Wamala v Tascor Services Ltd

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Overview, outcome, background, concerns, issues

The course of the trial

The legal framework

Mr Wamala’s mental health

Mr Wamala’s physical injuries

Damages

Conclusion

This claim arises from events on a crucial day, 24 December 2011. In this judgment I refer to that crucial day simply as “Christmas eve”. The claim relates to the use of force, and the threatened use of force, against the claimant, Mr Felix Wamala, by employees of the defendant, a company which has changed its name and is now known as Tascor Services Ltd. At the time of relevant events its name was Reliance Secure Task Management Limited.

The defendant was referred to as “Reliance” throughout these proceedings, and I shall do the same in this judgment. It did not dispute that, in the circumstances of the present case, it would be liable for legal wrongs committed by its employees. Accordingly, where it is convenient to do so and clear from the context that this is what I have done, I have from time to time used the abbreviation “Reliance” to include its employees. This and other abbreviations and short forms used in this judgment are set out in Annex 1.

In order to decide the claim the court must apply UK statutes, in particular the Immigration Act 1971 (“the 1971 Act”) and the Immigration and Asylum Act 1999 (“the 1999 Act”). The court must also apply fundamental principles of the common law of England and Wales.

In the present overview section A1.2 gives a brief description of some key documents, as a prelude to section

Section A2 below deals with the background prior to 23 December 2011, while section A3 deals with background events on 23 December 2011 and on Christmas eve.

In section A4 I deal with beliefs and concerns which Mr Wamala described and which I consider shed much light on Mr Wamala’s perception of events. Section A5 sets out the issues at trial.

Section B below deals with the course of the trial generally, and makes observations on the factual witnesses and expert witnesses. Section C deals with the legal framework. Section D analyses the evidence concerning Mr Wamala’s mental health. Section E analyses the evidence concerning Mr Wamala’s physical injuries. In section F I make findings as to what happened on Christmas eve. Section G deals with Mr Wamala’s claim for damages, and section H summarises my conclusions.

In December 2011 Mr Wamala was in immigration detention at Brook House Immigration Removal Centre (“Brook House IRC”), located at Gatwick Airport in West Sussex. Brook House IRC was run by G4S, a private organisation, under contractual arrangements with the Home Office.

On 16 December 2011 Mr Wamala was given a notice issued by the United Kingdom Border Agency (“UKBA”, part of the Home Office) informing him that directions had been given for his removal to Uganda. For reasons which will become apparent I shall refer to this notice as “Mr Wamala’s MS778 notice”.

Shortly before 2pm on 23 December 2011 Mr Wamala sent a fax to UKBA. It included a sealed copy of an application for permission to apply for judicial review (“Mr Wamala’s removal JR”). Mr Wamala’s removal JR had been issued by the Administrative Court earlier that day. The fax also included a covering letter referring to policy under which UKBA would “normally defer removal where a JR application has been properly lodged…”. Relying on this policy Mr Wamala sought deferral of his removal.

Mr Wamala’s MS778 notice stated that Mr Wamala was to be removed on flight MS778, scheduled to depart at 2pm on Christmas eve. “MS” is the code for EgyptAir. Flight MS778 was scheduled to depart from Terminal 3 at Heathrow airport. If Mr Wamala were to be removed on flight MS778 at its scheduled time of departure, then in the ordinary course he would have been collected from Brook House IRC mid-morning. It is difficult to see how he could be put on the flight at its scheduled departure time if he were collected from Brook House much later than noon. However noon came and went without him being collected. Indeed 2pm, the scheduled departure time, came and went without him being collected.

Reliance is a private contractor. From May 2011 onwards it provided immigration escort services under contractual arrangements with the Home Office. At around 3pm on Christmas eve, after flight MS778 had departed, Reliance employees asked for and took custody of Mr Wamala at Brook House. They transported him in their van to Heathrow. Their intention was that at Heathrow he, accompanied by 4 of the Reliance employees, would be put on Qatar Airways flight QR2 to Doha in order to connect with an onward flight to Uganda. Flight QR2 was scheduled to depart from Heathrow Terminal 4 at 8.30pm on Christmas eve. At Heathrow Terminal 4 they put Mr Wamala on an Airbus A340-600 aircraft (“the aircraft”) used by Qatar Airways for flight QR2. A struggle occurred on board. Force was used by Reliance employees on Mr Wamala. The captain then refused to carry Mr Wamala. Reliance employees took Mr Wamala off the aircraft, put him in their van, and took him to Colnbrook Immigration Removal Centre.

Mr Wamala brought the present proceedings against the Home Office as first defendant and Reliance as second defendant. He sought, among other things, aggravated and exemplary damages for defamation, negligence, false imprisonment, assault and battery, and personal injury. On 28 March 2014 Mr Justice Mitting ordered that a preliminary issue be tried of the following question (“the March 2014 question”):

On 20 June 2014, however, a different course was adopted. On that day Mrs Justice Patterson granted a declaration (“the June 2014 declaration”) that:

Also on 20 June 2014 Mrs Justice Patterson directed that determination of the March 2014 question be adjourned generally pending the trial of the present action. Among other ancillary directions provision was made to enable case management directions to be given for trial.

On 25 November 2014 a consent order was made as between Mr Wamala and the Home Office. Under that order, upon the giving of certain undertakings by the Home Office, Mr Wamala discontinued his claim against the Home Office. These proceedings have, since 25 November 2015, continued as a claim against Reliance alone.

Reliance did not, and does not, dispute the June 2014 declaration. Nevertheless it maintains that its employees were entitled use force against Mr Wamala in circumstances which are broadly described in section A1.5 below, and are described in more detail in later sections of this judgment.

At the trial before me Mr Tom Hickman, instructed by Deighton Pierce Glynn (“DPG”, an abbreviation which I also use for its predecessor firms Deighton Guedalla and Pierce Glynn), appeared for Mr Wamala. Lord Marks QC, instructed by Horwich Farrelly, appeared for Reliance. Mr Wamala gave oral evidence. A number of other witnesses gave oral evidence for Reliance. Expert evidence, on orthopaedic and psychiatric matters respectively, was given by Mr Saeed Mohammad and Professor Cornelius Katona for Mr Wamala, and by Mr Stuart Matthews and Dr Darryl Britto for Reliance. Oral submissions by counsel were supplemented by written submissions and further written observations, which were completed on 6 November 2015. I thank the legal teams on both sides for the assistance which has been provided to me. The delay in producing this judgment has occurred as a result of illness on my part.

As discussed in more detail in section B1 below, at the trial I was shown video extracts of CCTV footage recorded in the Reliance van. The sound quality of the video was variable. In relation to what was said, I was assisted by a document prepared by UKBA’s Professional Standards Unit in response to a complaint to UKBA by Mr Wamala. A team led by Ms Sally Beck, investigating officer, in addition to seeking information from those who had witnessed events, assembled recordings made by the CCTV cameras in Reliance’s van. A report (“the Beck report”) was produced on 12 March 2012. Among other things it contained summaries of what could be seen and heard on the recordings. In subsequent sections of this judgment I refer to certain of these summaries.

There are four further things to mention about the Beck report and the CCTV evidence:

Much of what happened in the aircraft, and when getting Mr Wamala into and out of the aircraft, is in dispute. However it is not in dispute that, using the CCTV timings:

Getting Mr Wamala from the van to the top of the staircase and into the aircraft was uneventful. It would not have taken long – perhaps a minute. My rough timing for Mr Wamala’s arrival on board the aircraft is thus 19:54. Getting Mr Wamala down the staircase took much longer. It was probably 3 minutes or so before the process of transferring him to the van began. My rough timing for Mr Wamala’s exit from the aircraft is thus 19:59.

On this basis Mr Wamala was on board the aircraft from 19:54 to 19:59, roughly 5 minutes. This period is likely to have comprised no more than a minute before Mr Wamala went to the floor, roughly 2 minutes on the floor before the captain’s direction was relayed by the crew to the escorts, and roughly another 2 minutes for the struggle to come to an end, for Mr Wamala’s left hand to be put in the handcuffs, and for Mr Wamala to be transferred to a position near the door.

The 5 minute period that Mr Wamala was on the aircraft was a period of frenetic activity. The 3 minute period from shortly after boarding until the captain’s direction was relayed was a period of particularly intense and frenetic activity. It occurred in a small physical space. Even in the immediate aftermath of the incident it is likely that recollections would differ. In these circumstances it is neither necessary nor desirable to conduct an elaborate analysis of accounts given by particular individuals at particular times over the period since the incident. In section F below I make findings which give a broad picture of what happened. I make findings on points of detail only when doing so may help me to make findings on key features of the broad picture.

Mr Wamala claims damages (“ordinary damages”), aggravated damages and exemplary damages. I shall refer to these three types of damages together as “the overall damages”. Mr Wamala’s claim form and amended particulars of claim had sought such damages by alleging that a number of legal wrongs had been committed. At the trial, however, the legal wrongs asserted by Mr Wamala were limited. First, it was said that Reliance was responsible for two types of trespass to the person. These were battery, constituted by force that was used upon Mr Wamala, and assault, constituted by the threat of battery. Second, it was said that the overall damages could equally be awarded for breach of article 3 of the European Convention on Human Rights (“ECHR”).

As regards both types of alleged trespass to the person, and as regards the alleged breach of article 3, Mr Wamala’s case was, in broad terms, advanced on two alternative bases. The first, which I shall call “Mr Wamala’s primary claim”, was that Reliance had no authority to use force against him. In that regard, Mr Wamala said that:

The second basis, which I shall call “Mr Wamala’s alternative claim”, arose only if Reliance had an entitlement to use force on him. In that event, Mr Wamala’s alternative claim was that the type or degree of force in fact used by Reliance was not permitted by that entitlement.

Other bases for seeking damages were not pursued. In particular, a claim for damages for false imprisonmentwas no longer advanced. In that regard, Mr Wamala accepts that if he had not been picked up by the escorts on the afternoon of the Christmas eve he would have remained in immigration custody throughout that day.

The ordinary damages sought by Mr Wamala are for both physical injuries and mental injuries. As regards physical injuries, he says that these occurred to his hands and wrists, neck, back, shoulders and legs. As regards mental injuries, in addition to claiming for assault, Mr Wamala claims damages for major depressive disorder (“MDD”), and for post-traumatic stress disorder (“PTSD”), saying that the use of force against him materially contributed to both these illnesses.

Reliance says that it had both statutory and common law entitlements to use force on Mr Wamala. Alternatively, if Reliance were held not to have such an entitlement, or to have gone beyond what was permitted, it says that Mr Wamala cannot complain about injuries arising from his own use of unreasonable force. Reliance adds that Mr Wamala has exaggerated his physical injuries. As to mental injuries, it is common ground that Mr Wamala suffers from MDD and PTSD. However Reliance rejects the contention that these disorders arose from the events on Christmas eve. Relevant mental injuries, says Reliance, have arisen from other causes.

For reasons given in this judgment I conclude that:

Mr Wamala is a citizen of Uganda. He was born there on 10 December 1970 and is of black African ethnicity.

Mr Wamala’s re-entry into the UK in 1999 was, among other things, a breach of the deportation order. From the moment that he re-entered the United Kingdom he was an “illegal entrant” as defined in s 33(1) of the 1971 Act.

Mr Wamala has said that he returned here because his deportation to Uganda led to him being tortured there. It is common ground that during this period in Uganda Mr Wamala was in fact tortured there.

In 2003 he was granted temporary admission pending consideration of a claim to stay here. From 17 July 2010 onwards he was held in immigration detention.

In order for Mr Wamala to be kept in detention a form IS.91 was completed by a UKBA immigration officer. As so completed I shall call it “the detention authority”. The front page of the detention authority stated:

Beneath the passage quoted above the remainder of section 1 of the detention authority had a space in which a photograph of Mr Wamala was inserted. Other details inserted in that space were the name, “Brynner MVOI”, a date of birth of 1 January 1968, and an indication of Kenyan nationality. This name, along with the date of birth and nationality, had appeared in the false passport used by Mr Wamala when committing the drug smuggling offence which led to his imprisonment.

Section 1 of the detention authority also provided for information to be set out in relation to an alias. Here details were inserted of Mr Wamala’s correct name, nationality, and date of birth.

Page 2 of the detention authority recorded that Mr Wamala was the subject of a deportation order, and was a person whose detention had been authorised by the Secretary of State under paragraph 2(3) of schedule 3 to the 1971 Act.

Section 3 on page 2 of the detention authority dealt with risk factors. Here a tick was placed in a box indicating “Violence Toward Or Assaults On Others.” In that regard a comment was added:

It is not in dispute that by December 2011 Mr Wamala had been concerned for some time that Home Office files suggested he had assaulted a police officer. In correspondence with DPG the Home Office eventually accepted that Mr Wamala was never charged with an offence of assault on a police officer. Concern remained that, despite what had been accepted by the Home Office, Mr Wamala was treated as if he had been wanted by the police for such an offence. This led to a telephone conversation between DPG and UKBA on the morning of 22 December 2011. At DPG’s request, UKBA wrote that day confirming that Mr Wamala’s records on Home Office files, including computer records, had been amended to reflect that he was never charged, convicted nor given conditional discharge for the alleged offence of assault on a police officer.

The confirmation given by the Home Office was inaccurate. On 22 December 2011 the detention authority continued to include the comment set out above. The statement that Mr Wamala was wanted for an assault on a police officer, and the consequent assertion that he posed a risk of violence towards others, remained on the detention authority until after the events with which this case is concerned.

Page 3 of the detention authority was headed:

This was followed by a table with a series of rows in which a record could be made of each place of detention, the relevant detaining agency, and the date and time that detention commenced. Row 1 identified Mr Wamala’s initial place of detention as Peckham Police Station, the detaining agency being UKBA, with detention commencing at 13:05 on 17 July 2010. The transfer record indicated that Mr Wamala was then detained for a period in HMP Brixton. From 27 July 2010 onwards his place of detention was Brook House IRC, for which the detaining agency was G4S.

Section 5 of the detention authority, headed “Outcome”, enabled insertion of the date and time when the detainee was removed from the UK or released, and was to be completed by the custodian at the time of removal or release. Section 6 made provision for risk factors to be reviewed and withdrawn.

Mr Jimmy Mubenga was an Angolan national who had been released from a period in custody in this country following a criminal conviction. He was due to be removed to Angola on the afternoon of 12 October 2010, using a scheduled British Airways flight. Mr Mubenga boarded the flight accompanied by immigration escorts. About twenty minutes after boarding, and before the plane began to taxi towards the runway, the escorts used force to restrain Mr Mubenga. His hands were cuffed behind his back and he was manoeuvred into a seat in the back row of the plane. When the plane began to taxi towards the runway the escorts realised that Mr Mubenga was unconscious and not responding. The plane returned to the stand, where paramedics attended and made attempts to resuscitate Mr Mubenga. Those attempts were unsuccessful: Mr Mubenga was transferred to hospital where his death was later confirmed. A post-mortem report concluded that he died from cardiorespiratory collapse, caused by restraint.

Mr Wamala’s unchallenged evidence was that Mr Mubenga was in a room next to Mr Wamala at Brook House IRC up until the attempt to remove Mr Mubenga on 12 October 2010. Mr Wamala got to know him. Mr Wamala added:

Mr Mubenga’s death attracted significant public concern. An inquest into his death was held after the eventswith which the present case was concerned. The jury at the inquest concluded that Mr Mubenga’s death had been caused by the restraint to which he had been subject, and that his death was unlawful. Following the inquest, Assistant Deputy Coroner for Hammersmith and Fulham issued a report under rule 43 of the Coroner’s Rules 1984. The report concluded, among other things, that:

On 10 February 2011 decision letters were signed on behalf of the Home Secretary. They concerned Mr Wamala’s application for revocation of the deportation order and his application for the grant of asylum. Both applications were refused. Mr Wamala’s appeal against those decisions was heard by the First-tier Tribunal on 24 June 2011 and dismissed. An application to the First-tier Tribunal for permission to appeal was refused on 4 August 2011. The application for permission to appeal was then renewed to the Upper Tribunal. The Upper Tribunal refused that application on 24 November 2011. The result was that on 24 November 2011 Mr Wamala’s appeal rights were exhausted.

Mr Wamala nevertheless continued to try to find ways in which he could lawfully remain in the UK. Applications by him in this regard were received by the Home Office on 16 and 23 December 2011: see section

On 14 December 2011 UKBA, using form IS.152B, issued directions (“EgyptAir’s MS778 directions”) addressed:

The heading to form IS.152B describes it as “Notice of directons to remove an illegal entrant/other immigration offender or a family member of such a person”. As I understand it however form IS.152B can, and in the present case did, perform a number of roles:

EgyptAir’s MS778 directions comprised directions by the Secretary of State to remove Mr Wamala from the United Kingdom by MS778 to Cairo at 14.00 hours on Christmas eve connecting with MS837 at 21:45 hours the same day. As completed, form IS.152B in addition to setting out EgyptAir’s MS 778 directions ,among other things:

Also on 14 December 2011 Mr Wamala’s MS778 notice was issued by UKBA, using form IS.151D. Although this form was headed “Removal directions issued to an illegal entrant/other immigration offender or a family member of such a person”, it in fact constituted a notice of EgyptAir’s MS 778 directions to be given to Mr Wamala. It stated:

Mr Wamala’s MS778 notice was recorded by Brook House IRC on 16 December 2011 as having been served on Mr Wamala.

Carson Wagonlit Travel UK Ltd (“CWT”) was the Home Office’s travel agent at Heathrow. On 13 December 2011 it had received an email from Gabriella Allman of the Home Office asking for travel arrangements to be made for Mr Wamala’s removal to Kampala.

Once such arrangements are made they are displayed on the ViewTrip website. This is a limited access website used by the Home Office, CWT and Reliance to record and to access ticketing and travel information for those who are being removed and their escorts.

At 11:54 on 14 December 2011 CWT emailed Reliance seeking the names of those who were to act as escorts for Mr Wamala’s removal. The email did not set out a detailed itinerary for relevant flights, but instead contained a link to the ViewTrip website. There is no reason to doubt that at this stage the itinerary for Mr Wamala on that website showed the EgyptAir flights described in Mr Wamala’s MS778 notice.

However at 16:18 on 14 December 2011 CWT emailed the Home Office and Reliance advising that the itinerary had been changed to fly on Qatar Airways at a later departure time. In this regard CWT advised that the original EgyptAir flight no longer had available seats, and that the new itinerary was a more cost effective option. This email, too, did not set out a detailed itinerary for relevant flights, but instead contained a link to the ViewTrip website. There is no reason to doubt that by 16:18 on 14 Decembe r2011 the ViewTrip website had been altered so as to show Mr Wamala as departing from Heathrow at 8:30pm on Christmas eve on flight QR2 to Doha for onward travel on a connecting flight to Kampala.

However UKBA did not cancel the EgyptAir MS778 directions. Nor did it withdraw Mr Wamala’s MS778 notice. Instead it served Mr Wamala’s MS778 notice on DPG on 15 December, and on Mr Wamala himself on 16 December: see section A2.7 above.

On 19 December 2011 a 2 page document was prepared by the Detainee Escorting & Population Management Unit (“DEPMU”, part of UKBA). It was on form IS.278, entitled:

I shall refer to this type of document, whether or not on form IS.278 and whether or not relating to a removal direction, as a “movement notification”. The movement notification prepared by DEPMU on 19 December 2011 was addressed to Reliance, and stated:

The remainder of the movement notification contained a table setting out information relevant to themovement. The departure location was Brook House IRC. The destination location was described as: Heathrow TN3

As regards the “detainee as detailed below”, the table stated that the family name was “Mvoi”, and the forenames were “Brynner Mwaburi”. However on the following line in the table aliases were set out, the first of which was “Felix Brunner Wamala”.

In relation to Mr Wamala’s removal, the table gave a date and time of “24 December 2011 at 14.00”. It identified the flight number as MS778.

The last entry in the table, on page 2 of the document, was concerned with a “Non Medical Risk Analysis Description”. In relation to “Criminal Activity” this entry in the table stated that Mr Wamala was wanted by police for assaulting a police officer. The statement that Mr Wamala was wanted by police for assaulting a police officer was repeated later in the entry, in a passage dealing with “Disruptive Behaviour”.

It will be apparent from this movement notification that:

This movement notification stated that it was created by Harry Sidhu of DEPMU on 19 Decembe r2011 at 11:13. At the foot of the first page, in spaces designated for “Signature” and “Date”, there was written in manuscript “Harry” and “19/12/11”. It thus seems clear that after creating the document at 11:13 on 19 December 2011 Mr Sidhu signed it later that day. I shall refer to the document, at the stage immediately after being signed on 19 December 2011, as “the MS778 movement notification”.

