Muuse v Secretary of State for the Home Department

Rule 9 of the Detention Centre Rules 2001 provides :

“Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly.”

The Home Office’s Operations Enforcement Manual supplements these Rules with instructions to immigration officers which the public are entitled to expect will be adhered to. Relevant provisions in the Manual, which I understand was current at the time (Footnote: ²) were contained in Chapters 38, 64 and 75:

These are principles which all are entitled to expect will be applied when an individual is detained with a view to deportation. They are designed to prevent arbitrary detention and to protect the right to freedom.

The Claimant’s account of what happened following detention

He said that for a month no-one came to talk to him and that every morning he went to Reception and filled out a general application form asking for his documents and why he was in detention. HMPS should record applications made by detainees. The Defendant has disclosed only 2 general application documents dated respectively 25^th September and 17^th October 2006.

The general application dated 25^th September records the Claimant’s application as :

“I require to see somebody from immigration urgently because of my retention in Woodhill. I am a citizen of Holland and am a EU citizen.

Ms Freeman stated that to give this response the officer would have had to go to the Claimant’s sealed valuable property bag and checked. She said that this was a plastic bag which one could see through. If he was able to check the Claimant’s property without opening the bag then he would have been able to see the Dutch ID card and driving licence within. Given that an ID card is acceptable as evidence of nationality and given the nature of the enquiry it is very surprising that he failed to note the ID card. There is no entry in the resettlement log, as there should have been, of what he is supposed to have done nor is there any record that he contacted Immigration. One has to query whether he did anything in response to the application.

The general application dated 17^th October states :

“In stored property there is a Netherlands ID card can you please let me know the driving licence number which is printed on it also National Insurance number which is wrote (sic) on it. I need this information for immigration office”.

The action taken by the officer is recorded as “FWD to Reception”. The action taken by the senior officer includes the provision of information namely the numbers of the Claimant’s “National ID” and “Sofie nummer” (Social security number).

Ms Freeman stated that following initial meetings when CCT1s and a Resettlement Questionnaire are completed (see para 52 below), resettlement officers’ meetings with prisoners should be recorded in the resettlement log but she accepted that this did not always happen. She produced pages from the resettlement log recording meetings with the Claimant. In all the log records 4 meetings : the first on 14^th August records that permission for a telephone call was refused ; 25^th August records “immigration info and sols (solicitors) list issue(d)” ; 13^th September “sols correspondence” and 21^st October “To locate passport”. All these, save the last, has Ms Freeman’s initials alongside it indicating that she attended to the request and, she said, met the Claimant. Mr Jafar pointed out that entries are not necessarily in date order and that there are gaps in the record. There is no record of any meeting at any stage to hand over any IS91 or allied documents. I do not regard the resettlement log as a reliable record. If it were reliable it would put a serious question mark against the Claimant’s assertion that he was constantly raising his plight with the authorities and receiving no assistance.

He said that after one month in detention, just after the first week of September, he was called to the Resettlement Office, which he said was where the Home Office was based. He was asked, but refused, to sign a letter, said he was Dutch whereupon the Home Office officer, whom he thought was called Debbie Freeman, said to him “You are not Dutch, look at you, you are African”. He said he had documents but was told the documents were fake and then the interviewer read out what from a document that the Dutch Government did not want him returned. He was not shown the document. He said that in late September, after his wife found a solicitor who would help him, he sometimes received responses to the general applications he made.

He said that about a month after the first meeting he was called to Resettlement where he was told he was not Dutch and was to be sent back to Somalia. He said he was terrified. He was given a form, which he thought was the bio-data form which the Defendant has disclosed. This form contains parts which appear to have been pre-typed such as the Claimant’s Home Office reference, the Claimant’s name, date of birth and nationality (stated as Somalian), other parts dealing with members of his family and their nationalities were completed by Ms Freeman, in part she said from information held elsewhere. On the form the Claimant has written what he said had been his address in Holland, but what Ms Freeman said she thought was the address where his Dutch passport was issued. The Claimant said that when he said he was Dutch he was told he was Somali and was illegal, that he had no family or friends or documents, to which he said he gave his details again, and was asked whether he had come by boat or plane and asked whether he had been living in London. The bio-data form is dated 29^th October 2006. Ms Freeman did not record any meeting to complete this form on the resettlement log. I accept what the Claimant says of this meeting but I am unsure when it occurred. I consider it probably took place on or close to 29^th October rather than earlier.

He says that next he received the Notice of Decision to make a Deportation Order which was sent to his room. If that was how it was served it is understandable how copies later produced had no date of service filled in. He forwarded this to his solicitors.

