The Queen (on the application of Ibrahima Jollah) v Secretary of State for the Home Department (No. 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis,THE HONOURABLE |
| Judgment Date | 09 November 2017 |
| Neutral Citation | [2017] EWHC 2821 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3354/2016 |
| Date | 09 November 2017 |
[2017] EWHC 2821 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lewis
Case No: CO/3354/2016
Declan O'Dempsey, Navid Pourghazi (instructed by Bar Pro Bono Unit) for the Claimant
Robin Tam Q.C., Mathew GullickandEmily Wilsdon (instructed by The Government Legal Department) for the Defendant
Hearing dates: 11, 12 and 13 October 2017
Judgment Approved
INTRODUCTION
This is the determination of a claim for damages for false imprisonment arising out of the imposition of what has been referred to as a curfew, namely a requirement that the claimant be present for a certain number of hours each day at specified premises (the place where he was required to reside), between 3 February 2014 and 14 July 2016. The requirement had been imposed by the defendant following the claimant's release from an immigration detention centre. The requirement was imposed pursuant to paragraph 2(5) of Schedule 3 to the Immigration Act 1971 ("the Act"). The Court of Appeal in R (Gedi) v Secretary of State for the Home Department [2016] 4 W.L.R. 93 held that that statutory power did not authorise the imposition of such a requirement and that such a condition could only be attached as a condition of the grant of bail. The defendant accepts that the imposition of the requirement, or curfew, in the present case was unlawful.
The claimant seeks damages for false imprisonment. An earlier hearing determined that, subject to any appeal to the Court of Appeal, the requirement to spend eight hours a day in a particular place, that requirement being reinforced by the threat of criminal sanctions and electronic monitoring, amounted to a detention for the purposes of the tort of false imprisonment: see R (Jollah) v Secretary of State for the Home Department [2017] EWHC 330 (Admin.) at paragraph 51.
The claimant contends that he should be awarded compensatory damages in the sum of £30,000, together with a further £5,000 as aggravated damages. The defendant initially contended that only nominal damages should be awarded as the claimant could, and would, have been subjected to the curfew by another legal route had it been appreciated at the time that paragraph 2(5) of Schedule 3 to the Act did not authorise the imposition of a curfew. The defendant initially contended that she would have requested the First-tier Tribunal to grant bail on condition that the claimant comply with a curfew and the Tribunal would have done so. The defendant further contends that, in any event, this is not a case where aggravated damages would be appropriate.
This claim is brought by way of judicial review but the parties accept that it is appropriate to deal with the claim in these proceedings rather than transfer the matter to the Queen's Bench Division to be dealt with in accordance with Part 7 of the Civil Procedure Rules. The hearing was set down for three days. There was disclosure of the contemporaneous documentation. At the hearing, I had two witness statements from the claimant and he was cross-examined during the hearing. I initially had witness statements from Mr Jonathan Devereux and Ms Danielle Heeley on behalf of the defendant. Counsel who appeared on behalf of the claimant confirmed that he was not seeking permission to cross-examine either witness. On 12 October 2017, that is, on the second day of the hearing, the defendant applied for permission to adduce evidence in the form of a witness statement by a Kenneth Welsh dated 8 September 2017. That statement had been made in another case listed to be heard at the same time as this one. The statement had not, however, been served on the claimant or his representatives in this case. I refused permission to allow that statement to be adduced given the lateness of the application to adduce the evidence and the unfairness that it would cause to the claimant as he and his advisers had not had the opportunity to consider it. Save for the oral evidence given by the claimant which is a matter for the court to evaluate, both parties were content that the facts necessary for the resolution of this claim were agreed (save in minor respects) or appeared from the contemporaneous documentation provided prior to the hearing. On that basis, the trial proceeded.