In section A1 above I have described the issuing of Mr Wamala’s removal JR on 23 December 2011, and Mr Wamala’s fax to UKBA shortly before 2pm that day informing UKBA of this and seeking deferral of his removal. I describe in section A3.2 and A3.3 below how an earlier judicial review claim by Mr Wamala was finally disposed of on 23 December 2011, and how UKBA utilised this later that day in a letter refusing Mr Wamala’s request for deferment of his removal. In section A3.4 below I deal with the outcome of Mr Wamala’s removal JR. The arrangements for Reliance’s escorts which were put in place on 23 December 2011, and the corresponding arrangements set out on the ViewTrip website, are described in section A3.5 below. Section A3.6 below deals with the faxing to Reliance of, and alterations which are now accepted to have been made by Reliance to, the MS778 movement notification. In section A3.7 below I describe an exchange of letters between Mr Timms MP and UKBA on 23 December 2011 and Christmas eve. The remaining events on Christmas eve are dealt with in section F below.

On 23 December 2011 an order (“the Rix refusal”) was made by Lord Justice Rix, sitting as a single judge of the Court of Appeal, Civil Division. It concerned an application for permission to apply for judicial review (“Mr Wamala’s detention JR”) which had been made by Mr Wamala as a litigant in person on 13 June 2011.

The application for permission to appeal came before Lord Justice Rix for consideration on the papers. The Rix refusal rejected that application, described it as being totally without merit, and barred any request for this rejection to be reconsidered at an oral hearing. It also refused an application by Mr Wamala for a stay of execution.

The Rix refusal contained written reasons for rejecting the application for permission to appeal. Paragraph 1 of the reasons noted the decisions of Mr Charles George QC and Mr Clive Lewis QC. Paragraph 2 of the reasons noted the decisions of the First Tier Tribunal and the Upper Tribunal described in section A2.4 above. In paragraph 3 of the reasons Lord Justice Rix noted that the claim for judicial review was “formally in respect of the decision to detain” Mr Wamala pending deportation. In the same paragraph Lord Justice Rix noted that Mr Wamala’s claim “also seeks informally to raise anew all the asylum and human rights grounds which have been concluded against him”.

In both these respects the Rix refusal said in paragraph 3 that the claim for judicial review: is totally without merit: for all the reasons contained in the decisions referred to herein.

Mr Wamala had not learned of the Rix refusal at any stage prior to being put in the Reliance van at Brook House IRC on Christmas eve.

At a late stage on 23 December 2011 an official of UKBA signed a letter to Mr Wamala responding to the fax that Mr Wamala had sent from Brook House IRC (see section A1 above). The letter enclosed a copy of the Rix refusal. The letter explained that relevant policy guidance no longer required automatic deferral of removal directions if the judicial review application said to warrant deferral were lodged within 3 months of the conclusion of a previous judicial review on the same issues or similar grounds. The letter noted that Mr Wamala’s removal JR sought to rely on matters that were raised or could have been raised in his application for permission to appeal the order of Mr Clive Lewis QC.

I shall refer to this letter as “the UKBA refusal to defer removal”. It is plain from the letter that, even at this late stage on 23 December 2011, UKBA believed that Mr Wamala’s removal was to take place in accordance with Mr Wamala’s MS778 notice. The essence of the position adopted by UKBA can be seen from the following passages in the letter:

Mr Wamala had not learned of the UKBA refusal to defer removal at any stage prior to being put in Reliance’s van at Brook House on Christmas eve.

When Mr Wamala’s removal JR was issued it was not accompanied by a request for urgent interim relief. If it had been accompanied by such a request then the matter would have been put before a judge for immediate consideration on the papers. Mr Wamala appears to have considered that such a request was unnecessary. No doubt this was because of his belief that he could rely on the policy cited in the letter that he faxed to UKBA on 23 December 2011.

That belief, however, proved to be mistaken. In the absence of any request for urgent relief, Mr Wamala’s removal JR did not come before a judge until 19 March 2012 when Ms Elisabeth Laing QC considered the matter on the papers.

Ms Laing QC’s order, made that day, refused permission to proceed. The order set out reasons which can broadly be described as identifying two grounds for the refusal of permission. The first was that the previous directions for Mr Wamala’s removal had been cancelled, and the claim was therefore academic. The second was that Mr Wamala’s outstanding representations had been considered in a letter from UKBA dated 8 February 2012. That letter had concluded that none of the matters raised by Mr Wamala amounted to a fresh claim for asylum or human rights purposes. Ms Laing QC commented that there was no arguable error in that conclusion and that there was now no legal obstacle to Mr Wamala’s removal.

By the evening of 23 December 2011 Reliance had identified the team of escorts to collect Mr Wamala from Brook House IRC. The team was led by a Senior Detention Custody Officer (“Senior DCO”), Mr Ian Charles.

The escorts who were to travel with Mr Wamala to Kampala were thus Mr Charles, Ms Govey, Mr Duke and Ms Lee. Their names were emailed by Reliance to CWT at 18:31 on 23 December 2011. At 19:48 a reply was emailed by CWT stating that this “name change request has now been completed …”

Reliance’s records include printouts of two “snapshots” from the ViewTrip website. The first snapshot set out the travel bookings made for Mr Charles, Ms Govey, Mr Duke and Ms Lee. The second snapshot set out the travel bookings for Mr Wamala. On both these printouts, the outward flights begin with QR2, departing from Heathrow Terminal 4 at 20:30 on Saturday Christmas eve, and arriving at Doha at 06:10 on Sunday 25 December 2011. The printouts then showed a continuation outward flight departing Doha at 08:00 on Sunday 25 December 2011 and arriving at Entebbe airport (for Kampala) at 13:30 the same day.

As part of pre-trial preparation, documents disclosed by Reliance as being held by it included a movement notification (“the purported QR2 movement notification”). A photocopy, which was in black and white, was supplied to Mr Wamala’s legal team. At the top of both pages of the document were standard imprints recording that it had been faxed by DEPMU to Reliance at 7:41 on 23 December 2011. In all other respects the typewritten part of the document was identical to the typewritten part of the MS778 movement notification. However the purported QR2 movement notification included more manuscript annotations than appeared on the MS778 movement notification. The manuscript annotations appearing from the photocopy of the purported QR2 movement notification were:

Until late March 2015 Reliance’s case was that all of these annotations had been made by the Home Office prior to faxing the movement notification to Reliance at 7:41 on 23 December 2011. However in March 2015 arrangements were put in place for Mr Wamala’s solicitor to inspect the original of the purported QR2 movement notification at the offices of Reliance’s solicitor. It was found that the alteration identified at (3) above appeared on the movement notification in blue ink, while those at (4), (5) and (6) above appeared in red ink. By contrast, those identified at (1) and (2) appear on the movement notification in black ink, consistently with them having been present on the document when it was faxed by DEPMU to Reliance at 7:41 on 23 December 2011.

On 24 March 2015 Mr Wamala made a request for further information about the alterations shown in blue and red ink. A reply to that request was verified by Reliance on 31 March 2015. It accepted that the alterations in blue and red ink were made by someone in Reliance’s office.

This represented a substantial change from what had been said earlier by Reliance. Among other things, Reliance had served a witness statement of Ms Michelle Payne, a Senior Overseas Co-ordinator for Reliance dated 18 March 2014, stating that the alterations to the departure time and flight number were not made by her or her department. Her statement added:

The further information supplied on 31 March 2015 said that Ms Payne did not make the amendments in blue and red ink. It added that Ms Payne now realised that she was in error in believing that those amendments were included as part of the fax from DEPMU. The further information added that Reliance cannot be sure who made those amendments, but was making further enquiries to ascertain whether the person who made the amendments could be identified. The stance taken by Reliance since then has been that it does not know who made those amendments.

On 23 December 2011 Mr Timms sent a fax to UKBA which he copied to Mr Wamala. The fax noted that Mr Wamala had removal directions set for the next day, and asked whether they could be put on hold until two applications by Mr Wamala were considered. The first application comprised further submissions dated 15 December 2011 for discretionary leave to remain, posted to the Home Office’s Further Submissions Unit in Liverpool. The second was a request made on form FLR(O) for leave to remain on the basis of long residence, submitted to UKBA’s Durham Office.

A reply was sent on Christmas eve by an Assistant Director of UKBA. As to the applications referred to in Mr Timm’s fax, the reply noted that an application for discretionary leave had been received on 16 December 2011 and an application for long residence had been received on 23 December 2011. It commented that these applications were submitted only after the removal directions were issued, and added that Mr Wamala’s unsuccessful tribunal challenges had taken place after an earlier application on the basis of long residency had been rejected. Moreover, the letter relied on, and attached a copy of, the Rix refusal. The letter concluded that UKBA remained satisfied that Mr Wamala had submitted no new information sufficient to justify reversing the original decision, and that upon this basis his removal would proceed as arranged.

The author of UKBA’s letter of Christmas eve believed that Mr Wamala would be removed in accordance with Mr Wamala’s MS778 notice. This is clear from the first paragraph of the letter, which stated that Mr Wamala was:

Mr Wamala gave evidence about his beliefs and concerns on Christmas eve. For reasons given in the present section, in section B2.1, and in section F, I accept that evidence to the extent set out below.

Mr Mubenga’s death had a dramatic effect on Mr Wamala. That death involved the use of improper restraint techniques by overseas escorts. It was extremely upsetting for Mr Wamala, not merely because of the circumstances in which it occurred, but also because Mr Mubenga and Mr Wamala had been in neighbouring rooms in Brook House IRC.

As noted in section A2.3 above, Mr Wamala’s evidence was that Mr Mubenga’s death brought home to Mr Wamala how vulnerable detainees were when being removed by overseas escorts who use excessive and dangerous force. When cross-examined, Mr Wamala added that:

I make no finding as to whether these events had happened. What is relevant is that Mr Wamala believed that they had happened.

Mr Mubenga’s death had occurred just over a year before the events of Christmas eve 2011. During the dayspreceding Christmas eve 2011, and on that day, Mr Wamala was detained in what was effectively a segregated cell awaiting removal. I have no doubt that during that period Mr Wamala feared that he would suffer the same fate as Mr Mubenga, and I have no doubt that Mr Wamala’s mind dwelt on that fear.

Mr Wamala was under a misapprehension as to Home Office policy. The issued claim form in Mr Wamala’s removal JR had been sent by fax to UKBA on 23 December 2011. There is no reason to doubt that Mr Wamala firmly believed that Home Office policy would require UKBA, on receipt of that claim form, to defer the removal planned for 24 December: see the covering letter described in section A1.2 above. That belief was wrong, but Mr Wamala did not appreciate this at any relevant stage. For much of Christmas eve 2011 Mr Wamala was under the misapprehension that, in accordance with what he understood to be Home Office policy, his removal would be deferred.

While at Brook House IRC Mr Wamala had no inkling that anyone had an intention to remove him on a flight departing during the evening of Christmas eve, and not at 2pm. His ignorance arose from a blunder on the part of UKBA, which had failed to ensure that the directions for Mr Wamala’s removal on MS778 were revoked and replaced by fresh directions for removal on flight QR2. The notice served on Mr Wamala had specified that he would be removed on a flight departing Heathrow at 2pm. As time went by and no escorts arrived it was natural for Mr Wamala to conclude that, in accordance with what he believed to be relevant policy, the directions for his removal either had been withdrawn or were no longer effective.

In that regard, nothing said by the Reliance escorts when taking custody of Mr Wamala at Brook House IRC informed him of any justification for being collected and taken away an hour after flight MS778 had departed. Reliance’s skeleton argument asserted that Mr Charles told Mr Wamala that he would be travelling on flight QR2 at 8.30pm. Under cross-examination, however, Mr Charles disavowed saying any such thing. As was accepted by Mr Charles, what happened was:

There was a further blunder by UKBA which had an important consequence for Mr Wamala. There had been repeated promises made by UKBA, most recently in the letter dated 22 December 2011, that records would be amended to reflect that he was never charged, convicted nor given conditional discharge for the alleged offence of assault on a police officer: see section A2.2 above. Despite this, the paperwork given to the Reliance escorts said that Mr Wamala was wanted for assaulting a police officer. It is common ground that:

Initially Mr Charles was reluctant to accept that, at this point, he had told Mr Wamala that Mr Charles and his colleagues had power and authority to use force. On day 4, however, Mr Charles was shown the transcript of his interview with Ms Beck. In that interview he described what he had tried to convey to Mr Wamala:

“I did try to point out to him that because of his violent or aggressive nature where he had been misbehaving it was unfair and I did not expect him to abuse or offer bad behaviour towards my officers because we weren’t there for that but should that happen then there are obviously consequences that we are empowered under UKBA terms that we remove detainees to use force if necessary. …”

Mr Charles then accepted that this was what he had actually said to Mr Wamala. Mr Charles was asked whether he accepted that saying this to Mr Wamala had resulted in Mr Wamala feeling threatened. Mr Charles replied that he could not speak for Mr Wamala’s state of mind in that regard. It was then pointed out to Mr Charles that the transcript continued:

Mr Charles did not deny that this exchange had taken place. What he said in cross-examination was this:

Mr Wamala gave evidence:

Thus the escorts, on arrival at Brook House IRC, made it clear that they believed Mr Wamala to be a violent man. I consider that this undoubtedly exacerbated Mr Wamala’s fears that he would suffer the same fate as Mr Mubenga.

Unprofessional conduct, including addressing Mr Wamala in a way that could be seen as racist, strengthened and added to Mr Wamala’s concerns. As regards the potentially racist aspect, I note that all 5 escorts were white.

As recorded in paragraph 432 of the Beck report, the unprofessional conduct began within minutes of Mr Wamala entering the van:

What was actually said by Ms Govey is summarised in paragraph 50 of the Beck report:

It can be seen that from the outset Ms Govey paid no regard to Mr Wamala’s desire to be left alone. Also from the outset she addressed Mr Wamala as “Bruno”. For reasons given in section B3.4 below I conclude that this was not knowingly racist. The CCTV summary in the Beck report records that a male escort also referred to Mr Wamala as “Bruno”, but does not identify the escort in question.

Paragraph 81 of Mr Wamala’s witness statement said of Ms Govey:

At a later stage in the journey paragraph 86 of the statement, which referred to Ms Govey as “the other female escort”, said:

I express no view on whether Ms Govey was deliberately trying to wind up Mr Wamala. It is enough for present purposes to record that paragraphs 81 and 86 accurately record Mr Wamala’s perceptions.

As regards what happens when a judicial review claim form is issued prior to a removal, statements made by the escorts to Mr Wamala were confusing. The assertions made by the escorts in this regard confirmed preexisting suspicions by Mr Wamala that he could not trust anything said by the escorts.

The confusing statements made by the escorts repeatedly referred to judicial review claims being “overturned” by UKBA or a part of UKBA know as the Operational Support and Control Unit (“OSCU”). The notion that UKBA, or any other part of government, can “overturn” a judicial review is fundamentally wrong. This case will, I hope, emphasise how important it is that escorts, and those who give information to them, have a basic understanding of elementary principles as to what UKBA can and cannot do. In order to avoid confusion, it is also important that those communicating information to escorts, and escorts when communicating information to those who are to be removed, use correct terminology. Adherence to professional standards requires nothing less.

The basic principles and appropriate terminology can be set out briefly:

Paragraphs 125-130 of the Beck report summarise a particularly disturbing series of assertions made to Mr Wamala when he was in Reliance’s van at Heathrow airport about an hour before boarding the aircraft. Ms

Ms Payne objected to being called a liar, and refused to speak to Mr Wamala further. Mr Wamala commented to the escorts:

What then happened was that the escorts told Mr Wamala that:

As to these exchanges, Mr Wamala correctly said that his judicial review claim could not have been “overturned” by the immigration authorities. Moreover, Mr Wamala’s comment that the immigration authorities were not the Royal Courts of Justice was absolutely right. It applied, to his own case, the fundamental principle of the rule of law. The escorts’ assertion that the immigration authorities can “overturn” a judge’s decision was absolutely wrong. It suggested that the escorts had no understanding of the rule of law. The only way in which an Administrative Court judge’s decision can be altered is by a further order of the Administrative Court or a higher court. The immigration authorities may seek a further court order of that kind. But unless and until a further court order of that kind has been made, or a court order has granted a stay of the earlier decision, the earlier decision stands and must be obeyed.

Shortly after the exchange with Ms Payne matters were made worse. Mr Wamala had rung his friend, Mr Adelabuo. At Mr Adelabuo’s request Mr Wamala had asked the escorts for information about the flight that they intended to put him on, and had learned that it was to depart at 8.30pm. Mr Adelabuo then made the point that Mr Wamala’s MS778 notice specified the MS778 flight, and he could not be removed on any other flight. Mr Wamala passed his mobile phone to Mr Charles, and Mr Adelabuo made the same point to Mr Charles. The response of Mr Charles was that he was “not too bothered”. Mr Charles commented that he had received no phone call stopping the removal. One of the escorts asked where Mr Wamala’s paperwork was. When Mr Wamala said it was in his luggage, the reaction of the escorts was laughter, along with a joke that if the flight had been at 2 o’clock Mr Wamala would already have been on it. But this was a serious matter. If there had been no removal direction for flight QR2 then Mr Wamala could not be put on the aircraft that Reliance put him on. In oral evidence Mr Charles said that he was not concerned about this, as he had spoken with Ms Payne when he arrived at Brook House and reviewed the paperwork there, and she had told him he was going on the right flight.

Shortly before leaving the van Mr Wamala asked to see the captain of the aircraft. He was assured by Mr Charles that once they had boarded the aircraft Mr Charles would ask the captain to come and see Mr Wamala.

A clear picture emerges of relevant elements of Mr Wamala’s mental state. By the time that Mr Wamala boarded the aircraft:

The oral opening submissions from Mr Wamala identified five issues on liability. I describe them in sections A5.1 to A5.5 below. The oral submissions also set out Mr Wamala’s approach to his primary and alternative claims (see section A1.7 above). The approach to his primary claim was set out in the course of submissions on issue 2. I accordingly describe it and comment on it in section A5.2 below. Matters relevant to Mr Wamala’s alternative claim appear in sections A5.2 to A5.5 below. Issues as to the amount of damages for which Reliance would be liable are dealt with in section G below.

The first issue identified on behalf of Mr Wamala was the question directed by Mr Justice Mitting on 28 March 2014 to be tried as a preliminary issue. In section A1 above I have referred to this question as “the March 2014 question”. For convenience I set it out again here:

The second issue identified in the oral opening for Mr Wamala was whether Mr Wamala, in resisting the removal attempt, went beyond the use of reasonable force. As it seems to me, this second issue proceeded upon the footing that the answer to the March 2014 question (issue 1) was “No”. If the answer to issue 2 was also

“No”, then it was submitted for Mr Wamala that Reliance could not succeed. This approach assumed that in these circumstances Mr Wamala’s primary claim (see section A1) would have succeeded.

There are two implicit corollaries to this approach to Mr Wamala’s primary claim:

Reliance, however, suggests that whether Mr Wamala’s primary claim is right, however, depends also on the answer to issue 3, to which I now turn.

The third issue identified in the opening submissions for Mr Wamala was whether Reliance had any lawful authority to use force under statutory or common law rules identified in paragraph 18A of Reliance’s reamended defence served on 2 February 2015.

In sub-paragraphs (i) to (iv) of that paragraph Reliance identified four justifications for the use of force “as a matter of common law and statute …”. Below I set out each such alleged justification in turn. I also set out in square brackets my short form description of the alleged justification. The justifications are that force on the part of Reliance’s agents was:

The fourth issue identified in opening submissions for Mr Wamala was whether any of Reliance’s escorts used excessive force. In that regard, two observations were made on behalf of Mr Wamala:

The fifth issue identified in opening submissions for Mr Wamala was whether Mr Wamala was entitled tosucceed on his claim under Article 3 of the European Convention on Human Rights (“the Convention” or “the ECHR”). Mr Wamala’s skeleton argument, in connection with the prohibition in Article 3 of torture or inhuman or degrading treatment, cited from the jurisprudence of the European Court of Human Rights:

Two propositions were advanced in Mr Wamala’s skeleton argument as to the relevance of this issue. The first was that the common law should be read consistently with Article 3 so as to provide at least equivalent protection. The second was that the damages claimed by Mr Wamala at common law could equally be awarded under Article 3 as given effect by section 6 of the Human Rights Act 1998.

