The Queen (on the Application of Ibrahima Jollah) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Richards,Lord Justice Hickinbottom,To,Lord Justice Davis |
| Judgment Date | 12 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1260 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2017/3259 |
| Date | 12 June 2018 |
[2018] EWCA Civ 1260
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
MR JUSTICE LEWIS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lord Justice Hickinbottom
and
Sir Stephen Richards
Case No: C4/2017/3259
Robin Tam QC and Emily Wilsdon (instructed by the Government Legal Department) for the Appellant
Dinah Rose QC and Jude Bunting (instructed by Saunders Law) for the Respondent
Hearing date: 16 May 2018
Judgment Approved
Introduction
This appeal involves a consideration of the parameters of the tort of false imprisonment.
The context is one of immigration detention. The claimant, who is the respondent to this appeal (and who for present purposes I will call “IJ”), was made subject to a curfew restriction between the hours of 23.00 and 07.00 for a period between 3 February 2014 and 14 July 2016, pending potential deportation. Such curfew was imposed by those acting on behalf of the appellant Secretary of State purportedly pursuant to the provisions of paragraph 2 (5) of Schedule 3 to the Immigration Act 1971 (as it then stood). It has, however, been accepted in these proceedings that, in the light of subsequent Court of Appeal authority, there was no power to impose a curfew under those provisions. Consequently, the curfew was unlawfully imposed. The question arising is whether IJ is entitled to damages for false imprisonment in respect of the time during which he was subject to the unlawful curfew. The trial judge, Lewis J, decided that he was. Having so decided, the judge at a subsequent hearing assessed the damages at £4,000: [2017] EWHC 330 (Admin); [2017] EWHC 2821 (Admin).
The Secretary of State now appeals, with leave granted by the judge, against the decision that IJ was entitled to damages for false imprisonment. IJ cross-appeals, with leave granted by Singh LJ, against the amount of the award of damages. It is said on behalf of IJ that a much greater award should have been made.
The Secretary of State was represented before us by Mr Robin Tam QC and Ms Emily Wilsdon. IJ was represented before us by Ms Dinah Rose QC and Mr Jude Bunting. I would like to place on record that the arguments presented to us, in writing and orally, were excellent.
We were told that the outcome of this appeal and cross-appeal is likely to have a bearing on a number of other cases where a similar situation has arisen.
Background Facts
IJ has said that he is a citizen of Liberia, born on 15 December 1986. There is in fact a dispute as to his identity and nationality: the Secretary of State has said that he in fact is called Diallo and is from Guinea. At all events, IJ claims to have come to the United Kingdom on 6 January 2003 and to have been granted asylum on 29 August 2003.
Since arriving in the United Kingdom IJ has, on the Secretary of State's case, not behaved well.
On 23 May 2006 he was, according to the Secretary of State, convicted of threatening to harm a witness, juror or person assisting in the investigation of an offence. He was sentenced to 15 months' imprisonment. He was further convicted on 4 September 2006 of assault occasioning actual bodily harm and was sentenced to 6 months' imprisonment. According to the Secretary of State, notice of deportation thereafter was served on him on 4 September 2008. However he was not removed at that time. Subsequently, he was convicted on 15 April 2013 of child cruelty and sentenced to 12 months' imprisonment. He was due for release on licence the following day (in view of time already spent in custody on remand) but was then detained in an immigration removal centre pursuant to powers conferred by the 1971 Act.
On 29 October 2013 IJ was granted bail by a judge of the First-tier Tribunal. Bail conditions included a requirement of residence at a particular address in North Shields. On 30 October 2013 he reported to a relevant immigration officer (as required by his bail conditions). It is common ground that the bail granted by the First-tier Tribunal thereupon came to an end.
On that date he was given a document headed “Home Office, Immigration Act 1971, United Kingdom Borders Act 2007”. That document provided as follows:
“NOTICE OF RESTRICTION
ToThierno Ibrahima Thierno Ibrahima Diallo Guinea 15 December 1988
You are liable to be detained under paragraph 2 of Schedule 3 to the Immigration Act 1971/Section 36 of the UK Borders Act 2007.
