FIRST SECTION

CASE OF DANIEL FAULKNER v. THE UNITED KINGDOM

(Application no. 68909/13)

JUDGMENT

STRASBOURG
6 October 2016

This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

In the case of Daniel Faulkner v. the United Kingdom,

The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mirjana Lazarova Trajkovska, President,
Kristina Pardalos,
Linos-Alexandre Sicilianos,
Paul Mahoney,
Ale Pejchal,
Robert Spano,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 6 September 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 68909/13) against the
United Kingdom of Great Britain and Northern Ireland lodged with the
Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (the Convention) by a British national,
Mr Daniel Faulkner (the applicant), on 23 October 2013.
2. The applicant, who had been granted legal aid, was represented by
Chivers Solicitors, a firm of solicitors based in Bingley. The United
Kingdom Government (the Government) were represented by their Agent,
Ms M. Macmillan, of the Foreign and Commonwealth Office.
3. The applicant alleged, in particular, that the delay from March 2008
until January 2009 in holding a Parole Board hearing to review the
lawfulness of his detention rendered his detention during that period
arbitrary and thus unlawful under Article 5 1 (a) of the Convention.
4. On 26 May 2015 the complaint under Article 5 1 was
communicated to the Government and the remainder of the application was
declared inadmissible pursuant to Rule 54 3 of the Rules of Court.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1982 and is detained in HM Prison
Dovegate, Uttoxeter.

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

A. The background facts

6. On 3 August 2001 the applicant was sentenced by the Crown Court to
custody for life for causing grievous bodily harm. The minimum period
(tariff) was set at two years, eight and a half months, less time spent on
remand. The tariff expired on 18 April 2004 and he became eligible for
parole.
7. The Parole Board subsequently examined his case in order to review
whether his detention remained necessary for the protection of the public.
On 26 May 2005 it decided not to direct his release but recommended that
he be transferred to open conditions. That recommendation was rejected by
the Secretary of State.
8. A second recommendation to the same effect was made, following the
applicants second Parole Board review on 31 January 2007 and rejected by
the Secretary of State on 23 May 2007. At the conclusion of its statement of
reasons for rejecting the Boards recommendation, the National Offender
Management Service (NOMS) wrote:
The Secretary of State has therefore decided that you should remain in closed
conditions and your next review will conclude in January 2008.

9. The accompanying letter stated:

It has been decided that your case will next be referred to the Parole Board for a
provisional hearing to take place in JANUARY 2008.
...
You will be notified by the Parole Board nearer the time about the exact date of that
hearing.
At your next review the Parole Board will consider your suitability for release by
way of a paper panel. This consideration will take place approximately 12 weeks prior
to your provisional hearing [in January 2008]. If you are not content with the paper
panels decision you may request that the case proceeds to the arranged oral hearing.

10. The case was referred to the Parole Board on 21 December 2007. On
6 May 2008 the applicant and the Parole Board were sent relevant reports as
required by the applicable rules. On 16 May 2008 the Parole Board gave
case-management directions requiring additional reports. On 8 October
2008 the Parole Board received the further reports requested. The hearing
took place on 8 January 2009. On 23 January 2009 the Parole Board
directed the applicants release. He was released from prison four days later.
B. The domestic proceedings
11. Meanwhile, in autumn 2008, the applicant commenced judicial
review proceedings against the Secretary of State and the Parole Board
seeking damages for the delay in holding the hearing. He relied on Article 5

