 … No one shall be deprived of his liberty save in the following cases and in accordance with a 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 fulfillment of any obligation prescribed by law;
Mr Stellato submitted none of the orders by either the Court of Appeal or the House of Lords were ‘lawful’ within the meaning of art 5.1(b).
The Court held that ‘the effect of the stay … was that there was no order of the Court requesting his release; it did not mean … (the public authority) was required or authorised to detain Mr Stellato in custody’. In other words, although Mr Stelatto’s release ceased to be compulsory, his detention did not become compulsory. Further, the Court considered that a grant of bail was a grant of liberty to a person who would otherwise be obtained (not an order for detention in and of itself). Therefore, the legal authority for the detention was not the grant of bail or Mr Stellato’s subsequent breach of it, but rather, the authority for his detention itself. If that original authority was not lawful (as had been determined in this case), the breach of any subsequent court orders made would not make detention as a result of that breach lawful.
The Ministry submitted that because Mr Stellato had refused to comply with his bail conditions, he had refused to comply with an ‘order of a court’ within the meaning of art 5.1(b). However, the Court held that to support this proposition would be
… to attribute to a grant of bail an authority to detain the person granted bail when there is no underlying legal basis for his detention. It is to treat a grant of bail as authority to detain, when in my judgment it is, as I have said, the opposite… A failure or refusal to comply with the conditions of bail, at least in civil proceedings, is not non-compliance with an order of a court for the purposes of Article 5.
Accordingly, Mr Stellato was entitled to damages for wrongful detention between December 2006 and February 2007.
Relevance to the Victorian Charter
Stellato turns on its own particular facts and the vagaries of UK law in relation to detention, release on licence and bail. Nevertheless, the decision may have implications for Victorian prisoners given the similarities between art 5 of the European Convention and s 21 of the Victorian Charter.
In particular, Stellato confirms that it is a breach of the right to liberty if a person is detained for breach of bail conditions in circumstances in which there was no lawful authority for the original detention, even in circumstances where a court orders the detention for breach of bail.
Pursuant to s 39(3) of the Victorian Charter (and in contrast to the UK Human Rights Act 1998), persons are not entitled to damages for a breach of the Charter. Accordingly, if in Victoria, Mr Stellato may have been required to pursue some remedy other than compensation.
The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/1435.html.
Zara Durnan is on secondment to the Human Rights Law Resource Centre from Lander & Rogers