The Secretary of State has decided that you should not continue to be detained at this time but, under paragraph 2(5) of Schedule 3 to the 1971 Act/Section 36(5) of the 2007 Act, she now imposes the following restrictions on you:
1. You must report in person to the immigration officer in charge of North Shields Reporting Centre at:
Northumbria House Norfolk Street North Shields NE30 1LN
2. You must then report in person to the immigration officer in charge of the North Shields Reporting Centre on Monday 4 November 2013 and Wednesday 6 November 2013 and Friday 8 November 2013 between 10.00 and 16.00 hours and then weekly every Monday, Wednesday and Friday thereafter or on such other days in each week as the officer to whom you made your last weekly reports may allow.
3. You must live at address
Flat 4,
14 Argyle Square
Sunderland
SR2 7BS
4. YOU ARE TO BE MONITORED ELECTRONICALLY BY MEANS OF TAGGING/TRACKING
5. You must be present at the address shown above for induction on Saturday 2 November 2013 between the hours of 10 am to 6 pm, when an officer from G4S will call at your address to install the Electronic Monitoring equipment and explain how the system operates.
6. Following induction you must be present at the address shown above between the hours of 23.00 hours to 07.00 am every day, and every day thereafter, between the hours of 23.00 hours to 07.00 am.
7. You may not enter employment, paid or unpaid, or engage in any business or profession.
You should note that:
i) You must not change the address at which you live without the agreement of the Secretary of State. If you wish to change your address you should contact the Home Office at the address shown below. If the change of address is agreed you will be notified and a new restriction order will be served.
ii) If without reasonable excuse you fail to comply with any of these restrictions you will be liable on conviction to a fine not exceeding the maximum on level 5 of the standard scale (currently £5000) or imprisonment for up to 6 months or both.”
Thereafter IJ changed address. On 3 February 2014 he was fitted with an electronic tag; and the relevant monitoring equipment was also installed in the premises where he was living.
On 8 March 2014 he was presented with a further Notice of Restriction document. That was, mutatis mutandis, in terms similar to the prior document. In particular, for present purposes, it maintained the requirement to be present at the stated address between the hours of 23.00 and 07.00 every day. The same two notes were also included.
Thereafter there were occasions, as was accepted, when IJ did not adhere to the curfew requirements. On some occasions that was with the consent of the Home Office: for instance, when IJ had to attend certain court hearings or for religious purposes. On other occasions IJ failed to abide by the curfew requirements without obtaining any consent. Overall, as the judge was to find, of the total of 891 days when he was subject to the curfew requirement IJ was on 37 occasions absent from his home for the entirety of the curfew period (most of those relating to his attending family court proceedings in Coventry concerning the custody of his daughter); and on 108 occasions absent for part of the time when the curfew was in place (sometimes by only a few minutes). Many of those related to his delayed return from Coventry or delayed return from religious attendance.
On 17 May 2016 the Court of Appeal handed down its judgment in the case of R (Gedi) v Secretary of State for the Home Department [2016] EWCA Civ 409, [2016] 4 WLR 93. That, reversing the decision of the first instance judge in this respect, held that paragraph 2 (5) of Schedule 3 to the 1971 Act did not, on its true construction, empower the Secretary of State to impose a curfew.
There was then correspondence between IJ's solicitors and those acting on behalf of the Secretary of State. The Secretary of State maintained that the curfew was lawful. Judicial review proceedings were commenced by IJ on 27 June 2016. On 14 July 2016, on an application for interim relief, Collins J ordered that the curfew restriction be lifted.
The matter came on for decision, by way of determination of certain preliminary issues, before Lewis J in February 2017. At that time, the factual position was still not altogether clear. At all events, the judge in a reserved decision handed down on 24 February 2017 declined, in his discretion, to grant a declaration as to the unlawfulness of the curfew. He further decided, however, that damages for false imprisonment were in principle recoverable. He adjourned to a further hearing the quantification of the damages payable, in view of the then evidential uncertainties.
At the further hearing, which lasted over three days in October 2017, extensive evidence – which included the oral evidence of IJ himself – was adduced. By reserved decision handed down on 9 November 2017 the judge quantified the compensatory damages payable at £4,000, as I have indicated. A claim for exemplary damages (as also a claim for damages for misfeasance in public office) had previously been withdrawn; and the judge rejected, on the facts, a...
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