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

4 of the Convention. He was granted permission to bring proceedings on

13 October 2008.
12. On 5 June 2009 the claim was dismissed by the High Court. Leave to
appeal was granted by the Court of Appeal on 27 October 2009.
13. On 14 December 2010 the Court of Appeal handed down its
judgment. After carefully reviewing the facts and the individual periods of
delay encountered, it concluded that there had been a delay of ten months,
from March 2008 to January 2009, in the holding of the Parole Board
hearing which was unjustified and for which the Secretary of State was
responsible. This delay had prevented the applicant from having the
lawfulness of his continued detention decided in accordance with Article 5
4. On the question of damages, the court was satisfied that the applicant
had shown, on a balance of probabilities, that he would have been released
had the review taken place in March 2008. Damages on the basis of a loss of
liberty were therefore appropriate.
14. In its judgment of 29 March 2011 on the amount of damages to be
awarded, the court considered a number of just satisfaction awards in cases
before this Court in which breaches of Article 5 4 had been found. It
distinguished between cases where the delay had merely led to feelings of
frustration and those where it had been established that, but for the delay in
the holding of the hearing, the applicant would have been released earlier. It
awarded the sum of 10,000 pounds sterling (GBP) by way of
compensation for the loss of ten months conditional liberty.
15. The applicant sought leave to appeal to the Supreme Court on the
ground that the award was inadequate. The Parole Board sought leave to
appeal on the ground that the award was excessive. Leave was granted to
both parties, and the applicant was in addition given permission to argue
that his detention after March 2008 constituted false imprisonment at
common law or a violation of Article 5 1 of the Convention. In respect of
his latter argument, he relied on this Courts findings in James, Wells
and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09,
18 September 2012.
16. In its judgment of 1 May 2013 the Supreme Court unanimously
rejected the applicants appeal and allowed the appeal of the Parole Board,
reducing the damages award to GBP 6,500.
17. As regards the alleged violation of Article 5 1 of the Convention,
Lord Reed, giving the leading opinion, observed that Article 5 4 provided
a procedural entitlement designed to ensure that persons were not detained
in violation of their rights under Article 5 1. However, he added, a
violation of Article 5 4 did not necessarily result in a violation of Article 5
1. He considered this Courts judgment in James, Wells and Lee, cited
above, not to be directly relevant to the applicants case since that judgment
concerned lack of access to rehabilitation courses and the just satisfaction
awards made were for the feelings of distress and frustration resulting from

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

continued detention without access to courses, and not for loss of liberty.
Lord Reed noted that the delay in the applicants case appeared to have been
the result of errors by administrative staff, of a kind which occur from time
to time in any system which is vulnerable to human error. While it was
extremely unfortunate that the errors had occurred and had resulted in the
prolongation of the applicants detention, they were not of such a character,
and the delay was not of such a degree, as to warrant the conclusion that
there had been a breach of Article 5 1.
18. On the matter of damages for the violation of Article 5 4 of the
Convention, Lord Reed reviewed relevant case-law of this Court where a
violation of Article 5 1, 3 or 4 had been found, focusing in particular on
cases concerning a delay in holding a hearing intended to address the
question whether a convicted prisoner should be released. He considered
that no clear guidance could be derived from the cases since none concerned
awards for loss of liberty resulting from a violation of the speedy decision
guarantee in Article 5 4. While, he said, an appellate court would not
interfere with an award of damages simply because it would have awarded a
different figure if it had tried the case at first instance, in the applicants
appeal the court was being invited to give guidance as to the appropriate
level of awards in cases of this character. For that purpose, the court had
undertaken a fuller analysis of the case-law of this Court than the Court of
Appeal. Lord Reed concluded:
87. ... In the light of that analysis, and applying the general approach which I have
described ..., it appears to me that an award in the region of 6,500 would adequately
compensate Mr Faulkner for his delayed release, bearing in mind the conditional and
precarious nature of the liberty foregone. That amount falls well short of the award of
10,000 made by the Court of Appeal. In the circumstances, it is in my view
appropriate for this court to allow the Boards appeal and to reduce the award
accordingly.

II. RELEVANT DOMESTIC LAW

19. A prisoner sentenced to custody for life is entitled to be released on
parole after the expiry of his tariff if the Parole Board, being satisfied that it
is no longer necessary for the protection of the public that he should be
detained in prison, directs his release. If the Board gives such a direction,
then the Secretary of State is required to release him (see section 28 of the
Crime (Sentences) Act 1997). A prisoner is entitled to request the Secretary
of State to refer his case to the Parole Board for a review every two years
(section 28(7) of the 1997 Act).
20. On 10 December 2014 the Supreme Court handed down its judgment
in Kaiyam and Others v. Secretary of State ([2014] UKSC 66), in which it
considered this Courts judgment in James, Wells and Lee. It accepted that
the State was under a duty to provide an opportunity reasonable in all the
circumstances for a prisoner serving an indeterminate sentence for the

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

public protection to rehabilitate himself and to demonstrate that he no

longer presented an unacceptable danger to the public. However, it did not
consider that this duty could be brought within the express language of
either Article 5 1 (a) or Article 5 4. Instead, the court concluded that the
duty should be implied as an ancillary duty, not affecting the lawfulness
of the detention, in the overall scheme of Article 5 (for more details, see
Kaiyam and Others v. the United Kingdom (dec.), nos. 28160/15, 28103/15
and 28443/15, 12 January 2016).