The course of the trial

As noted in section A1.4 above, Mr Justice Mitting on 28 March 2014 directed a preliminary issue in the form of the March 2014 question. In the second of two judgments that day, he observed that the amended particulars of claim ran to 42 pages and had 140 paragraphs. He added an initial comment, followed by a summary of his reasons (set out more extensively in the first of the two judgments) for directing a preliminary issue (see Wamala v Home Office [2014] EWHC 1503 (QB) at paragraph 4):

I agree with Mr Justice Mitting’s initial comment. I add two additional observations:

Turning to the reasons for directing a preliminary issue, as was observed by Mrs Justice Patterson (see Wamala v Home Office [2014] EWHC 2039 (QB) at paragraph 52), by the time of the hearing before her the arguments had developed since the matter was before Mr Justice Mitting. In that regard she allowed Reliance time to formulate an application to re-amend its defence. In the event Reliance’s re-amended defence was not served until February 2015, and the issues that it raised were extensive. In March 2015 it became clear that the amendments introduced in the purported QR2 movement notice had been made by someone in Reliance’s office. Further information was supplied by Reliance in this and other respects, and was verified on 31 March 2015.

At trial Reliance accepted that further amendments to the re-amended defence were needed. Formulation of those further amendments proved more difficult than had been expected. In the meantime there was no formulation of any detailed list of the multifarious issues raised by the re-amended defence. The result, as will be seen in sections F9 and F10 below, was that there were continued developments in the way that Reliance’s case was put. I do not underestimate the difficulties that arose for Reliance once it acknowledged that the amendments introduced in the purported QR2 movement notice had been made by someone in Reliance’s office. Nevertheless it seems to me that the difficulties in formulating the further amendments would have been reduced, if not avoided, if a detailed list of issues had been formulated, and subjected to critical analysis, prior to the trial.

During the period from March 2014 onwards judges dealing with this case have expressed concern that the cost of this litigation has become wholly disproportionate to the issues involved. I share that concern. Mr Justice Mitting’s direction for a preliminary issue was a valiant attempt to limit the scope for further increases in costs.

During pre-reading it seemed to me that it would be desirable for factual witnesses to give evidence in chief orally, rather than adopting the course of allowing the witness’s written witness statement to stand as evidence in chief. I invited counsel to give consideration to this. On day 1 of the trial neither side objected to my proposal, provided that it was confined to the course of events from the process of Mr Wamala’s boarding the aircraft through to the process of his departure from the aircraft.

It was then proposed on behalf of Mr Wamala that defence witnesses should not, prior to giving their own evidence, be permitted to be in court during testimony of other defence witnesses. Reliance had no objection to this course in relation to the five escorts who had taken Mr Wamala from Brook House to Heathrow, put him on the aircraft, and taken him off again. It submitted that there was no warrant, however, for taking such a course in relation to a Qatar Airways employee, Mr Jayatilaka, and in relation to a Reliance employee, Ms Payne, who had not formed part of the escort team. In a civil case witnesses are normally present when the evidence of other witnesses is given. For this reason, it seemed to me that I should not require Reliance to go beyond what had been conceded. Arrangements were accordingly made under which each of the five escorts

Before hearing witness evidence the parties, at my request, arranged for me to be shown video extracts of CCTV footage recorded in the Reliance van. Ten extracts were proposed to be shown. In the event I was able to watch nine of them, comprising video extracts 1 to 3 and 5 to 10. Of these, video extracts 1-3 and 5-9 were concerned with the journey from Brook House IRC to Heathrow, and what happened in the van at Heathrow, during the period until Mr Wamala was put on the aircraft. Video extract 10 showed Mr Wamala being put back into the van after he had been taken off the aircraft.

Evidence from factual and expert witnesses then followed as detailed in sections B2 to B4 below. It began on the afternoon of day 1, and ended on the morning on the last day of the hearing, 29 July 2015.

At the conclusion of the evidence Reliance sought permission to file a re-re-amended defence. It contained new amendments which were proposed to deal with, among other things, the alterations to the MS778 movement notification. I expressed concern at what appeared to me to be deficiencies in the proposed new amendments. It was agreed that a revised version would be prepared for consideration that afternoon. Much of the remainder of the morning was taken up with Reliance’s oral closing submissions on the law. It seemed to me that there was no prospect of completing both sides’ closing submissions on the facts as well as on the law in the time available on 29 July 2015. This was the last day of the hearing. I asked the parties to consider over the short adjournment what directions might be made for submissions to be dealt with in writing. When the hearing resumed after the short adjournment I was told that the parties had agreed that factual issues and issues about aggravated damages could be dealt with in writing.

During the afternoon of day 7 oral submissions were made for Mr Wamala on general principles of the law of trespass, the statutory regime, and the issues in the case. Turning to the proposed new amendments, it was apparent that there was insufficient time for them to be considered by Mr Wamala’s legal team that afternoon. The stance taken for Mr Wamala was that I should, without considering the content of the latest version, make a ruling barring any further amendments to the defence. I declined to make such a ruling. Instead I allowed Reliance, when filing its written submissions on facts and aggravated damages, in addition to apply in writing for a revised version of the proposed amendments to be permitted. This was on the footing that in due course Mr Wamala’s answer to the final version of the proposed revisions would be filed. This was to be done when filing his written submissions dealing with aggravated damages and facts.

The final stages of the hearing were taken up with a discussion of the extent to which Reliance would be

Accordingly my order dated 5 August 2015 provided for written submissions by Reliance, and written submissions in reply by Mr Wamala. Paragraph 1 of the order specified the matters which Reliance’s written submissions were permitted to cover, and paragraph 3 specified a procedure for further applications:

In the event the further written closing submissions for Reliance (“Reliance’s September 2015 submissions”) were filed on 18 September 2015. They were accompanied by a further draft re-re-amended defence (“Reliance’s September 2015 proposed amendments”). Among other things:

I shall refer to this proposed additional justification as “the proposed general prevention of escape justification”. As set out in the proposed new sub-paragraph (iv) of paragraph 18A, it asserted that force used by Reliance’s agents was:

In response to Reliance’s September 2015 submissions, Mr Wamala filed additional written submissions on 2

As regards the 2005 Order, Mr Wamala’s October 2015 submissions said that it was far too late to seek to place reliance upon Articles 73 and 78 of the 2005 Order. Mr Wamala added that they had no basis on th efacts. Moreover Mr Wamala added that “these points fall by the wayside” because Articles 73 and 78 of the 2005 Order were revoked by the Air Navigation Order 2009 (“the 2009 Order”), with effect from 1 January 2011.

Mr Wamala’s October 2015 submissions were accompanied by a witness statement made by Mr Mitchell of DPG on 1 October 2015 (“Mitchell 1”). It concerned new evidence relating to the number of steps on the rear staircase used by Mr Wamala and the escorts when Mr Wamala was put on and taken off the aircraft.

On 15 October 2015 Reliance’s legal team advised that it agreed to Mitchell 1 being adduced in evidence anddid not wish to make any further submissions.

However on 28 October 2015 Reliance’s legal team sent an email seeking to make additional submissions concerning the 2005 Order. In that regard, Reliance accepted that Mr Wamala’s October 2015 submissions were right to say that Article 73 and 78 of the 2005 Order had been revoked by the 2009 Order. Reliance commented, however, that Mr Wamala’s October 2015 submissions omitted to point out that the two relevant offences under those articles were replaced in almost identical terms by Articles 137 and 142 of the 2009 Order. I shall refer to this email as “Reliance’s October 2015 submissions”.

A response on behalf of Mr Wamala was sent in an email on 3 November 2015 (“Mr Wamala’s November 2015 submissions”). This response objected that neither the 2005 Order nor the 2009 Order had been mentioned in Reliance’s opening submissions, that neither of them had been mentioned in Reliance’s oral closing submissions on the law, and that as permission had not been given for further legal submissions in writing it was too late for new legal submissions. In any event, it was suggested that more extensive submissions could be made on the part of Mr Wamala if permission were to be given for reliance upon the 2005 Order or the 2009 Order.

For reasons given in section F10.4 below I permit Reliance to advance its written submissions on the 2005 Order, but decline to permit Reliance to advance its written submissions on the 2009 Order. My ruling on Reliance’s Sept 2015 proposed amendments is set out in section H2 below.

Mr Wamala’s main witness statement was made on 3 January 2014 (“Wamala 1”). It was supplemented by a further witness statement (“Wamala 2”) made on 29 April 2015, giving an update on his injuries and their treatment.

As regards Mr Wamala’s oral evidence, I noted earlier that both sides agree that Mr Wamala currently suffers from MDD and PTSD. In these circumstances the opening submissions for Mr Wamala properly referred me to what is said in the Equal Treatment Bench Book concerning witnesses with mental disability. Particular reference was made to paragraphs 28 to 31 as follows:

Additional relevant guidance is found in paragraphs 32 to 39. Among other things it is appropriate to allow pauses for assimilation, and important for those in the witness box not to go on too long without a break. In addition, information which does not fit in with assumptions should not be ignored, as there may be a valid explanation for any apparent confusion.

As regards paragraph 31 in the guidance, I stress that during his oral evidence Mr Wamala was not subjected to rough questioning. In accordance with paragraphs 32 to 39 of the guidance Mr Wamala was allowed pauses for assimilation. It was nevertheless apparent that the process of answering questions was both stressful and tiring for him. Accordingly when Mr Wamala gave evidence at trial frequent breaks were made with a view to minimising the strain upon him.

Opening submissions for Mr Wamala identified nine preliminary points. In summary:

I comment that, as regards point (6) above, there was evidence that Mr Wamala grabbed Mr Duke by the testicles. Subject to that, however, these preliminary points are sound, as far as they go. I take them into account.

I also take into account two points which emerge from psychiatric evidence. These points arise because, as noted earlier, it is common ground that Mr Wamala suffers from PTSD. As to those who suffer from PTSD, Professor Katona’s evidence,which was not disputed by Dr Britto, was that:

This evidence by Professor Katona appears to me to chime with paragraph 29 and other passages in the guidance in the Equal Treatment Bench Book. I have in mind in particular the guidance that information which does not fit in with assumptions should not be ignored, as there may be a valid explanation for any apparent confusion.

Reliance submitted that four features concerning Mr Wamala amounted to a picture of a witness who had not been trying to give a truthful account of the incident. On this basis Reliance invited me to reject his evidence altogether unless it was corroborated by other evidence.

The four features identified by Reliance were:

As to the first feature, Reliance said that Mr Wamala had repeatedly shown himself as someone who was and is a person prepared to lie and cheat in order to beat the system and for personal gain. Ten specific matters were relied on. The ten matters began with the undoubted fact that Mr Wamala’s original entry to the UK in 1995 was clandestine and illegal. In my view, however, this offered no support for a conclusion that Mr Wamala has not been trying to give a truthful account of the incident:

For similar reasons I am not impressed by the fourth matter identified by Reliance. This concerned what happened after Mr Wamala was deported in 1999. As noted above, Reliance positively asserts that once Mr Wamala had arrived back in Uganda he was tortured there. After a few weeks he came back to this country. Reliance observed that he did this illegally, and that he used a false United States passport. Reliance adds that under cross-examination he said that he was planning to go on to Chicago, but decided to overstay in the United Kingdom once he had been admitted here. As to this:

Of greater concern are points forming part of Reliance’s second and third matters. They concern the circumstances which led to Mr Wamala’s conviction for smuggling Class A drugs. In cross-examination Mr Wamala accepted that he travelled on a forged passport to the United States and back, that for this purpose he supplied a photo of himself, and that he knew he was bringing back something for the man who had arranged the forged passport and had financed his airline tickets. Mr Wamala nevertheless claimed in cross-examination that he had not appreciated that he was bringing back illegal drugs. It was rightly pointed out to him that if this were the case then he would have been advised to plead not guilty. Mr Wamala sought to justify his account by saying that he was a young man at the time, that he had not even known the name cocaine, and that when he was told that this substance was illegal he thought the honourable thing to do was to plead guilty.

Mr Wamala was cross-examined about his suggestion that he had been a young man at the time of the offence. He accepted that in fact he was in his late twenties, he had successfully completed a diploma course in Business Administration in Uganda, and he was married and had one child and another on the way when he arrived here. He added that he was not as mature at that time as he is now, and that he had made a mistake.

The closing submissions for Mr Wamala noted that under cross-examination Mr Wamala had said that this was the worst mistake of his life and that he regretted it to this day. As to that, it is right that Mr Wamala has expressed remorse and that he accepted his punishment. However, I do not regard Mr Wamala’s evidence in relation to his conviction as either accurate or frank. It was unreal for Mr Wamala to suggest that he had not heard of cocaine. The offence that he had committed was a serious offence. It involved dishonesty, in that Mr Wamala falsely represented to customs officers that he had nothing to declare. His evidence did not recognize the true extent of his culpability. His attempts to blame the offending on his youth, and later on immaturity, were grasping at straws. In the circumstances I am sure that Mr Wamala must have appreciated that what he was being asked to bring back was illegal, and also appreciated that in all probability it comprised illicit drugs.

As to the remaining matters identified by Reliance, the fifth concerned the use of aliases. Mr Wamala’s drug smuggling attempt had involved the use of a false Kenyan passport, a false name and a false date of birth. The deployment of these falsehoods by Mr Wamala was what led to the inaccurate nationality, name and date of birth in the detention authority: see section A2.2 above.

The sixth and seventh matters identified by Reliance involved different aliases which Mr Wamala gave to the police in August and November 2006. A common feature was that on both occasions he wished to avoid detection of his real identity.

The seventh and eighth matters identified by Reliance both involved acknowledged criminal conduct on Mr Wamala’s part. The seventh involved driving without a licence and driving when using a mobile phone. The eighth involved a shoplifting offence which resulted in Mr Wamala being in Peckham Police Station in July 2010: see section A2.2 above.

The ninth matter involved Mr Wamala working here while not permitted to do so. He frankly accepted that he had done this. In his words, it was necessary “to put food on the table”. Under cross-examination Mr Wamala had been asked whether he drove a taxi without a licence. In that regard I reminded Mr Wamala of the privilege against self-incrimination. Mr Wamala did not answer the question. As Reliance points out, however, Mr Wamala’s account to Professor Katona gives ground to conclude that Mr Wamala was driving a taxi without a licence during the period 2000 to 2010. The likely consequence is that he was driving without insurance and exposing his passengers to the risk of being carried by an uninsured minicab driver.

The tenth matter identified by Reliance was that Mr Wamala’s lifestyle had involved travelling from job to job using a series of false identities. His evidence about what he had been doing was “extremely evasive”, but it was plain that until detained in July 2010 Mr Wamala had lived in the UK trying to avoid detection and lying without compunction in order to avoid the authorities and the law.

As regards these remaining matters the closing submissions for Mr Wamala said that he was open with the court about working without permission in the UK and using false names and papers to do so. It was submitted that the position he had found himself in, needing to work in order to provide food, was not uncommon. It was added that Mr Wamala paid his taxes and did not claim benefits. It was also submitted that these matters had no bearing on the truthfulness of his account of events relevant in the present case. My assessment is that Mr Wamala has shown a willingness to lie on occasions when it was not necessary to do so in order to ensure his own safety. This, and his attempt to minimise the seriousness of his conduct leading to the drug smuggling conviction, mean that I must approach his evidence with caution. That said, however, what happened on the occasions identified by Reliance does not of itself warrant a conclusion that the present proceedings are being brought dishonestly for gain.

The second feature identified by Reliance asserted that Mr Wamala had attempted to present a false picture of his medical condition to the doctors instructed by Reliance. In sections D and E below I examine Reliance’s contention that Mr Wamala did this. As regards Mr Wamala’s mental condition, for the reasons given in section D, I do not accept that Mr Wamala tried to present a false picture. In relation to Mr Wamala’s physical condition, what happened when he was seen by Mr Matthews is more complex. Mr Wamala’s account of his injuries was not consistent with what was seen by Mr Matthews. For reasons given in section E below I conclude that in significant respects Mr Wamala attempted to present a false picture to Mr Matthews. In these circumstances, the second feature identified by Reliance causes concern, but it does not warrant a conclusion that I should reject Mr Wamala’s evidence altogether unless it is corroborated by other evidence.

Turning to Reliance’s third feature, it is right that there has been inconsistency in Mr Wamala’s accounts of the incident. The same, however, is true for all other witnesses, with one exception. The exception is Ms Lertsakdadet: see section B2.2 below.

The inconsistencies in Mr Wamala’s accounts are, however, both more numerous and more serious than those

Reliance’s fourth and final feature involved an assertion that Mr Wamala’s account “is contradicted by all the other witnesses in the case”. This is too broad a generalisation: see section F below.

Overall, in relation to disputed matters I must consider whether assertions by Mr Wamala may be unreliable because of his misleading evidence about his drug-smuggling conviction, because of his willingness to lie in inexcusable circumstances, because of his willingness to make wild accusations, because of his willingness to lie to the court about what happened when he was seen by Mr Matthews, or because of the effect of Mr Wamala’s PTSD. For these reasons, and because of the numerous and serious nature of the inconsistencies, I must approach Mr Wamala’s evidence with particular care. These features, however, are not in my view sufficient to justify an approach under which Mr Wamala’s evidence must inevitably be rejected altogether unless corroborated by other evidence. In particular, as to the period prior to boarding the aircraft, I have identified in section A4 above important uncorroborated evidence concerning Mr Wamala’s beliefs and concerns which I accept.

As noted in section A1 above, Ms Naphitchaya Lertsakdadet was the cabin senior in charge of the economy section at the rear of the aircraft on Christmas eve. She made a witness statement (“Lertsakdadet 1”). By notice dated 26 June 2015 Reliance was informed that Mr Wamala intended to rely at trial on Lertsakdadet 1 without calling Ms Lertsakdadet to give oral evidence.

The background to this was that Ms Lertsakdadet’s employers had arranged for her to answer questions by telephone from Doha. Both DPG and Horwich Farrelly were invited to participate in the telephone conference. In the event, while Mr Mitchell of DPG participated in the telephone conference, Horwich Farrelly declined to do so. Following the telephone conference Ms Lertsakdadet’s statement was prepared in October 2013 and signed by her on 14 November 2013. The notice dated 26 June 2015 added that it had not been possible subsequently to arrange for Ms Lertsakdadet to give oral evidence by video link.

Reliance did not object to Ms Lertsakdadet’s evidence being admitted. It asked for further information aboutthe reasons why Ms Lertsakdadet could not be called as a witness. By letter dated 26 July 2015 DPG explained that the position was that it could not secure Ms Lertsakdadet’s voluntary attendance at trial, by video link or otherwise, and since she was out of the jurisdiction it was not possible to issue a witness summons requiring her attendance.

Ms Lertsakdadet had given an account of events to her employers by email dated 17 January 2012. I set out the substantive content of that email below, with the addition of numbers in square brackets for ease of reference:

Lertsakdadet 1 repeated and amplified what was said in the Lertsakdadet email. Among other things, it clarified what Ms Lertsakdadet had said in the passage in the email which I have numbered [16]: what she had meant by this was that she did not see the immigration escorts punching or kicking Mr Wamala.

Ms Lertsakdadet is an independent witness. She was well placed to describe exactly what happened at the time that Mr Wamala reached the top of the staircase and entered the aircraft. I explain in section F why, even though she was not available for cross-examination, I consider it right to attach weight to her account of this stage of events.

As to the position when Mr Wamala was on the floor of the aircraft, Ms Lertsakdadet explained in Lertsakdadet 1 that she could not see everything that happened at that stage.

Reliance contends that in their evidence to the court the escorts were all trying to give an honest and clear account of what happened. In support of that contention Reliance made initial points which I accept:

Also in support of this contention Reliance said that the escorts had compiled their statements separately and without collusion, and had not relied upon pooled recollections. I do not find that the escorts set about pooling their evidence. The answers in the use of force incident reports, and in what the escorts said to the Beck team differed in various ways. Those differences were in my view the kind of differences that are to be expected when those involved in an incident of frenetic activity try to set out their recollections. It is in the nature of things that, even just a few hours after an incident of this kind, those involved would have different recollections, both as to timing and as to the detail of what happened.

In sections B3.4 and B3.6 below I explain why I conclude that parts of the evidence of Ms Govey and Ms Lee

My finding as to the absence of pooling does not mean that the accounts given by the escorts have been uninfluenced by what others have said about events. Mr Duke frankly accepted that on Christmas eve after the incident the escorts had talked about what happened, both before and after returning to the office. It is likely that during the period since the incident there will have been further occasions when one or more of the escorts

On the central factual issues of the case, Reliance asserted that the escorts’ evidence was broadly consistent with “all the other evidence apart from Mr Wamala’s”. This puts the position too high. In particular, it is not true in relation to issues as to what Mr Wamala did immediately on entering the aircraft. The account given by Ms Lertsakdadet in paragraphs [6] to [10] of the Lertsakdadet email, and corresponding parts of Lertsakdadet 1, differs from what was said in their witness statements by each of the escorts.

