Wamala v Secretary of State for the Home Department & Another

MR JUSTICE MITTING: The claimant is a 43-year-old citizen of Uganda. He has a chequered immigration and criminal history. In July 2010 he was detained under immigration powers and 14 December 2011. Directions were set for his removal to Uganda via Cairo on a flight departing at 1400 from Heathrow. Information provided by the Home Office to the second defendant, the contracted escorts, led them to believe that he posed a risk of violence to the escorts. The information was, it is common ground, wrong. On 23 December 2011 the claimant issued judicial review proceedings to restrain removal. They were refused by the Administrative Court and on appeal by the Court of Appeal, who certified that his application for permission to appeal was totally without merit. On 24 December 2011 an attempt was made to remove him. The claimant was taken by van by the second defendants to Heathrow. An attempt was made forcibly to put him on a plane. The plane was not that specified in the removal directions but a different plane going by a different route via Doha departing at a different time, 20:30, and was not, as far as I can tell from the documents to which I have been referred, the subject of removal directions. Eventually he was got on to the plane after something of a struggle. The captain of the aeroplane directed that he be removed. He was. He was forcibly removed from it and claims that he was dropped on the stairs of the aircraft while being removed, and then he was then taken to Colnbrook Detention Centre. He was eventually released on bail on 31 January 2013 and has been granted temporary admission to permit him to pursue this claim.

A claim form was issued on 15 October 2012. By it the claimant claims damages in the range £25,000-£50,000. He relies on a number of causes of action. The obvious and principal one is a claim for damages for trespass to the person arising out of the events on 24 December 2011. However, and unusually in what ought to be a simple case, there are many other claims: first, for defamation in the documents which inaccurately described him as posing a risk of violence to escorts; secondly, for negligent misstatement in those documents; thirdly, for breach of the Data Protection Act 1998; fourthly, for false imprisonment; fifthly, for breach of his human rights under Articles 3, 5 and 8. By an amendment which was permitted after the claim form was issued, in one sentence he mentions a duty of care in relation to his handling inside the aeroplane but there is no discrete claim for damages for personal injury caused by negligence.

The Home Office admits that he was detained and asserts that his detention was lawful. It does not clearly state in its defence whether or not the attempt to put him on the different aeroplane was lawful or not and, if so on, what basis it was lawful. The second defendant admits the forcible restraint of the claimant and forcibly carrying him onto and off the aeroplane but asserts that that was lawful. As regards the claim for defamation, the Home Office pleads absolute privilege. It denies the remainder of the claims.

The claim form as amended runs to 42 pages and has 140 paragraphs. For a claim which fundamentally arises out of a single, short-lived incident on one day, that fact alone is remarkable. In truth this claim turns upon one issue: was the attempt to take him to Heathrow, to put him on the aeroplane, to keep him there and then to remove him lawful or not? That in turn depends upon whether or not there were in place lawful removal directions permitting that to occur. So far I have been referred to nothing which suggests that there was. If there was not then the simple claim for damages for personal injury caused by trespass to the person must succeed. The only issues then will be what was the extent if the injury and what, if any, financial and other consequences there has been.

On 5 February 2013 Master Cook gave directions with a view to a trial of this claim in a window beginning 4 June and ending on 31 July 2013. That window was not achieved. On 7 October 2013 at a pretrial review directions were given for a trial in May 2014. Dates have been identified. A week has been set aside for the trial. On 31 October 2013 the claimant applied for permission to rely on the evidence of an expert in restraint techniques, Mr Barkend. As Master Cook observed, he is an acknowledged expert in restraint techniques. He has indeed appeared not only for claimants but also for the Home Office in the past. He is fully familiar with them. Like Master Cook, I am satisfied that he would be able to give expert evidence about the use of restraint techniques.

The need for his evidence only arises even theoretically, however, if the use of force in the circumstances which I have described was lawful. If it was then it is for the second defendant, those who used the force, to prove that the force used was no more than was reasonably necessary to achieve the lawful purpose. That is what the second defendants have pleaded expressly in their amended defence at paragraph 6.3.

Behind or underlying or tangential to that fundamental question, however, there exists a further issue. Mr Hickman claims that it is a relevant question: whether or not those who used force complied with the requirements of the Prison Service Use of Force memorandum, an obligation imposed upon the second defendants by its contract with the Home Office. Mr Hickman says that the second defendants assert that they complied with the requirements of the memorandum. He says there is reason to contend that they did not, and that in any event the use of certain techniques in the confined space of an aircraft cabin is not prudent, to such an extent as it may amount to the use of excessive or negligent force. Mr Barkend would be able to give evidence about that provided, as has now happened, he is able to deploy the memorandum, a document with which he is fully familiar.

When the application came on before Master Cook for permission to obtain an expert report from Mr Barkend and then to rely upon it as written evidence and if necessary to rely upon his oral evidence, the case was going to be heard in its entirety. That is not now going to be the position. First of all there will be a preliminary issue. Only if that preliminary issue is decided against the claimant will Mr Barkend’s evidence even tangentially be relevant.

Master Cook decided that a judge would not be materially assisted by expert evidence on the issue which would arise for decision if the use of force was in principle lawful. In his judgment the court would be able to come to a fully informed decision on that question without the need to consider expert evidence.

The question which arises for decision on the appeal is whether or not Master Cook was right to reach that view. In my judgment he was. What is and is not excessive when force is being lawfully applied is to be determined by the general law and not by the detail of a Prison Service manual incorporated into a contract with an escorting agency. Whether or not the standards of the general law were complied with in this case is a question of fact for the trial judge.

Although I acknowledge that it is tangentially relevant to examine the standards which the Home Office impose via the Prison Service Use of Force manual on the escorting agency, it does not begin to address the fundamental question: was force, if force could lawfully be used, excessively applied on the facts of the case? As far as that is concerned, it is simply for the judge to determine.

Furthermore, had this issue been more than tangential, I, like Master Cook, would still have had regard to the state of play in the proceedings, the issues at stake and the amount of money that has already been spent. I am told that the claimant’s estimate of his costs as between the parties to date is £185,000. It is said that a further £62,000 will be incurred if the case were to be brought to trial on all issues. For a claim initially pitched at between £25,000 and £50,000 and now put tentatively at perhaps a little more than £50,000, that is a breathtaking sum of money. To spend yet more money, and quite a lot as I should explain, on evidence on a tangential issue is in my judgment completely unjustified. The cost of preparing a report by Mr Barkend would be between £8,000 and £10,000. If he were required to do anything in addition to preparing a report, such as attending a meeting between experts or giving evidence and being cross-examined, he would charge £280 an hour. No doubt those are reasonable sums for the expertise that he deploys, but to deploy them at that expense on an issue which is on any view at best tangential is in my judgment unjustified, or, in the modern jargon, disproportionate, and while I agree with Master Cook that the court can determine these issues without the need for expert evidence, I would also have refused to authorise the expenditure of those sums, as it happens of taxpayer’s money, on obtaining his report.

For those reasons this appeal is dismissed.