PP v The Home Office and Another
| Jurisdiction | England & Wales |
| Judge | HHJ Parkes |
| Judgment Date | 30 March 2017 |
| Neutral Citation | [2017] EWHC 663 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15P02615 |
| Date | 30 March 2017 |
[2017] EWHC 663 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Parkes QC
(sitting as a Judge of the High Court)
Case No: HQ15P02615
Mr Christopher Buttler (instructed by Deighton Pierce Glynn) for the Claimant
Mr Jack Anderson (instructed by Government legal Department) for the Defendants
Hearing dates: 9 February 2017
Judgment Approved
HHJ Parkes QC:
Introduction
This is a claim alleging (1) failure to make reasonable enquiries as to whether the Claimant was a victim of trafficking, in breach of the investigative duty imposed by Art 4 ECHR, contrary to s6, Human Rights Act 1998 (' HRA'), and (2) unlawful detention (false imprisonment and/or violation of Art 5 ECHR) as a consequence of alleged errors of law relating to the identification of the claimant as a victim of trafficking.
I have to determine three preliminary issues, the trial of which was ordered by Master Eastman at a directions hearing on 15 November 2016. They are as follows:
i) Whether the false imprisonment claim is an abuse of process because the errors of law alleged should have been raised in a claim for judicial review;
ii) Whether the claim for breach of Art 4 ECHR should be struck out on limitation grounds;
iii) Whether the Claimant should have permission to rely on the report of Professor Ryszard Piotrowicz dated 5 February 2016 annexed to the Particulars of Claim, and if so, what directions should be made about written questions and attendance at trial.
BACKGROUND
The Claimant came to the UK from Sri Lanka in 2009 on a 6 month domestic worker visa, sponsored by a woman to whom I shall refer as R, by whom she was employed in London. It is her case that she was brought to the UK for the purpose of exploitation through forced labour and/or domestic servitude, by means of deception, abuse of power and/or abuse of her vulnerability.
She overstayed and was arrested by the Metropolitan Police on 18 June 2013 for attempting to buy international phone cards with counterfeit money. She was then arrested for immigration offences, and was interviewed by the Defendants on 19 June 2013. She claims to have told the immigration officer how she was treated by R and R's family.
Her case is that the Defendants knew or ought to have known a number of pieces of information about the circumstances in which she lived and worked in the UK, which are said to have amounted to objective indicators that the Claimant was a victim of trafficking. In those circumstances, it is said that the Defendants came under a duty to take reasonable steps to investigate whether the individual is a victim of trafficking.
That duty is said to arise from s6 HRA and Art 4 ECHR and from a common law duty on the Defendants to follow their own policy and guidance for the investigation of potential trafficking. It is said to be an investigative duty to undertake such inquiries as are reasonable in all the circumstances.
The Claimant's pleaded case is that the investigative duty was breached on 19 June 2013, in that the Defendants took no or no adequate steps to investigate whether the Claimant might be a victim of trafficking. She argues that if they had investigated, she would have been spared a further period of servitude from 19 June 2013 to 17 February 2014, when she was finally referred to the National Referral Mechanism (NRM) for investigation and placed in a safe house, and she would have not have suffered two periods of detention (from 25 July to 5 August 2014 and from 19 to 26 June 2015).
On 20 February 2014 the Home Office (the competent authority under the NRM) made a positive reasonable grounds decision, ie a decision that there were reasonable grounds to believe that the Claimant might be a victim of trafficking.
However, on 27 June 2014 the Home Office made a negative conclusive grounds decision, ie a decision that the Claimant was not, on the balance of probabilities, a victim of trafficking. There was no appeal against that determination, although it could have been challenged by way of judicial review. That decision is alleged by the Claimant to have been flawed by a number of public law errors.
The Claimant was arrested on 25 July 2014 pursuant to the Secretary of State's powers under the Immigration Acts with a view to her removal from the UK, and detained until 5 August 2014. She was again detained with a view to her removal from 19 June to 26 June 2015.
