Delay as JR Ground
David Foskett QC
Andrea Lindsay Strugo
Judicial Review, JR 253, September 2005
This article explores the various ways in which complaints of delay have been deployed to challenge administrative and judicial decisions.
1. This article explores the various ways in which complaints of delay have been deployed to challenge administrative and judicial decisions. It first examines the express protection afforded under Articles 5(4) and 6(1) of the Convention against delay. It then considers challenges to administrative decisions outside the scope of these Articles, most of which have been subsumed under traditional grounds of review.
ARTICLE 5 ECHR
2. Article 5(4) ECHR 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 order if his detention is not lawful"
What constitutes a speedy determination?
3. The meaning of a speedy determination has been considered mostly in the context of decisions made by the Mental Health Review Tribunal (the "MHRT") or the Parole Board. This article focuses upon these two areas.
Article 6(1) vs Article 5(4)
4. In R(KB) v (i) MHRT (ii) Secretary of State for Health  EWHC 639, the court was asked to determine whether the applicants, who had been detained under s.3 of the Mental Health Act 1983 (the "MHA") had been deprived of their right to a speedy determination. Stanley Burnton J emphasised that the issues before the MHRT were "probably the most important issues decided by any tribunals" since they concerned the liberty of the individual and were therefore "as intrinsically important as many of those of the Crown Court". The importance of the MHRT's decision was, he said, reflected in the different wording of Articles 5(4) and 6(1) ("decided speedily" vs. "reasonable time"). A similar point was made in R (Noorkoiv) v Secretary of State for the Home Department  EWCA Civ 770,  1 WLR 3284, in which the Court of Appeal considered the legality of the Parole Board's decision to fix the Claimant's review at the end of the quarter following the expiry of his tariff period. The Court stated that no direct assistance could be gained from Article 6(1) cases since:
"The fact that the state is dealing with people who are at least presumptively detained unlawfully, and the legality of whose detention is controlled by article 5(4), imposes a more intense obligation than that entailed by the need for a prompt trial of people who are not in custody."
The meaning of "speedy" is dependent upon individual circumstances of the case
5. In Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, the ECtHR said that the "speedily" requirement "cannot be defined in the abstract; the matter must – as with the "reasonable time" stipulation in Article 5(3) and Article 6(1) - be determined in the light of the circumstances of each case".
6. The meaning of this requirement was first discussed by the Court of Appeal in R (C) v S & W London Mental Health Tribunal  EWCA Civ 1110,  1 WLR 176. This concerned a patient who had been detained under s.3 of the MHA. He applied immediately for discharge and, in accordance with standard practice, his case was automatically listed for a hearing eight weeks later. He complained that this period of time contravened Article 5(4).
7. Lord Philips MR, who gave the only judgment, approved Scott Baker J's observation at first instance that "what is required is speed and justice": it was necessary to get all the relevant material before the tribunal as quickly as possible. For patients detained under s.3, the exercise to be carried out by the tribunal was not an easy one, and its decision would be determinative of the patient's fate for the next six months. It was therefore paramount that "such time can properly be allowed as is reasonably necessary to ensure that the tribunal is in a position, adequately and fairly, to adjudicate on the issues before it."
8. Lord Phillips MR also emphasised that the assessment of what constituted a speedy determination should be fact dependent, and that whilst there was nothing inherently inconsistent with Article 5(4) in having a target date of eight weeks maximum, the circumstances of some cases could require less than this. Thus it was not lawful to have a practice which made no effort to see that the individual application was heard as soon as practicable, having regard to the relevant circumstances of the case.
9. Similarly, in Noorkoiv, the Claimant's hearing before the Parole Board was listed to be heard approximately two months after the expiry of his tariff period. Buxton LJ recognised that the system being operated in that case appeared much better thought out than that condemned in R(C); nevertheless, it was unacceptable because it treated every case alike, "and imposed delays for reasons that are unrelated to the nature or difficulty of the particular case".
10. The emphasis on the fact-sensitive nature of any finding of delay has raised the question whether the Strasbourg jurisprudence has confused the position by prescribing maximum time limits between parole board reviews. In Murray v The Parole Board & The Secretary of State for the Home Department  EWCA 1561 and Day v SSHD  EWHC 1742, the Court considered whether there was a presumption that one year generally represented the outer limit of a speedy review. Both Courts concluded that there were no such time limits, that facts would always be critical, "but that it is of value to national authorities as well as to prisoners and advisers to know that this is how the question is approached in Strasbourg". It will plainly be easier to establish that a decision setting an interval of one year falls foul of Article 5(4) than a decision setting a period less than that.
11. The factors to be taken into account when determining the appropriate period of review are manifold; but a lack of resources cannot generally be relied upon to justify delay. It is also inappropriate to assert the need to assess a prisoner in certain conditions, or to have regard to the merits of the prisoner's case when setting a time for review. Relevant factors include the date of the Claimant's last review, the measures that have been implemented in anticipation of the next review, and the complexity of the decision that needs to be made.
Lack of resources no excuse
12. Unsurprisingly, the most commonly raised defence in such cases is that the MHRT/Parole Board lacked the resources to conduct the hearing at an earlier date: see, for example, R(KB) v (i) MHRT (ii) Secretary of State for Health  EWHC 639, Noorkoiv and Murray. This is also an issue which has arisen in the context of Article 6(1) and administrative decisions.
13. KB was a test case of 7 psychiatric patients who were detained under s.3 MHA. They complained about the delays between the making of their applications for the review of their detention and the dates of the effective hearings, contending that their cases were representative of systemic inadequacies in the system. Delay was caused by cancelled hearings; none of the cases was even heard within the eight-week period scrutinised in C's case. Similarly, in Noorkoiv and Murray, the Home Secretary submitted that the present system could not be operated differently due to, among other things, the limited numbers of judges and psychiatrists available, and the general lack of resources.
14. Both Stanley Burnton J and the Court of Appeal in Noorkoiv were adamant that the State could not escape judicial scrutiny by arguing that issues relating to the allocation of resources were non-justiciable. According to Stanley Burnton J:
"A decision as to what resources are to be made available often involves questions of policy, and certainly involves questions of discretion. These are matters for policy makers rather than judges??..However,?. when issues are raised under Articles 5 and 6 as to the guarantee of a speedy hearing or of a hearing within a reasonable time, the Court may be required to assess the adequacy of resources, as well as the effectiveness of administration?."