THE LAW
ALLEGED VIOLATION OF ARTICLE 5 1 OF THE CONVENTION
21. In the applicants submission, his detention from March 2008, for a
period of ten months pending his delayed Parole Board review in January
2009, had not merely resulted in a violation of Article 5 4 but was also
arbitrary and in breach of Article 5 1 of the Convention, which reads 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.

22. Article 5 4 provides:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.

A. Admissibility
23. The Government noted that the applicant had benefited from a
declaration that a breach of Article 5 4 had occurred and had been
awarded damages. Further, his complaint under Article 5 1 had been heard
and dismissed by the Supreme Court, such that respect for human rights did
not require an examination of the application on its merits. They therefore
argued that he had suffered no significant disadvantage connected to his
Article 5 1 rights and invited the Court to declare the complaint
inadmissible under Article 35 3 (b) of the Convention.
24. The applicant did not comment on the Governments admissibility
objection.

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

25. Article 35 3 provides, in so far as relevant:

The Court shall declare inadmissible any individual application submitted under
Article 34 if it considers that:
...
(b) the applicant has not suffered a significant disadvantage, unless respect for
human rights as defined in the Convention and the Protocols thereto requires an
examination of the application on the merits and provided that no case may be
rejected on this ground which has not been duly considered by a domestic tribunal.

26. The admissibility criterion in Article 35 3 (b) reflects the view that
a violation of a right, however real from a purely legal point of view, should
attain a minimum level of severity to warrant consideration by an
international court. The assessment of this minimum level is, in the nature
of things, relative and depends on all the circumstances of the case. The
severity of a violation should be assessed, taking account of both the
applicants subjective perceptions and what is objectively at stake in a
particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010;
and Van Velden v. the Netherlands, no. 30666/08, 36, 19 July 2011). An
alleged violation of the Convention may concern important questions of
principle and thus cause a significant disadvantage without affecting an
applicants pecuniary interest (Korolev, cited above; and M.N. and Others
v. San Marino, no. 28005/12, 37, 7 July 2015). It may also be that, even in
the absence of a significant disadvantage, a question of principle raised by
an application is of a general character affecting the observance of the
Convention, such that, under the terms of the second element in Article 35
3 (b), respect for human rights defined in the Convention ... requires an
examination of the application on its merits.
27. In calling on the Court to reject the application as inadmissible under
Article 35 3 (b), the Government argued that because the national courts
had given a ruling finding a violation of Article 5 4 on account of the
delay in holding a Parole Board hearing and awarding damages, the
applicant had suffered no significant disadvantage in connection with his
Article 5 1 right. The Court is not, however, satisfied that the conditions
for inadmissibility stated in Article 35 3 (b) are satisfied. The nature of the
guarantees afforded by Articles 5 1 and 5 4 is significantly different, the
latter being concerned exclusively with safeguards subsequent to
deprivation of liberty and the former encapsulating the more comprehensive
right not to be detained in an arbitrary fashion. The applicants submission
is that the delay in his case was such as to give rise not merely to a denial of
access to a review of the lawfulness of his continuing detention (contrary to
Article 5 4) but also to a period of unjustified deprivation of liberty
(contrary to Article 5 1). While the applicant received financial
compensation of GBP 6,500 as redress for the disadvantage resulting
from his delayed release (see paragraphs 17-18 above), the applicants

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

complaint as formulated in his application raises a novel issue of principle

going to the relationship between paragraphs 1 and 4 of Article 5, an issue
which warrants consideration by the Court. Consequently, without needing
to determine whether the applicant can be said to have suffered a
significant disadvantage, the Court is in any event led to dismiss the
Governments objections on the basis of the second element in Article 35
3 (b) of the Convention.
28. The Government further contended that the applicants complaint
under Article 5 1 was manifestly ill-founded. However, as intimated
above, the Court is satisfied that the applicants Article 5 1 complaint
raises sufficiently complex issues of fact and law, such that it cannot be
rejected as manifestly ill-founded within the meaning of Article 35 3 (a)
of the Convention. It further considers that the complaint is not inadmissible
on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties submissions
(a) The applicant

