R Amin Sino v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 25 June 2015 |
| Neutral Citation | [2015] EWHC 1831 (Admin) |
| Docket Number | Case No: CO/744/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 June 2015 |
[2015] EWHC 1831 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: CO/744/2015
Mr. Chris Buttler (instructed by Duncan Lewis Solicitors) for the Claimant
Ms. Kerry Bretherton (instructed by Government Legal Department) for the Defendant
Hearing dates: 16 TH &17 TH June 2015
The essence of this claim is that the Claimant has been unlawfully detained for specific periods, illustrated in the chronology below, and that he remains at present, unlawfully detained. This hearing has been listed to determine the claim for Judicial Review, through which route the Claimant seeks immediate release from detention; determination of the Defendant's liability as to false imprisonment; resolution as to whether, if false imprisonment is established, damages should be compensatory or nominal.
Though there is disagreement between the parties both as to the interpretation of case law and in respect of the inferences to be drawn from agreed facts there is some identifiable common ground which it is convenient to identify as the core framework for the application.
It is agreed
i) "All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so" ( R (Lumba) v SSHD [2012] 1 AC 245, per Lord Dyson, para 65);
ii) When detention takes place without lawful authority it becomes 'false imprisonment'. Any error in public law vitiates lawful authority to detain where that error 'bears upon and is relevant to' the decision to detain; (Lumba supra, per Lord Dyson);
"68 I do not consider that these arguments undermine what I have referred to as the correct and principled approach. As regards Mr Beloff's first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain."
As Baroness Hale put it at para 207;
"In other words, the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result — which is not the same as saying that the result would have been different had there been no breach."
iii) Whether it was the material error that caused the detention or resulted in the continuation of detention is irrelevant to the question of liability for false imprisonment;
"71 I can see that at first sight it might seem counter-intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the claimant could and would have been detained if the power had been exercised lawfully. But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed." (per Lord Dyson at para 71, Lumba)
iv) In challenging the allegation of unlawfulness to any period of detention the Defendant bears the evidential burden, both in respect of justification of detention and in establishing that nominal rather than compensatory damages are payable;
"80 Miss Anderson submitted that there is no obligation to file witness evidence in relation to whether or not there is an entitlement to compensatory or nominal damages, and that question is a matter for the court to assess. She also urged the court not to punish the Secretary of State for not filing evidence, and referred to the scarcity of resources, the heavy litigation burden on the Secretary of State, and the need to prioritise resources on those currently detained. The latter submission may reflect the position in which this part of the public service finds itself, but it was not and could not have been an invitation to the court to give the Secretary of State a privileged position in litigation. There is equally no question of the court punishing the Secretary of State or treating her less favourably than other litigants. The judge stated the correct position clearly. He observed [2013] EWHC 682 at [21]:"
" Where a Secretary of State fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party … The basis for drawing adverse inferences of fact against the Secretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, [in the words of Lord Walker of Gestingthorpe inBelize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] Env LR 761, para 86] _to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings"
( per Beatson LJ, R (Das) v SSHD [2014] 1WLR 3538).
v) Where liability for false imprisonment is established, it is difficult to see how the Secretary of State will escape compensatory damages unless she is able to show, on the balance of probabilities, that the Claimant could (as a matter of law) and would (as a matter of fact) have been detained in any event, see: Lumba, per Baroness Hale, paras 208 and 211; Lumba, per Lord Kerr, para 253; Kambadzi, per Baroness Hale, para 74; Kambadzi, per Lord Kerr, para 89;R (OM) v SSHD [2011] EWCA Civ 909, per Richards LJ, para 23;R (Das) v SSHD [2014] 1 WLR 3538, per Beatson LJ, para 76.
There is also agreement between the Defendant and the Claimant that the Claimant has a history of "persistent low level criminal offending and absconding" to adopt the Defendant's own characterisation of it within the papers. There is agreement that his offending likely arises from the Claimant's drug addiction. There is no dispute with the opinion of Professor Katona, filed in these proceedings that the Claimant suffers from paranoid schizophrenia. The Claimant's character is said by Ms. Bretherton, on behalf of the Secretary of State, to be "highly relevant to the reasons for his detention: had he been honest about his identity he would have been deported long ago and so not detained; had he not absconded he would have not have been regarded as at risk of absconding; had he not spent the sum paid to him in compensatory damages on drugs he could have afforded accommodation." The Claimant contends these agreed characteristics have some bearing as to whether his detention was reasonable or, at times, in accordance with the principles in Hardial Singh [1984] 1WLR 704
A disturbing feature of this case is that the Home Secretary has detained the Claimant under immigration powers for the following periods:
i) 8 July 2006 – 14 June 2011 (when the Claimant was released by order of the High Court)
ii) 9 June – 7 August 2012
iii) November — 8 December 2012
iv) 31 May 2013 — present
These periods total seven years and two months. Such a time span is a disturbing period for the executive to detain an individual under purely administrative powers. It would appear to be one of the longest aggregate periods that HM Government has ever detained an individual for in such circumstances. Though the period of detention was longer in the case of: Mustafa Abdi (formerly known as MA (Somalia) v Secretary of State for the Home Department [2014] EWHC 2641 (Admin), the Claimant in that case posed a grave risk to the public, including to children. The Claimant here can not be categorised in that way, nor does the level of risk he poses to the public come anywhere close to that identified in Abdi (supra).
In August 2011 Mr Sino brought a claim seeking: a declaration that he had been unlawfully detained; that any further detention would be unlawful; damages for false imprisonment and for breach of his rights under Article 5 of the European Convention on Human Rights. The case is reported as: R. (Sino) v Secretary of State for the Home Department [2011] 2249 (Admin). John Howell QC, sitting as a Deputy Judge of the...
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