15. Similarly, in Noorkoiv, their Lordships emphasised that there was no general principle that "administrative necessity" excuses delay. Rather, it was clear from the Strasbourg case-law that the state must organise its legal system to enable it to comply with Convention requirements.
16. However, both decisions recognise that even the most efficient systems will encounter occasional difficulties. Stanley Burnton J acknowledged that there will sometimes be more urgent cases which must be heard immediately. However, the administrative problems identified in these specific cases were not examples of excusable delay; they were not part of "the practical realities of litigious life". In KB, the cancellations were regular occurrences caused by a long-standing shortage of psychiatrists and, at times, inadequate pay. The system was unable to accommodate urgent cases without totally disrupting all hearings. Although steps had been taken to address these problems, "the State has not established that the shortage of tribunal members has occurred notwithstanding its implementing adequate practical measures to minimise that shortage." Similarly, in Noorkoiv, the problems with resources could not be regarded as novel or unforeseeable. As Simon Brown LJ stated, "further resources must be found"
17. In KB, Stanley Burnton J acknowledged that in general terms a court is ill-equipped to look at the adequacy of resources. The proper approach in cases of this kind was, first, to consider whether the delays in question were, on the face of it, inconsistent with the requirement of a speedy hearing. If so, the onus would be on the State to excuse the delay by establishing, for example, that the delay had been caused by a sudden and unpredictable increase in the workload of the tribunal, and that it had taken effective and sufficient measures to remedy the problem. In that case, Stanley Burnton J was willing to carry out a detailed analysis of the problems plaguing the tribunal system, an exercise which was very unusual in judicial review at that time.
18. There is, therefore, a particularly high threshold to cross to justify delays in the context of mental health and parole board hearings: whilst unforeseen circumstances may amount to a valid justification, lack of resources by itself will not.
What is the appropriate remedy?
19. Article 5(5) ECHR provides:
"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."
20. In the very recent case of R (Greenfield) v Secretary of State for the Home Department  UKHL 14,  1 WLR, the House of Lords considered the appropriate approach to damages under section 8 of the Human Rights Act 1998. This was a case in which a breach of Article 6(1) had been found. Lord Bingham set down a number of principles to be applied when awarding damages in respect of Article 6 breaches. His Lordship recognised that there was an "obvious contrast" between Article 5 and Article 6 in that the former included an enforceable right to compensation and therefore "there is a risk of error if Strasbourg decisions given in relation to one article of the Convention are read across as applicable to another". However, some of the principles were general in nature and thus should be relevant to awards under Article 5(5), particularly when the breach of Article 5 is procedural in nature. Lord Bingham held:
(a) "The 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by Member States, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official."
(b) "The purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg. But to give them the same remedies without the delay and expense of resort to Strasbourg?."
(c) "Section 8(4) requires a domestic court to take into account the principles applied by the European Court under article 41 not only in determining whether to award damages but also in determining the amount of an award. There could be no clearer indication that courts in this country should look to Strasbourg and not to domestic precedents?.They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all."
(d) Sometimes, the finding of a violation may not amount to just satisfaction, but only where the court finds a causal connection between the violation found and the loss for which an applicant claims to be compensated. This loss may be pecuniary or non-pecuniary.
(e) Where the Claimant seeks damages for loss of an opportunity in Article 6(1) cases, the court will not speculate on what the outcome of the proceedings would have been but for the violation, but it is willing in appropriate cases to make an award if of the opinion that the applicant has been deprived of "a real chance of a better outcome".
(f) Where the Claimant seeks general damages for physical or mental suffering, the Claimant must show that such damages is attributable to the Article 6 violation. However, the court has been very sparing in making such awards.
21. In R(KB) v South London and South and West Region MHRT  EWHC 193,  3 WLR, which pre-dated Greenfield, Stanley Burnton J enunciated a number of principles to be followed when awarding damages under Article 5(5) when a breach of Article 5(4) had been found. However, in Greenfield, Lord Bingham held that although KB did not concern Article 6, there were broad reasons why some of the principles set out by Stanley Burnton J should not be followed. Nevertheless, the following principles appear to survive and they have particular application to Article 5 cases:
(a) The wording of Article 5(5) did not compel the award of damages in every case. The European Court has declined to award damages in certain Article 5 cases, and it would be anomalous if the national court were required by the Convention in cases where the European Court has not.
(b) There was no "clear and constant jurisprudence" of the Strasbourg Court on the recoverability of damages for distress under Article 5(5) in the absence of a deprivation of liberty. Two principles could be discerned: (i) that damages were not recoverable in the absence of a deprivation of liberty; (ii) that damages were recoverable for distress which may be inferred from the facts of the case.
(c) The relevant period to which any award of damages relates was that between the time when the tribunal should have determined a patient's application and the date when it is actually determined.
(d) Whilst there were no special legal considerations applicable to mental health cases, there were special factual considerations, the principal one being the generally vulnerable condition and circumstances of mental patients. Whilst the law usually applied an overtly restrictive approach to claims for distress and frustration, it was important to take account of the claimants' vulnerable mental condition.
(e) Notwithstanding this, in order to justify an award of damages, the frustration and distress must be significant and "of such intensity that it would in itself justify an award of compensation for non-pecuniary damage". In mental health cases, an important touch-stone of that intensity is whether the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes.
22. Stanley Burnton J also held that exemplary damages should not be awarded since the object of an award under Article 5(5) was purely to provide compensation for injury.
23. Notably, when Lord Bingham determined the appropriate remedy in H v Secretary of State for the Home Department  2 AC 253, he did not consider that compensation was necessary since:
"(a) the violation has been publicly acknowledged and the appellant's right thereby vindicated, (b) the law has been amended in a way which should prevent similar violations in future, and (c) the appellant has not been the victim of unlawful detention, which article 5 is intended to avoid."
