AS TO THE ADMISSIBILITY OF
Application No. 28779/95
by Tara CUMBER
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 September 1995
by Tara CUMBER against the United Kingdom and registered on
27 September 1995 under file No. 28779/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1973. She lives in
Havant, in Hampshire, and is represented before the Commission by
Mr. C. Taylor, barrister, of Chichester.
At 7.40 in the morning of 26 June 1989, the applicant and her
mother were arrested in connection with a suspected attempted theft of
a display of cami-knickers 20 days earlier. The applicant was taken
to the Central Police Station in Portsmouth, dressed in a T-shirt,
shorts and slippers. She had not had breakfast.
When the applicant arrived at the police station at 8.20 a.m.,
the custody officer did not comply with Section 37 of the Police and
Criminal Evidence Act 1984, which requires the custody officer to
release a person if he determines that there is insufficient evidence
to charge him, unless he reasonably believes that detention without
charge is necessary inter alia to obtain evidence by questioning.
At 11.25 a.m. the applicant's mother, having viewed the video
tape of the incident at the shop with the policeman, stated that the
other woman on the video was not her daughter, and was entirely unlike
her. At 12.28 p.m. the applicant was removed from her cell and viewed
the video with her solicitor and the policeman. According to the
evidence of the applicant and the solicitor, all three laughed
derisively at the possibility that the woman on the tape could be the
applicant. No formal interview took place, and the applicant was
released at 12.55 p.m.
In November 1991 the applicant brought a civil action against the
police, claiming that she had initially been wrongfully arrested, and
thereafter wrongfully detained. The case was tried by a judge and jury
before the Portsmouth County Court on 20 and 21 May 1993. The jury
found, on the evidence before it, that the circumstances were not such
that the policeman should have realised that the applicant was not the
person on the video, and so the arrest itself was lawful.
As to the subsequent detention, the custody officer had accepted
that he could not give any reasons to justify the applicant's detention
from 8.20 onwards, and the judge directed the jury that that detention
had been wrongful. The judge explained to the jury that they had to
decide on the level of damages for the wrong perpetrated on the
applicant. He described the two types of damages, general and
exemplary, and told the jury that they had to bear in mind all the
circumstances and strike a proper balance. He invited the jury to
consider both general and exemplary damages, and to come up with one
final global figure as the total. When the jury returned, the
following exchange took place.
"Court clerk: Have you agreed a figure for damages?
Foreman: Yes.
Court clerk: What is the figure of damages you award?
Foreman: Nothing. [Pause]
The applicant's representative: Your Honour, one feels that one
has to consider this. I suspect - given that one must have at
least a penny ...
Foreman: Your Honour, may I say something? The Jury understood
that there were two parts to the question. The second part we
have also ...
Judge: What I directed you to do was to consider the figure of
damages for general damages and then to consider a figure of
exemplary damages, and then to add the two together and come up
with a total figure.
Foreman: I am sorry, sir, we misunderstood that.
Judge: Let me ask you this then. Have you agreed a figure of
damages for general damages?
Foreman: Yes, we have.
Judge: What is the figure for that?
Foreman: Fifty pounds.
Judge: And did you consider the question of exemplary damages?
Foreman: Sorry - yes, we did.
Judge: And you concluded on that that you would make no award of
damages?
Foreman: On exemplary damages we concluded it would be fifty
pounds.
Judge: So no general damages, but fifty pounds exemplary damages?
I see. I think I should invite the jury technically to award one
penny for the general damages, should I not?
The applicant's representative: No, your Honour, because other
steps may flow from this. The jurors' verdict is nothing, and
that may be challenged elsewhere.
Judge: So I will simply record that the award of damages is fifty
pounds exemplary damages. Very well."
The judge gave leave to appeal and the applicant was awarded
costs.
The Court of Appeal considered the case on 23 January 1995 (TLR,
28 January 1995, p. 32). It considered that the jury's verdict was
perverse, as the applicant had suffered an infringement of her rights
as a citizen not to be detained without just cause. She had been under
16 at the time of the detention, and had been taken to the police
station in T-shirt, shorts and slippers. She hated confined spaces and
had been frightened, tearful and distressed. For the jury not to have
awarded her compensatory damages was perverse and irrational.
The Court of Appeal decided not to order a re-trial, but rather
exercise its powers under Order 59 rule 11 of the Rules of the Supreme
Court and make its own award. The Court of Appeal awarded £350.00.
The House of Lords refused leave to appeal to it on 19 July 1995.
COMPLAINTS
The applicant alleges a violation of Article 5 para. 5 and
Article 13 of the Convention in connection with the compensation she
received for her wrongful detention. She claims that:
- £350.00 does not reflect the seriousness of the breach of her
rights;
- the figure is insufficient to discourage infringements of human
rights;
- the average award by juries for wrongful imprisonment exceeds
£500.00 per hour in compensatory damages alone, and the award was
supposed to be in lieu of a retrial by jury;
- this is the first time the domestic courts have ruled on the
quantum of an award for breach of Article 5, so that the case is
likely to be influential in the English system of precedents;
- £350.00 is insufficient to justify the grant of legal aid, and
legal aid is now being refused in similar cases on the basis of
the applicant's case, and
- £350.00 is such a small award that it is out of all proportion
to the costs of an action, and is likely to have an adverse
impact on any award of costs, as it did in the case.