At 3.40 p.m. on the third day of the hearing, counsel for the claimant informed the court that the claimant had in fact brought proceedings in the county court seeking damages for false imprisonment arising out of the detention of the claimant and, further, that the defendant had conceded as long ago as 29 March 2017 that the detention was unlawful. That matter had not been referred to before by either the claimant or the defendant and, clearly, was a matter potentially relevant to the determination of this claim. I set out the chronology below. The parties were allowed to put in further evidence to explain why neither of them had informed the court of these matters. In the event, the defendant also sought permission to amend her amended grounds of defence and to abandon the contention that the claimant was only entitled to nominal, not substantial, damages. I deal with these matters below.
THE FACTUAL BACKGROUND
The material facts as they appear from the evidence given are as follows. On about 6 January 2003, the Claimant arrived in the United Kingdom. He claimed asylum as Thierno Ibrahima Jollah and claimed he was a national of Liberia. He was initially granted exceptional leave to remain but, following an appeal, the claimant was granted asylum on 29 August 2003.
On 23 May 2006, the claimant was convicted at Cambridge Crown Court of threatening to harm a witness, juror or person assisting in the investigation of an offence, and of common assault. He was sentenced to 15 months' imprisonment. On 4 September 2006, he was convicted of a further offence of assault occasioning actual bodily harm and sentenced to 6 months' imprisonment.
On 26 April 2007, the claimant was served with notice of a decision to make a deportation order. He appealed. On 4 May 2007, he was detained under powers conferred by the Act. On 3 January 2008, the claimant was granted bail on condition that he report to a particular place at specified times. The claimant's appeals against the decision to make a deportation order were dismissed and, by 30 June 2008, he had exhausted all his rights of appeal. On 3 July 2008, he failed to report to the Midland Enforcement Unit as required by the conditions of his bail. On 29 August 2008, he was arrested as an absconder and detained. A deportation order was served on him on 4 September 2008. It subsequently transpired (after the hearing) that there may have been legal difficulties in connection with that order, that it may have been revoked, and that it may be that, because of the fact that the claimant had been granted asylum earlier, the order may not have been one that could have been made. None of those matters were dealt with in evidence or argument at the hearing and this judgment expresses no views on those matters.
The claimant was released from detention on 2 July 2009. On 24 July 2012, he was remanded in custody on being accused of a further criminal offence. On 15 April 2013, he was convicted of an offence of child cruelty and sentenced to one year's imprisonment. He was due for release from prison on 16 April 2013 (as he had already spent time in custody) and was then detained in an immigration detention centre pursuant to powers conferred by the Act.
At about that time, the defendant was undertaking investigations into the claimant's links with the United Kingdom and seeking to confirm his identity. It transpired that the claimant may in fact be a national of Guinea, not Liberia as he claims, and his true identity may be Thierno Ibrahima Diallo. On 18 July 2013, a person saying he was the claimant's father attended the British Embassy in, it seems, Guinea, and confirmed that the claimant was a Guinean national and confirmed his true identity. On 10 August 2013, the claimant was interviewed by immigration officers and was informed that the defendant intended to return him to Guinea.
The claimant applied to the First-tier Tribunal (Immigration and Asylum Chamber) for bail. The defendant opposed the grant of bail. The reasons for opposition contained in a document referred to as a bail summary said that:
"Mr Diallo has been convicted of serious criminal offences and whilst it is appreciated that he has been punished for this offence, it has been decided that his presence in the United Kingdom is not conducive to the public good and that he be deported.
No sum of recognisance has been offered. It is therefore disproportionate for the risk of him absconding.
Mr Diallo has no outstanding application or appeals that may have provided him with an incentive to remain in contact if released.
Mr Diallo has no known close ties in the United Kingdom that may have provided him with an incentive to remain in one place if released at this stage.
Mr Diallo has not provided us with any sureties and it is unclear how or what mechanism will be used to ensure that he complies with any terms of bail.
Mr Diallo is the subject of a deportation order and as such would have little incentive to comply with any conditions of release.
Mr Diallo has used deception in a way that leads us to believe that he may continue to deceive if released. He has used 8 alias names and two dates of birth.
Mr Diallo has demonstrated a breach of United Kingdom Laws in the past having received a term of imprisonment for threatening to harm a witness, occasioning actual bodily harm and a breach of bail...
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