Neutral Citation Number: [2010] EWCA Civ 1435
Case No: B2/2009/1240
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
MR JUSTICE CRANSTON
[2009] EWHC 1719 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/12/2010
Before :

LORD JUSTICE MAURICE KAY, Vice President of the Court of Appeal Civil Division
LORD JUSTICE STANLEY BURNTON
and
LORD JUSTICE PATTEN
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Between : 

	PAUL CHRISTIAN STELLATO	Appellant	
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	THE MINISTRY OF JUSTICE	Respondent	

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The appellant in person
Steven Kovats QC (instructed by the Treasury Solicitor) for the Respondent

Hearing date : 17 November 2010
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Judgment

Lord Justice Stanley Burnton : 
Introduction
1.	This is the appeal of Paul Christian Stellato from the decision of Cranston J in so far as it rejected his claim for damages for his detention in respect of the period between 7 December 2006 and 28 February 2007. As will be seen, the appeal raises interesting and important questions as to the legal consequences of the grant of bail by the Court and as to the scope of Article 5.1(b) of the European Convention on Human Rights.
The facts
2.	On 17 December 1998, Mr Stellato was sentenced to 10 years’ imprisonment by the Crown Court at Northampton.  He was released at the three-quarter point of his sentence, on 23 December 2005. (The three-quarter point of his sentence was in fact 27 December 2005, but he was released on the last working day before Christmas.) The Home Office, which then had responsibility for prisons, purported to release him on licence.
3.	Even prior to his release, Mr Stellato had commenced judicial review proceedings seeking a declaration that his release should be unconditional, by virtue of section 33(3) of the Criminal Justice Act 1991, and not on licence.  Permission to apply for judicial review was granted by Ouseley J on 19 December 2005. 
4.	On the basis that he was entitled to be released unconditionally, Mr Stellato refused to comply with the terms of his licence. As a result, on 28 December 2005 the Home Secretary purported to revoke his licence. In consequence, Mr Stellato was returned to prison on 6 January 2006.
5.	On 31 January 2006 Mr Stellato issued a claim against the Home Office for damages for false imprisonment and for the infringement of his rights under Article 5 of the European Convention on Human Rights. The Ministry of Justice became the proper defendant to that claim in May 2007 when it assumed responsibility for prisons.  
6.	On 31 March 2006 the Divisional Court (Hallett LJ and Jack J) dismissed Mr Stellato’s judicial review claim that his release on licence, rather than unconditionally, had been unlawful.
7.	On 1 December 2006 the Court of Appeal (Longmore, Scott Baker and Hughes LJJ) allowed Mr Stellato’s appeal.  Paragraph 2 of the order was a declaration to the effect that: (i) in respect of any prisoner whose offences were committed before 30 September 1998, and who was recalled to prison after 4 April 2005, section 37(1) of the Criminal Justice Act 1991 continued to govern the duration of his licence following any re-release; (ii) following Mr Stellato’s release on 23 December 2005, his licence expired on 27 December 2005 pursuant to section 37(1) of the 1991 Act; (iii) his recall to prison on 6  January had been unlawful, his detention since then had, at all times, been unlawful and he was entitled to immediate release. Paragraph 6 of the order was as follows:
“6) there be a stay of paragraph 2 of the Court’s judgment and implementation until midday on 21st December 2006 provided that the Respondent do lodge a petition for permission to appeal to the House of Lords by 8th December 2006, if so advised. In the event that the Respondent does not lodge a petition to appeal by the above date, the stay be lifted.”
8.	The Court of Appeal granted bail to Mr Stellato on certain conditions. This part of their order was as follows:
“7) the Appellant be granted bail on the following conditions, namely that the Appellant is
(i) to live and sleep each night at a Thames Valley approved hostel, …
(ii) to report to St Aldates police station …
(iii) not to leave the jurisdiction …
(iv) to surrender … any passport
(v) not to contact [named persons].”
9.	However, Mr Stellato refused to comply with those conditions, on the ground that he could not be on bail if he was not on licence. 
10.	On 6 December 2006 Hughes LJ, acting as a judge of the Court of Appeal Civil Division, signed an order for Mr Stellato’s arrest and detention for breach of the bail conditions. Mr Stellato was arrested on 7 December 2006 and returned to prison in accordance with the terms of that order.  At a hearing on 8 December 2006 Hughes LJ ordered that “the bail granted on 1 December 2006 [by the Court of Appeal] be revoked and that the Appellant [Mr Stellato] remain in custody at least until midday on 21 December 2006 when the stay granted in paragraph 6 of the said Order ends”.
11.	The Secretary of State duly lodged a petition to the House of Lords. On 12 December 2006 the Appellate Committee gave leave to appeal and ordered that “there be a stay of paragraph 2 of the Court of Appeal Order of 1 December 2006 and implementation thereof continued until withdrawal or determination of the appeal or further order”.
12.	The House of Lords then heard the appeal and on 28 February 2007 dismissed the Secretary of State’s appeal.  Mr Stellato was then released unconditionally.
The damages claim
13.	Mr Stellato’s claim for damages for false imprisonment and for breach of his rights under Article 5 of the European Convention on Human Rights was heard by HH Judge Harris QC in Oxford County Court on 6 November 2008.  At this hearing it was conceded by the Ministry of Justice that Mr Stellato had been wrongfully imprisoned for the entire period from 6 January 2006 until 28 February 2007, apart from the period from 1 to 6 December 2006 when he was on bail.  Judgment was handed down on 11 November 2008. Mr Stellato was awarded damages of £55,000 plus interest.  The final amount payable by the Ministry of Justice was only £15,314.27, however, since there were counterclaims and costs orders which were set off.
14.	The Ministry of Justice appealed on various grounds, including that the judge had erred in his assessment of damages for non-pecuniary loss.  It withdrew its concession as to the unlawfulness of the detention from 7 December 2006 onwards.  It contended the detention was lawful during that period since it was pursuant to orders, namely the stay in paragraph 6 of the Court of Appeal’s order of 1 December 2006, the arrest warrant and subsequent revocation of bail. Those orders had been made by a court of unlimited jurisdiction: the Court of Appeal Civil Division had all the powers of the Divisional Court whose appeal was before it, and the Divisional Court was a court of unlimited jurisdiction (see section 19 of the Senior Courts Act 1981).
15.	The appeal was heard by Cranston J. The judge allowed the Ministry to withdraw its earlier concession. Mr Stellato contended that whatever the position at common law might be, his detention between 7 December 2006 and 28 February 2007 was unlawful under the Convention. The Ministry contended that that period of detention was lawful because it was justified by the orders of Hughes LJ, and the stay ordered by the Court of Appeal and the House of Lords.
16.	The judge upheld the Ministry’s contentions. He said:
17. Mr Stellato submits, overall, that the orders which were made which resulted in his detention in December 2006 were not prescribed by law.  They were not adequately accessible and foreseeable; in other words, formulated with sufficient precision for him to understand their significance.  They were on their face invalid.  Consequently, none of the exceptions recognised in Article 5 (1) ECHR could apply and make his detention lawful.
18. In my view, the detention of Mr Stellato from 7 December 2006 until his release on 28 February 2007 was lawful.  To my mind, at the very least the exception in Article 5 (1) (b) ECHR applies.  There were clear orders of a superior court, which revoked his bail and justified his continued detention.  The analogy with the decision in Lloyd and other similar cases does not hold.  Those were cases where there were orders of Magistrates’ Courts which were, on their face, flawed through procedural defects.  Here there was an unimpeachable order of Hughes LJ which justified Mr Stellato’s detention, notwithstanding that subsequently the House of Lords held that when he was released at the three-quarter point he should have been released unconditionally.
19. In my view, the upshot is that the period of unlawful detention is reduced by the days of lawful detention from 7 December 2006 until 28 February 2007.  The period of unlawful detention from 6 January 2006 therefore becomes 329 days, rather than 418 days.
17.	Accordingly, the judge allowed the Ministry’s appeal and reduced the damages awarded to Mr Stellato from £55,000 to £45,428.14, including interest. As before, this claim fell to be reduced on account of the Ministry’s counterclaim and various costs orders.
The parties’ contentions in this appeal
18.	Before us, the parties largely repeated the submissions they had made to Cranston J. Mr Stellato submitted that the stay ordered by the Court of Appeal and continued by the House of Lords did not authorise his detention. He accepted that he could not be awarded damages for false imprisonment at common law in respect of his detention between 7 December and 21 December 2006 because it had been authorised by an order of a judge of a court of unlimited jurisdiction and was for the purposes of our domestic law valid unless and until set aside: see Isaacs v Robertson [1985] 1 AC 97 at 102-3 and M v Home Office [1994] 1 AC 377, 423. However, he submitted that this consideration did not, in the circumstances of this case, justify his detention under Article 5 of the Convention. He submitted that Article 5.1(b), in particular, was inapplicable because the Court of Appeal order granting bail had not imposed any obligation on him with which he had failed to comply. He was entitled to damages both at common law and for breach of his rights under Article 5 of the Convention in respect of the period from 21 December 2006 to 28 February 2007, which had not been authorised by the order of Hughes LJ. Lastly, he submitted that none of the orders of the Court of Appeal and the House of Lords relied on by the respondent satisfied the requirement of Article 5.1(b) of the Convention that it be “lawful”.
19.	Mr Kovats, for the Ministry, submitted that the stay ordered by the Court of Appeal was authority for Mr Stellato’s detention, and that the Court had implied power to grant bail to Mr Stellato; he had failed to comply with the terms of the order for bail, and his detention was therefore justified both by the principle in M v Home Office and by paragraph 5.1(b) of the Convention. 
Discussion
20.	The stay ordered by the Court of Appeal and the House of Lords, and the orders made by Hughes LJ, require separate consideration.
21.	I reject the respondent’s contention that the stay ordered by the Court of Appeal authorised Mr Stellato’s detention. A stay was sought and granted because otherwise there was an enforceable declaration of the Court that he was entitled to his immediate release. The effect of the stay, while it was in force, was that there was no order of the Court requiring his release; it did not mean, and it did not follow, that the respondent was required or authorised to  detain Mr Stellato in custody. To interpret the Court of Appeal order of 1 December 2006 in the manner contended for by the respondent is to transform a negative (the respondent is not required to release the appellant) to a positive (the respondent is authorised by the Court to detain the appellant). The only authority for Mr Stellato’s continued detention relied upon by the respondent before the Court of Appeal was the sentence of imprisonment that had been imposed on Mr Stellato and the legislation that was the subject of the Court’s judgment. There could have been no other authority for his continued detention.
22.	In my judgment, precisely the same analysis applies to the continuation of the stay by the House of Lords.
23.	Turning to the effect of the orders of Hughes LJ, I consider that the answer is to be found in the nature of a grant of bail. In principle, a grant of bail is not an order for the detention of the person to whom it is granted. To the contrary, it is a grant of liberty to someone who would otherwise be detained. The legal justification for his detention is to be found elsewhere: in the case of a person suspected of crime, in the powers of arrest of a constable under a warrant issued by a magistrates court (see section 1 of the Magistrates’ Courts Act 1980), or without a warrant (see section 24 of the Police and Criminal Evidence Act 1984), and powers to remand pending trial or further hearing. Similarly, there is statutory authority for detention in immigration cases: see, for example, paragraph 16 of Schedule 2 and paragraph 2 of Schedule 3 to the Immigration Act 1971. 
24.	A grant of bail may be conditional or unconditional. A condition of bail does not impose an obligation on the person granted bail. It is a true condition. It qualifies the grant of liberty made by the grant of bail. If the person granted bail does not comply with the conditions of his bail, he is liable to be returned to custody. If so, the legal authority for his detention is not the grant of bail, or his breach of the conditions of his bail, but the authority for his detention apart from the order for bail. All that his breach of the conditions of his bail does is to disentitle him to bail. 