The Claimant said that in all he had 3 meetings with “the Home Office”. He said that on each occasion he said he was a Dutch citizen, told them his documents including his ID card were in Reception and that he had a wife and children. On each occasion uniformed Woodhill staff were present. He said that on the third occasion he was asked whether he had come to the UK to plant bombs and was asked where he had planned to bomb. He said he was terrified and had not replied. He first mentioned this in his second witness statement.

The Defendant disclosed a computer record of a “surgery” meeting with the Claimant on 17^th October and later a witness statement by a Mr Stepek who had held the surgery. Mr Stepek was not called to give evidence. These surgeries were held bi-monthly and this appears to have been the only surgery attended by the Claimant. No other surgery record has been disclosed. The computer record refers only to conversation about the Claimant’s matrimonial problems and his children. There is no record of the Claimant maintaining he was Dutch. However on the same day the Claimant put in a general application seekingthe driving licence number which is printed on his ID card and his National Insurance number stating he needed this information for the “immigration office”. It would be very surprising, given his concerns, if he had not mentioned these matters to Mr Stepek.

A note dated 24^th October 2006 on the Claimant’s residential wing record states that the writer, presumably a wing officer, had contacted Milton Keynes police station on the Claimant’s behalf, that they had checked his custody record for 15^th and 24^th July when he had been taken into custody by police and there was no sign of a passport being in the Claimant’s possession on those dates. That would be understandable as the passport had earlier been surrendered to the police. The note however shows that the Claimant must have asked the wing officer to contact the police about his passport.

The Defendant’s response

Ms Freeman was the only witness called by the Defendant. At the time she was the Foreign Nationals and Legal Services Officer in the Resettlement Department at Woodhill. She was one of a department of about 12 people and said she was the lead officer dealing with immigration matters. She would respond to queries raised by Immigration. If, for example, Immigration had asked her to check the Claimant’s documents held she would have done so.

She said she knew the Claimant from his earlier period of custody and met him on many occasions. She described him as someone who had been uncooperative throughout the time she had been seeing him, aggressive and argumentative with her. She maintained she had made clear, or rather would have made clear, to the Claimant, when she met him, or rather would have met him, on his readmission to custody on 7^th August 2006 or within a week thereafter that if he had acquired a different nationality from that he had at birth he needed to provide the authorities with suitable documentation such as a passport or naturalisation document. She found it “difficult to accept” that no-one had gone to see the Claimant in his first month of detention. She said that if staff were unable to answer the Claimant’s queries, an appointment would have been made for him to see her “at the earliest possible date”. She said the Claimant never asserted Dutch nationality until after he was issued with ICD1070 in November 2006. I observe that her understanding of the address the claimant had written on the bio-data form dated 29^th October had been that it was the office which had issued the Claimant’s Dutch passport. Her response to him had been to ask him to provide the supporting information. She had not known what was in the Claimant’s property. Had she done so she would have sent the identification information off to Immigration. She said she recalled meeting the Claimant on 29^th October, explained to him who she was and that part of her job was to issue forms issued by Immigration, asked him whether he could understand English sufficiently to understand what she was saying and “the forms she would be giving him”. She did not at that point in her statement say she handed him any forms. Later in her witness statement she referred to completing the bio-data form that day.

She provided background information which helped me in understanding what information collecting systems the Defendant had in place. She explained the following.

(viii) Logs listing general applications are kept on residential wings and resettlement logs recorded applications by and meetings with detainees handled by Resettlement.

I have no doubt that Immigration was informed of the Claimant’s detention in February 2006 and of his Dutch nationality.Mr Jafar for the Claimant drew my attention to an entry in a Home Office Referral to the IND Criminal Case Work Team dated “26^th February 2007” which records on page 3 in answer to the question “Does the subject have a passport or other proof of identity” the answer “No” with the following details given :

“All items concerning passport

European ID card

Driving Licence (Dutch)

Immigration Office since February of last year 2006”.

Ms Freeman denied that the Claimant had ever until November 2006 maintained he was Dutch or asserted that his documents held at the prison were proof of that. She denied that at any meeting she had said to him “You are not Dutch, look at you, you are African”, told him his documents were fake and then read out what from a document that the Dutch Government did not want him returned (see para 44 above). She said that this assertion made her very angry and was a complete and utter lie. She said she did not discriminate as had been recognised by the Prison Service who had placed her in the top three officers in dealing with foreign nationals.

She was a witness well able to stand her own ground. Her initial claimed recollection for meetings with the Claimant became recollections of what would have happened and then what should have happened. She resisted criticism instinctively and in both her witness statement and her oral evidence she was protective of Resettlement although less protective of Immigration. Since the Defendant called no witness from Immigration to justify actions taken or to explain inaction, Ms Freeman had to face many questions which the Defendant would no doubt have hoped not to have had to answer.