29. In the applicants submission, his was not a case where detention
was always justified by the original judicial decision imposing the sentence.
That decision permitted his detention so long as it was justified on the basis
of the risk posed. After March 2008, his detention was not justified on the
basis of risk because he had reduced his risk. There was a stark difference
between people deemed no longer to pose a risk to the public (in respect of
whom the causal connection between sentence and detention had been
broken) and those deemed to pose a continuing risk to the public. A finding
that his Article 5 1 rights had been violated would not imply that persons
who continued to pose a risk to the public should be released. The applicant
argued that the facts of his case were so radically distinct from those in
James, Wells and Lee that it was unnecessary for the Court to consider
whether that case was correctly decided. The Governments attempts to
re-argue James, Wells and Lee (see paragraph 33 below) were not only
misconceived but irrelevant to the facts of his case.
30. The applicant relied on the cases of Erkalo v. the Netherlands,
2 September 1998, Reports of Judgments and Decisions 1998-VI,
Schnbrod v. Germany, no. 48038/06, 24 November 2011, and H.W. v.
Germany, no. 17167/11, 19 September 2013, in support of his case. He
argued that they demonstrated the importance of administrative review in
the Article 5 framework. It was only by reviewing the substantive merits of
the continuing detention that the State could demonstrate compliance with
Article 5. Where there had been a failure to comply with procedural
safeguards under domestic law, there would be a breach of Article 5 1

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

(citing Nakach v. the Netherlands, no. 5379/02, 30 June 2005; and Schenkel
v. the Netherlands, no. 62015/00, 27 October 2005). The Governments
attempt to distinguish the cases was absurd and would lead to a situation in
which a prisoner could be lawfully detained indefinitely without any Parole
Board review. This could not possibly be correct. The applicant accepted
that the mere fact of a breach of Article 5 4 did not necessarily cause
detention to be unlawful as there might be an underlying justification for
detention: the prisoner might pose a risk. However, where there was no such
justification, unlawful delay was no excuse for a failure to release.
31. Further, the Governments argument that the applicant was being
progressed through the system (see paragraph 35 below) was untenable. The
delay was entirely the fault of the authorities and occurred because they had
failed to ensure that systems were in place which would have enabled timely
determination of whether there was an ongoing justification for detention.
The Government had not explained what concrete steps were taken during
the ten-month period and the Court of Appeal had clearly found that there
was no material change in the applicants risk level during the ten months.
32. In the applicants view, the Governments interpretation of
arbitrariness was untenably narrow and inconsistent with the Courts
case-law. A lengthy delay, as in this case, did not reflect the strict standards
set out in the case-law. Further, arbitrariness involved consideration of
whether, inter alia, the order to detain and execution of detention genuinely
conformed to the purpose of the restrictions in Article 5 1. In the
applicants case, there was no basis in law for his detention during the
ten-month period.
(b) The Government

33. The Government accepted that there had been a breach of Article 5
4 of the Convention in the applicants case but did not agree that this had
resulted in a violation of Article 5 1. While the Court in James, Wells
and Lee had considered that a failure to provide rehabilitative courses gave
rise to an issue under Article 5 1, it was significant that the Supreme Court
in Kaiyam and Others had preferred to view the duty to provide access to
courses as an ancillary duty of a more procedural nature under Article 5
rather than a matter going to lawfulness under Article 5 1 (a) (see
paragraph 20 above). The concerns expressed by the Supreme Court in
Kaiyam concerning the application of Article 5 1 in that case applied
equally in a case such as this based on delay: absent bad faith, delay on the
part of the judicial body responsible for determining whether to release a
prisoner did not render detention arbitrary.
34. The Government distinguished the cases on which the applicant
relied (see paragraph 30 above) on the ground that they were cases in which
the Court was asked post facto to validate a period of detention which had
not, at the time of its commencement, been judicially determined or

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

approved. In contrast, in the present case, the applicants detention had

always been justified by the judicial decision imposing a life sentence. His
release was contingent on demonstrating to the satisfaction of the Parole
Board that he no longer posed a risk to the public. It was incorrect for him
to suggest that his conviction and detention only continued to retain the
requisite connection if the Parole Board considered that he posed a
sufficient risk to the public: it was for him to demonstrate that his risk had
reduced, and his detention would continue pending a decision of the Parole
Board as to whether in fact there had been a sufficient reduction in risk.
35. The Government emphasised that from March 2008 to January 2009,
the applicants case was pending before the Parole Board. There was
nothing arbitrary about his detention: he was simply awaiting a decision by
the relevant judicial body for the purposes of Article 5 4. During that
period, reports were being prepared and were submitted to the Parole Board
on 8 October 2008 (see paragraph 10 above). He was therefore being
assessed during the period as to the risk he posed and was benefiting from
rehabilitative opportunities offered to him by the Government. The
applicant placed too much weight on the finding of the Court of Appeal
that, on a balance of probabilities, he would have been released had the
review taken place in March 2008. It was noteworthy that in May 2008 the
Parole Board had decided, on the basis of the papers before it, that it needed
further papers in order properly to consider the case (see paragraph 10
above). There was nothing arbitrary about the Parole Board seeking such
documentation, notwithstanding that the Court of Appeal, with the benefit
of hindsight, had later decided that the documents were unnecessary.
36. In conclusion, the Government emphasised that the logical
conclusion of the applicants argument was that every breach of Article 5
4 would result in a breach of Article 5 1. Such a conclusion would
render Article 5 4 redundant. There were plainly sufficient safeguards
against arbitrary detention in a case such as the applicants. The 1997 Act
provided for reviews to take place every two years (see paragraph 19 above)
and Article 5 4 offered a protection which could be enforced in the
domestic courts by a mandatory order requiring the Parole Board to convene
a hearing. The purpose and effect of Article 5 4 was precisely to deal with
the types of delay that had occurred in this case. Although it was possible to
envisage a situation where a flagrant and unjustified failure to give a
prisoner an Article 5 4 compliant hearing could result in detention
becoming arbitrary, such cases were likely to be rare and the applicants
was plainly not such a case.