24. The inherent value of a declaration, and the requirement of real prejudice, is also reflected in the parole board cases. In Noorkoiv, Buxton LJ stated that it was not for the Court of Appeal to give detailed directions to the Secretary of State / Parole Board as to how they should arrange their affairs. However, "they will no doubt wish to take account of the observations made by this court". No formal relief was granted but only a declaration that the consideration of the Claimant's parole application had not complied with Article 5(4). According to Lord Woolf CJ:
"if this practice had prejudiced Mr Noorkoiv then he would be entitled to an appropriate remedy, but in this case he has suffered no prejudice since we know the Board would not have directed his release."
Nonetheless, the appeal had clarified the law under article 5(4). He warned that if the Parole board did not change its practice, prisoners would be entitled to obtain a mandatory order.
ARTICLE 6(1) ECHR
25. Like Article 5(4), Article 6(1) specifically protects against delay. However, the threshold for its infringement is lower as it ensures a fair trial "within a reasonable time" rather than "speedily".
26. The right to a fair trial within a reasonable time under Article 6(1) has a higher normative force than under the common law:
"The protection afforded by Article 6(1) may be regarded as demanding a standard of performance by the prosecutor which is more exacting than that set by the common law, as it does not require the person charged to demonstrate prejudice."
27. Indeed, in contrast to the common law ground of abuse of process, where prejudice caused by trial or judicial delay was necessary, under the Human Rights Act 1998, the courts must ignore the prejudice requirement and address potential infringements of Article 6(1) resulting from delays in the judicial process directly.
Has there been unreasonable delay?
28. Strasbourg jurisprudence shows that the underlying purpose of the reasonable time requirement in the criminal context is to avoid the defendant remaining too long in a state of uncertainty, especially when he may be in custody as well as to avoid delays which might jeopardise the effectiveness and credibility of the administration of justice. Therefore, in determining whether or not there has been delay in breach of Article 6(1), as with the Article 5(4) cases, the European Court considers that prejudice is irrelevant in that a violation of the reasonable time requirement can occur in the absence of prejudice.
29. The Court in Konig v Federal Republic of Germany (1978) 2 EHRR 170 provided the following guidance:
"The reasonableness of the duration of proceedings covered by Article 6(1) of the convention must be assessed in each case according to its circumstances. When inquiring into the reasonableness of the duration of criminal proceedings, the court has had regard, inter alia, to the complexity of the case, to the applicant's conduct and to the manner in which the matter was dealt with by the administrative and judicial authorities."
The criminal context
30. In Procurator Fiscal v Watson and Burrows  UKPC D1  1 AC 379, the House of Lords relied upon Strasbourg jurisprudence when considering whether delays between the defendants being charged and their trials violated their right to a fair trial within a reasonable time. Lord Bingham held that the first step was to consider the period of time that had elapsed, and only if it gave "grounds for real concern" would it be necessary for the court to look into the detailed facts and circumstances surrounding the particular case. Both Lord Hope and Lord Bingham explained that proving a breach of the reasonable time requirement is difficult. As Lord Bingham indicated, the Convention is "directed not to departures from the ideal but to infringements of basic human rights".
31. Their Lordships also considered several judgments of the Privy Council which required the defendant to demonstrate prejudice to establish unreasonable delay. Lord Bingham viewed Darmalingum v The State  1 WLR 2303 as the exception because there "delay was seen as affording an independent ground of relief, whether or not there was prejudice or any threat to the fairness of the trial, if the delay was of such length as to be inordinate and oppressive". Lord Bingham questioned the reasoning in the other Privy Council decisions on the delay issue and said that Darmalingum more closely reflected Strasbourg jurisprudence.
The civil context
32. In civil proceedings, administration of justice considerations also apply:
"The state should not subject claimants to prolonged delay in pursuing their claims, whatever the outcome, nor defendants to prolonged uncertainty and anxiety in learning whether their opponents' claims will be established."
33. The approach to the reasonable time requirement in civil proceedings is exactly the same as in criminal cases. The House of Lords in Porter v Magill  UKHL 67  2 AC 357 emphasised that the right to a determination of a person's civil rights within a reasonable time was, on a proper interpretation of Article 6(1), an independent right that was not simply part of an overriding right to a fair trial. It therefore did not require the complainant to show himself prejudiced by the delay.
34. Their Lordships rejected the approach adopted in cases such as Flowers v The Queen  1 WLR 2396, where prejudice was held to be one of the factors to be taken into account, and followed Lord Steyn's observation in Darmalingum instead. Lord Hope held that the "only question was whether, having regard to all the circumstances of the case, the time taken to determine the person's rights and obligations was unreasonable".
Lack of resources is no excuse
35. It is clear that, as with the Article 5(4) cases, a lack of resources and chronic under-funding of the legal system generally cannot be an excuse where there are unacceptable delays. As Lord Bingham explained in Procurator Fiscal, it is generally incumbent on contracting states to organise their legal systems as to ensure that the reasonable time requirement is honoured. Yet, "there is nothing in the convention jurisprudence [that] requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised system". Therefore there may be some exceptional circumstances that could justify an excessive lapse of time.
What is the appropriate remedy?
36. As emphasised in Greenfield, in the great majority of cases in which a violation of Article 6(1) has been found, the finding of the violation in itself has been treated as just satisfaction. The grant of a stay or an award of damages has been much more difficult to obtain.
Stays remain exceptional in criminal cases
37. Although the reasonable time requirement in Article 6(1) demands a more exacting standard of performance than the common law, the grant of a stay remains exceptional.
38. In AG's Ref No.2 of 2001  UKHL 68  2 AC 72, the Lords considered whether criminal proceedings should be stayed for a failure to comply with the reasonable time requirement in Article 6(1) where the accused could not demonstrate any consequential prejudice.
39. While Lord Bingham recognised "a powerful argument" that if a public authority causes or permits such a delay sufficient to breach Article 6(1), further prosecution would be unlawful so that there should be an automatic stay, he stated that there were four reasons which, "cumulatively compel" the rejection of that argument.