Whilst the Claimant’s criminal record suggests he may not be the most reliable of persons, that record is one of violence not dishonesty. I see no reason to reject the generality of what he says happened. His evidence remained consistent in essentials. He knew at the outset, having been so informed by his barrister, as I accept, and then by letter by his solicitors, that his detention was illegal because he was a Dutch citizen. It is only reasonable for him to have complained and sought access to his identification documents. And to protest that he was Dutch and mention his documents it is the very sort of thing one would expect him to do. If he was argumentative, as Ms Freeman states, all the more to expect him to be vociferous. I did not get the impression from his evidence that he was someone who would not speak up. That he made applications for investigations into his documents is supported by the few general applications disclosed and the wing record of Milton Keynes police being contacted about his passport. I do not believe he made such requests rarely. Those documents were his lifeline. He instructed solicitors and evidently provided them with a trail to follow.

For some unexplained reason there is an almost complete lack of documentary evidence, kept by the Defendant, which could have gone to support the Claimant’s case. The following are missing :

The Claimant says, uncontradicted by the Defendant save by Ms Freeman’s assertions, and with limited support by his Resettlement Questionnaire dated February 2006 which records no behavioural issues, that he was cooperative during his period of custody from February to July 2006. He accepts he failed to cooperate from August to December 2006 and said he refused to sign any document after his initial property receipt in August 2006 because of the treatment he was receiving and fear of, in effect, signing away his security.

Having seen him give evidence and his response, especially when being cross-examined, I do not regard him as someone who would not speak up in his own interests. Yet, if Ms Freeman be correct he never at any early stage mentioned he was Dutch. The fact that no CCT1 and Resettlement Questionnaire for August 2006 has been produced suggests the possibility that no such documents were compiled for the Claimant and therefore no meeting to compile them. I do not accept Ms Freeman’s evidence that she explained or would have explained to the Claimant at the outset of his return to custody that if he had changed his nationality he should say so and produce documents in support. The Claimant’s account that he was not served with any Immigration document until early November would explain why no-one would have been concerned to visit him for the first month since, on the face of it, there was nothing to see him about. The resettlement log entries are for incidental matters until 21^st October and the earliest meeting of substance recorded was at the surgery, when an Immigration official visits the prison, on 17^th October.

I did not find Ms Freeman a satisfactory witness. It is extremely surprising that, if as she said she had dealt with the Claimant and seen him on many occasions, and being the lead officer in what was a comparatively small department, she did not know that he was claiming that he was Dutch. Late in her evidence she stated that she knew the Claimant had been claiming he was Dutch and it seemed to me that she was at this stage referring to earlier than early November 2006, or 29^th October for that matter. If she had not dealt with him save once as he says, or only on a few occasions, then as lead officer I would have expected her to get to know of his claims this from conversations with others who dealt with him. The Claimant’s evidence suggests that some prison officers dealing with him, including Ms Freeman, closed their minds to his protestations.

As to whether or not there was a meeting between the Claimant and Ms Freeman in early September where it was claimed Ms Freeman said “You are not Dutch, look at you, you are African”, told him his documents were fake and then read out what from a document that the Dutch Government did not want him returned, I accept he had a meeting with somebody in early September and that it went along the lines he described but I am not convinced it that meeting was with Ms Freeman. The Claimant initially said the meeting was with a person whom he “thought” was Debbie Freeman. Cross-examination proceeded on the basis, without demur by the Claimant, that it had been with Ms Freeman. In re-examination he said he had seen Ms Freeman walking around but had met Ms Freeman only once and in the September. He went on to say that at the meeting she had given him a form for which there was 5 days to appeal which would have dated the meeting to early November.

In re-examination the Claimant also said “My memory is not all that good. It is the dates I struggle with but I clearly remember I only saw her once”. It may well be that at this stage in his evidence he was also confusing the bio-data form with the appeal form. I am satisfied he met her when the bio-data form was dealt with, probably on or close to 29^th October.

The Defence case

The Defendant admits false imprisonment. He accepts that the basis relied on for deporting the Claimant was the Claimant’s criminality and that his term of imprisonment did not meet the 2 year threshold required for deporting EEA nationals. His case is that on 7^th August 2006 he believed the Claimant was a Somali national and decided it would be conducive to the public good to make a deportation order against him and that he did not know that the Claimant was a EEA national until this was asserted in the Claimant’s appeal, notification of which was received on 15^th November 2006, following which enquiries were made.

In his response to the Claimant’s Race Relations Questionnaire the Defendant had said :

“The Home Office on or about 8^th July 2006 recorded the Claimant as “Dutch” as well as Somali, but working from information received from the Prison Service’s Population Management Unit on or about 7^th August 2006 recorded his nationality as Somali”. This latter mistake was compounded by confusion with another Somali of similar name and sharing the same day and month of both (sic) who had previously been deported from the UK.”