Mr Charles made a witness statement (“Charles 1”) on 7 August 2013. His evidence in chief began on the afternoon of day 3, and was completed later that day, when his cross-examination began. The crossexamination was interrupted in order to interpose the expert orthopaedic witnesses on day 4, but continued on the afternoon of that day. It was again interrupted on day 5 in order to interpose the expert psychiatric witnesses, and resumed in the afternoon of that day. Also during the afternoon evidence of confidential matters was given by Mr Charles in closed session. The evidence in closed session continued at the start of day 6. Proceedings in public resumed later that morning. The cross-examination and re-examination of Mr Charles were both completed prior to the short adjournment on day 6.

Mr Charles has been a senior overseas DCO since mid-2010. Prior to that he was a DCO. He had initial training in control, restraint and hand cuffing, and has attended refresher courses on control and restraint.

The closing submissions for Mr Wamala described Mr Charles’s evidence as “obviously concocted in key respects”. I do not consider that it was concocted, but I am satisfied that it was inaccurate in certain respects identified in section F below.

At the time of the incident Mr Simmons was a senior DCO. On this occasion, however, it was not intended that he should travel with Mr Wamala and the other escorts to Uganda. His main role was to act as a driver. He also assisted in the process of boarding the aircraft. Mr Simmons made a witness statement (“Simmons 1”) on 1 October 2013.

As will be seen in section F below, when taken as a whole, much of the evidence of Mr Simmons was

Ms Govey’s witness statement (“Govey 1”) was made on 22 August 2013. She explained that she had been employed as a DCO for 6 years.

Ms Govey’s evidence about what happened contained features which were deeply troubling. Ms Govey’s evidence in chief was that Mr Wamala and the other escorts were in front of her as they went up the staircase. At the top:

However, when interviewed by Ms Beck on 30 January 2012 Ms Govey gave what I shall call “Ms Govey’s initial account of boarding”:

Ms Govey’s initial account on boarding is consistent with Mr Wamala having shouted only after force was used against him by one or more escorts. Later in the interview Ms Govey was asked more detailed questions. The answers that she gave were incoherent. Thus, when asked where the crew were when Mr Wamala entered the aircraft, Ms Govey replies, “I can remember seeing two to my right. Two ladies. I think … as they went to the left to the seats then Felix screaming and shouting …”. Ms Govey resiled from this, however, when shown the Lertsakdadet email.

In the light of what Ms Govey had stated in her interview it is difficult to understand how she could have given the evidence that she did.

When cross-examined Mr Govey gave additional evidence which causes concern. She had given evidence in chief that Mr Wamala had, after exiting the aircraft, walked down the staircase without incident until the third step from the bottom, where he dropped to his knees and fell forward. She was cross-examined about evidence given by Mr Jayatilaka that about ten steps down Mr Wamala had started to struggle and nearly fell. It was put to Ms Govey that on the basis of what was said by Mr Jayatilaka, what he had described as happening on the staircase would have been more than half way up. Ms Govey’s immediate reply was: It is twelve to thirteen steps and it is about the third from the bottom. …

The closing submissions on behalf of Mr Wamala said that this was dishonest, for it is obvious that there are considerably more than thirteen steps up to a large jet airliner. If it were necessary to establish the number of steps, a witness statement of Mr Mitchell exhibited confirmation from Qatar Airways that the true number is 25. The submissions for Mr Wamala went on to say that Ms Govey had simply manufactured her testimony to fit Reliance’s account. I agree with Mr Wamala that it is obvious that there are considerably more than thirteen steps up to a large jet airliner. I am driven to the conclusion that Ms Govey did indeed manufacture testimony to the effect that there were only twelve to thirteen steps, and that this was dishonest.

In the circumstances described above I have grave reservations about the testimony of Ms Govey. I conclude that I cannot rely upon it.

In addition, as to the course of events prior to boarding the aircraft, Ms Govey was one of the escorts criticised in the Beck report. The first such criticism was in paragraph 432 of the Beck report. The details are set out in section A4.6 above.

In cross-examination Ms Govey insisted that she had indeed been trying to be polite and professional. There was no recognition by Ms Govey that the Beck report effectively pointed out that it was unprofessional to try to chat with Mr Wamala after he had made it clear he did not wish to engage in conversation.

At paragraph 433 the Beck report noted two things. The first was that Ms Govey then subjected Mr Wamala to further attempts at conversation. The second was that when it became clear that she was not going to succeed, she started to converse with other escorts about Mr Wamala, in particular by talking to them about his jogging bottoms. Ms Govey’s response in cross-examination was that she did not remember the jogging bottoms conversation. There was no recognition by her that, in Mr Wamala’s presence, it was inappropriate for her to talk to other escorts about the clothing he was wearing.

Paragraph 434 of the Beck report included five specific comments on the part of Ms Govey which were described as professionally unacceptable. Three of them were made before boarding the aircraft. They involved telling Mr Wamala that he might be conveyed back to Brook House IRC, telling him that “to Immigration he was just a name and a number”, and telling him that he should get upset with Immigration (if anyone) and not with them (the escorts). Ms Govey accepted that these were valid criticisms.

Other things said in the presence of Mr Wamala were identified in paragraph 435, and described as professionally unacceptable. One in particular concerned what was described as “inappropriate language” in front of Mr Wamala. In fact it was sexualised banter. Ms Govey’s general response was that she did not remember the matters referred to in paragraph 435.

I return to the occasion, shortly after Mr Wamala entered the van, which was the subject of the Beck report’s first criticism of Ms Govey. Ms Govey was asked in cross-examination about a different aspect of what she said on that occasion. As set out in section A4.6 above, among other things, she addressed Mr Wamala as “Bruno”. Under cross-examination Ms Govey claimed that this was what she had been told was Mr Wamala’s name. However, Ms Govey’s evidence then continued, confusingly, by saying that she had made a mistake and mispronounced the name. It is right that at least one other escort called Mr Wamala “Bruno”, but only after Mr Govey had done so.

In cross-examination it was suggested that addressing Mr Wamala as “Bruno” had been racist. Ms Govey asked how it could be that getting Mr Wamala’s name wrong was racist? She was told that the suggestion being made to her was that calling a man who is black “Bruno” had racist connotations. Ms Govey’s response was that she had called Mr Wamala by a name that she thought she had been told, and that this was not racist. In reexamination Ms Govey explained that she had done diversity training, and participated in yearly refreshers. She said that she had never failed her diversity training.

I am satisfied that Ms Govey’s conduct as described above was insensitive. It was, as the Beck report pointed out, likely to be perceived as antagonistic. It seems to me that Ms Govey was blind to the likely consequences of her unprofessional behaviour. I am not, however, persuaded that she was knowingly motivated by racism.

Mr Duke has been an overseas DCO since 2010. At the outset he received training in control and restraint techniques and in the use of handcuffs. Thereafter he attended several control and restraint refresher courses.

Mr Duke signed a witness statement (“Duke 1”) on 12 August 2013. He gave oral evidence on day 6.

In cross-examination Mr Duke was asked about what happened on the aircraft. He was also asked whether he had discussed the incident afterwards with his colleagues. In a series of replies, Mr Duke stated that he and his colleagues had spoken about the incident when they were in the van, when they stopped for a drink on the way back, and when they were back at the office.

For reasons given in section F, I cannot accept Mr Duke’s evidence on certain key points.

Ms Lee’s witness statement (“Lee 1”) was dated 24 November 2013. It explained that at that time she had been employed as an overseas DCO for 7 years in total, of which the previous 2 years had been with Reliance. Oral evidence was given by Ms Lee on day 7.

Ms Lee’s evidence about what happened also contained features which were deeply troubling. In relation to the claim that Mr Wamala was shouting before the firm hold and the right hand cuffing, Ms Lee’s evidence in chief on this aspect was that, “Mr Wamala started talking to the stewardess … but then his voice was getting higher”.

In cross-examination Ms Lee accepted that at the time of the interview she could not recall whether Mr Wamala tried to speak to the crew. Ms Lee then said, in a passage in the transcript which I have corrected in square brackets:

What this passage indicates to me is that 4 years down the line Ms Lee has convinced herself of something which 5 weeks after the incident Ms Lee did not recall and on which her evidence in court was unreliable. As to how she has come to convince herself of this, the likely explanation is that it has come about through learning what others say or have said on the matter. For these reasons I cannot assume that Ms Lee is a reliable witness.

The closing submissions for Mr Wamala also referred to Ms Lee’s evidence concerning a time when she and Mr Duke were both holding Mr Wamala’s head. The question she was being asked concerned whether it was possible to keep the head still. Ms Lee did not directly answer that question, but instead said that Mr Wamala was trying to bite the officers. She re-affirmed that she saw Mr Wamala trying to bite. Mr Hickman pointed out that Mr Wamala was lying on the floor with his head a few inches in front of Mr Duke’s knee, with Mr Duke holding him down. Ms Lee replied that Mr Wamala was a very strong man and could lift his head slightly. Ms Hickman asked who it was that Mr Wamala got his mouth near, to which Ms Lee replied, “whoever was closest to him at the time”. She was then asked whether someone’s body was very close to Mr Wamala’s mouth, to which she replied, “No”. At this point Ms Lee retreated and said simply that Mr Wamala had “made the motion”, lifting his head up with his mouth open. The closing submissions for Mr Wamala said that Ms Lee had constructed an account thought to be helpful to Reliance’s case. I agree: in this respect Ms Lee’s evidence had plainly been concocted.

For these reasons I cannot assume that Ms Lee is a reliable witness.

Another employee of Qatar Airways on board the aircraft at Heathrow was Mr Charith Jayatilaka. He was there in his capacity as a Senior Customer Services Agent. His role was to act as a member of ground staff working on both the landside and the airside of Terminal 4. Among other things he was responsible for assisting with boarding of flights.

Like Ms Lertsakdadet, on 17 January 2012 Mr Jayatilaka had supplied a report for his employers. It took the form of an email (“the Jayatilaka email”) dated 17 January 2012. Mr Jayatilaka then produced a witness statement (“Jayatilaka 1”) dated 30 April 2013. Curiously, Jayatilaka 1 omitted several prominent features that had been present in the Jayatilaka email. An example is that the Jayatilaka email had said that on boarding the aircraft Mr Wamala was shown to his seat by cabin staff. Jayatilaka 1 made no mention of this. Another example is that the Jayatilaka email said that before taking Mr Wamala down the stairs the escorts were able to stop him struggling by placing a strap around his upper body. Jayatilaka 1 made no mention of this either. In relation to both these examples, what had been said in the Jayatilaka email was completely different from what was said by other witnesses.

Mr Jayatilaka gave oral evidence on day 6. That evidence began with what were described as “clarifications” of Jayatilaka 1. However what Mr Jayatilaka went on to assert could not properly be described as mere “clarification”:

Thus in relation to the first of these “clarifications” Mr Jayatilaka accepted that Jayatilaka 1 gave a misleading account: it said that he had recalled an escort being bitten on the finger when it truth he had not recalled any such thing. Similarly in relation to the second “clarification” he had given an account of unprovoked violence on the part of Mr Wamala before any struggle took place, whereas the violence that Jayatilaka 1 identified as having happened prior to the struggle had, according to Mr Jayatilaka’s “clarified” version, in fact happened during that struggle.

Reliance submitted that Mr Jayatilaka’s oral evidence supported its assertions on key factual issues. I disagree. I cannot accept that anything said by Mr Jayatilaka is reliable. I have noted above two assertions in the Jayatilaka email which were completely different from the evidence of other witnesses. In relation to the two “clarifications”, what had been said in Jayatilaka 1 was also completely different from what was said by other witnesses. This pattern continued in Mr Jayatilaka’s oral evidence. He said that he was in the galley area when Mr Wamala came up the staircase. Nobody else described him as being there. In paragraph 19 of Jayatilaka 1 he described Mr Wamala as having started to make a move towards him, and as becoming more aggressive still when the remaining two security escorts (those who had not been elbowed to the floor) stopped Mr Wamala. All of this was said to have happened at a time at which no handcuff had been applied to Mr Wamala. Nobody else gave an account remotely similar to this.

The closing submissions for Mr Wamala described Mr Jayatilaka’s evidence as to what happened on the aircraft as “so hopelessly discordant with that of all the other witnesses that it is plainly unreliable”. I agree with this assessment.

However the closing submissions for Mr Wamala then cited from paragraph 27 of Jayatilaka 1, which said that after starting to walk down the staircase, about ten steps down, Mr Wamala started to struggle, nearly fell, and at that point was picked up by the escorts and carried down the remainder of the steps. The suggestion advanced in the submissions, as I understood it, was that this supported Mr Wamala’s account of being carried down the whole of the staircase. However, Mr Jayatilaka is so plainly wrong on other aspects of events that I cannot rely on anything which he says about the interaction between Mr Wamala and the escorts.

At the time of the incident Ms Payne was a Senior Overseas Co-Ordinator at Reliance’s offices in Heston,Middlesex. Ms Payne made a witness statement (“Payne 1”) on 18 March 2014. A second witness statement (“Payne 2”) was made by her on 21 July 2015, the first day of the trial.

At the time of Payne 1 Ms Payne was engaged to be married to one of the escorts, Mr Duke. By the time of Payne 2 she was Mrs Duke. For ease of reference, and with no disrespect intended, I shall continue to refer to her in this judgment as “Ms Payne”.

Mr Wamala did not require Ms Payne to give oral evidence. Accordingly, Payne 1 and Payne 2 stood as her evidence.

The main matter dealt with by Ms Payne’s evidence concerned the purported QR2 movement notification: see section A3.6 above. Payne 1 exhibited a copy in black and white of the purported QR2 movement notification. As noted in section A3.6 above, Ms Payne stated that the alterations to the departure time and flight number had not been made by her “or the department”, and added that they did not make handwritten amendments to movement notifications. In Payne 2, however, Ms Payne said that she had now seen the original of the purported QR2 movement notification, and the alterations in red pen. She accepted that those alterations must have been made by her department, and that she had been incorrect to say in Payne 1 that she considered that her department did not amend the MS778 movement notification.

In sections 4.2 and 4.3 below I describe the expert evidence. Each of Mr Mohammad, Mr Matthews, Professor Katona, and Dr Britto is a distinguished practitioner with long experience in his field. I am sure that each was doing his best to assist the court in accordance with his duties to the court under CPR 35.

Mr Mohammad was Mr Wamala’s expert witness on orthopaedic matters. He holds the post of consultant

Mr Mohammad produced a first report dated 20 May 2013 (“Mohammad 1”). On 18 December 2013 he produced a supplement (“Mohammad 2”).

Mr Matthews was Reliance’s expert witness on orthopaedic matters. When he examined Mr Wamala in 2014 he was a consultant trauma surgeon at the John Radcliffe Hospital in Oxford, having previously been a consultant trauma surgeon at the United Leeds Teaching Hospitals and Honorary Clinical Senior Lecturer to the University of Leeds in orthopaedic surgery. In February 2015 Mr Matthews took up a new post as consultant trauma and orthopaedic surgeon at Leeds General Infirmary. He was president of the British Trauma Society during the period 2009 to 2011. He is a fellow of the Royal College of Surgeons both in England and in Edinburgh. Mr Matthews produced an initial report dated 10 January 2014 (“Matthews 1”), an addendum report dated 12

Mr Mohammad and Mr Matthews prepared a joint report dated 17 July 2015 (“the orthopaedic joint report”). Mr Mohammad gave oral evidence on the morning of day 4. Mr Matthews gave oral evidence later during the morning and in the afternoon of that day.

Professor Katona was Mr Wamala’s expert witness on psychiatric matters. He is Honorary Professor at the Department of Mental Health Sciences of University College London and is Medical Director of the Helen

Professor Katona produced an initial report dated 16 December 2012 (“Katona 1”). In response to questions raised on behalf of Reliance, professor Katona produced an addendum dated 26 March 2013 (“Katona 2”). He prepared an additional report on 16 December 2013 (“Katona 3”).

Dr Britto was Reliance’s expert witness on psychiatric matters. He is a consultant psychiatrist at Cygnet Hospital Bierley Bradford, and is Force Consultant Psychiatrist to the Merseyside Constabulary. He was an honorary senior clinical lecturer in the Department of Psychiatry, University of Leeds, and clinical tutor for Halifax Hospitals, and has been a member of the Royal College of Psychiatrists since 1991.

Dr Britto produced an initial report dated 27 March 2014 (“Britto 1”). In response to questions from DPG he produced a set of answers in a report dated 14 May 2014 (“Britto 2”).

Professor Katona and Dr Britto prepared a joint report dated 17 June 2014 (“the psychiatric joint report”). Professor Katona gave oral evidence on a morning of day 5. Dr Britto gave oral evidence later that morning and on the afternoon of that day.

The legal framework

Mr Wamala’s core complaints are about two types of conduct: the use of force, and the threat of the use of force. If there is no lawful justification, those types of conduct will constitute torts which are types of trespass to the person. In the case of the use of force the specific tort is battery. In the case of the threat of the use of force the specific tort is assault.

Liability in trespass is strict. There is no requirement to prove fault. Moreover if the tort of trespass to the person is being committed, reasonable force may be used to resist that trespass.

On Christmas eve the escorts undoubtedly used force against Mr Wamala. The immediate question that arises is thus whether there was lawful justification entitling them to use that force. In section C2 below I discuss the position in relation to the burden of proof in that regard.

It is common ground that statute permits the use of reasonable force in order to carry out a lawful removal. In sections C3 and C4 I deal with the statutes which bring this about.

The oral reply submissions for Mr Wamala took issue with the contention advanced for Reliance that the burden was on the claimant to prove that there was no lawful authority for the use of force against him. In that regard Mr Wamala drew attention to analogous principles concerning false imprisonment. The principles were described by Lord Dyson in his speech in R (Lumba) v. Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245. Lord Dyson JSC, with whom on this point Lord Hope of Craighead DPSC, Lord

I have no doubt that this reasoning applies to the torts of battery and assault. It follows that the burden of proof of lawful justification will be on Reliance.

The 1971 Act confers powers on the Secretary of State, and on immigration officers, as regards removal from the UK of persons entering or remaining unlawfully: see s 4 and schedule 2. Mr Wamala entered the UK unlawfully in 1999 when he returned clandestinely, and in breach of the 1997 deportation order, a few weeks after he had been deported. From that time he remained in the UK unlawfully, subject only to a grant of temporary admission which is immaterial for present purposes. In these circumstances s 4(2) of the 1971 Act and paragraph 10(2) of schedule 2 to that Act gave power to the Secretary of State to give directions to, among others, the owners or agents of an aircraft for Mr Wamala’s removal in accordance with arrangements made by the Secretary of State. The giving of such directions would then enable Mr Wamala to be placed on board an aircraft for removal, but only in accordance with the directions. This is clear from paragraph 11 of schedule 2, which states:

Further, because there were reasonable grounds for suspecting that Mr Wamala was a person in respect of whom directions could be given under paragraph 10 of schedule 2, he was liable to be detained under paragraph 16(2) of schedule 2. As substituted by section 104(1) of the 1999 Act and as subsequently amended, paragraph 16(2) of schedule 2 to the 1971 Act states:

Additional and overlapping powers under the 1971 Act were available in relation to Mr Wamala because the 1997 deportation order continued to have effect. Under section 5 and schedule 3 this had the consequence that the Secretary of State could give directions similar to those contemplated by schedule 2: see paragraph 1 of schedule 3. Once such directions had been given, paragraph 1(3) of schedule 3 had the consequence that paragraph 11 of schedule 2, as set out above, would apply, with the substitution of a reference to “the Secretary of State” for the reference to “an immigration officer”.

In the present circumstances schedules 2 and 3 gave power to detain Mr Wamala. The power conferred by paragraph 16(2) of schedule 2 in this regard applied also under schedule 3, again with the substitution of a reference to “the Secretary of State” for the reference to “an immigration officer”: see paragraph 1(3) of schedule 3. That power permitted detention “in such places as the Secretary of State may direct”: see paragraph 18(1) of schedule 2. Paragraph 18(3) of schedule 2 provides that:

Moreover under paragraph 18(4) of schedule 2 a person is deemed to be in legal custody at any time when detained under paragraph 16 or when being removed in pursuance of paragraph 18(3).