(i) It would "be anomalous if breach of the reasonable time requirement had an effect more far-reaching than breach of the defendant's other art 6(1) rights when (as must be assumed) the breach does not taint the basic fairness of the hearing at all, and even more anomalous that the right to a hearing should be vindicated by ordering that there be no trial at all."
(ii) A "rule of automatic termination of proceedings in breach of the reasonable time requirement cannot sensibly be applied in civil proceedings? [it] would defeat the claimant's right to a hearing altogether and seeking to make good his loss in compensation from the state could well prove a very unsatisfactory alternative."
(iii) A rule of automatic termination "has been shown to have the effect in practice of emasculating the right which the guarantee is designed to protect." If judges were required to stay proceedings automatically once upon proof of breach of the reasonable time requirement then the judicial response would be to set the threshold unreasonably high.
(iv) Strasbourg jurisprudence "gives no support to the contention that there should be no hearing of a criminal charge once a reasonable time has passed." In Eckle v Germany (1982) 5 EHRR 1 the European Court held that at the remedy stage, the "sole matter to be taken into consideration is ? the prejudice possibly entailed" by the fact of the delay..
40. Therefore, although prejudice is not relevant when determining whether delay has occurred in breach of Article 6(1), it assumes paramount importance at the remedy stage when there is a balancing exercise to be carried out between the competing purposes of Article 6(1): the public interest in the final determination of criminal charges, on the one hand, and the right of the applicant to a fair trial within a reasonable time on the other.
41. Consequently, although there could be cases where the delay is such that it would be unfair to try the defendant, such cases would be exceptional. A stay would never be an appropriate remedy if any lesser remedy, such as a declaration, a reduction in sentence or an award of damages, would adequately vindicate the defendant's Convention right.
42. Lord Bingham's speech in Greenfield is particularly illuminating on the question of damages:
"It is enough to say that the [Strasbourg] Court has looked for causal connection and has on the whole been slow to award such compensation"
It is also noteworthy that where the Strasbourg Court has made an award of compensation, the sums awarded have been modest.
43. The appropriate remedy will also depend on the stage at which the breach is established. In criminal cases, a stay may be necessary if it is determined before the hearing takes place that the delay would result in an unfair hearing. If, however, it is established retrospectively that a trial was unfair, any resulting conviction will be quashed.
Remedies in the civil context
44. In Goose v Sandford & Co (1998) Times, February 19, the court was "driven" to take the "exceptional course" of ordering a retrial. The first-instance judge took twenty months to give judgment after a five-week trial and the loser sought a retrial on the basis that the delay meant that the judgment was unreliable. The Court of Appeal held that the findings were unsafe and such delays deny justice to the winning party during the period of delay, undermine the loser's confidence in the correctness of the decision and weaken public confidence in the judicial process. The only way to rectify the miscarriage of justice was therefore to order a retrial.
45. Unfortunately, the House of Lords have not had to consider remedies in the civil context in great detail. However, in Porter v Magill, Lord Hope did refer to Schiemann LJ's opinion in the Court of Appeal that it would not have been appropriate to quash the auditor's certificate. Schiemann LJ considered that it was only where the delay cast doubt on the reliability of the conclusions reached by the tribunal should the court treat the delay as a ground for quashing the tribunal's judgment. where the delay results in other harm (financial, physical or psychological) then an award of damages may be more appropriate. If the danger of an unreliable verdict as a result of delay is brought to the court's attention after the hearing, then quashing may be necessary. If the delay is brought to the attention of the court before the hearing, then an order for a speedy trial may be appropriate.
CHALLENGES TO DELAY ON GROUNDS OTHER THAN ARTICLE 5(4) AND ARTICLE 6(1)
46. Unless Article 5(4) or 6(1) is engaged, it is difficult to raise delay as a ground of review. The right to a decision carried out speedily, or even within a reasonable time, lacks the higher normative force afforded under Article 5(4) or 6(1).
47. Delay is not one of the traditional grounds of review recognised in CCSU v Minister for the Civil Service  AC 374. However, it has infiltrated judicial review disguised as breach of statutory duty, procedural unfairness, or unreasonableness. Within these confines, its evolution has been somewhat limited. It is difficult to distil a unifying set of principles from the case-law, given the different ways in which delay has been articulated, and the wide variety of administrative decisions challenged. However, more recently, it has arisen in certain areas as a self-standing ground of review, without recourse to traditional public law labels.
Breach of statutory duty
48. Where there is an express statutory time limit and a failure by a public authority to comply with it, the authority's decision or (in)action can be challenged for breach of statutory duty on the ground of delay.
49. For example, in R (Dawkins) v Bolsover District Council & The Standards Board for England  EWHC 2998 (Admin), the applicant was a councillor who was suspended from his position on the local district council following various allegations. The statutory framework governing the standards committee's powers to suspend stated that the committee "shall ensure that ? the hearing is held within the period of three months beginning on the date on which the monitoring officer first received a report?". However, the committee did not hear the case within the three-month period and the applicant sought judicial review of the decision. He stated that the time stipulation was mandatory not discretionary.
50. Hughes J held that the committee's decision was unlawful, but not because the time stipulation was mandatory. The time stipulation was a procedural requirement and whether such a procedural irregularity rendered the committee's decision a nullity could not helpfully be answered by attaching to the statutory provision the label either "mandatory" or "directory" because nearly all procedural requirements are expressed in terms of "shall ensure". The correct approach was the substantial compliance approach set out by Lord Woolf MR in R v Secretary of State for the Home Department, Ex parte Jeyeanthan  1 WLR 354 which required the court to ask three questions:
"1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? ?
2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? ?
3. If it is not capable of being waived or is not waived then what is the consequence of the non-compliance?
51. Therefore, the effects of non-compliance with statutory time limits, even where clearly set out, depend very much upon the intent of the particular statute as a whole and what the consequence of the non-compliance was on the facts of the case. The court's task is thus to look at the purpose of the statutory scheme and to seek to do what is just in all the circumstances; to balance competing interests or statutory purposes.