But a return to the PPU is hardly a basis for detaining someone when the Defendant has other information recording a Dutch nationality and has access to information recording his Dutch nationality in a file already existing for him. Nor has the person making the decision been called to explain his/her reasoning, nor whether he/she was authorised to make the decision, even though this information has been was sought by the Claimant’s solicitors.

Details of the Somali with a similar name have been disclosed in an undated document belonging, it appears to Immigration’s Criminal Casework Team. This refers to “Hawa Abdullahi with, written alongside it, “alias Muuse Abdullahi 1/7/68 Muuse Abdullahi” with nationality stated as “Somalia”. But, as Mr Jafar points, this Somali is recorded as female, the date of birth has been altered from 1/7/68 (the Claimant’s date of birth) to “1/7/1969?” and the prison number (the Claimant’s prison number) has been crossed out. Further, the document, clearly designed to record details of a conviction or convictions has no conviction details recorded on it. All this caused Mr Jafar to question the authenticity of the document. He pointed out that in addition to the prison number, the Home Office reference is that of the Claimant and suggested this document was probably created for the purposes of creating confusion and that the earliest documents produced by the Defendant mentioning the alias “Hawa” for the Claimant are dated December 2006, by which time his nationality had been confirmed.

Mr Jafar also points out that the name Hawa was linked to the Claimant as early as August 2006. He drew my attention to 3 Home Office Warehouse print-outs, each with the same Home Office reference and same date of birth, both the Claimant’s. The first, created on 9^th August 2006 is for Abdiullah Muuse and states the nationality as Somali ; the second and third are both created on 5^th September 2006, one for “Abdullaahi Hawa” and the other for “Abdullaahi Mwse” but both state the nationality as “Netherlands”. He says the name “Hawa” is linked to a Netherlands nationality which militates against the confusion alleged. He suggests some of these names have been made up.

I am not prepared to accede to Mr Jafar’s suggestion that the documents he identifies have been created to create confusion as opposed to resulting from incompetence. But what is clear to me is that it would be difficult to see confused identity resulting from looking at the Immigration Criminal Casework Team document, and that on the computer system “Hawa” was linked to Dutch, not Somali nationality. I note too that no alias is recorded on any February 2006 record or any of the more formal records relating to the Claimant created between August – November 2006. The suggestion of confused identity seems a weak afterthought.

Nor has the Defendant explained what enquiries were made which resulted in the discovery that the Claimant was a Dutch national and precisely when the discovery was made. It is asserted that upon receiving notification of his appeal on 15^th November 2006 “enquiries were urgently made” to establish the Claimant’s true nationality but I have been provided with no evidence of what, if any, enquiries were made. All the Defendant had to do was consult the Claimant’s already existing file. No evidence has been put before me of when confirmation of Dutch nationality was received and by whom and by what means nationality had been confirmed. Nor has the Defendant explained why, once it had been confirmed that the Claimant was a Dutch national, he was not released. Nor has any explanation has been proffered for the 4 day delay beyond 11^th December 2006, or longer, if confirmation of nationality had been obtained earlier.

In short, the Defendant’s case has comprised assertion not substance.

Conclusions of fact

I find the following facts.

The Claimant’s passport has never been returned to him. I cannot on the evidence conclude that was due to failure by the Defendant as opposed to the police authority who had had custody of it, for whose actions the Defendant is not vicariously liable.

One mistake would be bad enough but at least one could be forgiven. But this number of mistakes and the failure to implement clear procedures is unforgiveable. This is an appalling indictment on the way the Home Office and HMPS were operating in 2006 when detaining the Claimant. Such conduct reflects an indifference to doing justice on the part of those who dealt with the Claimant’s case on the Defendant’s behalf.

The other heads of claim

Before dealing with damages, I shall deal briefly with the claims brought for breaches of the Data Protection Act, Unlawful Discrimination, Breach of Human Rights and Negligence.

Breach of duty under the Data Protection Act 1998

The Particulars of Claim assert that the Defendant wrongfully imprisoned the Claimant because he failed properly to process his personal data in accordance with the Data Protection Act 1998. Section 13 of the Act provides that a person suffering damage and/or distress due to a contravention of any of the Act’s requirements by a data controller is entitled to compensation from the data controller for that damage and/or distress.

Mr Jafar has not satisfied me that the Claimant has suffered any damage or distress which will not be compensated by damages for false imprisonment. I shall therefore not take this matter further.