The places where a person may be detained, as directed by the Secretary of State pursuant to paragraph 18(1) of schedule 2, do not include an aircraft. Provision in relation to detention on board an aircraft is, however, made in paragraph 16(4) of schedule 2 as follows:

The importance of paragraph 11 of schedule 2 was stressed by Woolf J in R v Immigration Officer, ex p. Shah [1982] 1 WLR 544, 548E-G. In that case Woolf J held that a direction was invalid because, rather than specifying that the airline was required to remove the applicant, the direction simply indicated that the applicant was a person that might be required to be removed. Woolf J stated:

As noted in section C3 above, paragraph 11 of schedule 2 to the 1971 Act identifies circumstances where a person may be “placed” on board an aircraft. Paragraph 11 enables this to occur “under the authority of an immigration officer” in relation to removals under schedule 2, and “under the authority of the Secretary of State” where removal directions are issued under schedule 3 to the 1971 Act. That paragraph, however, does

General provisions concerning the use of force are found in the 1999 Act. Two categories of persons are given power to use force. The first such category comprises immigration officers. Under section 146 of the 1999 Act:

The result is that an immigration officer exercising powers of removal under the 1971 Act “may, if necessary, use reasonable force”.

The 1999 Act gives general powers to use force to a second category of persons. This category comprises individuals who, under section 154 of the 1999 Act, have been certified by the Secretary of State as authorised to perform escort functions, or to perform both escort functions and custodial functions. A certificate issued by the Secretary of State for this purpose is described in section 147 of the 1999 Act as a “certificate of authorisation”. A person in respect of whom a certificate of authorisation is in force is described in the same section as a “detainee custody officer”, or using the terminology adopted earlier in this judgment, a “DCO”.

Both section 147 and section 154 fall within Part VIII of the 1999 Act, entitled “Removal centres and detained persons”. Within Part VIII, sections 154 to 157 are entitled “Custody and movement of detained persons”. Relevant for present purposes is section 156, which so far as material provides:

Arrangements made by the Secretary of State under section 156 are described in section 147 as “escort arrangements”. In the same section, “escort functions” is defined to mean functions under escort arrangements. It may be noted that under section 156(1)(b), insofar as escort arrangements are made by the Secretary of State for delivery of persons for the purpose of their removal from the UK, that removal must be “in accordance with directions given” under the 1971 Act or the 1999 Act. In addition, further provision about escort arrangements is set out in schedule 13 to the 1999 Act: see section 156(5) of that Act.

Powers and duties of DCOs are dealt with in paragraph 2 of schedule 13. Paragraph 2(1) and (2) deal with powers of search. Relevant for present purposes are paragraph 2(3) and (5):

I shall refer to the duties under paragraph 2(3) as “the 1999 Act duties”. It may be noted that these duties arise as respects “a detained person for whose delivery or custody [the DCO] is responsible in accordance with escort arrangements”.

Thus the test for determining whether or not the 1999 Act duties arise is a test concerned with the status of the

Mr Wamala’s mental health

Evidence as to Mr Wamala’s mental health was adduced because it has relevance to substantive issues concerning both the severity of the symptoms of Mr Wamala’s undoubted mental illness and the cause of those symptoms. In addition, however, it has relevance to Mr Wamala’s ability to cope with procedures during the preparations for trial and when giving evidence at trial. I have dealt with Mr Wamala’s ability to cope with pretrial and trial procedures in section B2.1 above.

There are three substantive general matters on which Professor Katona and Dr Britto agree. They agree that:

There are two principal differences between Professor Katona and Dr Britto:

I deal with these differences in sections D2 and D3. Before doing so, however, I discuss two preliminary matters in sections D1.2 and D1.3 below.

The closing written submissions for Mr Wamala objected to a new argument advanced in Reliance’s written closing submissions. In that regard they noted, in my view correctly, that:

The stance taken on behalf of Mr Wamala is that this position is advanced without a proper evidential basis. I consider that this stance is well founded. The agreed position of Professor Katona and Dr Britto was that events on Christmas eve constituted a re-traumatisation, and that prior to this time Mr Wamala’s PTSD was relatively asymptomatic and did not impact greatly on his life.

Accordingly I refuse to allow the new argument. It relies upon speculation on the part of Reliance’s lawyers rather than expert opinion.

Reliance’s closing written submissions made reference to passages of Britto 1 where Dr Britto said:

Reliance sought to rely upon these and other similar passages as demonstrating an unwillingness to co-operatewith the court and to enable the court to investigate the truth and the causes and nature of his condition. It was said that Professor Katona largely accepted Dr Britto’s account. I do not agree:

These detailed answers by Professor Katona did not “largely accept” Dr Britto’s account. On the contrary, Professor Katona identified reasons which Dr Britto did not identify for the stance Mr Wamala took in relation to certain questions. Moreover, in relation to the question described in paragraph 90 of Britto 1, Professor Katona said that Mr Wamala had done what Dr Britto had asked him to do. In that context Professor Katona added that he and Dr Britto had agreed that difficulty in talking about the events of the inciden t was unsurprising in the light of Mr Wamala’s diagnosis of PTSD.

I conclude that for the reasons given by Professor Katona it would be wrong to describe Mr Wamala as having been obstructive. Moreover, as is pointed out in the closing submissions for Mr Wamala, when asked specific questions about the incident Mr Wamala told Dr Britto about what happened on the aircraft. There was then a question asking how the incident had affected Mr Wamala’s mind. It seems to me that the answer to this question was misinterpreted: Mr Wamala said he did not want to talk about it because he had to fight with it everyday. Reliance said that this was a refusal to answer the question. In my view it was directly answering the question. The question concerned the effect of the incident on Mr Wamala’s mind. The answer was that the effect on his mind was that he did not want to talk about the incident, the reason being that he had to fight with it everyday. Mr Wamala was then specifically asked about mental health problems and gave a description of them. In response to an additional question as to whether Mr Wamala wanted to say anything more about his mental health, Mr Wamala described speaking to his dead grandfather, being told by his dead grandfather to hide in the cemetery, and doing exactly that.

In these circumstances I am dismayed to find Dr Britto characterising the interview in the way set out in paragraphs 70 and 105 of his report. Those paragraphs are a distortion of the interview when taken as a whole.

In cross-examination Professor Katona identified an additional possible explanation for any lack of cooperation when Mr Wamala saw Dr Britto. This was that at court he had been able to review Mr Wamala’s more recent medical notes, and that these suggested that he had had a small stroke in January 2014.

However it seems to me that Professor Katona is not an expert on cerebrovascular events. I accept that he has, of course had occasion to consider the impact of strokes on his patients. As to precisely what it was that happened in January 2014, and the likely effects, I do not consider that it is satisfactory simply to proceed on the basis of Professor Katona’s assessment. The possibility that this suggested stroke might be relevant to any issue in the case had not been raised prior to Professor Katona’s cross-examination. After Professor Katona gave evidence Reliance’s legal team noted that the trial bundles contained a copy of an MRI scan on 18 March 2014, and suggested that what was said or not said in the report of the scan may be relevant.

In these circumstances I do not think it would be right for me to attach significance to this suggested stroke-like incident.

It is common ground that Mr Wamala’s current symptoms of one or other or both of MDD and PTSD:

Professor Katona considers that, as an integral part of his PTSD, Mr Wamala suffers from psychotic phenomena comprising:

Dr Britto considers that:

Reliance’s closing written submissions noted the disagreement as to whether Mr Wamala was ever psychotic, but questioned whether the argument about whether there was psychosis takes the case further. The submissions then added that there was no basis for arguing that any psychosis there might have been was attributable to the failed removal. The validity of this comment seems to me to depend on whether Dr Britto’s arguments about causation are correct: see section D3 below.

If it is indeed still maintained by Reliance that Mr Wamala was not psychotic, I have no hesitation in accepting the evidence of Professor Katona supporting his conclusions summarised above. They are fully supported by the detailed matters relied upon in sections 2 and 4 of Katona 2. Dr Britto’s reluctance to accept that there was psychosis is largely founded on the assertion that Mr Wamala did not give Dr Britto an opportunity to explore any symptoms related to psychotic phenomena other than persecutory ideation. For the reasons given in section D1.3 above, I do not accept that this was the case. Dr Britto made an additional point that prescriptions for antipsychotic medication were prescriptions for drugs that are also used to treat other conditions. This is a valid point so far as it goes. More difficult, however, for Dr Britto is that Mr Wamala’s medical reports include conclusions that Mr Wamala was suffering from psychosis. Dr Britto suggested that these were inconsistent with records from around the same period which showed no evidence of psychosis. However Dr Britto accepted in cross-examination that psychosis may fluctuate.

For these reasons I am satisfied that Professor Katona is right to identify the three psychotic phenomena which he describes.

Dr Britto’s stance is that Mr Wamala’s current symptoms are attributable, not to the incident that occurred on the aircraft, but to the “stressor of deportation”. In support of that conclusion he expresses the opinion that a significant worsening of Mr Wamala’s mental health occurred in 2013, and that if Mr Wamala had been suffering from PTSD earlier than this the symptoms would have been disclosed by Mr Wamala to those concerned with his health, and a diagnosis made earlier.

Reliance’s written closing submissions relied on an additional reason for concluding that re-traumatisation had occurred because of the stressor of deportation rather than because of what happened on the aircraft. This was that Professor Katona had regarded the twisting of Mr Wamala’s neck as the main element in the incident that contributed to its traumatic nature. If, as Reliance submitted, there had been no twisting of the neck then this main element would fall away.

This contention, however, does not assist Reliance:

To my mind Professor Katona has given a full and convincing answer to the points made by Dr Britto. First,PTSD symptoms are often delayed in onset. Accordingly, if it were right to say that Mr Wamala was not suffering from symptoms of PTSD until 2013, that is not inconsistent with the re-traumatisation leading to those symptoms having come about by reason of what occurred on the aircraft. Second, however, Professor Katona gave compelling evidence that in his professional experience a detailed assessment by an experienced practitioner such as himself can often illicit mental symptoms that immigration detainees have felt unable or reluctant to disclose to detention healthcare staff. In that regard Professor Katona takes account of a report by Dr Goldwin in January 2012, where the focus was on documenting the acute physical injuries resulting from Mr Wamala’s attempted removal. This would explain the suggested “thematic coherence” identified in her report between Uganda and the PTSD. Professor Katona was taken to a note made by Dr Pang on 10 Ma y2013, “assaulted in Uganda, hence has PTSD”. Professor Katona acknowledged that this gave him pause for thought. He acknowledged that the fact of deportation, the fact of removal, the fear of removal to Uganda, quite irrespective of what happened on the aircraft, would have some worsening effect. It would undoubtedly have increased Mr Wamala’s stress level, as indeed the mere fact of being detained would have done. On the other hand, the physically violent acute events around the attempted removal seemed to Professor Katona to be a more effective acute trigger. The re-experiencing that Mr Wamala described was more around those events than anything else.

This evidence by Professor Katona was in my view compelling. I have already made findings as to Mr Wamala’s fear that his removal would be accompanied by violence: see section A4 above. My findings as to what in fact occurred on Christmas eve are set out in section F below. It would be astonishing if, in the light of Mr Wamala’s beliefs and concerns prior to the incident, what took place on the aircraft could be treated as playing no causative part in the re-traumatisation experienced by Mr Wamala.

Mr Wamala’s physical injuries

Mr Mohammad saw Mr Wamala on 5 April 2013. Mohammad 1 described his account of the interview that took place on that day and his conclusions in the light of that interview. Mohammad 2 reviewed those conclusions after MRI scans had been performed. When citing below from Mohammad 1 and Mohammad 2 I have added paragraph numbers in square brackets.

In Mohammad 1 Mr Mohammad noted:

Mohammad 1 also described the result of Mr Mohammad’s clinical examination of Mr Wamala, including:

Once the scans recommended by Mr Mohammad had been produced, Mr Mohammad reviewed them and prepared Mohammad 2. Mohammad 2 recorded, among other things:

Mr Matthews saw Mr Wamala on 10 January 2014. Nine features of what happened on that occasion are said in Reliance’s written closing submissions to demonstrate that Mr Wamala was faking symptoms of neck and back pain. I examine those nine features in section E2 below. In that regard I comment on whether Reliance suggests that the feature in question demonstrates, not merely faking of symptoms to Mr Matthews, but also faking of symptoms to Mr Mohammad.

The closing submissions for Mr Wamala submitted that Mr Matthews was discredited as a witness. Putting the matter broadly, seven specific criticisms were said to support a contention that Mr Matthews’s opinions in relation to Mr Wamala were biassed. I examine those seven matters in section E3 below. In section E4 I discuss Reliance’s challenges to Mr Mohammad’s evidence. In that regard I comment on relevant opinions of Mr Matthews as set out in Matthews 1 and, after consideration of the scans, in Matthews 2. My findings on Mr Wamala’s past and current physical injuries are then set out in section E5 below.

Before turning to section E2, I note that a recording was made by Mr Matthews of his interview with Mr Wamala, and that the recording includes what was said by Mr Matthews once Mr Wamala had left the interview. The final passages in the transcript of the recording include the following:

Paragraph 11 of Matthews 1 stated:

In cross-examination it was suggested to Mr Matthews that the reference to Mr Wamala walking “in an exaggeratedly slow manner” was meant in a pejorative sense. Mr Matthews replied that he did not mean to be rude, adding that he thought that it was a reflection of Mr Wamala’s general attitude towards Mr Matthews at the time. Mr Matthews accepted that he thought Mr Wamala was being rude.

I do not accept that, on the face of the report at least, in relation to Mr Wamala’s manner of walking Mr Matthews was doing anything other than recording that Mr Wamala walked in a slow manner, and that in his opinion it was an exaggeratedly slow manner. I add that it seems to me that an experienced orthopaedic surgeon such as Mr Matthews could be expected to be able to form an opinion as to whether a patient who was walking slowly was doing so in an exaggerated manner. It is not suggested, however, by Reliance that in relation to his manner of walking when seen by Mr Mohammad, Mr Wamala was faking the speed with which he was able to walk.

Matthews 1 stated at paragraph 12:

Mr Mohammad stated in the course of cross-examination that a spasm when tenderness is reported in the cervical spine is not always present, but is “generally” to be expected. I have no reason to doubt this evidence. On this basis it seems to me that the absence of spasm is too slender a basis to indicate faking on the part of Mr

This third feature has two different aspects. Both are founded on paragraph 13 of Matthews 1:

To my mind the first point to be made about the degree of flexion and rotation of the neck demonstrated by Mr Wamala to Mr Matthews is that if Mr Wamala were indeed only able to achieve the degree of flexion and rotation which he demonstrated to Mr Matthews, then between 5 April 2013 and 10 January 2014 there had been a dramatic deterioration. On 5 April 2013 Mr Wamala had been able to achieve at least 80% of normal flexion and 80% of normal rotation. By contrast, the points at which he told Mr Matthews that he could go no further were 50% of the normal range of flexion and 30% of the normal range of rotation. Mr Mohammad accepted in cross-examination that such a deterioration was inconsistent with the result of a soft tissue injury, that it was inconsistent with simple disc degeneration, and that there was no evidence of any severe neck disease which would otherwise explain such a marked deterioration.

This dramatic and inexplicable deterioration seems to me to be very strong evidence that Mr Wamala, when he saw Dr Matthews, was grossly exaggerating the limitations on his ability to flex and rotate his neck. It is not suggested, however, by Reliance that in this respect Mr Wamala was faking when he saw Mr Mohammad. On the contrary, the strength of the evidence of faking in relation to what Mr Wamala told Mr Matthews arises out of the stark contrast between the account given to Mr Matthews and the findings of Mr Mohammad.

A second aspect of feature (3) is the contrast between what Mr Wamala said he could do when examined by Mr Matthews, and what Mr Matthews saw Mr Wamala doing when Mr Wamala got dressed. As a layman, I was a little surprised when Mr Matthews said that he was able to witness a full range of movement. It was suggested to Mr Matthews in cross-examination that when getting dressed Mr Wamala was simply putting on a jacket and perhaps a pullover. There was no evidence that, as a matter of orthopaedics, a person putting on a jacket or a pullover would not be able, or would not be likely, to demonstrate a full range of movement. It is suggested on behalf of Mr Wamala that it was absurd to suggest that Mr Matthews could have seen a full range of movement, but in the absence of any expert evidence to support such a contention I am in no position to find that Mr Matthews’s evidence is absurd. I add that if it were, indeed, suggested that a full range of movement could not be seen when a person was putting on the suggested items of clothing then, if so minded, Mr Wamala could have applied for permission for Mr Mohammad to deal with this in a supplementary report. No such course was taken. On this aspect of feature (3), what Mr Matthews saw is again strong evidence of faking.

It was not suggested to Mr Mohammad that this second aspect demonstrated that Mr Wamala must have been faking when Mr Mohammad made his assessment on 5 April 2013 of Mr Wamala’s ability to flex and to rotate his neck. However the validity of that assessment was challenged on other grounds: see section E4.2 below.

Matthews 1 stated at paragraph 14:

A myotome is a group of muscles or the nerve which are fed from a particular disc root space. What is described in paragraph 14 of Matthews 1 is what was demonstrated by Mr Wamala in relation to the myotomes either side of the spinal column at the fifth, sixth and seventh cervical vertebrae and the first thoracic vertebra. Feature (4) concerns the finding of global weakness in this regard. Mr Mohammad accepted in crossexamination that the whole point of the tests conducted by Mr Matthews in relation to these myotomes is to find out which nerve is affected, there being specific tests associated with each one, and that a global weakness would not be expected to be exhibited throughout the different discs. Mr Mohammad said he had no reason to disagree that, if Mr Matthews had accurately carried out the tests, the response from Mr Wamala was a very strong indication that he was either refusing to co-operate or exhibiting abnormal illness behaviour. It seems to me that this is indeed a very strong indication of faking when Mr Wamala was seen by Mr Matthews. By contrast, however, Reliance accepts that there had been no complaint of such weakness when Mr Wamala was seen by Mr Mohammad. Accordingly this feature does not demonstrate that Mr Wamala was faking when describing his symptoms to Mr Mohammad.

Feature (5) also arises from what Mr Matthews recorded in paragraph 14 of Matthews 1. The relevant point as regards feature (5) is that at one moment Mr Wamala was describing a weakness of grade 3 out of 5, while at the next moment his score was 5 out of 5, indicating full power. In the joint orthopaedic report Mr Mohammad accepted that findings of this kind were not consistent with any neurological weakness.

It was suggested to Mr Matthews in cross-examination that differences in the strength grading could have been caused by pain. Mr Matthews’s reply was that if something was painful, the patient might only be able to achieve grade 3 out of 5 due to pain inhibition. However, the patient would not in the next moment be able to achieve 5 out of 5, because the same pain would still be there and would prevent the patient reaching 5 out of 5. It was then suggested that these findings could have been caused by mental health difficulties experienced by a patient. Mr Matthews rejected this too. He said that if 5 out of 5 could be achieved in one moment, no matter what the patient’s mental state was, there would be no reason why the next moment it should be 3 out of 5.

In these circumstances the variation in myotome weakness appears to me to be strong evidence of faking on the part of Mr Wamala in what he said to Mr Matthews. Here, too, however, there is no suggestion that it demonstrated faking on the part of Mr Wamala when seen by Mr Mohammad, as there was no complaint to Mr Mohammad by Mr Wamala of any symptom attributable to weakness in relevant myotomes. E2.6 Faking (6): left reflexes giving the lie

Paragraph 15 of Matthews 1 stated:

Feature (5) concerns the finding made by Mr Matthews that examination on the left hand side revealed normal reflexes. In cross-examination Mr Mohammad accepted that the presence of normal reflexes on the left hand side was inconsistent with weakness of the upper limb myotomes. This appears to me to be strong evidence of faking on the part of Mr Wamala when seen by Mr Matthews. It does not, however, demonstrate faking on the part of Mr Wamala when seen by Mr Mohammad, as Mr Wamala made no mention to Mr Mohammad of any symptom attributable to weakness in the upper limb myotomes. E2.7 Faking (7): inhibiting reflexes

Feature (7) is also based on paragraph 15 of Matthews 1. It concerns Mr Wamala’s failure to relax on the right hand side, instead holding the muscles tensed so that reflexes could not be elicited.

It is common ground that for a reflex to be elicited, the muscle concerned has to be in its relaxed state and not held tense. The joint orthopaedic report in this regard added that where relaxation was “not achievable” both Mr Mohammad and Mr Matthews would “comment or use diversional techniques”. There is no evidence, however, on the extent to which comments or the use of diversional techniques can be expected to succeed where a patient who is seeking to be co-operative nevertheless tenses up prior to a reflex test. In these circumstances it does not seem to me that this feature adds significantly to feature (6).

Matthews 1 stated at paragraph 19:

The point relied upon as regards feature (8) is that when lateral flexion causes pain this would be expected to be at a higher level in the body than was the case with Mr Wamala. Mr Mohammad, however, described extensive experience of circumstances where pain would be felt at levels lower than Mr Matthews had expected. In these circumstances it does not seem to me that this feature assists Reliance.

