Muuse v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 17 July 2009 |
| Neutral Citation | [2009] EWHC 1886 (QB) |
| Docket Number | CLAIM NO : HQ07X01899 |
| Court | Queen's Bench Division |
| Date | 17 July 2009 |
[2009] EWHC 1886 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CLAIM NO : HQ07X01899
JUDGEMENT
This is a claim for damages for false imprisonment, breach of the Data Protection Act, unlawful discrimination, breach of human rights, negligence, and misfeasance in public office. The Defendant admits false imprisonment but disputes the other heads of claim and, if proved, the Claimant's right to recover damages in respect of them. In addition to seeking compensatory damages the Claimant seeks aggravated and/or exemplary damages.
This claim was first listed for hearing on 25 th November 2008. The Claimant apparently had difficulty in getting to court and the hearing did not commence until 2pm. The Defendant had served no witness statements. In the course of his helpful opening Mr Jafar for the Claimant stated the Claimant would provide more details of his allegations when he gave evidence but accepted the suggestion that such details should be provided by a further witness statement. That further witness statement was provided the following morning and was met with an application by the Defendant for an adjournment, which I granted. At the adjourned hearing on 26 th January 2009 the Defendant again requested an adjournment stating he had been unable to obtain the evidence he was seeking in the time available. The Claimant did not object and I granted a further adjournment on terms. In the event the Defendant served 2 witness statements, including a witness statement from Ms Debbie Freeman, a prison officer at HMP Woodhill (“Woodhill”) who had been named by the Claimant in his second witness statement. Both statements were dated 24 th April 2009. The resumed hearing was listed for Thursday 28 th April 2009. At this resumed hearing the Claimant sought, and I granted, an adjournment to investigate the contents, in particular, of Ms Freeman's statement and documents she referred to. At the same time I made further orders to ensure these matters were attended to promptly and that all relevant documents were put in a core bundle. On 30 th June 2009 the trial resumed. In the event the only witnesses who gave evidence before me were the Claimant and Ms Freeman.
Background facts
The background facts are not in issue. The Claimant, now 40 years old (DoB 1 st July 1968) was born in Somalia. His witness statement says he married in 1988/89 and he and his wife then moved to Ethiopia where his first son was born in 1993. In 1994 his wife and son fled to the Netherlands and he joined them a year later. They sought and were granted asylum there and in the period 1995 – 2001 together had a further 4 children. In 2000 / 2001 he acquired a Dutch passport and came to England with his wife and children. Thereafter he settled down in Milton Keynes but made occasional trips to Holland. In 2003 his wife gave birth to their sixth child.
His relationship with his wife deteriorated and in 2005 he was made the subject of a restraining order in the Milton Keynes Magistrates Court. On 18 th February 2006 he was charged with common assault and 2 breaches of the restraining order. He was detained in custody until 7 th July 2006, when he appeared at Aylesbury Crown Court where he was released on bail upon condition that his passport was surrendered, which it was on 8 th July 2006. On 8 th August 2006 he re-appeared at Aylesbury Crown Court where he pleaded guilty and was sentenced to concurrent 3 months imprisonment on each of the breaches and 6 months consecutive for the assault. He had already been in custody for 147 days and the judge ordered his immediate release.
However, he was not released but was detained in custody until 15 th December 2006, a period of 128 days. It is now accepted that this detention was unlawful and that he is entitled to recover damages for false imprisonment in respect of it.
The Claimant asserts that his false imprisonment resulted from high handed, insulting, malicious and oppressive conduct by the Defendant. The Defendant's case is that the Claimant was detained pending consideration of deportation, that his detention occurred through innocent error because he believed the Claimant was a Somali national and that the Claimant's identity was confused with that of another of similar name.