52. In Dawkins, Hughes J identified the principal purpose of the statutory scheme as the preservation and enforcement of high standards in public life. An ancillary purpose was the avoidance of unresolved accusations against a local politician for any longer than is necessary. There was also a general public interest that accusations should be resolved, one way or the other, expeditiously. Hughes J emphasised that it would be a "wholly disproportionate" consequence if a brief delay which might be the result of unforeseen and unexpected circumstances and which would cause "no significant injury to the member complained about, nor any significant public disadvantage" should become a nullity because the three-month time limit had passed. All that was necessary was substantial compliance, including "a determined effort" to meet the deadline. However, in this case there was not substantial compliance; it was assumed that missing the deadline did not matter. Further, where there were relatively minor accusations, there was a "risk of the effect of the delay ? being disproportionate to the conduct at issue". Hughes J concluded that the committee's decision was unlawful in respect of the minor accusations and quashed it.
Delay where there is no express statutory time limit: Some observations
The court will usually imply a reasonable time limit
53. If there is no express time limit set out in the statutory framework, the court will generally imply an obligation as to reasonable time. For example, in R(Saadi) v Secretary of State for the Home Department  UKHL 41  1 WLR 3131, which concerned the statutory power of the Home Secretary to detain asylum seekers pending examination of their case and a decision. The Claimants objected that such detention was unlawful. The House of Lords held that the period of detention required in order to arrive at a decision must be reasonable in all the circumstances. The Home Secretary was not entitled to detain without any limits so long as no decision had been arrived at; rather, it was important "to act reasonably in fixing a time for examination and for arriving at a decision in the light of the objective of promoting speedy decision-making". The power to detain must be exercised reasonably, "at any rate in the absence of specific provision laying down particular timescales for administrative acts to be performed".
54. So, for example, in Lafarge Redland Aggregates Limited v The Scottish Ministers (2001) Env LR 27, a "scandalous" delay in waiting for a determination of the Claimant's planning permission resulted in ministers clearly breaching their statutory duty to decide the application within a reasonable time.
Reasonableness depends on all of the circumstances
55. This will involve having proper regard to the purpose of any relevant legislation, the prejudicial impact of delay on the applicant and the resources available to the decision-maker. These factors are explored in various contexts below.
56. In R v Government of Durham Prison, ex parte Hardial Singh  1 WLR 704, Woolf J said in relation to the power of deportation:
"As the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case."
The court is unwilling to criticise resources or prescribe a generic time-table
57. In Salih v Secretary of State for the Home Department  EWHC 2273 (unrep.), two asylum seekers complained of substantial delays between their applications for hard cases support and the provision of such support. The Home Secretary submitted that the delays were excusable because they resulted from the administration of the scheme by the manpower resources available to it. Stanley Burnton J did not accept this. He considered that the defendant had totally failed to provide any good explanation for the delay, resource-based or not. However, whilst he made a declaration condemning the delay in that case, he took a rather different approach to that adopted in KB by simultaneously warning that "the court cannot?specify what resources must be devoted to administering the scheme, or what delay in general is lawful and what delay is not". This is a startling contrast to Brown LJ's comment in Noorkoiv that "resources must be found".
58. Typically, the court is unwilling to prescribe time limits. In R v Secretary of State for the Home Department, ex parte Roberts (7 July 1998 unrep), despite the court finding an inordinate delay between parole board reviews, it was appropriate to grant a declaration imposing time limits for reviews. However, this is not to say that the court will refuse to grant declarations which prescribe a specific time-table in relation to the particular case it is considering. For example, in R v Brent London Borough Council, ex parte Miyanger 29 HLR 628 (7 July 1998), Harrison J considered that "firm action is required to ensure that the applicant's application is now determined with expedition", and made an order for mandamus to compel determination within 28 days.
Cases with no room for delay or deferral
59. Sometimes, the courts have held that the relevant statutory framework does not permit deferral or delay once certain statutory conditions are met. For example, in R v Sefton Metropolitan Borough Council, ex parte Help The Aged  4 All ER 532 (CA), once the local authority had assessed B and determined that she was a person in need of care and attention within s.21 of the National Assistance Act 1948, it could not then defer commencing its funding of her accommodation under a non-statutory prioritisation scheme simply because of a lack of resources or competing needs. Lord Woolf MR explained that once the local authority was satisfied that B was in need of care and attention, "they were under an obligation to fulfil their duty and a lack of resources was no excuse". Lord Woolf allowed the appeal not because of any Wednesbury approach "but because any appropriate application of the language of the statutory provisions to the facts of this case does not allow any other result".
60. However, the courts do not translate the lack of room to delay into a need to act immediately or automatically. In R v Patent Office, Ex Parte Chocoladefabriken Lindt (5th December 1996 unrep) Laddie J held that the Registrar's duty was to take steps "timeously" to put the trade mark on the register and to act with due expedition.
Cases where there is a power to defer but a duty to review
61. At other times, the courts have held that the statutory framework does not preclude the public authority from deferring or delaying its decision, but that in such cases, the public authority is under a duty to review its decision to defer.
62. Engineers & Managers Association v Advisory Conciliation Service  1 WLR 302 is one example of this. Following an adverse award by the TUC, the EMA referred a recognition dispute between it and two other trade unions to ACAS under the Employment Protection Act 1975. ACAS resolved to proceed with the inquiry but, after the EMA launched legal proceedings against the TUC, decided not to proceed for the time being and maintained its refusal for two years. The EMA sought a declaration that ACAS was in breach of its statutory duty since s.12 of the Act provided, without prescribing a time limit, that ACAS "shall prepare a written report".
63. Their Lordships considered that ACAS had a power to defer a decision, but the nature of that power depended upon its statutory functions, its duties and its responsibilities. The effect of the governing statute was that ACAS had a discretion to suspend inquiry if it were of the opinion that a period of deferment would promote the improvement of industrial relations. The power to defer "was a general power to be exercised reasonably and consistently with the general duty imposed upon ACAS".
64. However, their Lordships held that ACAS could not under the guise of deferment refuse to complete its inquiries. Lord Edmund-Davies distinguished the position of a clear decision not to proceed with the investigation until the litigation was finally disposed of with one in which the body kept the matter open and under periodic review. The former would result in the "virtual abandonment of [the] statutory duty". The majority found that ACAS had not taken a final stand.