The applicant also alleges a violation of Article 6 of the
Convention. She claims that the jury must have been prejudiced or it
could not have reached such a perverse verdict, that it wrongly decided
the question of the lawfulness of the applicant's arrest as it was
contrary to the evidence. She also claims that the Court of Appeal
denied her her rights under Article 6 as it refused a retrial, because
she had to wait nearly two years for the appeal hearing (and because
the Court of Appeal regarded the delay as a reason for not ordering a
retrial), and because the Court of Appeal did not invite argument as
to quantum, but merely made its own award.
THE LAW
1. The applicant alleges a violation of Article 5 para. 5 and
Article 13 (Art. 5-5, 13) of the Convention by reason of the size of
the award of compensation in her case.
Article 5 (Art. 5-5) of the Convention provides, so far as
relevant, as follows.
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
The Commission recalls that Article 5 para. 5 (Art. 5-5) of the
Convention guarantees an enforceable right to compensation of those
whose detention was in contravention of one of the other provisions of
Article 5 (Art. 5) (see, for example, Eur. Court HR, the Benham v. the
United Kingdom judgment of 10 June 1996, to be published in Reports of
Judgments 1996, para. 50). Such a finding of a contravention may be
made by the domestic authorities or by the Convention organs
(No. 6821/74, Huber v. Austria, Dec. 5.7.76, D.R. 6 p. 69).
In the present case, the County Court found that the detention
of the applicant was unlawful from the time of the applicant's
detention at 8.20 a.m. on 26 June 1989 until her release at 12.55 p.m.
The Commission considers that that finding is, in substance, a finding
of a violation of Article 5 para. 1 (Art. 5-1) of the Convention.
Article 5 para. 5 (Art. 5-5) is therefore applicable.
The wording of Article 5 para. 5 (Art. 5-5) requires an
"enforceable right to compensation". In simplistic terms, the
applicant clearly had such a right, as she sought and eventually
obtained damages for the wrongful detention. Moreover, in the case of
Wassink, the European Court of Human Rights considered that Article 5
para. 5 (Art. 5-5) of the Convention is complied with "where it is
possible to apply for compensation in respect of a deprivation of
liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4.
It does not prohibit the Contracting States from making the award of
compensation dependent upon the ability of the person concerned to show
damage resulting from the breach" (Wassink v. the Netherlands judgment
of 27 September 1990, Series A no. 185-A, p. 14, para. 38).
However, the Convention is "intended to guarantee not rights that
are theoretical or illusory but rights that are practical and
effective" (Eur. Court HR, the Artico v. Italy judgment of 13 May 1980,
Series A no. 37, p. 16, para. 33). The Commission agrees with the
essence of the applicant's argument, which is that a right to
compensation which sets levels of compensation for damage suffered so
low as no longer to be "enforceable" in practical terms would not
comply with the requirements of Article 5 para. 5 (Art. 5-5) of the
Convention.
In the present case, the applicant sought and obtained
compensation for her detention. The question is therefore whether the
amount of compensation obtained was so low that the right was
completely hollowed out.
The Commission accepts that in domestic terms, the amount of
compensation may be low. However, an award of £350.00 for four and a
half hours' detention cannot be said to be so low as to be negligible,
particularly when it is borne in mind that the wording of Article 5
para. 5 (Art. 5-5) does not actually refer to specific amounts.
The Commission notes the applicant's further arguments, but does
not accept that they can affect the conclusion that Article 5 para. 5
(Art. 5-5) was complied with in the present case: the effect on
subsequent cases is a matter for the Commission to consider in future
cases; a comparison with average awards of compensation in domestic
fora is not relevant to the questions which the Commission is required
to determine, and the inter-relationship between the amount of damages
and the costs awarded to a successful litigant is also a matter which
goes beyond the scope of Article 5 para. 5 (Art. 5-5) of the
Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges a violation of Article 6 (Art. 6) of
the Convention, both as regards the trial itself, and the proceedings
before the Court of Appeal.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see eg. No. 458/59, X v. Belgium, Dec. 29.3.60, Yearbook 3
pp. 222, 236; No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43
pp. 71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18 pp. 31,
45; No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93, D.R. 74 p. 234).
As to the remaining complaints, the Commission recalls that the
Convention does not give a right to a re-trial, and there is no
question of the Court of Appeal's award of damages being outside the
range of possible awards a jury could have given.
As to the length of the proceedings, the Commission notes that
the proceedings began with the applicant's summons in November 1991,
and ended with the House of Lords refusal of leave to appeal of
19 July 1995. In that period of under four years, the County Court had
a jury trial and the Court of Appeal granted the applicant's appeal in
part.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time" (the complexity of the case, the applicant's
conduct and that of the competent authorities), and having regard to
all the information in its possession, that the length of the
proceedings cannot be said to have exceeded the "reasonable time"
requirement of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy