Damages and breach of the right to a fair hearing

Breach of the right to a fair trial will usually be vindicated by the declaration of the appellate court that there had been a breach, and a quashing of the conviction. There may also be an order for a retrial, which, in a remote sort of way, can also be of advantage to the accused if he obtains an outright acquittal. Awards of damages for breach of fair trial rights are rare, and when made have been "noteworthy for their modesty": R v Secretary of State for the Home Department, ex parte Greenfield [2005] UKHL 14 (16 February 2005), per Lord Bingham at para 17, in a judgment with which the other members of the House concurred.

Special damages may be awarded where a causal connection can be shown between the breach of the right to a fair trial and a loss for which compensation is claimed (para 11), and general damages can arise in rare cases where it can be shown that the applicant has been deprived of a real chance of a better outcome (para 14), or where there has been physical or mental suffering attributable to the breach of the right (para 16).

Where damages are appropriate, should domestic courts apply domestic scales of awards, or should they follow international law precedents? In Greenfield, the position was governed by the statutory relationship between the domestic courts and the Strasbourg court. Some points considered material by Lord Bingham at para 19 of Greenfield suggest analogous questions that may usefully be asked on this issue:

• (1) is the relevant rights legislation a torts statute?
• (2) has the rights statute been enacted with a view to giving remedies that improve on those at common law?
• (3) is there any legislative direction concerning the relevance of international awards of damages?

In Greenfield, it was accepted by the respondent that, in the light of a decision of the European Court that had been given after the lower courts’ decisions in this case, there had been breaches of the right to a fair hearing because the tribunal (a deputy controller determining an allegation of breach of prison rules) was not independent or impartial, and because the applicant had been denied legal representation notwithstanding that he had a lawyer who was available to act. Nevertheless, the House of Lords found that the hearing appeared to have been conducted in an exemplary way, and it would not speculate as to whether legal representation would have made a difference to the outcome. There was, furthermore, nothing special in the case that warranted special damages for anxiety or frustration. Damages were declined but declarations of the breaches of the fair trial rights were made. Costs were reserved for further submission.

Obviously, these declarations will result in improved procedures for other people charged with breaches of prison discipline. It seems, however, that Mr Greenfield had an additional 21 days of imprisonment added to his sentence in circumstances where a conviction would have been quashed if he had been subject to the jurisdiction of the criminal court. This case is a special example of the general difficulties that people who successfully appeal convictions face in obtaining a remedy for such sentences as they may have served.