The courts will usually review using traditional grounds of review
65. Once an authority exercises its power to defer or delay, the courts will generally only review the exercise of that power on traditional CCSU grounds.
66. For example, in EMA v ACAS, once their Lordships determined that ACAS had the power under the Act to defer, they then considered the proper exercise of ACAS's discretionary powers: namely, whether in reviewing the position and yet deciding to continue to postpone, it had acted unlawfully. Lord Scarman observed:
"the exercise of its discretion is not reviewable by the courts unless ACAS can be shown either to have misdirected itself in law; or to have failed to observe the requirements of natural justice, or to have failed to consider relevant matters; or to have conducted the reference in a way in which no reasonably advisory conciliation or arbitration service, paying due regard to the statue, could have conducted it."
67. This decision was considered in R v Dental Practice Board, ex parte (i) Zietsman (ii) Schmulian (2001) Lloyd's Rep Med 124, where the court considered the Board's suspension of its investigation into potentially fraudulent claims for payment, pending the outcome of a police investigation. After considering the statutory framework and analogous provisions, the Court concluded that where deferral of a claim for payment which it is practicable to determine has the de facto effect of suspending the dentist from practice, the Board was not authorised to defer the claim altogether.
68. The court rejected the Board's assertion that it was not practicable to investigate claims being determined by the police, this decision being reviewable by the court only on normal public law grounds. It concluded, "in view of the devastating effect of its decision on the Applicants, the Board should have addressed the issue of practicability more directly than it did and in a more individuated manner" and it should have reviewed the matter from time to time. It also found for very similar reasons that the block decision to suspend all claims pending the outcome of the police investigation was flawed on Wednesbury grounds.
More recently, the courts have considered delay as a free-standing ground of review
69. More recently, complaints of delay in exercising a discretionary power have been raised without reference to traditional public law grounds. The following welfare and housing cases are instructive illustrations.
70. In Salih, the Claimants complained that NASS had exposed them to unnecessary and unlawful delay. Stanley Burnton J did not accept that the delays were caused by inescapable problems with resources: it was unclear why so many days were required to arrange the accommodation and travel arrangements. Furthermore, it was essential to scrutinise any delays "against the background that the applicants for support are ex hypothesi destitute and have nowhere else to turn, and against the undoubted fact that when required by the court to do so, NASS can and does arrange accommodation immediately". NASS had simply failed to explain why the delays had taken place and a declaration was granted to this effect.
71. In Anufrijeva v Southwark London Borough Council  EWCA Civ 1406  2 WLR 603. Here, the Claimants did not use delay per se as a ground of review, but rather complained that maladministration in the form of delay amounted to a breach of their Article 8 rights. The appeals arose from the failure to provide them with benefits ranging from accommodation, financial support and permission to enter the United Kingdom.
72. Lord Woolf CJ observed that Article 8 could impose a positive obligation to provide support. However, before inaction could amount to a lack of respect for private life, there had to be some ground for criticising the failure to act: "There must be an element of culpability. At the very least there must be knowledge that the Claimant's private and family life were at risk". Furthermore:
"Where the complaint is that there has been culpable delay in the administrative processes necessary to determine and to give effect to an Article 8 right, the approach of both the Strasbourg Court and the Commission has been not to find an infringement of Article 8 unless substantial prejudice has been caused to the applicant." [emphasis added]
73. Lord Woolf CJ stated that it was not necessary to show that the acts of a public authority had so far departed from the performance of its duties to amount to a denial of its duties. The proper test was "to have regard to the extent of the culpability of the failure to act and to the severity of the consequence."
74. Similar levels of substantial prejudice to the Claimant and inexplicable delay on the part of the public authority were condemned by Harrison J in Miyanger. The applicant was an immigrant who had an adult disabled daughter confined to a wheelchair, prone to epileptic fits when she would become doubly incontinent. The housing authority issued two decision letters refusing the applicant any assistance. Upon being given permission to judicial review, the housing authority withdrew its decision letters and promised a fresh decision. However, no decision had been issued by the hearing. The applicant applied for an order of mandamus to compel the authority to determine the application within 28 days. Harrison J stated that he was
"quite satisfied that the present unsatisfactory state of affairs should not be allowed to continue?. There is no knowing what action has been taken by the respondent to find out the progress of the Secretary of State's investigations, if any, and there is no information as to when the Secretary of State's response is likely to be available. I find that wholly unacceptable. In my view, firm action is required to ensure that the applicant's application is now determined with expedition."
75. In contrast, in R v Merton London Borough Council ex parte Sembi  32 HLR 439, the disabled Claimant complained about delays in providing her with suitable accommodation. Jowitt J emphasised that it takes time to find a suitable property, it cannot simply be conjured up. He acknowledged that the respondent had let some time slip by after accepting its duty to provide her with accommodation, and could have pursued its search with greater vigour. However, by the time of the hearing it had provided her with accommodation. He concluded:
"Bearing in mind the difficulties which a housing authority can face, and did here, in finding suitable accommodation, I am unable to say, even taking account of earlier delay before sufficiently vigorous steps were taken, that the respondent has by now failed to discharge its duty."
76. It seems that in the housing and welfare context a complaint of delay by itself will only succeed if the claimant can establish serious prejudice and that the actions of the state are culpable. This is consistent with traditional public law grounds of review which will usually involve a consideration of prejudice and culpability in any event.
The court will have regard to the existence of alternative remedies
77. The courts are reluctant to entertain judicial review claims based on delay where there is an alternative remedy.
78. Lengthy consideration was given to the existence of alternative remedies by Sir Louis Blom-Cooper QC, Deputy High Court Judge in R v London Borough of Lambeth ex parte Crookes (1997) 29 HLR 28. Challenges to local authority decisions exclusively on the grounds of procedural irregularity, may also be regarded as claims that the applicant has sustained injustice as a consequence of "maladministration" by the local authority, "to use the language of ombudsmanry". There is an overlap between cases clearly within the jurisdiction of the ombudsman and those with which the courts can deal. "Every procedural irregularity is likely to exhibit maladministration. But not every act of maladminstration will be encompassed by procedural irregularity." The court must always ascertain whether or not it should exercise its discretion to grant relief rather than leave the complainant to invoke the alternative remedy.