Breach of Sections 19(B) and 20 of the Race Relations Act

The Claimant argues that that the Defendant does not normally treat European nationals as he did the Claimant and that the only reason he treated the Claimant as he did was because of the Claimant’s ethnic origin or race, that the Defendant irrationally ignored the data before him and that there was no objective basis for concluding that the Claimant was not a Dutch national but was a Somali national. In addition he relies on the fact that when the Claimant attempted to assert his nationality he was told he should go back to Africa.

The Defence denies discrimination. In his submissions Mr Poole relied on the Defendant’s Response to the Claimant’s Race Relations Questionnaire and on Section 19 D of the Race Relations Act 1976. The Response set out the case the Defendant has advanced when dealing with the claim for false imprisonment. Section 19D provides it is not unlawful for (a relevant person) to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration functions. During his closing submissions Mr Poole accepted that this provision did not provide a blanket immunity and that it could apply only to bona fide exercise of the immigration function. I agree.

I am not satisfied that his detention was the result of racial discrimination. Words such as “Look at you, you are African” and the suggestion that he should go back to Africa may cause offense, but in a prison context, where rough offensive language is not unknown I am not satisfied that such should sound in any damages which will not be embraced by my award for false imprisonment.

Breaches of the Articles of the European Convention of Human Rights, namely Article 3 (Inhuman and degrading treatment), Article 5 (right to liberty and security), Article 8 (right to respect for private and family life), and Article 14 (Prohibition on Discrimination)

The Claimant asserts that his detention without lawful authority was in breach of Article 5, that his detention and threat of deportation were in breach of Article 8, that the unlawful discrimination he suffered was in breach of Article 14, and that all amounted to a breach of Article 3.

I agree that Article 5 has been breached and, accepting as I do that the Claimant was told he should go back to Africa, that there may be a prima facie breach of Article 14. Breaches of Articles 3 and 8 are not so clear.

These very rights, save for the right not to be discriminated against, are, on the facts of this, the very rights that are protected by the tort of false imprisonment and any breaches thereof will be properly compensated for by damages for false imprisonment. I have dealt with discrimination above.

Negligence

On the facts of this case, this allegation does not add anything to the allegation of false imprisonment.

Misfeasance in public office

The Law

When considering the ingredients of the tort, having identified the two requirements that the defendant must be a public officer and acting in the exercise of his power as such he dealt at p191D onwards with the required state of mind to be proved, distinguishing between two different forms of liability for misfeasance in public office : targeted malice by a public officer, ie conduct specifically intended to injure a person or persons, conduct involving bad faith in the sense of the exercise of public power for an improper or ulterior motive ; and where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff, which involved bad faith inasmuch as the public officer did not have an honest belief that his act was lawful.

Having concluded that targeted malice did not apply in that case he concentrated on the distinctive features of the second type, concluding after stating that liability could be founded on reckless indifference :

“......in both forms of the tort the intent required must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs. This results in the rule that a plaintiff must establish not only that the defendant acted in the knowledge that the act was beyond his powers but also in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member. In presenting a sustained argument for a rule allowing recovery of all foreseeable losses counsel for the plaintiffs argued that such a more liberal rule is necessary in a democracy as a constraint upon abuse of executive and administrative power. The force of this argument is, however, substantially reduced by the recognition that subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient.Recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not, is therefore sufficient in law. “

The Claimant alleges that the Defendant’s conduct amounts to misfeasance in public office. Mr Jafar says the Defendant has given 3 explanations for his illegal conduct in detaining the Claimant : lack of knowledge of the evidence supporting the claim of Dutch nationality until November 2006 ; confusing the Claimant with another of a similar name ; and knowing of the Claimant’s evidence but not believing it. He suggests the first and third are mutually exclusive and that any alleged lack of belief is not objectively sustainable, which he says amounts to bad faith. He asserts that the confusion of identity is bad faith in itself.

The conduct of the Defendant’s officers has to be considered. There is no evidence which could justify a finding that the Claimant was the subject of targeted malice. This case, if a case of abuse of power, falls into Lord Steyn’s second category where reckless indifference to the consequences of one’s act in the sense of subjective recklessness ie not caring whether the consequences happen or not is sufficient for liability.

I have been provided with no witness by the Defendant to offer any acceptable explanation for the many failures that have occurred in protecting the Claimant’s interests. There has been wholesale disregard of the precautions which ought to have been taken to protect his interests. He was detained without thorough consideration by a responsible person of whether he should be, initially without any written authority and then without any proper authority ; documents which should have been served on him were either not issued and/or if issued were not served on him ; there were not robust, regular and documented reviews ; there was a rushed operation to deport him in disregard of his rights of appeal ; it took from 15^th November according to the Defendant (earlier on the Claimant’s case) to 11^th December 2006 for the Defendant to confirm the Claimant’s nationality when he already knew what it was and tangible evidence, in the form of the ID card, was in his control. Even then the Claimant was not released until 15^th December 2006.