In addition, it may be noted that Mr Mohammad was cross-examined about Mr Wamala’s description to Mr Mohammad of pain at the right thoracolumbar junction and the lumbo-sacral area on the left hand side. It was put to Mr Mohammad, and he agreed, that those symptoms were entirely consistent with degenerative change. Mr Mohammad was not, however, asked whether there were factors which indicated that the pain identified by Mr Wamala in this region was attributable to degenerative change rather than to injuries suffered on Christmas eve.

Matthews 1 stated at paragraph 20:

No complaint about the reporting of pain in the iliac crests was put to Mr Mohammad in cross-examination. Accordingly the report of pain in the iliac crests does not give rise to any complaint which can be advanced by Reliance.

Criticism (1) asserted that in breach of professional conduct rules and the Data Protection Act 1998 Mr Matthews recorded his conversation with Mr Wamala without Mr Wamala’s consent. Mr Wamala relied upon the outcome of the complaint which he made to the General Medical Council (“GMC”). In that regard, a medical and a lay case examiner considered Mr Wamala’s concerns. They decided to conclude the case with advice. The reasons for this decision and details of the advice given were sent by the GMC to DPG on 12 August 2014.

Reliance accepts that Mr Matthews recorded his meeting with Mr Wamala: see section E1 above. It also accepts that Mr Matthews was required, both by data protection legislation and by compulsory guidance issued by the GMC, not to record the meeting with Mr Wamala without having obtained Mr Wamala’s consent.

Mr Matthews told both Horwich Farrelly and the GMC that his practice was always to tell his medico-legal clients that he was using a recording device. The recording device that he used was an “Echo Smartpen”. Mr Matthews said that he would tell clients that he was using the device before he turned it on, and would only turn it on if they consented. Mr Matthews told Horwich Farrelly that with regard to Mr Wamala or any other particular individual that he had seen, Mr Matthews had no specific recollection of discussing his use of the recording device, but he had no reason to believe that he had not. Mr Matthews’s response to the GMC was in similar terms: see section E3.3 below.

The advice given by the case examiners included the following:

As to what had happened as a result of Mr Wamala’s complaint, the case examiners recorded that Mr Matthews had:

The reasons given by the case examiners for dealing with the matter by way of advice included the following:

The closing submissions for Mr Wamala drew attention to the second to last sentence of the first paragraph quoted above. The case examiners emphasised the word “currently”. The conclusion that there was insufficient evidence to show that fitness to practice was “currently” impaired, was said to speak volumes.

To my mind, what this indicated is that, at the time that Mr Matthews saw Mr Wamala, Mr Matthews did not have in place robust procedures to ensure that consent was both obtained and recorded. The case examiners make no finding that at that time Mr Matthews’s fitness to practice was impaired: they leave that question completely open.

The case examiners stressed that confidentiality between patient and doctor is the basis of the trust that exists between the public and the medical profession, and that anything which might call that trust into question is a very serious matter. Nothing in the present judgment should be regarded as detracting from the vital importance of confidentiality as between doctor and patient. Nor should anything in the present judgment be regarded as detracting from the importance of the duty of all those affected by relevant data protection legislation to comply with the requirements of that legislation. In relation to Mr Matthews, however, the lapse identified by the case examiners was a failure to have in place procedures to ensure that robust consent was both obtained and recorded. There is no finding by the case examiners that Mr Matthews in fact failed to obtain consent from Mr Wamala. Still less is there any finding by the case examiners that Mr Matthews deliberately made a covert recording. In these circumstances, the sentence relied upon by Mr Wamala gives no assistance to a contention that Mr Matthews was biased.

The case examiners recorded what Mr Matthews had said to the GMC in this way:

Criticism (2) is that Mr Matthews’s response to the GMC, as described by the case examiners, was misleading. The only basis for contending that it was misleading is an assertion that in his evidence at trial Mr Matthews did not dispute that he had failed to obtain Mr Wamala’s consent to the recording. However this misrepresents Mr Matthews’s evidence. It was put to him in cross-examination that he had not asked Mr Wamala for consent. Mr Matthews’s reply was this:

That evidence on the part of Mr Matthews was perfectly consistent with his response to the GMC. Nothing said to the court by Mr Matthews involved a concession that he had not obtained Mr Wamala’s consent. Nothing that was said to the court by Mr Matthews involved an admission by him that either at the time of his response to the GMC or when giving evidence to the court he did not believe that he would have obtained Mr Wamala’s consent. In the passage cited on behalf of Mr Wamala, Mr Matthews simply accepts that he does not have evidence of obtaining Mr Wamala’s oral agreement to the recording taking place. There is no basis in this passage for the charge that Mr Matthews misled the GMC.

In Matthews 3 Mr Matthews responded to a question from DPG seeking to know “the approximate duration” of his meeting with Mr Wamala on 10 January 2014. Mr Matthews replied:

Criticism (3) asserted that this response was (a) unhelpful, (b) uncooperative, and (c) a flat lie. It was said to be a “flat lie” because Mr Matthews had in his possession the recording of the meeting.

Under cross-examination Mr Matthews accepted that he could have looked at the timing of the recording. He pointed out, however, that the recording was made so as to ensure accuracy, and there was no reason why he should time the meeting. His answer had been accurate: he did not know how long the meeting had lasted and he did not consciously time it.

I reject the assertion that Mr Matthews was guilty of a “flat lie” in this regard. No doubt if he had thought of the recording, then he could have taken steps to find out the amount of time that elapsed after he greeted Mr Wamala and before Mr Wamala left the room. He had not consciously sought to time the length of the meeting. There is no reason why he should have done. There is no basis upon which I can find, and indeed it has not been expressly suggested, that Mr Matthews thought to himself that he could use the recording to work out how long the meeting had lasted, but nevertheless decided not to do so. As it happens, by the time that Mr Matthews sent his reply on 25 March 2014, DPG had already been told of the recording: a letter dated 17 March from Horwich Farrelly enclosed a transcript of the recording, and gave a link to an audio version of the recording. In these circumstances I find that Mr Matthews was neither unhelpful nor uncooperative, nor guilty of lying.

It was suggested to Mr Matthews in cross-examination that he had been influenced by his dealings with Horwich Farrelly. Mr Matthews was asked about three aspects of these dealings in cross-examination. I can deal shortly with the second and third. The second was that Mr Matthews had been put forward as a witness to challenge the credit of Mr Wamala. There is no evidence, however, that Mr Matthews was aware of this. The third was that Mr Wamala made an offer to return and be re-examined by Mr Matthews. Mr Wamala accepts, however, that this does not appear to have been communicated to Mr Matthews.

That leaves the first and main matter of complaint in relation to Mr Matthews’s dealings with Horwich Farrelly. It was said that Mr Matthews’s approach to his interview with Mr Wamala, and his report, were “irreparably coloured” by the letter of instruction he had received from Horwich Farrelly. Under cross-examination Mr Matthews acknowledged that the letter of instruction asserted that Mr Wamala had been untruthful and that Mr Wamala’s account of the events in question was demonstrably lies. Mr Matthews accepted that the letter of instruction made these, and indeed other, pejorative assertions about Mr Wamala. He maintained that he nevertheless approached the matter independently, in accordance with his duties to the court.

With a view to showing that Mr Matthews had ceased to remain impartial after receiving the letter of instruction, criticism (4) seeks to rely upon a letter sent by the Medical and Dental Defence Union of Scotland (“MDDUS”) to the GMC on 20 May 2014. I refuse to allow Mr Wamala to rely upon this letter, as it was not put to Mr Matthews in cross-examination.

Criticism (5) cited two alleged inaccuracies in Matthews 1. The first concerned the last sentence of paragraph 7:

It was said that the transcript showed this to be an untrue account of what had occurred. In fact, however, the transcript shows that Mr Wamala’s immediate response was, “Yeah, you’ve got my medical reports”. That immediate response of itself justified what was said in the last sentence of paragraph 7 of Matthews 1. He had earlier referred Mr Matthews to “my medical reports”, and in his immediate response to Mr Matthews’s explanation of why Mr Wamala should answer Mr Matthews’s questions, Mr Wamala continued to refer Mr Matthews to Mr Wamala’s medical reports. Moreover, after an exchange which I deal with in section E3.7 below, Mr Wamala again said that he would refer Mr Matthews “to the medical reports because I can’t answer it”. There is no merit in this first aspect of criticism (5).

I add that in cross-examination there was a complaint that the second sentence of paragraph 7 of Matthews 1 was inaccurate. This second sentence asserted that Mr Wamala had repeatedly referred Mr Matthews to the documentation supplied, and had said “it’s all in the medical records” or “it’s all in the records”. The sentence had been said to be inaccurate because it was a claim that those repeated remarks had been made before Mr Matthews’s explanation of why it was in Mr Wamala’s interest to co-operate. Mr Matthews rebutted that allegation of inaccuracy by observing that the second sentence of paragraph 7 was not limited to what was said before that explanation. The closing submissions for Mr Wamala rightly did not persist in this complaint.

The second alleged inaccuracy concerned a statement at paragraph 46 of Wamala 1 that during the physical examination Mr Wamala had “simply refused to co-operate”. It is said in Mr Wamala’s closing written submissions that no such refusal is apparent from the transcript. However this contention was not put to Mr Matthews in cross-examination, and accordingly I refuse to allow it. I add that it takes a small part of paragraph 46 out of context: the full assertion in paragraph 46 is that during the physical examination Mr Wamala “either simply refused to co-operate or alternatively has exhibited substantial abnormal illness behaviour”. It seems to me that this general comment could well have been made in relation to the instances where I have identified “faking” on the part of Mr Wamala in section E2 above, and might also have reflected Mr Matthews’s assessment of Mr Wamala’s conduct in failing to relax muscles on his right side for the purposes of reflex tests.

For these reasons there is no merit in criticism (5).

Criticism (6) concerned what Mr Matthews said about Mr Wamala’s neck flexion and rotation. I have dealt with this in section E2.3 above. For the reasons given there, I cannot accept the assertion that Mr Matthews’s assertion that he saw a full range of movement was absurd.

In support of an assertion that Mr Matthews’s interview with Mr Wamala was abrupt and hostile, it is said that Mr Matthews did not seek to put Mr Wamala at ease. I reject this assertion. The transcript shows that at the outset there was a series of interchanges. The very first of these began with Dr Matthews saying:

Mr Matthews told Mr Wamala his name, that he was a consultant trauma surgeon, that he worked at the John Radcliffe Hospital in Oxford, and that he had received instructions to do another medical report on Mr Wamala.

Mr Matthews asked whether Mr Wamala had filled in a questionnaire. Mr Wamala handed over the questionnaire and the following exchange took place:

There were a few similar exchanges until Dr Matthews noted that Mr Wamala had not filled in the questionnaire at all. Throughout this period Mr Matthews described Mr Wamala as “surly”. I have no doubt that, in part for the reasons given by Professor Katona and cited in section B2.1 above, the attitude of Mr Wamala to Mr Matthews was hostile. The hostility demonstrated to Mr Matthews, however, went far beyond such hostility as was demonstrated to Dr Britto. I think it likely that the reason for this was because Mr Wamala had decided that he would fake some, at least, of his symptoms when examined by Mr Matthews, and was for that reason on edge and surly in his dealings with Mr Matthews.

The remaining point taken in criticism (7) concerns an exchange which occurred not long after the second occasion on which Mr Wamala referred Mr Matthews to Mr Wamala’s medical reports:

At this point Mr Wamala indicated that he would let Mr Matthews examine him. Mr Matthews was, from that point onwards, able to ask questions of Mr Wamala, and he received answers from Mr Wamala.

Criticism (7) asserts that in the first question quoted above Mr Matthews suggested to Mr Wamala that Mr Wamala could refer Mr Matthews to the medical records. I disagree. It was plain from what had gone before that Mr Matthews did not regard simply referring him to the medical records as satisfactory. It was plain that he wished Mr Wamala to answer his questions. In the event Mr Matthews was able to identify questions which Mr Wamala would answer during the course of examination, but was left to go to the records in order to obtain any sort of history.

Thus I reject the assertion that Mr Matthews was abrupt and hostile. I do, however, consider that things could have gone better. In particular, if Mr Matthews had read Professor Katona’s report before the meeting, he would have been alerted to Mr Wamala’s PTSD and MDD, and could have given thought to ways in which the particular problems associated with those conditions could be anticipated. Mr Matthews appeared to suggest in evidence that knowledge of Mr Wamala’s PTSD would have made no difference to his approach. That runs counter to the experience of the judiciary, who have gained assistance from the Equal Treatment Bench Book

In the present section E4 I give an account of key points arising during Mr Mohammad’s cross-examination, and my assessment of those points.

Much of Mr Mohammad’s cross-examination was taken up on aspects described in section E2 above. I mention those aspects in the present section E4 only if there is some additional feature calling for mention.

Cross-examination of Mr Mohammad began by taking him to notes made by Nurse Jake, who saw Mr Wamala late on Christmas eve after Mr Wamala’s arrival at Colnbrook IRC. Those notes did not mention any complaint concerning the shoulder or neck area. It was suggested to Mr Mohammad that if Mr Wamala had suffered soft tissue injuries beyond the very trivial, the pain would have been felt by the stage at which he reached Colnbrook IRC. Mr Mohammad in response made four points about the danger of placing weight on absence of a recorded complaint in a medical report. I refer to these points as numbers (1) to (4) of Mr Mohammed’s reporting warnings:

Cross-examination continued by taking Mr Mohammad to notes made by Dr Jabbar, who saw Mr Wamala on Christmas Day. Dr Jabbar’s notes contain a sentence making a general comment about Mr Wamala’s complaints: “He is complaining of sore ribs, especially right and right-sided upper and lower back pain, no other injuries or symptoms”. It was suggested to Mr Mohammad that Dr Jabbar was making a full examination the morning after the incident at a time when Mr Wamala was known by Dr Jabbar to be about to complain about the incident. By contrast, it was suggested to Mr Mohammad that his reporting warnings described an omission to mention all injuries which was only likely to occur where a severe distracting injury encouraged a patient to forget about trivial ones. In response, Mr Mohammad made three points, which I shall number as (5) to (7) of Mr Mohammad’s reporting warnings:

In relation to Mr Wamala’s neck, Dr Jabbar’s notes included “NAD”, short for “nothing abnormal detected”. Also in relation to Mr Wamala’s neck, the letters “FROM” appeared indicating a full range of movement. As regards those notes, Mr Mohammad made additional points which I shall refer to as numbers (8) to (10) of Mr Mohammad’s reporting warnings:

What Mr Wamala described to Mr Mohammad was dealt with in Mohammad 1 in a section entitled “History”. The final paragraph of this section was paragraph [9], where Mr Mohammad stated: No radicular symptoms are described. …

In cross-examination Mr Mohammad was taken to the next section of Mohammad 1 entitled “Current state of symptoms”. There Mr Mohammad set out the description Mr Wamala had given to him of the current state of Mr Wamala’s symptoms. In paragraph [10] this account included:

It was suggested to Mr Mohammad that this passage in paragraph [10] was inconsistent with what Mr Mohammad said in paragraph [9]. Mr Mohammad disagreed.

First, Mr Mohammad gave an account of radicular symptoms in which he agreed with what was put to him on behalf of Reliance. This was that a radicular symptom was caused by compression of the nerve root at the cervical spine causing pain which often radiated and caused paresthesia (heightened sensitivity, numbness, prickling or tingling) and the like. Mr Mohammad also agreed that pain radiating into the hand and wrist with pins and needles and aching could constitute radicular symptoms. However, Mr Mohammad went on to explain that those symptoms could equally have a peripheral cause originating in the wrist or forearm. As to how radicular symptoms were to be distinguished from those not caused by compression of the nerve root at the cervical spine, Mr Mohammad explained that a symptom coming specifically from the neck gave rise to a dermatomal pattern – a circumscribed thickening of the skin. This pattern is not found where the symptom has a cause which is non-spinal. It was not found in relation to the right wrist pain in the present case. He accepted

Mr Mohammad’s evidence in this regard was clear and compelling. It demonstrated Mr Mohammad’s expertise in distinguishing pain with an origin which is spinal from pain which is not spinal in origin. It also demonstrated the value of Mr Mohammad’s specialist expertise when forming an opinion about symptoms of the kind shown by Mr Wamala.

Consistently with what was said in Matthews 1, it was suggested to Mr Mohammad that soft tissue injury has a relatively well recognized course of recovery. It will involve an acute phase, typically lasting 6 to 8 weeks. That depended upon the severity of the original injury, and thus might be a few days or might be months.

Mr Mohammad replied that, as a description of the position in relation to a limb, he agreed. As regards the spine, however, “it does not quite work that way.”

This led to a clarification on behalf of Reliance. It was said that the “relatively well recognized course of recovery” that had been put to Mr Mohammad was a course of recovery in relation to the paraspinal muscles, which was where Mr Wamala’s pain was located.

Mr Mohammad responded that the spine is a very complex structure, and that the clarification was “going down the route of saying that we know exactly where the source of this pain is.” It was something which Mr Mohammad would not dare to do. He agreed that soft tissue injuries generally had an acute phase, followed by a lengthy stage where the injury gradually subsides to nothingness. In Mohammad 1 he had considered that the likely end date for continuing symptoms to the neck and back, on the basis of soft tissue injury, would be March 2014. This was not the same as soft tissue injury in any other part of the body. He differed from the opinion which Mr Matthews had described, in which pain going beyond a year would be attributable to degenerative changes rather than pain from the soft tissue injury.

In that context, Mr Mohammad explained that in the joint report he had extended the end date by a year to March 2015. The reason for the change was that Mr Mohammad considered that Mr Wamala was “going into a pain syndrome type of scenario”. When a patient has had pain for some time other factors become important and pain pathways change. Patients develop “chronic pain syndrome”. At that stage it was not the structural injury which was the driver, it was more the overall dimension of what was happening. For this reason, Mr Mohammad had suggested looking at cognitive behavioural therapy and involving a specialist.

My assessment of this evidence is dealt with when assessing evidence given on the next topic, the effect of degenerative disc changes.

Reliance’s stance was that, as asserted in Matthews 1, the fact that Mr Wamala was shown by the scans as already having degenerative disc changes had no effect on progress of the soft tissue injury. When this was put to him, Mr Mohammad replied:

Mr Mohammad agreed that the level of degenerative disc disease shown in Mr Wamala’s scans could be either symptomatic or asymptomatic. He also agreed that it is impossible to predict from the scan whether the patient will fall into the symptomatic category or the asymptomatic category. Mr Mohammad was asked to agree that there had been extensive analysis of whether symptoms of degenerative disc change can affect the severity of the symptoms of the soft tissue injuries. Mr Mohammad replied:

It was suggested to Mr Mohammad that Mr Wamala may be suffering symptoms from degenerative change and soft tissue injury, and that when the soft tissue injury disappeared the patient will be left with the symptoms of the degenerative change only, which was a quite separate pain. Mr Mohammad replied that, as a clinician, it was very difficult to distinguish between the two when it came to the spine.

The cross-examination then dealt with the “well recognized” course of recovery for soft tissue injury. I have discussed this in section E4.4 above.

Mr Mohammad was then taken to the well known book by Robert A. Dickson and W. Paul Butt entitled The Medico-Legal Back. The book included a citation from Smeathers to the effect that intervertebral discs are spacers, are not shock absorbers, and facilitate movement without absorbing energy. Mr Mohammad replied that he would not necessarily accept this, because he was himself involved in finite element analysis of the spine at Manchester University. Mr Mohammad added that Professor Dickson was a personal friend and that he and Professor Dickson often argued about these issues. Mr Mohammad said that he had used the information that he had gathered as part of the finite element analysis in order to alter his practice, both surgically and in terms of how he dealt with patients with certain specific issues relating to their spine.

Other citations from the book were put to Mr Mohammad. They gave rise to no difference of opinion. Mr Mohammad made it clear that he had not and did not suggest that the incident had caused a disc-specific injury. It was common ground that the scan showed constitutional degenerative change to the disc. He returned to his earlier point that soft tissue injury affecting the spine was different from soft tissue injury affecting a limb.

At that point Mr Mohammad was asked questions to which he gave the answers below:

In re-examination Mr Mohammad was asked about [Q3] and [A3] in the passage quoted above. In response, Mr Mohammad said this:

This led to a complaint by Reliance. The complaint was that neither the question asked in re-examination, nor the answer given, arose from cross-examination in the sense that it required clarification or explanation. [Q3] had been clear and [A3] had been clear. What had now happened was that Mr Mohammad had effectively been invited to revisit it.

In a ruling given later that day I rejected this complaint. In my view [Q3] was a question which should not have been put. It was in my view entirely proper to ask Mr Mohammad in re-examination about [Q3] and [A3]. To my mind, [Q3] was a question which sought to rely upon statistics, and it was appropriate to ask Mr Mohammad about the statistical basis in re-examination.

