Egal, R (on the application of) v Secretary of State for the Home Department

The appeal before this court concerned the refusal of Mr Neil Garnham QC, sitting in the Administrative Court as a deputy judge of the High Court, to grant a mandatory order for the claimant’s release from administrative detention. The balance of the claim, for which the deputy judge granted permission and which this court has by consent permitted to be amended, remains untried in the court below.

On 28 January 2010 the appeal went short because at the eleventh hour disclosure of documents which should have been disclosed long before made it clear that the court and tribunal below had been acting on false information about the claimant’s reliability when on bail. It was because of the consequent apparent risk of absconding that he had continued to be deprived of his liberty.

The appeal was adjourned so that full consideration could be given by both sides to the new material. This having been done, the court was notified that it was now accepted that the claimant had been unlawfully imprisoned since at latest 4 November 2009. In this situation nothing remained to be decided on the appeal. The claim for judicial review, including a claim for damages, remained to be tried.

An agreed form of order has now been drawn up by the parties, setting aside as much of the deputy judge’s order as refused an order for release and reversing his order for costs. This follows from the concession that by the date of the hearing before him, 4 November 2009, the claimant’s detention was unlawful.

The Secretary of State does not dispute her liability for the costs of this appeal, but the claimant seeks to have them assessed on an indemnity basis.

Taking into account the written submissions of the parties, we are driven to the conclusion that the Home Office’s failure to appreciate that it was detaining an individual illegally until his own lawyers extracted the documentation which showed that it was so, albeit not shown to have been deliberate, was a very serious dereliction of duty. The power of administrative detention is a striking exception to the rule that imprisonment is lawful only in the execution of the sentence of a court of law. The principle of habeas corpus requires it to be exercised with scrupulous attention to the proper ambit and due exercise of the power, so that nobody is detained for a day longer than is lawful. The Home Office has fallen deplorably short of the common law’s rigorous standard in this regard. The fact that its lawyers have now worked conscientiously to repair its omissions cannot make adequate amends.

Asking ourselves, therefore, whether the conduct of the Home Office in the course of these proceedings has been “unreasonable to a high degree” (Kiam v MGN Ltd [2002] EWCA Civ 66, §12), we conclude that it has been, and direct that the appellant recover his costs of the appeal to be assessed on an indemnity basis.

I agree.

I also agree.