I am quite satisfied that such a state of mind has been established on the part of some of the Defendant’s officers. Those concerned with the detention of others with a view to deportation and with the process of detention prior to a decision being made to deport are directed to the numerous precautions which have to be taken to safeguard the freedom of individuals. They cannot but be aware of the need to exercise great care in the decisions they recommend and / or make and the need for clear evidence to be obtained in support of their recommendations or decisions. Immigration staff made decisions about the Claimant that they could not have made had they not been indifferent to the consequences for the Claimant. Those who have the day to day care of detainees have a duty to heed the reasonable requests and assertions of detainees and have procedures to follow to ensure detainees rights are observed and that detainees are not needlessly detained. In the present case the Claimant’s requests went for the most part unheeded and I am driven to conclude that some HMPS staff did not care whether the Claimant was deported or not.

I am satisfied that misfeasance in public office is proved both against Immigration and HMPS and therefore against the Defendant.

Damages

There is no dispute that the Claimant is entitled to compensatory damages but his entitlement to aggravated and exemplary damages is challenged by Mr Poole.

In Thompson v Commissioner of Police of the Metropolis [1998] QB 498 Lord Woolf MR dealt with aggravated damages as follows :

At p516G he said of exemplary damages:

“(12)

Finally the jury should be told in a case where exemplary damages are claimed and the judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. It should be explained to the jury: (a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants; (c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public (this guidance would not be appropriate if the claim were to be met by insurers); (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.”

In Rowlands v The Chief Constable of Merseyside Police [2006] EWCA Civ 1773, where the court also upheld the long applied understanding that someone in the position of the present Defendant could be held vicariously liable for exemplary damages, Moore-Bick LJ, with whom Richards LJ and Ward LJ agreed, further considered aggravated and exemplary damages. At para 26 he stated when considering aggravated damages :

“Whether damages awarded to compensate the claimant for distress, humiliation and injury to feelings are treated as part of basic damages (as Thomas LJ suggested in Richardson v Howie [2004] EWCA Civ 1127...or are separately identified by the name of aggravated damages, the important factor to bear in mind is that they are primarily intended to be compensatory, not punitive and that any injury for which compensation has been given as part of the award of basic damages should not be the subject of further compensation in the form of an award for aggravated damages.”

Assessment of damages in the present case

The normal approach to compensatory, aggravated and exemplary damages is to approach them in that order, to proceed to aggravated damages where there are aggravating features but only to exemplary damages where it is considered that there should be a punitive award over and above the total of basic and aggravated damages : see Lord Woolf in Thompson cited above. Both basic and aggravated damages take into account the circumstances of the case and the effect of the imprisonment on the Claimant. In Thompson at page 512 Lord Woolf said of aggravated damages that they are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated. The authorities suggest that although there may be a punitive aspect to aggravated damages – Lord Woolf seems to have seen it primarily in the reaction of the Defendant - basic and aggravated damages are primarily compensatory whereas exemplary damages are punitive.

Decisions on damages

It is important that awards in cases of false imprisonment should keep in line with each other and not be out of step with awards in personal injuries cases, although, of course, each case will depend on its own circumstances. In Miller v Independent Assessor [2009] EWCA Civ 609 Kennedy LJ pointed out the need for assessors to consider the guidelines in Thompson and consider awards in the civil cases and decide how best to apply them.

Both counsel have helpfully referred me to a number of authorities on damages for false imprisonment, each adopting Thompson as the starting point. In Thompson Lord Woolf after stating that basic damages will depend on the circumstances and degree of harm suffered, stated at p515D-F :

“5)

In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for 24 hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale.”

Mr Poole referred me to R v Governor of Brockhill Prison ex p Evans [2001] 2AC 19 where the House of Lords held £5000 appropriate for 59 extra days’ detention resulting from a prison governor’s innocent and blameless interpretation of the law based on earlier court decisions and made no award of aggravated damages. In both ex p Evans and the present case the initial detention had been lawful but, as Mr Jafar pointed out, the facts of ex p Evans are far removed from the facts of the present case.

He also referred me to R v Special Adjudicator and Secretary of State for the Home Department ex parte Bouazza [1998] INLR 315, a decision of Kay J, and the assessment of damages in that case by Master Turner, also a case where detention had been initially been lawful. In Bouazza detention overall was between 30^th June 1995 and 10^th July 1996 but was held by Kay J to have been unlawful only between 8^th May and 10^th July 1996. Master Turner awarded damages of £10,000 for 63 days detention and clearly took into account the fact that from April 1996 onwards, prior to the illegal detention, the Claimant had the “horrendous news” that he was likely to be returned to Algeria where he would face persecution “and that each day spent in detention was a further day in which he feared the subsequent removal to Algeria”. He did not regard a dilatory and tardy review of material leading to the unlawful detention as justifying an award of aggravated damages. He made a separate award of £8,000 for exacerbation of psychiatric damage resulting from the unlawful detention.