The essential point here is that statistical evidence cannot be looked at in isolation. It can only assist a decision maker if it is properly examined in the light of the circumstances of the particular case. In the criminal law the importance of this has been emphasised repeatedly in the context of DNA evidence. The statistical evidence may be that the probability of someone other than the defendant having the DNA profile in question is one in a million. It is tempting for the prosecutor to invite the jury to infer that it is 99.9999% probable that it was the defendant who left the DNA profile at the scene of the crime. This is, however, what is known as “the prosecutor’s fallacy”. First, in Great Britain, with a population well in excess of 50m people, this statistical evidence actually suggests that there are at least 50 individuals, other than the defendant, with the DNA profile in question. This puts the matter in quite a different perspective. If, moreover, there is evidence that one such individual, perhaps a close relative of the defendant, was at or near the scene of a crime, then unless that individual can be excluded the statistical evidence offers no basis for convicting the defendant.

The same is true in the present case. Without more information, the fact that in most cases a soft tissue injury has effects which disappear “in accordance with the normal course” is of no assistance to me. Mr Mohammad consistently maintained that where there are underlying degenerative changes soft tissue injuries can take longer to settle. In the present case the scan shows that there are underlying degenerative changes. It would be quite wrong to assume on a statistical basis that Mr Wamala was a person in respect of whom it was more probable than not that the normal course would be followed. It was entirely right for the matter to be revisited in reexamination, and I have been assisted by Mr Mohammad’s answer pointing out that there is a core of patients, particularly with the spine, where symptoms come and go in a way which differs from the normal position.

On the matters dealt with in section E4.4 and the present section E4.5, Mr Matthews disagrees with Mr

For the reasons given in section E3 above, I reject the contention that I should pay no regard to the evidence of Mr Matthews. For reasons given in section E2 above, I am satisfied that Mr Wamala was deliberately exaggerating his symptoms in relation to what I have identified as features (1), and (3) to (6) of his meeting with Mr Matthews. Mr Wamala’s evidence was that he did his very best with everything that Mr Matthews asked him to do. That evidence was plainly untrue. As explained in section B2.1 the result is that I must approach Mr Wamala’s evidence with particular care.

On that basis, however, I have reached conclusions in section F below that during the course of the incident Mr

As regards the cause of those injuries, however, Mr Mohammad has explained that during the period after March 2014 they were attributable to the pain which Mr Wamala had suffered previously rather than the incident itself. Moreover, it seems to me likely that during the period after March 2014 the effects of Mr Wamala’s PTSD may have played a significant part in Mr Wamala’s continued perception of those symptoms.

What happened on Christmas eve, & liability for it

The present section F is concerned with conflicts of evidence. It fills gaps in the accounts of events given in sections A1.3 and A1.5.

In resolving conflicts of evidence I generally adopt the approach urged by Reliance (see section B3.1 above). Under that approach, I work on the basis that people’s recollections are likely to be more accurate when recounting their own actions and what happened to them than when attempting to recall what they saw or heard others doing or saying. As regards Mr Wamala’s evidence, that approach requires modification. The reason is that, as described in the Equal Treatment Bench Book and in the evidence of Professor Katona, those who experience severe trauma can find it very difficult to recall accurately and in sequence the details of events that happened to them, and the traumatic nature of some of the sequence of events may have the consequence that an individual’s memory of the whole of the sequence might be somewhat distorted.

As to Mr Wamala’s beliefs and concerns on Christmas eve, described in section A4 above, it does not seem to me that Mr Wamala’s recollection is likely to be distorted. There is nothing implausible about the beliefs and concerns that Mr Wamala described. Those beliefs and concerns are consistent with the evidence. Thus, for example, numerous witnesses described Mr Wamala crying out that the escorts were killing him. The Beck report at paragraph 140 records Mr Wamala as saying to DCO Duke: Yeah, I know, you can do anything outside the law …

In section F2 below I deal with a meeting of the escorts which occurred shortly before they went to Brook House IRC to collect Mr Wamala. At that meeting the escorts were given a “job pack” which included either the original or a copy of the purported QR2 movement notification. For convenience I also deal in section F2 with what Reliance’s September 2015 proposed amendments seek to say about the purported QR2 movement notification.

The escorts assembled for a “muster” meeting at Spectrum House, not far from Brook House IRC. The precise time of this meeting is not clear, but it is likely to have been between 2 and 2:30pm. Mr Charles confirmed that the document received at Spectrum House included the changes to the flight number and departure time which I have described in section A3.6 above. He could not recall whether the document received at Spectrum House showed these changes in red, or whether it had been a photocopy in black and white.

Reliance’s original defence dealt in paragraph 7 with what it referred to as the “instructions” and on one occasion as the “directions” given to it by the Home Office. By the time of the re-amended defence verified by a statement of truth dated 2 February 2015, the document had been restructured so that after the first two sentences of the original paragraph 7 a new paragraph 7A was inserted, the last sentence of the original paragraph 7 became paragraph 7D, and intervening parts of the original paragraph 7 were woven with new material so as to become paragraph 7B. There was no paragraph 7C. Prior to the re-amendment, the amended defence had stated that the Home Office directions to Reliance were contained in the MS778 movement notification “amended by the Home Office by hand to change the printed departure time and flight number …” . It admitted that if these directions were unlawful then “the admitted use of force by the second Defendant’s agent was unlawful…”, and claimed an indemnity from the Home Office. The re-amended defence withdrew this admission.

Reliance’s September 2015 proposed amendments would remedy the lack of a paragraph 7C. However they would do this twice over, as the document accompanying Reliance’s further written submissions contained two different paragraphs, both of which were numbered “7C”. For present purposes I shall work on the basis that this error in numbering could be corrected by me numbering the second proposed paragraph 7C as paragraph “7CA”.

The proposed new paragraph 7C contains a number of sub-paragraphs. The proposed subparagraph 7C(4) would read:

I refuse to allow this proposed sub-paragraph. It introduces something which is no more than a speculation, and it goes nowhere.

The remainder of the proposed paragraph 7C invites the court to make an inference concerning the amendments to change the printed departure time and flight number, which were originally referred to in paragraph 7B of the amended defence. Reliance’s September 2015 proposed amendments would revise paragraph 7B so as to admit that those amendments were made:

The inference which Reliance would invite the court to make in the proposed new paragraph 7C is that these amendments were made because CWT had changed the flight details “from the EgyptAir flight to the Qatar flight and the second defendant had become aware of the change.” Payne 2 supports the inference, as far as it goes, and matters relied upon in the new paragraph 7C as justifying the inference. I accordingly allow the proposed revisions to paragraph 7B, and the proposed new paragraph 7C, subject to:

What I have called proposed paragraph 7CA comprises propositions of fact and law as follows:

These propositions are, as I understand it, common ground. Accordingly I will allow the new paragraph 7CA.

Turning to the existing paragraph 7D, it states:

On 9 March 2015 Mr Wamala made a request for further information of paragraph 7D, and of a passage in paragraph 10 of the re-amended defence referring to Reliance as having assigned its staff to escort Mr Wamala pursuant to “a lawful instruction” issued by the Home Office. The request was:

In further information verified on 23 March 2015 Reliance answered:

Reliance’s September 2015 proposed amendments would make an addition to paragraph 7D. Here it seems to me that there is a defect in what is proposed. The proposal is for that paragraph to begin with the existing paragraph 7D

When paragraph 7D appeared in the re-amended defence, however, Reliance’s case was that the “instructions given to it by the first defendant’s servants or agents” were, as to departure time and flight number, those marked in manuscript on the purported QR2 movement notification. The further information did not depart from this stance, although it identified other methods of communication. What Reliance’s September 2015 proposed amendments will do in paragraph 7B and 7C is to explain that the “instructions given to it by the first defendant’s servants or agents” were those in the MS778 movement notification, which required Reliance to put Mr Wamala on the EgyptAir flight departing at 2pm. The first paragraph of the proposed paragraph 7D makes no change to the words which previously appeared. However, when it is read with the changes introduced in paragraphs 7B and 7C, those same words have the effect of making a new allegation that Reliance’s servants and agents at all times reasonably believed that the instructions to put Mr Wamala on the EgyptAir flight departing at 2pm were lawful. I comment that there is no evidence that anyone at Reliance had any belief about the instructions in the MS778 movement notification. Even if there were such evidence I cannot see that allowing this new assertion to be made serves any useful purpose.

The remainder of the proposed paragraph 7D would tack on some additional words:

This proposed addition does nothing to remedy the defect identified above. Accordingly I refuse permission to revise the former paragraph 7D, and I make the grant of permission in relation to the new paragraphs 7B and 7C conditional upon there being an amendment to remove the existing 7D.

The escorts arrived at Brook House IRC at around 2:55pm. Mr Charles presented the purported QR2 movement notification, or a copy of it, to G4S staff at Brook House IRC. He did this in order to obtain custody of Mr Wamala and the transfer to Reliance, in the person of Mr Charles, of the detention authority.

When describing this in the course of course of cross-examination on day 3, Mr Charles, in relation to the changes marked on the purported QR2 movement notification, said:

Mr Charles returned to this during the course of cross-examination on day 4, saying:

At about 3pm Mr Wamala was taken to the reception area at Brook House IRC and was delivered to the Reliance escorts. There then followed the exchanges between Mr Charles and Mr Wamala described in sections A4.4 and A4.5 above.

The Beck report summarises the CCTV as showing that Mr Wamala got into the van at 3:42pm. I have dealt in section A4 above with aspects of what happened in the van on the way to, and at, Heathrow. Two other features of what happened during this period call for mention:

It is common ground that Mr Wamala did not resist when going up the staircase, and that an escort on either side of him had a light hold of his arms. It is also common ground that the escort on Mr Wamala’s left was Mr Duke.

There are two factual issues concerning what happened on the staircase. The first is whether, as alleged in the amended particulars of claim, an escort following Mr Wamala grabbed hold of Mr Wamala’s trousers and pulled him up the stairs. All escorts reject this. This rejection is in my view plainly right. Mr Wamala is a tall and heavy man. It is difficult to see how an escort below him could pull him up the stairs. In evidence in chief Mr Wamala merely said that his belt had been held from the back, and in cross-examination that his waistband had been grabbed. No allegation of being pulled up the stairs was made in his initial complaint or in his interview with the Beck team on 30 December 2011. I conclude that this was a wild allegation which should never have been advanced by Mr Wamala.

When interviewed by the Beck team, Mr Wamala said that there was an escort “holding at the back”. This is at least plausible, but I cannot be confident that it happened. Accordingly I make no finding that there was any pulling, grabbing or holding of Mr Wamala from the back as he went up the staircase.

The second issue concerns the identity of the escort on Mr Wamala’s right. Mr Wamala said it was Mr Charles.

I find that it was Ms Lee who was on Mr Wamala’s right. In that regard:

As set out in section A4 above, I find that Mr Wamala was willing to board the aircraft without resistance because, among other things, he greatly feared that if he offered any resistance to the escorts he may suffer the same fate as Mr Mubenga, and because he considered it vital to make contact with the captain, who was the only person who could prevent his unlawful removal.

As noted in section A1.6 above, it is common ground that upon entering the aircraft, Mr Wamala raised a concern with one or both of the stewardesses. As to what then happened:

I begin with allegation (a), asserting that upon entering the aircraft Mr Wamala’s demeanour changed. If it is rephrased to refer to a change which occurred a short time after arriving on board, it is plainly right. Allegation (g) is also plainly right. Mr Wamala was indeed taken to the floor in the course of a struggle. The key issue is the timing of two actions admitted by Reliance as part of allegation (f). They are, first, the actions by which “Mr Wamala was taken a firm hold of”, and second, the securing of Mr Wamala’s right hand in the handcuffs. Is Reliance right to say that these two actions (“the firm hold” and “the right hand cuffing”) occurred only after the events described at (b) to (d)? Or is Mr Wamala right to say that those two actions occurred without warning while he was talking to Ms Lersakdadet?

I am satisfied that Reliance is wrong to say that the events described at (b) to (d) all occurred before the firm hold and the right hand cuffing. My reasons are these:

As soon as Mr Wamala started to speak to me the immigratio nescorts grabbed Mr Wamala around his upper arms and shoulders and immediately pulled him back. …

In his interview with Ms Beck on 30 January 2012 Mr Charles was told of a cabin crew member’s account that Mr Wamala “approaches her and says “help me, I do not want to go”, at which point the escorts … pulled him back”. As to her account of the escorts pulling Mr Wamala back, Mr Charles said:

Mr Charles, in cross-examination on day 5, was shown the transcript of this passage in the interview. In relation to it being at the point when Mr Wamala said “help me” that the escorts pulled Mr Wamala back, Mr Charles said in cross-examination:

Mr Simmons in his interview with the Beck team on 30 January 2012 commented that “we don’t want [Mr Wamala] too close to the cabin crew … just in case, so we would move him forward out of the way as quick as we can”. In cross-examination Mr Simmons confirmed this, adding:

It is accepted by Reliance that Mr Wamala has no history of violence;

Mr Wamala’s beliefs and concerns described in section A4 above made it highly unlikely that he would

There is strong evidence that Mr Wamala did not shout before the firm hold and the right hand cuffing. Assertions that when Mr Wamala approached the stewardesses he was shouting:

There was not enough time for Mr Charles to have given an order to Mr Wamala to take his seat and for Mr Wamala to have been given an opportunity to do so:

Assertions that Mr Wamala’s arms were flailing before the “firm hold” and the “right hand cuffing” cannot be right: witnesses who said this accepted in cross-examination that their account must have been inaccurate because Mr Duke had hold of Mr Wamala’s left arm.

Ms Lee gave evidence that she lost control of Mr Wamala’s right arm after he became agitated, and “turned back full round and I got took round in the momentum”, but for the reasons given in section B3.6 above I do not regard Ms Lee’s evidence as reliable. It seems to me much more likely that the right hand cuffing resulted in Mr Wamala being pulled back and Ms Lee losing control of the right arm which was flailing at that stage as Mr Wamala pulled against the handcuff.

In these circumstances there was not enough time for the measured process of decision-making described in what I have called, at the start of the present section, Reliance’s allegations (c) to (f).

Reliance’s closing written submissions asserted that Mr Wamala either lunged or moved in a frightening way towards Ms Lertsakdadet. No such assertion appeared in Reliance’s statement of case. Nor was there any evidence of Mr Wamala lunging or moving in a frightening way towards Ms Lertsakdadet. Reliance cited the oral evidence of Ms Govey. I have explained in section B3.4 above why I regard that evidence as unreliable. Even if it were reliable, it amounted to no more than an assertion that she thought Mr Wamala “was going to lunge” towards Ms Lertsakdadet.

I turn to evidence as to how Mr Wamala came to the floor, and as to how Mr Duke held Mr Wamala’s head.

The handcuffs used by Mr Charles call for special mention. The handcuffs were rigid bar handcuffs, also known as a “quick cuff”. Each cuff has a single bar mechanism at the front, and a double bar mechanism at the back. The officer takes hold of the detainee just above the wrist. As the arm enters the cuff, the double bar has a ratchet mechanism which engages with the lock. In this way a “single lock” is achieved. However, the ratchet mechanism may tighten the cuff further, unless and until the officer engages a double locking system to prevent the cuffs tightening further.

In examination in chief Mr Charles described a procedure under which, with Mr Duke supporting Mr Wamala’s head, Mr Wamala was taken to the floor in a controlled move: “we controlled his body weight going down to the floor.”

This differed from what Ms Lertsakdadet described. The Lertsakdadet email at [10] stated, “During the moment, they fell down on the floor …”. At paragraph 12 of Lertsakdadet 1 Ms Lertsakdadet explained:

Ms Lertsakdadet’s account was supported by Mr Duke’s evidence in cross-examination. Mr Duke explained

In fact in cross-examination Mr Charles had described a different procedure, utilising the ability of a rigid bar handcuff to provide a pain compliance mechanism. Mr Charles said that he had been trained in this technique by a police officer on a refresher course on rigid bar cuffing. Mr Charles was taken to a document produced by

In these circumstances I reach conclusions that:

Mr Wamala’s evidence was that after being taken to the floor he was in a position forward was across the aisle nowhere for his legs to go. Reliance’s closing submissions pointed out that this differed from all the other evidence. I find that Mr Wamala after he went to the floor, was in the position described by Ms Lertsakdadet at paragraph 14 of Lertsakdadet 1:

It is common ground that:

Reliance contends that, in accordance with approved techniques designed to ensure that a detainee’s head is not injured, Mr Duke was kneeling with one knee either side of Mr Wamala’s head. However, the closing submissions for Mr Wamala contended that approved techniques were not followed. I agree. In particular, I accept that:

Mr Charles asserted in oral evidence that he had not put any weight on Mr Wamala. However, as the submissions for Mr Wamala pointed out, Mr Charles told Ms Beck on 30 January 2012 that he sought to take control of Mr Wamala by placing his right knee onto Mr Wamala’s right side to stop him thrashing his legs around. I consider that what Mr Charles said to Ms Beck is more likely to be correct than the later oral evidence. Mr Simmons gave evidence that Mr Charles was trying to reach across Mr Wamala to free Mr Wamala’s left hand at the time that it was underneath Mr Wamala, and that when Mr Wamala later reached out with his left arm to clutch under the nearby seat, Mr Charles was engaged in trying to extract that hand from underneath that seat. I accept, as submitted on behalf of Mr Wamala, that:

Reliance’s closing written submissions asserted that Mr Wamala tried to bite Mr Duke’s left thigh while on the floor of the aircraft. I do not accept this. In section B3.6 above I have given my reasons for rejecting Ms Lee’s evidence in this regard. There is no doubt that Mr Duke repeatedly said “Do not bite me.” Mr Duke said in examination in chief that Mr Wamala was moving towards Mr Duke’s thigh and that Mr Wamala’s mouth was open in a manner which led Mr Duke to think that Mr Wamala was going to bite him. However in crossexamination Mr Duke said that this occurred after Mr Charles had handcuffed Mr Wamala, that Mr Duke’s concern was that Mr Wamala would bite Mr Duke’s colleagues, and that Mr Wamala did not have the opportunity to bite anyone because Mr Duke had control of his head. There was thus no evidence from Mr Duke that at the time that Mr Wamala was on the floor he attempted to bite anyone.

Mr Duke gave evidence that before grabbing the underside of the nearby seat, Mr Wamala, after removing his left arm from underneath his body, used his left hand to grab Mr Duke by the testicles. This evidence was not seriously disputed and I accept it. There could be no doubt that this caused significant pain to Mr Duke.

The closing written submissions for Mr Wamala did not support Mr Wamala’s pleaded case that the escorts kicked Mr Wamala. I accept that it may have felt to Mr Wamala that he was being kicked, but I find that there was in fact no kicking of Mr Wamala.

Mr Wamala gave evidence that he cried out that he could not breathe. I consider it likely tha t in the circumstances described above Mr Wamala did indeed have difficulty breathing. Mr Duke was adamant that Mr Wamala had not said this, but it seems to me quite possible that with all the noise and shouting which was going on Mr Duke either did not hear, or simply later did not recall, what Mr Wamala had said in this regard. Mr Simmons accepted that it was indeed possible that Mr Wamala shouted that he could not breathe. There was a suggestion that as Mr Wamala was able to talk, it followed that he was able to breath, but Mr Charles accepted that this was a common misconception.

It is not suggested that the escorts were in fact trying to kill Mr Wamala. In the light of my findings in section

It is common ground that it took some time for Mr Wamala to appreciate that the escorts were telling him that he was to be taken off the flight and that this was indeed the case. Ms Lertsakdadet said that, at the request of one of the escorts, she had told Mr Wamala that he was going to be offloaded. There is no reason to doubt that evidence, and I accept it. I find that the struggle continued until Mr Wamala was told by Ms Lertsakdadet that he was to be offloaded. Ms Lertsakdadet added:

This evidence of Ms Lertsakdadet, along with the evidence of Mr Charles and Mr Duke, is consistent with the contention advanced on behalf of Mr Wamala that he was effectively dragged back to the door that he had come in through. I find that this was the case, and that, as was also submitted on behalf of Mr Wamala, the escorts did not stop to check on Mr Wamala’s wellbeing or ask whether he wanted to go down the staircase.

As to how Mr Wamala reached the bottom of the staircase, there is a stark contrast between Mr Wamala’s evidence and that of the escorts. Mr Wamala said that two male escorts who were to the left and right of him lifted him up, that two other escorts were lifting his legs, and that one was holding on to his belt and trousers, and that in this manner he was taken face down to the bottom steps where he was dropped by the escorts. The escorts, by contrast, say that when Mr Wamala reached the doorway he was in a sitting position, his left wrist was handcuffed, after which they lifted him up and that once he was standing up he was escorted, still standing, down the staircase until towards the bottom of the staircase, he went forwards and to the ground.