79. As the courts are "less well equipped to take on functions of handling individual grievances and of setting and maintaining standards of good practice", Sir Lois Blom-Cooper felt that claims of maladministration should be more appropriately directed to the ombudsman who enjoys broader investigative powers than the court; his services are free, and so avoids litigation costs which can outweigh any award of damages made; and his remedies are potentially more effective, whereas "the remedial powers of the court do not significantly improve the situation of the complainant against the local authority".
80. It is precisely because access to justice "is achievable as often through institutions other than the courts of law" that the courts are reluctant to entertain challenges of pure administrative delay or maladministration which are simply "dressed up in the language of procedural irregularity for the purposes of judicial review".
What is the appropriate remedy?
81. As with Article 5(4) and 6(1) cases, the remedies can be limited and a declaration is often considered sufficient. In Lafarge, for example, despite evidence of "scandalous delay", Lord Hardie considered that a declaration to the effect that the respondent ministers were in breach of their statutory duty by failing to determine the application within a reasonable time, and this also amounted to a breach of Article 6, was sufficient. Lafarge illustrated the court's reluctance to specify a time limit, even when they are prepared to make a declaration. Lord Hardie refused to define "reasonable time" with precision.
82. The courts are also reluctant to consider the merits of decisions or the allocation of resources, especially when the declaration would be purely academic. As Stanley Burnton J emphasised in Salih, the court cannot specify what resources must be devoted to administering a scheme and it "must avoid making a declaration that does not respond to changes in circumstances or the facts of individual cases."
83. Nonetheless, in exceptional cases, the courts will make a declaration where it is not strictly necessary to provide relief for the applicant. In Salih, by the time of the hearing, the Claimants had obtained accommodation. Any remedy was academic. Nevertheless, Stanley Burnton J made the declaration sought, stating:
"I appreciate that, if I do not make a general declaration concerning NASS's delays, the result may be more applications for JR and the attendant costs, and more applications for interim injunctions..."
84. Where the court is asked to quash the decision and make an order of mandamus, it often finds it unnecessary to make an order requiring a public body to perform its function properly. Indeed, in the Dental Practice Board case, although the Board's decision was quashed, the order for mandamus sought was not awarded because it was "by no means clear that a lawful determination by the Board would necessarily result in payment". This case clearly illustrates the court's reluctance to encroach on the powers of the public authorities.
85. Often, the courts do not even address the issue of damages. This is unsurprising, even where Convention rights are engaged, since "the primary object of the proceedings will often be to bring the adverse treatment to an end"
Para 47, referring to para 24 of Scott Baker J's decision.
Under section 72(1) of the MHA, it is necessary to consider, among other things, whether the patient is suffering from mental illness, psychopathic disorder, severe mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment or whether it was necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment.
See the references to potential distinctions between patients made at paras 56 and 57.
Note that in that case Lord Philips MR concluded that in that case the application had not been heard speedily.
Article 5(4) has particular application in cases of this nature because a prisoner's dangerousness can alter with time and is the only justification for continued detention. In Noorkoiv, Simon Brown LJ stated that "given the imperative need to release any post-tariff prisoner who no longer remains a danger, any system tending to delay such release requires the most compelling justification". None of their Lordships was persuaded that any such compelling justification existed in that case.
The discussion followed from the Strasbourg decision in Oldham v United Kingdom (Application No. 36273/97, 26 September 2000) in which there was an apparent tension between the suggestion that one year represented, generally speaking, the outer limit of a speedy review within Article 5(4) and the insistence that speediness is fact-dependent.
See para 14 of Murray and para 48 of Day.
See King v Secretary of State for the Home Department  EWHC 2831 in which the Home Secretary submitted that it is reasonable for a decision to be informed by an assessment of a prisoner over a sustained period of time and for this reason prisoners are assessed in open conditions for a period between 18 months to two years. At para 15, the Court considered that whilst this furnished the parole board with more information, which could benefit both the Board and the prisoner, it did not address or give weight to the right of a prisoner to have the lawfulness of his continued detention reviewed: "On this argument a prisoner in closed conditions who has not progressed to open conditions would never be entitled to a review of the legality of his detention. That cannot be right".
Para 15 of King (supra)
Para 14 of King (supra)
Para 58 of King (supra)
Note that the origin of this submission was Lord Phillips MR's observation in R(C) v MHRT that the practice of listing cases for eight weeks after the application date was "bred of administrative convenience, not of administrative necessity". However, it was the view of Buxton LJ that "the necessity that the court was referring to was not something forced on the administrators by the nature of the administrative machinery; but, rather, a need in some particular cases for preparation and review that might take up the whole of the eight-week period." (para 26).
A State cannot, for example, rely upon excessive workload or the impact of the vacation period: Bezicheri v Italy (1989) 12 EHRR 210, 215, para 25; E v Norway (1990) 17 EHRR 30, 57, para 64.
For example, applications under s.2 of the MHA.
See Lord Bingham's speech in Dyer v Watson  1 AC 379, para 55, where he said that problems resulting from such "practical realities" may excuse delay in the context of Article 6(1).
See para 47. This approach was consistent with the ECtHR's approach in Koendjbiharie v The Netherlands (1990) 13 EHRR 820, which concerned the detention of a mentally ill person. The Court held that, on the face of it, a lapse of time of more than four months appeared incompatible with the notion of speediness. The Government supplied no information capable of justifying their period, and there was accordingly a failure to comply with Art 5(4) ECHR. Similarly, see para 48 of Musial v Polans (2001) 31 EHRR 29, where the Court found that the Government of Poland had "failed to show that there were in this case such exceptional grounds as could justify the period [of delay] in question".
Para 19. In this respect, Lord Bingham at para 9 approved the judgment of the Court of Appeal in Anufrijeva v Southwark London Borough Council  EWCA Civ 1406,  QB 1124 paras 52 – 53.
See Para 11.
Pecuniary or special damages were not considered in this case.
See Para 14 for a consideration of the Strasbourg jurisprudence on this subject.
See Para 16.
