DONNAN v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, Mr Barry Donnan, is a British national who was born on 29 May 1971 and lives in Kilwinning, Scotland In 1993 the applicant was discharged from the army with post traumatic stress disorder (“PTSD”). Thereafter, he was involved in a legal dispute with the Ministry of Defence. On 28 March 2002 and 4 April 2002 he took part in protests concerning PTSD in Edinburgh. The first protest passed without incident. However, during the second protest he was arrested. He alleged that he was not informed of the reason for his arrest at the time. The authorities, however, alleged that he was informed that he was being arrested for breach of the peace. According to a subsequent police complaint report there was an independent witness who confirmed the police’s account. In any case, he was taken to St Leonard’s Police Office, where his particulars were taken, he was fingerprinted, photographed and DNA samples were taken. After approximately forty minutes he was released from custody and a case alleging ‘Breach of the Peace’ was submitted to the Procurator Fiscal. The Procurator Fiscal subsequently decided to discontinue the case. In December 2002 the applicant was visited at his home by two officers from Strathclyde Police on an unrelated matter. During the visit the applicant had sight of a document he describes as his “criminal record”. On examining this document, he claims that he observed that the case relating to the incident in April in Edinburgh was recorded even though no court proceedings had ever taken place. Sections 6 and 8 of the Human Rights Act 1998 (“the 1998 Act”) provide (in so far as relevant): “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right... (3) In this section "public authority" includes- (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament... 8. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining- (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention... (6) In this section- "court" includes a tribunal; "damages" means damages for an unlawful act of a public authority; and "unlawful" means unlawful under section 6(1).” The English courts have relied on section 8 of the 1998 Act to make awards of damages (see R v Enfield London Borough Council ex p Bernard [2003] HRLR 4).