These proceedings were issued on 1 June 2015, almost a year after the conclusive grounds decision, and almost two years after 19 June 2013.
On 22 June 2015, the Home Office refused to reconsider the conclusive grounds decision. The Claimant alleges that its failure was erroneous. On 23 June the Claimant issued a claim for judicial review of the refusal to reconsider.
On 30 July 2015, the Home Office decided on the balance of probabilities that the Claimant was a victim of trafficking.
The Claimant does not challenge the decisions to detain her. Her case is that the two allegedly erroneous decisions (of 27 June 2014 and 22 June 2015) were relevant to the decisions to detain her on 25 July 2014 and 19 June 2015, because it is the Defendants' policy not to detain individuals in respect of whom a positive reasonable grounds decision has been made, and the negative conclusive grounds decision of 27 June 2014 displaced the earlier reasonable grounds decision. In other words, without the allegedly erroneous decisions she would not have been detained, or have been kept in detention. She was therefore detained unlawfully, and claims damages for false imprisonment and/or breach of Art 5 ECHR.
ABUSE OF PROCESS
The Defendants contend that it is an abuse of process for the Claimant to challenge the lawfulness of the 27 June 2014 conclusive grounds decision in these proceedings. Had she wished to challenge that decision she should have made a timeous application for judicial review, ie an application made within 3 months. She was legally represented but failed to make such an application.
The Defendants do not, however, apply the same argument to the challenge in these proceedings to the alleged failure to consider further representations on 22 June 2015. That is because the Claimant did seek to challenge the lawfulness of that alleged failure by way of judicial review, but the challenge fell away because the Secretary of State reconsidered.
For the Defendants, Mr Anderson contends that there is a public interest in the finality of administrative decisions, which remain valid until quashed, and on which subsequent decision makers should be able to rely. The lawfulness of administrative decisions should be challenged, if at all, by the judicial review procedure, which requires prompt application and in any event application within three months of the decision challenged. The Claimant's challenge in this case breaches the rule of procedural exclusivity and is an abuse of process. Mr Buttler, for the Claimant, submits that the rule of procedural exclusivity has been swept away by the Supreme Court decision in R (Lumba) v SSHD [2012] 2 AC 245, which he describes as transformative.
Before the advent of the CPR, the procedural exclusivity rule was firm. In O'Reilly v Mackman [1983] 2 AC 237, the House of Lords held that challenges to decisions made by public authorities must normally be made by way of judicial review. At p280h-281a Lord Diplock referred to the requirement of the public interest in good administration that public authorities and third parties should not be kept in suspense as to the legal validity of a decision reached in purported exercise of decision-making powers for any longer than absolutely necessary. At p285e-f, he expressed the procedural exclusivity rule in these terms:
"Now that …. all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of ( RSC) Order 53 for the protection of such authorities."
Similarly, in Cocks v Thanet DC [1983] 2 AC 286 the House of Lords held (on the same day and in the same constitution as O'Reilly v Mackman) that the same general rule applies where the decision which the litigant seeks to overturn is not one alleged to infringe any existing right, but one which prevents him from establishing a condition precedent to a private law right. So a private law claim which depends on a challenge to the lawfulness of a public law decision should be brought by way of judicial review.
Cocks , as Mr Anderson frankly admits, was the high water mark of the procedural exclusivity rule. It has subsequently been relaxed, partly as a product of the greater procedural flexibility brought in by the CPR, but not, he submits, so far as to legitimise the approach adopted by the Claimant in this case.
Exceptions to the general rule stated in Cocks were found in Wandsworth LBC v Winder [1985] AC 461 (where a challenge to a local authority's decision to increase rents was permitted by way of defence of a claim for arrears of rent and possession) and Roy v Kensington & Chelsea FPC [1992] 1 AC 624 (in which it was held not to be an abuse of process for a GP to elect to sue to recover statutory payments due...
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