I was also referred to Lunt v Liverpool Justices (CA Transcript) 5^th March 1991, which precedes Thompson and where the Court of Appeal increased a Master’s award of £13,500 to £25,000 for 42 days unlawful detention : Mr Lunt was described by Bingham LJ as “a man in later middle age, of good reputation, with no previous experience of incarceration, not in the best of health, who lost his liberty ...unlawfully, for 42 days and who did so in circumstances of extreme unpleasantness”.

Mr Poole also drew my attention to :

The judgment in Johnson records the periods of detention – an initial 6 days lawful detention followed by 53 days unlawful detention for a 64 year old West Indian – but does not record the award. This was agreed by the parties at £15,000, according to The Immigration Nationality and Refugee Law Handbook referred to by Mr Kenneth Parker QC in his judgment in B (see following paragraph). This would equate to about £17,850 today. In his closing submissions Mr Poole stated that an award of about £17,000 was made which would equate to about £19,230 today.

In The Queen on the Application of B v Secretary of State for the Home Department [2008] EWHC 3189 (Admin) Kenneth Parker QC, a Deputy High Court Judge, on written submissions, following a trial on liability, awarded basic damages of £32,000 for unlawful detention of an assumed torture victim for about 6 months, after consideration of awards set out in the JSB Personal Injuries Guidelines for Post Traumatic Stress Disorder. He awarded aggravated damages of £6,000 because the Defendant failed to apply the Detention Centre Rules and operating policies and because he maintained an unjustifiable defence to the claim. Mr Poole has pointed out that in the present case liability for false imprisonment is admitted and that both on an earlier occasion and in cross-examination he apologised to the Claimant for that illegal detention. Mr Kenneth Parker QC made no award of exemplary damages as he considered the Defendant’s serious shortcomings in his treatment of the claimant were not deliberate or intended to cause harm and the public interest did not require that, in addition, the defendant be punished for his illegality. The award in B was considered a helpful comparator by the Court of Appeal in Miller.

The claim

The Particulars of Claim described the damage as “loss of liberty, injury to feelings on account of the humiliating and/or degrading and/or discriminatory treatment during detention, deprivation of family contact and emotional damage and depression”.

In his second witness statement dated 25^th November 2008 the Claimant said :

“At Woodhill I was terrified. For a whole month no one came to talk to me, no one gave me any written explanation or any documents. I did not know why I was detained but I knew that I had rights as a Dutch citizen. During that month every morning I went to reception and filled out a general application form, asking for my documents and why am I in detention. I never got a response. No one came to see me. I could not sleep.”

He again said he was “terrified” when he was told he was going back to Somalia (see Paragraph 45 above) and he mentioned fearing for his life when the vehicle taking him to the AIT hearing stopped in some out of the way place (Paragraph 32 above). He did not otherwise deal at any length in his oral evidence with the effect of the detention on how he felt. I have not been provided with any information on conditions at Woodhill. Although I have not been provided with any medical evidence whereby I could conclude that he had been clinically anxious or depressed by his detention, I have no difficulty in concluding that he would have felt great concern about his position and what was going to happen to him and, in particular that he would have suffered considerable anxiety about whether or not he would be deported to Somalia. The longer he was detained, with no comfort from the authorities, the more anxious I conclude he would have felt, especially after being served with deportation documents. His solicitors’ success in obtaining a copy of his passport, about which he was notified, may have eased his anxiety a little, but it produced no early reaction from the Defendant. I accept his account about his aborted trip to the AIT hearing on 11^th December and of the fear he experienced when the vehicle stopped for half an hour. His general concern must still have been present when he was not released immediately following the tribunal’s decision.

As to the Claimant’s character, in his first witness statement he stated he used to take “caat” which had a “negative effect” on him and broke windows and a patio door so that his wife called the police. He said he was made the subject of a restraining order in 2003. In 2005 he was sentenced to 70 days’ imprisonment for harassment and was released on 18^th November 2005. His marriage had its troubles. It appears he had been living apart from his wife (although he retained some contact with her when in custody) and therefore his children from early 2006. I have no difficulty in concluding that separation from his children would have added to his concerns but to what extent is difficult to assess.

