The ECHR on compensation for unfair judicial criticism

In June the European Court of Human Rights ordered the UK Government to pay €24,000 for non-pecuniary damage and €60,000 in legal costs to a social worker who was accused of professional misconduct by a Family Court judge in the course of a fact-finding hearing. Fran Massarella examines the judgment.

The application in SW v United Kingdom ECHR (Application no. 87/18) (The European Court of Human Rights, sitting as a Chamber composed of: Yonko Grozev, President, Tim Eicke, Faris Vehabović, Iulia Antoanella Motoc, Armen Harutyunyan, Gabriele Kucsko-Stadlmayer and Ana Maria Guerra Martins) involved complaints that accusations of professional misconduct made by a Family Court judge involved in a fact-finding hearing breached a social worker’s right under Articles 6 and 8 of the ECHR. Furthermore, the applicant social worker complained that pursuant to section 9(3) of the Human Rights Act 1998 she was unable to claim damages for a judicial act done in good faith

By way of background, the applicant was a social worker and between 2007 and 2014 her services were engaged through personnel agencies. In 2012 she began working with a local authority. The same year, she was called as a professional witness in childcare proceedings concerning the alleged sexual abuse of a number of siblings (“the childcare proceedings”). Before the proceedings ended, her personnel agency assigned her to a different local authority.

The finding of fact hearing commenced on 9 September 2014 and the social worker was called as a professional witness. In a judgment of 17 October 2014 a Family Court judge rejected allegations of sexual abuse, criticising the local authority and professionals involved in the case [8]. The judge found that the applicant was the principal instigator in a joint enterprise to obtain evidence to prove the sexual abuse allegations, irrespective of underlying truth and professional guidelines; that she had lied to the court about important aspects of the investigation whilst subjected one of the children involved to a high level of emotional abuse [8]. The applicant was first made aware of these adverse findings two days prior to the final judgment and her decision to not grant her anonymity was maintained [9-10]. The judge directed that these findings should be shared with the local authority the applicant had been working for, and the relevant professional bodies [11].  As a result the applicant’s local authority assignment was terminated without notice [12-13].

The applicant successfully appealed that the judgment and dissemination to the local authority/professional regulator had violated her Article 8 rights.

The Court of Appeal accepted these serious allegations and held that the process followed was ‘manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Article 8 and/or common law’ [16]. The same was held for Article 6 [17]. As a result, the Court of Appeal set aside the judgment, holding that adverse findings no longer stood, nor had any validity for any purposes [20].

Following this, while the applicant’s fitness to practice was unimpaired, she was unable to return to work due to illness because of a “great deal of stress” [28]. Coupled with this, a psychiatrist noted that the Family Court judge’s findings had been a “highly traumatic experience” for her which triggered post-traumatic stress disorder, anxiety and depression [29]. Notwithstanding the loss of employment and adverse effects both on her physical and mental health [29], the applicant was unable to obtain compensation owing to section 9 (3) of the Human Rights Act, which acts as a statutory bar to the award of damages in respect of a judicial act.

The applicant raised the case before the European Court of Human Rights, seeking compensation under Article 13, in breach of her Article 8 rights.

There were two questions for the court:

(1) Whether dissemination of adverse findings interfered with the applicant’s Article 8 rights?

(2) Whether the applicant’s Article 13 rights were interfered with?

Addressing the first, the European Court of Human Rights in Strasbourg upheld the decision of the Court of Appeal that dissemination of the adverse findings breached the applicant’s Article 8 rights. It outlined that: ‘A person’s right to protection of his or her reputation is encompassed by Article 8 as part of the right to respect for private life, since a person’s reputation is part of his or her personal identity and psychological integrity [45].’ For Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life [46]. The attack which obstructs his or her ability to pursue a chosen professional activity may therefore have consequential effects on the enjoyment of the right to respect for his or her “private life” within the meaning of Article 8 [46]. The Court concluded that the interference with the applicant’s right to respect for her private life reached a sufficient level of seriousness and caused sufficient prejudice to her enjoyment of that right for Article 8 to come into play.

Moving onto the second question, the applicant argued that she was, and remained, a victim of the breach of her rights under Article 8, as the findings being set aside did not compensate for the loss/damage following disclosure to the local authority and professional regulator. The Court accepted this, noting that it falls to the national authorities to redress any violation of the Convention and the applicant maintained the victim status at all stages of the proceedings under Article 34 [52].

Strasbourg went on to acknowledge that the applicant did not have access to an effective remedy at the domestic level capable of addressing her Article 8 complaint – namely compensation, owing to the effect of section 9 (3) of the Human Rights Act, there was no right to claim to claim damages in respect of a judicial act done in good faith [65].

Strasbourg awarded damages to the applicant whose Article 8 and 13 rights were held to be breached by the Family Court judge’s directions to disseminate his adverse findings as to her professional conduct to her employer and professional regulator. The applicant was awarded EUR 24,000 for non-pecuniary damages, which was substantially less than the sum claimed (GBP 40,000) [80]. The reason for this is that as Strasbourg held that it was for the domestic courts to establish a causative link between the pecuniary losses claimed and violations found [82]. She was also awarded EUR 60,000 for costs and expenses.

Francesca Massarella is a pupil barrister at Spire Barristers.