Lexploria

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

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CUMBER v. THE UNITED KINGDOM

CUMBER v. THE UNITED KINGDOM