Before dealing with the merits of these competing claims it may be helpful to set out the procedures laid down for deporting foreign nationals. The western world takes pride in the freedoms it offers its citizens and visitors. This is especially true of the United Kingdom where such freedoms have been and continue to be jealously guarded. Strict procedures have to be followed before anyone may be detained against his will. In the present case the Claimant was detained on the authority of the Immigration and Nationality Directorate (“IND”), now known as the United Kingdom Border Agency (“UKBA”), both departments of the Home Office. For convenience I shall describe this body and its successors as “Immigration”. He was detained by Her Majesty's Prison Service (“HMPS”), which prior to 9 th May 2007 also formed part of the Home Office. 1 Prior to 9 th May 2007 at all material times the Defendant was responsible for the acts and omissions of the Home Office and HMPS.
The procedures to be followed for detention
Section 3(5)(a) Immigration Act 1971 provides that a person who is not a British citizen may be deported from the United Kingdom where the Secretary of State deems his departure to be conducive to the public good. Section 3(8) provides that the onus of proving British citizenship or entitlement to any exemption under the Act lies on the person asserting it. Statutory provisions enable a person to be detained pending a decision on whether or not to deport him. At the same time statutory and other provisions exist to protect and safeguard such a person's interests by laying down strict procedures to be followed before and during his detention. In particular :
(i) Rule 9 of the Detention Centre Rules 2001 provides :
“Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly.”
(ii) The Home Office's Operations Enforcement Manual supplements these Rules with instructions to immigration officers which the public are entitled to expect will be adhered to. Relevant provisions in the Manual, which I understand was current at the time 2 were contained in Chapters 38, 64 and 75:
Chapter 38
(a) Para 38.1 states :
“To be lawful, detention must not only be based on the statutory powers and accord with the limitations implied by domestic and Strasbourg case law” and accord with stated policy.
And that :
“In all cases detention must be used sparingly and for the shortest period necessary.”
(b) Para 38.3.4 states that once detention has been authorised “it must be kept under close review to ensure it continues to be justified”.
(c) Para 38.6 states “The Government stated in the 1998 White Paper that written reasons for detention should be given at the time of detention and thereafter at monthly intervals”. It also states :
i. Once it has been identified that the person is one who should be detained, the checks detailed in Form IS91RA Risk Assessment should be undertaken “in advance as far as possible, in a planned operation visit when it is anticipated detention will be required” (Para 38.6.1).
ii. Once a detention location has been decided on, Form IS91RA part B containing a photograph of the detainee must be sent to the detaining agent, (eg a prison governor). “ Detaining agents have been instructed not to accept detainees without the correct documentation”. (Para 38.6.2).
iii. Form IS91R Reasons For Detention
a. “must be served on every detained person at the time of their (sic) initial detention” ; and
b. given that such reasons could be the subject of judicial review, it was “important to ensure they are always justified and correctly stated” and a copy retained on file ;
c. that it was important that the detainee understood the contents of IS91R (Para 38.6.3).
(d) Para 38(8) states :
“Continued detention in all cases of persons in sole detention under Immigration Act powers must be subject to administrative review at regular intervals. At each review robust and formally documented consideration should be given to the removability of the detainee….
A formal and documented review of detention should be made after 24 hours by an Inspector and thereafter as directed at the 7,14, 21 and 28 day points. At the 14 day stage, or if circumstances change between weekly reviews an Inspector must conduct the review”.
Chapter 64
Chapter 64.6 after pointing out that Section 3.8 of the 1971 Act puts the onus on the subject to establish exemption from detention goes on to say :
“However, in order to successfully implement deportation action efforts may be made to identify the individual's identity and nationality prior to this”.
Chapter 75
This deals with detention in criminal cases. It states :
“….. there is no longer a presumption that those completing their prison sentences should continue to be detained pending deportation, particularly if continued detention infringes the person's Human Rights under Article 5 of the Human Rights Act 1998.”
These are principles which all are entitled to expect will be applied when an individual is detained with a view to deportation. They are designed to prevent arbitrary detention and to protect the right to freedom.
The claim for false imprisonment
Events prior to the false imprisonment
When the Claimant was remanded in custody on 18 th February 2006 at Milton Keynes Police Station his Detained Person's Property Record timed at 01.56 identified as Item 2 a “passport and d/licence in d/p's...
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