The question of damages in the above-mentioned case of KB was reserved to this hearing.
See the principles enunciated at paras 47, 50, 53, and 64, which have now been disapproved. [FIND TORT PARA]
See, for example, Mignon v Poland (Application No. 242244/94) (unreported) 25 June 2002 and the other cases referred to at para 35 of KB.
See, for example, Delbec v France (Application No. 43125/98) (unreported) 18 June 2002 and the other cases referred to at para 37 of KB.
Silver v United Kingdom (1991) 13 EHRR 582, 583, para 10
After assessing the evidence, Stanley Burnton J awarded all but two of the Claimants damages ranging from £750 to £4,000. None of them could satisfy the Court that they had been unlawfully detained.
See King, in which the Court acknowledged that the Claimant was in principle entitled to damages under Article 5(5). However, "taking into consideration K's conduct which led to his return to closed custody, it was very unlikely that there had been any loss, or that any annoyance suffered would suffice to justify an award of damages" (para 16). In the circumstances, it was only willing to make a declaration that there had been a breach of Article 5(4).
Procurator Fiscal v Watson and Burrows  UKPC D1  1 AC 379, per Lord Hope at para 85
See, for example, R v Horseferry Road Magistrates Court, ex p Director of Public Prosecutions  COD 441.
See Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55, para 18; Stogmuller v Austria (1969) 1 EHRR 155, para 5.
See H v France (1989) 12 EHRR 74, para 58.
Para 99. See also Eckle v Federal Republic of Germany (1982) 5 EHRR 1 at 27; Vernillo v France (1991) EHRR 880, paras 30-38.
Especially Lord Bingham at paras 30 to 55 and Lord Hope at paras 72 to 85
Lord Bingham set out each of the three Konig factors or areas of enquiry at paras 53 to 55. Having regard to those factors, their Lordships found that a delay of 20 months between police officers being charged and their case coming to trial was not a period which caused real concern. In contrast, a delay of 28 months for a case involving a child being brought to trial constituted a breach of Article 6(1).
His Lordship reiterated this in the later case of AG's Reference (No.2) of 2001  UKHL 68  2 AC 72, para 22.
Procurator, para 52
These Privy Council cases did not involve Article 6(1) but similar reasonable time requirements enshrined in various Commonwealth Constitutions. As Lord Steyn explained in the case of Darmalingum v The State  1 WLR 2303 at 2308, the "stamp of constitutionality is an indication of the higher normative force which is attached to the relevant rights".
In particular, the Lords were referred to Flowers v The Queen  1 WLR 2396 where there was a delay between the defendant being charged and the date of trial. The defendant was tried three times in six years but the defence was not held to be prejudiced or impaired by the delay.
Para 27. Note that he did not doubt that the result of those cases was not correct, however.
AG's Reference No.2 of 2001, para 16
Per Lord Hope of Craighead in Porter v Magill  UKHL 67  2 AC 357, para 83:
"For the purposes of the Convention the category into which the proceedings are placed by domestic law, while relevant, is not the only consideration. The Court is required to look at the substance of the matter rather than its form, to look behind the appearances and to investigate the realities of the procedure: Deweer v Belgium (1980) 2 EHRR 439, 458, para 44."
Objections were made to the auditor about the housing policy that was adopted by the housing committee. However, the auditor took seven years before concluding that the housing policy was unlawful and his decision was appealed. The appellants complained that a ten-year interval between the relevant events and the hearing meant they were prejudiced by having to adduce evidence when so much time had elapsed. The appellants were allowed to rely on Convention rights, irrespective of the acts in question predating implementation of the 1998 Act.
Porter v Magill, para 109
See Zimmerman and Steiner v Switzerland (1983) 6 EHRR 17 where the European Court held that excessive workload and chronic backlog provided no more than a partial excuse for the delay.
His Lordship gave several examples of exceptional circumstances, including unexpected illness of the prosecutor or a sudden and unforeseen surge of business in the courts. In Porter v Magill, the complexity of the case, the immense scope of the auditor's investigations, and his constant activity in the pursuit of information meant that the proceedings did not exceed the reasonable time requirement of Article 6(1). (See the speech of Lord Hope at paras 111 to 114.)
See Para 8 of Greenfield and our discussion at para [XXXXXX] above.
See AG's Reference No.1 of 1990 (1992) 95 CAR 296 held that stays would be appropriate only in exceptional circumstances.
Their Lordships refused to follow HM Advocate v R  UKPC D3  1 AC 462 where the Privy Council held that s.57(2) Scotland Act 1998 the Lord Advocate of Scotland from pursuing criminal proceedings where there had been a breach of a defendant's right under Article 6(1) to have the charges against him determined within a reasonable time. See Mills v HM Advocate  UKPC D2  1 AC 441 where the Privy Council came to the opposite conclusion and left the devolution question for another day. (Lord Hope, 453C.)
Para 20. See also the speech of Lord Hutton in Dyer v Watson  1 AC 379, para 121.
Para 20. Although Lord Bingham acknowledged that the European Court examines cases retrospectively and cannot quash convictions, he felt it was "significant" that it has never treated the holding of a hearing as a violation or a proper subject of compensation. Indeed in X v Germany (1980) 25 DR 142 at p144, the Commission was sceptical that such a right to a discontinuation or stay could be deduced from the Convention and confirmed that if it did it would only be in very exceptional circumstances. In Bunkate v The Netherlands (1993) 19 EHRR 477 at 484 para 25 the European Court held that it was incorrect to assume that delay automatically results in the extinction of the right to execute the sentence and that if the sentence has been executed it is unlawful with retroactive effect. Therefore even though the court found a violation of Art 6(1) the claim for just satisfaction was rejected. Similarly, in Eckle it was held that just satisfaction for the protracted delay did not mean that the prosecution, conviction and imprisonment were also in breach of the Convention.
For example, Darmalingum, where the shadow of criminal proceedings had hung over the Defendant's head for 15 years.
Paras 7 – 19
See Para 17
AG's Ref No.2 of 2001, per Lord Bingham at paras 13 and 14
Per Gibson LJ, para 161. N.B. in other cases where there have been delays, censure of the judge was enough.