He was in custody lawfully from 18^th February to 8^th July 2006. This, and his pre-August 2006 experience of custody is relevant when considering the effect of the 128 days unlawful detention on him. His unlawful detention was not his first experience of prison nor was it to be his last : following his release in December 2006 he was in February 2007 rearrested and on 20^th March 2007 was sentenced to 80 days imprisonment for breach of a restraining order, in October 1997 to 10 weeks custody for breach of a restraining order and in May 2008 he was sentenced to a total of 15 months imprisonment for offences of battery, harassment and breach of a restraining order. He has attributed his post 2006 imprisonment to the consequences of his unlawful detention but I have seen no evidence to support that assertion. Most if not all of his offending appears to be linked to domestic violence.

Mr Jafar has suggested that an award of £20,000 for the first month is appropriate reducing thereafter by 10% a month, which he says would produce an award of basic damages in the region of £55,000. He suggests an award in the region of £75,000 for aggravated damages. Mr Poole has submitted an award of £20,000 is appropriate for basic damages and, if appropriate, an award of about £6,000 for aggravated damages. Mr Jafar sought exemplary damages but did not advance any figure. Mr Poole submitted exemplary damages were not appropriate.

The Claimant, having already had considerable experience of custody, would not have been subject to the initial shock and experience that first time custody can bring. I am not satisfied that in this case it would be appropriate to start with Lord Woolf’s £3000 (updated by inflation to about £4,100), for the first 24 hours. I have heard no evidence that the physical conditions of his detention were unacceptable. I am left with having to do my best with the help only of his evidence of the effect of custody on him and what I am satisfied I can fairly infer.

I have referred in paragraph 107 above to matters which I believe it appropriate to bear in mind in assessing damages. The present case is unusual, since it is not, in my judgment, one where aggravating factors may be found in the manner of arrest, or where humiliation or injury to pride and dignity play any significant part beyond that implicit in being imprisoned and for which basic damages are appropriate. This imprisonment was worse for the Claimant than simple imprisonment because it was in circumstances where he was wrongly put at real risk of deportation, with the fears and anxiety that such brought. That is something which could be allowed for as part of basic damages or by way of aggravated damages. I consider it preferable that there be separate awards of basic and aggravated damages to enable the award to be better understood. I consider the Defendant’s conduct to be so bad that it is worthy of punishment, beyond that which the Defendant may perceive in the awards of basic and aggravated damages. I propose therefore to make awards of basic, aggravated and exemplary damages.

I award £25,000 basic damages and aggravated damages of £7,500, a total of £32,500.

Mr Jafar has also sought an award for the Claimant’s loss of income during his unlawful detention and thereafter until his ID card and driving licence were returned to him on 13^th May 2007. The Claimant said in cross-examination that since coming to the UK he had been employed by at least 11 and probably not more than 20 employers, mostly it seemed for relatively short periods. I have not been provided with details of his employments and earnings. His February 2006 Resettlement Questionnaire recorded his main source of income as “benefits”. As events turned out he was returned to custody in early 2007, shortly after being released and therefore unable to work when detained.

I am not prepared to find he would have been in employment during his period of unlawful detention nor, so far as the period December 2006 – May 2007 is concerned, that when at liberty he would have been able to earn more than any benefits he would have been entitled to. I am afraid this claim fails for lack of evidence.

Exemplary damages / damages for misfeasance in public office

There is inevitable overlap in the factors which are relevant to aggravating and exemplary damages and damages for misfeasance in public office. As Lord Woolf pointed out in Thompson at p513A “the very circumstances which will justify an award of aggravated damages are probably the same as those which make it possible to award exemplary damages”. It seems to me that in a case like the present any award of exemplary damages will likely equate if not exceed any award for misfeasance in public office, save possibly for specific of heads of damage advanced. Care has to be taken to avoid double counting.

But what makes the Claimant’s imprisonment far more serious than the more usual case, which itself is serious enough, is the high handed and oppressive way in which it was not only initiated but maintained for such a long time in complete disregard of laid down procedures. The decision to imprison him, keeping him in custody without good cause and adequate explanation, disregard of the concerns I am satisfied he expressed to prison officers, acceleration of his deportation in early November, when his nationality could easily have been confirmed from the outset, not publicly acknowledging his nationality until 11^th December and then not ensuring his immediate release were individually and cumulatively “high handed” and “oppressive”. These factors, in my judgment justify a significant punitive award.

In Thompson at p516G Lord Woolf said :

“(13)

Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.”

I consider the conduct of the Defendant’s servants or agents is particularly deserving of condemnation. I consider exemplary damages of £27,500 are appropriate.

I do not consider it appropriate to make any further award for misfeasance in public office.

Finally, I have considered whether adding these awards to total £60,000 produces an award out of proportion to the facts and merits of this case and is out of line with other decided cases. I conclude it does not.

Although a declaration was claimed that has not been pursued.

I will hear any applications, if the parties cannot agree an appropriate order. JLW QC