25.	These general principles are, of course, subject to any statutory provision. Section 3 of the Bail Act 1976 does impose an obligation on a person granted bail in criminal proceedings to surrender to custody. By section 6, a person who is granted bail who fails without reasonable cause to surrender to custody is guilty of an offence. Even in a case of bail in criminal proceedings, however, it may be that if there is no underlying authority for his detention the person bailed has a reasonable cause not to surrender to custody.
26.	In the present case, the grant of bail was made in civil proceedings (i.e., the claim for judicial review), to which the Bail Act does not apply, and it has not been relied upon by the respondent. Mr Kovats relied on the implied power of the civil courts to grant bail, established by the decision of this Court in R v Secretary of State for the Home Department, ex parte Turkoglu [1988] 1 QB 398. I do not think that this case assists the respondent. In the first place, there was no issue in that case as to the power to grant bail: the Home Secretary himself invited the Court to grant bail. Secondly, it was an immigration case, in which the applicant had not been granted temporary admission. He therefore had no right to be at liberty in this country. He sought judicial review of the decision to refuse him temporary admission, and sought bail as ancillary to his judicial review proceedings. The Court of Appeal held that he could be granted bail. The case is not authority for the proposition that a grant of bail itself is authority for the detention of the person granted bail.
27.	In my judgment, the order of the Court of Appeal of 1 December 2006 subjected the grant of bail to Mr Stellato to true conditions, but did not otherwise impose obligations on him.
28.	I can now turn to consider Article 5. It is 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:
a the lawful detention of a person after conviction by a competent court;
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 fulfilment of any obligation 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;
d the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 
2 …
3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4 …
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.”
29.	Paragraph (a) of Article 5.1 was inapplicable to Mr Stellato’s detention after the expiry of his sentence. The Appellate Committee of the House of Lords held that this was on 27 December 2006. As I have said above, the facts that the Court of Appeal stayed its order, and that the House of Lords continued that stay, do not detract from the fact that (as ultimately held by the House) there was no legal authority for his detention thereafter. Paragraphs (c), (d), (e) and (f) are clearly inapplicable. That leaves only paragraph (b). 
30.	Mr Kovats submitted that Mr Stellato’s detention pursuant to the order of Hughes LJ was justified under that paragraph, because he had refused to comply with an order of the court: he had refused to comply with the conditions of his bail. 
31.	It is true that the words “non-compliance with the lawful order of a court” could be interpreted as applicable to the failure to comply with the conditions of the Court of Appeal’s order granting bail. However, so to read paragraph (b) is 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. In my judgment, the words “non-compliance with the lawful order of a court” refer to breach of an obligation or prohibition imposed by a lawful order of a court. The obvious case is breach of an injunction. 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.
32.	It follows that Mr Stellato is entitled under Article 5.5 and sections 6 and 8 of the Human Rights Act 1998 to damages for his wrongful detention between 7 and 21 December 2006. 
33.	I would leave the question whether orders such as those of Hughes LJ if made in like circumstances would be “lawful” within the meaning of Article 5.1(b) to be determined if and when it is necessary to do so. 
34.	It also follows that Mr Stellato is entitled to damages for breach of his rights under Article 5 in respect of his detention from 21 December 2006 until his release on 28 February 2007. However, I do not consider that the order of 8 December 2006 authorised Mr Stellato’s detention after midday on 21 December 2006, notwithstanding the words “at least”. The decision to detain him thereafter was that of the respondent. It follows that Mr Stellato is also entitled to damages at common law in respect of that period of his detention.
Conclusion
35.	For the reasons I have set out above, I would allow this appeal. 
36.	If my Lords agree with my judgment, I would hope that the parties can agree the financial consequences of our decision and any other consequential orders. If they cannot, I would propose that they exchange written submissions by 17 December 2010. I do not consider that a further oral hearing is required or justified.
Lord Justice Patten:
37.	I agree.
Lord Justice Maurice Kay: 
38.	I also agree.