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DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

2. The Courts assessment

(a) General principles

37. The substantive right to liberty is set out in Article 5 1 of the

Convention, whose object and purpose is to ensure that no one is
dispossessed of his liberty in an arbitrary fashion (see, among many other
authorities, M. v. Germany, no. 19359/04, 89, ECHR 2009; and James,
Wells and Lee, cited above, 187). It is well established in the Courts
case-law that any deprivation of liberty must fall within one of the
exceptions set out in sub-paragraphs (a)-(f) and must also be lawful.
38. For detention to comply with Article 5 1 (a), there must be a
sufficient causal connection between the conviction and the deprivation of
liberty at issue (see Weeks v. the United Kingdom, 2 March 1987, 42,
Series A no. 114; Kafkaris v. Cyprus [GC], no. 21906/04, 117,
12 February 2008; and M. v. Germany, cited above, 87-88). With the
passage of time, the link between the initial conviction and a later
deprivation of liberty gradually weakens. The causal link required by
sub-paragraph (a) might eventually be broken if a position were reached in
which a decision not to release or to re-detain was based on grounds that
were inconsistent with the objectives of the decision by the sentencing court
or on an assessment that was unreasonable in terms of those objectives (see
Weeks, cited above, 49; and James, Wells and Lee, cited above, 189).
39. Where the lawfulness of detention is in issue, including the
question whether a procedure prescribed by law has been followed, the
Convention refers essentially to national law and lays down the obligation
to conform to the substantive and procedural rules of national law (see
Mooren v. Germany [GC], no. 11364/03, 72, 9 July 2009; and James,
Wells and Lee, cited above, 190).
40. However, Article 5 1 also requires that any deprivation of liberty
should be in keeping with the purpose of protecting the individual from
arbitrariness (see Kafkaris, cited above; 116; and James, Wells and Lee,
cited above, 191). In James, Wells and Lee, cited above, 192-196, the
Court identified four types of conduct on the part of the authorities which
might constitute arbitrariness for the purposes of Article 5 1. First,
detention will be arbitrary where, despite complying with the letter of
national law, there has been an element of bad faith or deception on the part
of the authorities. Second, the condition that there be no arbitrariness
demands that both the order to detain and the execution of the detention
genuinely conform with the purpose of the restrictions permitted by the
relevant sub-paragraph of Article 5 1. Third, there must be some
relationship between the ground of permitted deprivation of liberty relied on
and the place and conditions of detention. Fourth, the requirement that
detention not be arbitrary implies the need for a relationship of
proportionality between the ground of detention relied upon and the

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

11

detention in question. However, the scope of the proportionality test to be

applied in a given case varies depending on the type of detention involved.
41. Article 5 4 enshrines the right to have the legality of detention
reviewed speedily by a court with the power to order release. This implies
not only that the competent courts must reach their decisions speedily but
also that, where an automatic review of the lawfulness of detention has been
instituted, their decisions must follow at reasonable intervals (see Oldham
v. the United Kingdom, no. 36273/97, 30, ECHR 2000-X). These rights
are procedural in nature and are intended to help secure the protection of the
substantive right to liberty guaranteed by Article 5 1. The fact that
procedural rights are protected as rights in themselves by Article 5 4
serves to underline their important role in ensuring that unlawful and
arbitrary detention does not occur. However, the finding of a violation of
Article 5 4 does not, of itself, result in a violation of Article 5 1 (see
Mooren, cited above, 88).
(b) Application of the general principles to the facts of the case

