R Mariusz Majewski v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Swift |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2019] EWHC 473 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1833/2017 |
| Date | 01 March 2019 |
[2019] EWHC 473 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Swift
Case No: CO/1833/2017
Stephen Knight (instructed by Public Interest Law Centre) for the Claimant
Jack Anderson (instructed by Government Legal Department) for the Defendant
Hearing dates: 30 th January 2019
Approved Judgment
A. Introduction
Mr Majewski is a Polish national, born in August 1976. The Secretary of State for the Home Department concedes that he was unlawfully detained between 14 March 2017 and 20 April 2017, a period of 38 days.
Mr Majewski was detained in the course of Operation Gopik, the Home Office enforcement operation to deport EEA nationals found sleeping rough. The legality of that operation was determined by Lang J in R (Gureckis) v Secretary of State for the Home Department [2018] 4 WLR 9. Her judgment contained two conclusions that are material for present purposes: first, that the Secretary of State had operated a policy which treated rough sleeping as an abuse of rights under regulation 26 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”); and second, that policy was unlawful since under the 2016 Regulations there was no straight-line correlation between rough sleeping and article 26 misuse of rights. As a result of the conclusions she reached, Lang J quashed Guidance issued by the Secretary of State.
The judgment in Gureckis was handed down on 14 December 2017. This claim is one of a number (approximately 30) held in abeyance pending that judgment. Judgment in one claim in that group has already been given by Soole J.
The facts of this case are as follows. Mr Majewski first entered the United Kingdom in 2003. In 2013 he applied for recognition of a permanent right of residence under regulation 15 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). That application was allowed. On 25 October 2016 he was one of a number of people found sleeping rough in Tottenham, by police officers and immigration officers. Mr Majewski was not detained on that occasion, but he was served both with a Form IS.151A (EEA) (a notice that he was liable to be removed from the United Kingdom), and a Form IS.151B (EEA) (a notice of a decision that he would be removed from the United Kingdom). The latter form included information explaining the right of appeal to the First-tier Tribunal. Finally, Mr Majewski was served with a Form IS.96 EEA. This informed him that he was liable to detention, and granted him temporary admission to the United Kingdom subject to a condition that he report to Becket House, the next day at 2pm. He did not report, either the next day or at all.
On 14 March 2017 Mr Majewski was again found sleeping rough by police and immigration officers, again in Tottenham. This time he was arrested by the police, because he was wanted for questioning in respect of allegations that he had made threats to kill. Mr Majewski was initially held at Wood Green police station. Later the same day, he was transferred to immigration detention pending removal from the United Kingdom.
The detention records state that when, on 14 March 2017, Mr Majewski was asked about his state of health, he told immigration officers that he did not suffer from any medical condition and was not taking any medication, but that he was heavily dependent on alcohol. He described this as a “big problem”. While still at Wood Green Station Mr Majewski was examined by a medical examiner who concluded that he was “sober and well”. When in immigration detention Mr Majewski was assessed for the purposes of the Secretary of State's “ Adults at risk in immigration detention” policy, a policy designed to identify persons suffering from conditions likely to render them vulnerable to harm if detained. Mr Majewski was determined to fall within Level 2 – i.e. that there was some medical or professional evidence that he suffered from a condition that might render him vulnerable if detained. For Mr Majewski, the relevant condition was his dependency on alcohol.
In a witness statement dated 11 January 2019 Mr Majewski stated that while in detention he was given “tablets to calm [him] down”, and that on his arrival at the detention centre he was hospitalised for two weeks. By contrast, the GCID detention record for 4 April 2017 states that he “was not undergoing detox or exhibiting signs of withdrawal” and “Subject is AAR L2 but a medic is not required”. The Detention Review completed on 11 April 2017 includes comments to the same effect, and also records “IRC Healthcare have not stated any contra indicators to detention”. The precise details of any specific medical treatment received by a detained person would not ordinarily be recorded in the GCID. Even so, it is striking that neither the GCID document, nor any of the detention reviews make mention at all of any period of hospitalisation, or of any need for Mr Majewski to take medication. Mr Majewski did not take the steps necessary to allow the medical records from his period of detention to be obtained for the purposes of these proceedings. It is therefore impossible to know whether what he says in his witness statement about either medication or hospitalisation is true. If matters are put at their highest (from his point of view) it would appear that while detained, he received appropriate medical treatment, and there is nothing to suggest either that the state of his health militated against detention, or that his health suffered during the period he was detained.
The claim in these proceedings is for damages for unlawful detention including aggravated damages and exemplary damages. The exemplary damages claim rests on events occurring since the commencement of these proceedings. There is no claim for damages for financial loss, and no claim in respect of any specific personal injury arising from the detention.
The proceedings were commenced on 18 April 2017. Interim relief (first obtained on 15 April 2017 on the basis of an undertaking to issue proceedings) prevented Mr Majewski being removed from the United Kingdom. Various applications were made by the Secretary of State to extend time for filing his Acknowledgement of Service and Summary Grounds of Defence. By an order dated 14 August 2017, made by Nicola Davies J, the proceedings were stayed behind Gureckis and two other cases ( Cielecki and Perlinski) that were to be heard with it. Following 14 December 2017, when the judgment in Gureckis was handed down, the Secretary of State made applications to continue the stays in the 30 or so cases held behind Gureckis. Those stays remained in place until lifted by order made on 22 June 2018 by Lang J. When lifting the stay, Lang J gave directions for service of a Supplementary Statement of Facts and Grounds, and the Secretary of State's Detailed Grounds. The Supplementary Statement was filed on 19 July 2018; the Detailed Grounds on 15 August 2018. The Detailed Grounds contained the Secretary of State's admission of liability. In an order made on 28 August 2018 Lang J ordered the Secretary of State to make interim payments on account of damages.
B. Decision
(1) Compensatory damages
The assessment of damages for non-financial loss in unlawful detention claims is neither mechanical exercise nor precise science. The leading authorities make it clear that there is no “daily rate”, and no tariff which sets the amount of an award. This is helpful, but only up to a point. The lack of prescription means that assessing the value of the loss takes place in somewhat of a void.
The overall object is to identify an amount of money appropriate to compensate the claimant for the non-financial loss resulting from unlawful detention. The relevant damage is in the nature of injury to feelings, or the pain and suffering caused by the detention. So far as there are principles, they are summarised in the judgment of Laws LJ in MK (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 980, at §§8 – 9, and they operate at a relatively high level of generality.
“8. … There is now guidance in the cases as to appropriate levels of awards for false imprisonment. There are three general principles which should be born in mind: 1) the assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant: see the leading case of Thompson v Commissioner of Police [1998] QB 498 at 515A and also the discussion at page 1060 in R v Governor of Brockhill Prison ex parte Evans [1999] QB 1043; 2) Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration: see Thompson at 516A. A global approach should be taken: see Evans 1060 E; 3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons: (i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and (ii) because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance: Thompson 515 E-F.
9. In Thompson the court gave specific guidance (515 D-F) to the effect that in a “straightforward case of wrongful arrest and imprisonment” the starting point was likely to be about £500 for the first hour of loss of liberty and a claimant wrongly detained for 24 hours should for that alone normally be entitled to an award of about £3,000. That case was of course decided more than ten...
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