42. Although he relied on James, Wells and Lee before the Supreme
Court (see paragraph 15 above), the applicant argued before this Court that
the judgment in that case was not relevant to his complaint (see
paragraph 29 above). Instead, he relied on case-law of this Court which he
contended showed that procedural delays of the nature and length of that
which occurred in his case breached Article 5 1 of the Convention (see
paragraph 30 above). However, for the Court, the facts of the cases cited
differ from the facts of the applicants case in an important respect. In the
cases relied on by the applicant, the period of detention at issue was not
based on any judicial decision, the order authorising detention having
expired, and there was a lack of adequate safeguards to ensure that the
applicants release from detention would not be unreasonably delayed (see
Erkalo, 57; Schnbrod, 107-108 and H.W., 83 and 89). By contrast,
in the present case the applicants detention remained at all times formally
authorised by the sentence of custody for life imposed on him by the Crown
Court in 2001 (see paragraph 6 above). He could not be released unless and
until there was a decision of the Parole Board that he had shown the
required reduction in risk and was safe for release. The Court of Appeals
finding in December 2010, on a balance of probabilities, that had a Parole
Board hearing taken place in March 2008 he would have been released
cannot be equated to a formal Parole Board finding in March 2008 that he
was safe for release. The existence of a valid court order authorising
detention constituted an important safeguard against arbitrariness in the
applicants case.
43. The applicant further relied on Nakach and Schenkel, both cited
above, to argue that where there had been a failure to comply with
procedural safeguards under domestic law, there would be a breach of

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DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

Article 5 1 (see paragraph 30 above). However, the Court does not

consider that either case assists the applicant. In both cases, the Court found
that a breach of Article 5 1 had arisen because the detention did not follow
a procedure prescribed by law (see Nakach, 43; and Schenkel, 32). In
other words, it was the strict requirement of lawfulness under domestic law
(see paragraph 39 above) which had been breached in those cases. In the
present case, no breach of domestic law has been established. The applicant
emphasises the Court of Appeals finding that he ought to have been
released in March 2008 to support his argument that procedural safeguards
prescribed by domestic law were not followed. However, as noted above,
that finding, made with the benefit of hindsight, did not remove the legal
basis that existed throughout the impugned period of detention.
44. It is true that the aspirational timetable envisaged by the Secretary of
State and indicated to the applicant in May 2007 (see paragraph 8-9 above)
was not met. However, in setting a timetable which ensured a further review
well before the two-year period envisaged by the legislation, the Secretary
of State acted in conformity with the requirement under Article 5 4 for
review at reasonable intervals, the frequency of which must be
determined in the light of the circumstances of each case (see paragraph 41
above and Oldham, cited above, 31). The failure to ensure a review within
reasonable intervals can, and in the present case did, result in a finding of
a violation of Article 5 4 of the Convention and an award of damages. It
was by reference to the Secretary of States timetable that the Court of
Appeal held that there had been delays which led to its finding of a violation
of Article 5 4. But the applicant has not cited any judgment of this Court
where it has found that delay in proceedings to review the legality of
detention resulted in a violation not only of Article 5 4 but also of
Article 5 1 of the Convention. It is significant that the applicant in
Schenkel contended under Article 5 1 that the proceedings concerning the
prolongation of his detention order were not conducted with the necessary
diligence. However, the Court decided that it was more appropriate to
examine that question in the context of its examination of Article 5 4 of
the Convention (cited above, 20, 27 and 31). The Court does not rule out
that there may be circumstances in which, exceptionally, a delay in the
review of the legality of post-tariff detention is such as to give rise to
concerns that the detention itself has become arbitrary and incompatible
with Article 5 1. However, barring such exceptional circumstances, a
complaint of delay falls to be considered under Article 5 4 only.
45. The Court is satisfied that no exceptional circumstances arose in the
present case. While there was a delay in the holding of the applicants
Parole Board review, the nature of the delay and its overall length were not
such as to lead the Court to conclude that his detention from March 2008
until his release in January 2009 had become arbitrary and, thus, unlawful
contrary to Article 5 1 (a) of the Convention.

DANIEL FAULKNER v. THE UNITED KINGDOM JUDGMENT

13

46. There has accordingly been no violation of Article 5 1 in the

present case.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 5 1 of the Convention
admissible;
2. Holds that there has been no violation of Article 5 1.
Done in English, and notified in writing on 6 October 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Renata Degener
Deputy Registrar

Mirjana Lazarova Trajkovska

President