The written closing submissions for Mr Wamala recognised that if Mr Wamala’s account is correct that could only be the case if the escorts had colluded and adopted an agreed line. The submissions asked rhetorically why Mr Wamala would make up an account of being carried down. They also asked rhetorically how Mr Wamala’s back came to be injured as both experts accept that it is.

I can deal with the second of these questions shortly. There is no doubt that, in one way or another, Mr Wamala hit the bottom part of the staircase. Nor is there any doubt that Mr Wamala was then dragged into the van by his cuffed arms. It seems to me that the injuries to Mr Wamala’s back could well have occurred during either of these processes.

As to the first of these questions, it seems to me that Mr Wamala’s account on this aspect is another example of him making wild accusations. I reject the contention that the escorts’ account was an “agreed line”. It was submitted for Mr Wamala that the escorts would have had to make up such a line because the CCTV camera shows Mr Wamala being dragged into the van by his arms with his head facing the ground. It seems to me that the camera shows this because it was the method adopted of getting Mr Wamala from his position at the bottom of the staircase into the van.

As to the method by which Mr Wamala was dragged into the van, I accept the submissions on behalf of Mr Wamala that the CCTV footage of this is shocking. Mr Wamala is crying out in pain. He is being shouted at by the escorts, but appears plainly incapable of getting up. At one stage an escort pulls Mr Wamala into the van by the rear of his trousers. At this stage the handcuffs had not been double locked and thus must have been digging into Mr Wamala’s wrists. The experience for Mr Wamala was both painful and degrading.

What seems to have happened is that the escorts were rushing so that the van could be driven off the tarmac as soon as possible in order to ensure that the aircraft did not miss its departure slot. This cannot possibly justify the way that Mr Wamala was treated.

Sections F9, F10, F11 and F12 deal with liability for what happened on Christmas eve. Sections F9, F10 and F11 deal with liability at common law. They are concerned, respectively, with the period when Mr Wamala was taken up the staircase, the period when he was on the aircraft from the beginning to the end of the struggle, and the period after the struggle was over, including when he exited the aircraft and was put in the van. Section F12 deals with liability under article 3 of the European Convention on Human Rights, as given effect by section 6 of the Human Rights Act 1998.

As to the period when Mr Wamala was taken up the staircase, I start in section F9.2 below with the light holds used by the escorts when going up the staircase to the aircraft. In that context I discuss issue 1, and explain why I conclude that the answer to the March 2014 question is “No”. In section F9.3 I discuss issue 3 and give initial consideration to whether paragraph 18A of the defence, even if revised in the manner proposed by Reliance, assists Reliance in relation to force used when going up the staircase. I explain that in the context of going up the staircase, while I can rule out the self-defence justification, and I can rule out actual or potential justifications concerned with the prevention of escape, it is necessary to give more detailed consideration to the prevention of crime justification, the keeping the peace justification, and the 1999 Act duties justification. Those justifications are then considered in sections F9.4, F9.5 and F9.6. My conclusions on liability for the light holds are set out in section F9.7.

When Mr Wamala was going up the staircase escorts either side of him had a light hold of his arm. This is common ground: see section F5 above, where I conclude that Mr Duke was on the left of Mr Wamala and that Ms Lee was on his right.

Reliance submitted that the fact that Mr Wamala was held lightly by the arms “adds nothing to the picture, as a matter of law or common sense”. I cannot accept this submission. The light holds necessarily involved a small degree of force on Mr Wamala. The force used was small, but it was important as a matter of principle. Moreover that force gave effect to the specific threats of force made by Mr Charles and Ms Govey, and reinforced the continuing nature of those threats.

I have no doubt that the amended particulars of claim sought damages for the application of that force. Paragraph 55 of the amended particulars of claim stated:

Paragraph 32 of Reliance’s September 2015 submissions seems to make an assertion that Mr Wamala’s claim generally is only pursued to the extent that the behaviour of the escorts was “excessive”, “disproportionate”, or “unnecessary”. The assertion is unfounded for reasons given in Mr Wamala’s October 2015 submissions. It is true that Mr Wamala applied these and other characterisations to the actions of the escorts. But these characterisations were not the only basis on which he claimed for trespass to the person. Paragraph 129 of the particulars of claim said expressly:

When read in context, this was plainly a contention by Mr Wamala that the mere fact of use of force by the escorts entitled him to claim damages. The same contention was clearly advanced at the outset of Mr Wamala’s skeleton argument, and in the oral opening submissions on behalf of Mr Wamala. Thus the point apparently taken in paragraph 32 in Reliance’s closing written submissions is a false point. It appeared to be the prelude to a contention in paragraph 38 that Mr Wamala originally proceeded upon the basis that Reliance’s officers were entitled to use reasonable force to restrain him if it was necessary to do so. For the reasons given above that contention is unsound.

There is no suggestion by Reliance that the light holds were acceptable in everyday life. Nor did Reliance suggest at trial that Mr Wamala consented to these holds. I accordingly conclude that the light holds constituted a use of force against Mr Wamala which, unless permitted by law, will amount to trespass to the person in the form of battery.

Reliance accepts that the general position is that, once it is established that Reliance used force against Mr Wamala, the next question is whether Reliance can justify that use of force. In that context I turn to issue 1 and the March 2014 question.

The March 2014 question lies at the heart of the present case. It contrasts the present case with a regular case. In a regular case a lawful removal direction will have been issued and served on the agent of the relevant aircraft and notice of that direction will have been issued and served on the detainee. In such a case there would normally be no reason to doubt that DCOs acting in accordance with escort arrangements may use force where reasonably necessary to convey the detainee to the airport, and to put the detainee on board the aircraft using light holds to ensure good order and discipline. In the event that boarding is denied, escort arrangements for overseas removal will normally provide for the escorts to advise UKBA of this, and to escort the detainee in accordance with directions given by UKBA, and the same entitlement to use force will normally apply to this as well.

In the present case, as set out in earlier sections of this judgment, by the time Reliance arrived at Brook House IRC, the flight identified in the notice served on Mr Wamala and in the MS778 movement notification had left. Reliance nevertheless took Mr Wamala and put him on flight QR2, without there being any removal directions issued for flight QR2, let alone notified to Mr Wamala, and without there being any movement notification issued by UKBA for flight QR2. Reliance’s original defence made a conditional admission of liability. This was that if the Home Office’s directions, meaning by this what I have called the purported QR2 movement notification, were unlawful then the escorts’ use of force was unlawful. In that event Reliance’s original defence claimed an indemnity from the Home Office. It was the Home Office which, causing a degree of judicial consternation, suggested that Reliance’s conditional admission of liability was wrong. Eventually Reliance decided no longer to seek an indemnity from the Home Office, and secured permission to amend so as to withdraw the conditional admission.

The March 2014 question asks whether there was lawful justification for the use of force for three purposes: see section A1.4 above. As regards force used when going up the staircase, it is the second of these purposes that arises: “the use of force to … put him on … flight QR2”. The analysis, however, seems to me to be the same for all three purposes. It does not matter whether the purpose is conveying Mr Wamala to Heathrow, putting him on the aircraft, or removing him from the aircraft. The position is that none of these purposes is said by Reliance to provide lawful justification for the use of force. Instead, as regards the use of force during the period when Reliance held Mr Wamala in their custody, Reliance’s case is different. Both as currently pleaded, and as set out in the proposed re-re-amendments, Reliance’s case is that it used force for certain specified other purposes (“the other purposes”), and was entitled to do so for the other purposes. It necessarily follows that the answer to the March 2014 question is, “No”.

Did any of the other purposes apply so as to permit the light holds? There was no evidence from either Mr Duke or Ms Lee as to the specific purpose of the light holds. However they must have been adopted for a purpose or purposes. Mr Duke and Ms Lee believed that UKBA had instructed Reliance to put Mr Wamala on flight QR2. In the absence of any evidence to the contrary, it seems to me that the purpose of the light holds was to guard against the possibility that Mr Wamala might do something to disrupt the process of boarding the aircraft.

I do not think that the purpose of adopting the light holds was to guard against escape from lawful custody. I put on one side for present purposes the question whether Mr Wamala was in lawful custody (as to which see section F9.6 below). The key feature here is that while the escorts believed that Mr Wamala was wanted for an offence of assault on a police officer, they had no reason to think that that he would use force to try to gain his freedom. The risk factors section of the detention authority included a box marked “Escape Attempts”, but this box was not ticked. There was nothing to suggest that Mr Wamala had a history of escaping or trying to escape.

As to the four justifications pleaded in paragraph 18A of the re-amended defence (see section A5.3 above):

As to Reliance’s proposed general prevention of escape justification (see section B1.4 above), for the reasons given above, I do not consider that Mr Duke and Ms Lee adopted the light holds in order to guard against escape.

It is accordingly necessary, in relation to the light holds, to examine particular aspects of the prevention of crime justification, the keeping the peace justification, and the 1999 Act duties justification (issues 3.2, 3.3 and 3.4 in section A5.3 above). I examine those aspects in sections F9.4, F9.5 and F9.6 respectively.

Issue 3.2 is whether any particular use of force was permitted by the prevention of crime justification. Under section 3(1) of the Criminal Law Act 1967 any member of the public has the right to use “such force as is reasonable in the prevention of crime”. Reliance referred to this as a common law justification. However, the true position is that it is a statutory justification. Moreover, by section 3(2), on the question when force is used for the purpose of preventing crime is justified by that purpose, section 3(1) replaces the rules of common law.

As noted in section A5.3 above, the prevention of crime justification is one of the defences identified in paragraph 18A of the re-amended defence. The opening submissions for Mr Wamala complained that in paragraph 18A Reliance listed a menu of defences, but did not explain how those defences were available to Reliance. In relation to the prevention of crime justification, and generally, I agree with this complaint. Paragraph 18A gave no particulars of what was said to have been done under each justification. Moreover it did not state by whom it was done. This was a manifestly inadequate pleading.

In a request dated 9 March 2015 Mr Wamala, as to the assertion in paragraph 18A that Reliance used force to prevent the commission of offences by Mr Wamala, asked for the offences in question to be identified. In a reply verified on 31 March 2015 Reliance identified some, but not all, of the offences in question. This was another manifestly inadequate pleading. Reliance had been asked to nail its colours to the mast, and it needed to do so. The offences it was prepared to identify were set out in a jumble with no punctuation. Below I disentangle them and give them numbers:

I doubt whether the commission of any crime could reasonably have been thought to be so imminent as to justify the light holds. This point, however, was not taken by Mr Wamala and I say no more about it.

What soon became apparent was that Mr Wamala’s answer, as regards the prevention of crime justification and other alleged justifications, did not involve examination of inadequacies of the kind noted above. The answer given generally by Mr Wamala (“Mr Wamala’s general answer”) is that, if all that Mr Wamala did was to use reasonable force to resist unlawful removal, the justifications alleged by Reliance could have no application. In support of this general answer, a submission (“Mr Wamala’s topsy-turvy world submission”) was advanced that:

Reliance’s September 2015 submissions in paragraph 39 made a concession (“Reliance’s unlawful acts concession”). The concession concerned that part of the 1999 Act duties which required relevant DCOs to prevent “the commission or attempted commission of … unlawful acts”. As regards the powers arising by virtue of that particular duty, and Reliance’s assertion that such powers constituted justification for the use of force, the concession was this:

I make two observations on Reliance’s unlawful acts concession:

In these circumstances Reliance gave two general replies to Mr Wamala’s “topsy-turvy world” submission. Reliance’s first general reply was a general reply on the law. It was that the focus should be on Reliance’s lawful powers. These powers were said to arise because Mr Wamala was in custody and because of the 1999 Act duties. Effectively, the result of Reliance’s first general reply was that, as regards a person falling within Mr Wamala’s general answer (i.e. a person using reasonable force to resist unlawful removal), the prevention of crime justification was no longer advanced as an independent defence. I consider in section F9.6 what was said by Reliance in relation to custody and the 1999 Act duties.

Reliance’s second general reply was factual: the court must look at whether what Mr Wamala was doing was resisting the unlawful removal. However this reply cannot arise in relation to the period when Mr Wamala was going up the staircase. During that period Mr Wamala was not resisting in any way. If, and to the extent that, the escorts believed it to be necessary to guard against resistance, that belief was mistaken: their duty was to accept his contention that he could not lawfully be removed on flight QR2.

Issue 3.3 is whether any particular use of force was permitted by the keeping the peace justification. The common law permits all, and indeed, imposes a duty on all, to seek to prevent, by arrest or other actions short of arrest, any breach of the peace which is about to occur. In relation to the keeping of the peace justification:

In these circumstances, for similar reasons to those given in section F9.4, as regards a person using reasonable force to resist unlawful removal the keeping the peace justification ceases to be an independent justification for the light holds.

Reliance’s arguments on custody and the 1999 Act duties justification were numerous and varied. In this section I begin by noting key provisions in the 1999 Act and in the contractual arrangements between UKBA and Reliance, before summarising contentions advanced in the opening submissions for Mr Wamala. I then summarise Reliance’s arguments as they developed, along with Mr Wamala’s arguments in response. My analysis of the arguments is set out in section F9.7 below.

Paragraph 2(5) of Schedule 13 to the 1999 Act confers on DCOs a power “to use reasonable force where necessary” in order to fulfil duties under paragraph 2(3). Paragraph 2(3) imposes duties on DCOs to take action for four specified purposes. I summarised them in section F9.3 above. Here I set them out in more detail. As can be seen in section C4.2 above, they refer to a particular type of detainee as “that person”. In relation to “that person”, the duties require DCOs:

Who is “that person”? Answering this question will determine whether the detainee/DCO relationship is a 1999 Act duties relationship: see section C4.2 above. It requires an analysis of the opening words of paragraph 2(3), and of the expressions that it refers to. The opening words are the starting point. They show that “that person” is:

There are two crucial expressions in those opening words. The first crucial expression is “for whose delivery and custody [the DCO] is responsible”. These words contemplate that there has been a conferral of responsibility on the DCO for delivery or custody of the relevant detainee.

The second crucial expression is “in accordance with escort arrangements”. It is common ground that the relevant escort arrangements in place on Christmas eve were set out in an agreement made between the Home Secretary (referred to as “the Authority”) and Reliance (referred to as “the Service Provider”) in 2010 (“the 2010 Services Agreement”). As regards overseas escort services, Schedule D4 to the 2010 Services Agreement gave a summary of their scope in paragraph 1.1.1:

The Service Provider will be responsible for the provision of Overseas Escorting Services for any Detainee who has been authorised for Removal from the United Kingdom to designated overseas destinations, as directed by the Authority. The Service may include the collection of the Detainee from a pre-determined location, escorting and transporting the Detainee to a nominated United Kingdom departure point, escorting the Detainee on the flight, including transit points where appropriate, to the country of return, and ensuring the safe entry of the Detainee at the destination country. (emphasis added) 482.Other provisions in schedule D4 relevant for present purposes are:

It will be seen that paragraph 2.4.6 refers to UKBA establishing the number of DCOs and paragraph 2.4.9 refers to Reliance providing the required number of DCOs. Those references accord with s 156 of the 1999 Act, which states in subsections (2) and (4):

I add that although Table 01 included a definition of “Movement Order”, I have not been able to find any use of this defined term in Schedule D4. As regards overseas escorting, the procedure for Reliance to become responsible for the provision of overseas escorting services for a detainee as directed by UKBA appears to be that set out in paragraphs 1.1.8 and 2.4.6 of Schedule D4.

The meaning of the expression “escort arrangements” is defined in s 147 of the 1999 Act. It means arrangements made by the Secretary of State under s 156. Section 156(1), as set out in section C4.2 above, enables escort arrangements to be made for four purposes. It is common ground that the first and fourth of those purposes do not arise in the present case. The second and third of those purposes are:

As to the second purpose in s 156(1), the submissions for Mr Wamala noted that the ability to make arrangements for the removal of a detainee is subject to qualifications. In particular, the submissions for Mr Wamala pointed to the closing words of s 156(1)(b): removal from the United Kingdom in accordance with directions given under the 1971 Act or this Act

The submissions for Mr Wamala then made assertions (“Mr Wamala’s s 156 assertions”) which I number below:

The opening submissions for Mr Wamala identified a further reason why s 156(1)(b) should be interpreted in this way. This was that the expression “acting in accordance with escort arrangements” also appears in schedule 11 to the 1999 Act. That schedule, concerned with DCOs, makes it a criminal offence to assault a DCO acting in accordance with escort arrangements. That being the case, it was submitted, it was essential to adopt a narrow interpretation of those words, for otherwise there would be no ability to resist unlawful removal. I shall refer to this as “Mr Wamala’s criminal consequences proposition”.

I add that the opening submissions for Mr Wamala responded to an argument advanced in Reliance’s skeleton argument. Reliance submitted that it would be absurd if the fact that there had been an administrative error in the Home Office’s failure, without Reliance’s knowledge, to serve a fresh removal direction notifying Mr Wamala of the change of route should convert what would otherwise have been perfectly unexceptionable escorts’ behaviour into assault and/or false imprisonment. Reliance then asserted:

In answer to this, the opening submissions for Mr Wamala stressed that liability in trespass in strict. There is no requirement to prove fault. As to whether the statute should be construed in a way which avoided what Reliance described as an “absurd” result, the submissions for Mr Wamala drew attention to the outcome in Entick v Carrington (1765) 19 St Tr 1030: those who carry out a command to do an unlawful act are responsible for the consequences, even though they reasonably believed that the act was lawful. That basic principle was the starting point, and was the reason why it would be wrong to give relevant legislation a benevolent interpretation releasing subordinates from liability. I shall refer to this as “Mr Wamala’s basic principle proposition”.

Finally, in relation to relevant parts of the opening submissions for Mr Wamala, I summarise contentions in Mr Wamala’s skeleton argument which anticipated that Reliance would seek to justify its actions by citing the third of the 1999 Act duties. This third duty is to ensure good order and discipline on the part of the detained person. It is important in this regard to note that these, like all other contentions in Mr Wamala’s skeleton argument, were advanced at a stage where there was no inkling that Reliance would say that the governing escort arrangements were those for custody of detained persons temporarily outside authorised premises. I shall refer to these contentions by Mr Wamala as “Mr Wamala’s good order contentions”. In summary:

Reliance’s oral closing submissions involved both concessions and propositions. Below I set out those that are relevant for present purposes, working by reference to stages in the argument which I have numbered for convenience.

The stages, and the concessions and propositions at each stage, can be briefly described:

The oral reply submissions for Mr Wamala responded with a series of propositions. Again, for convenience, I number them, and give a brief description below:

Relevant parts of Reliance’s September 2015 submissions can be summarised as proceeding in stages under which Reliance:

Relevant parts of Mr Wamala’s October 2015 submissions can be summarised as proceeding in stages under which they:

The light holds involved no great degree of force, and if taken in isolation the damages recoverable for the light holds will not be large. Nevertheless, Mr Wamala’s claim in relation to the light holds concerns important points of principle, and gives an initial factual background against which rival legal contentions can be assessed. For the reasons given in section F9.3, I conclude that neither the self defence justification, nor actual or potential justifications concerned with the prevention of escape, can justify the light holds. For the reasons given in sections F9.4 and F9.5, Reliance has not identified any basis upon which the use of reasonable force by Mr Wamala to resist his unlawful removal could give rise to the commission by him of a crime, or constitute a breach of the peace, such as to give rise to the prevention of crime justification or the keeping the peace justification.

Thus the question whether Mr Wamala can complain about the light holds becomes a question whether Reliance’s submissions based on Mr Wamala already being in detention, and Reliance’s submissions citing the 1999 Act duties justification, provide a sound legal basis for the use of force inherent in the light holds.

There is a common feature to Reliance’s submissions based on the fact that Mr Wamala was already in

If the escorts had taken custody of Mr Wamala at Brook House IRC so that he could be removed on flight MS778, and had presented themselves at Brook House IRC in good time for this purpose, then they would have had UKBA authority to do so. The MS778 movement notification, as was common ground, was designed to authorise Reliance to perform this task. Under the 2010 Services Agreement the MS778 movement notification would have constituted an “Escort movement” allocated by UKBA in writing as provided in paragraph 1.1.8 of Schedule D4.

In this regard, the standard form terminology in the MS778 movement notification was not entirely apt:

I turn to the position when the escorts arrived at Brook House IRC at around 2:55pm on Christma seve.

As it seems to me, Reliance’s type of escort arrangements concession (see stage (7) of Reliance’s oral closing submissions as summarised in section F9.6 above) acknowledged the correctness of this simple stance: once flight MS778 had departed without him, the “escort arrangements” for removal of Mr Wamala were no longer effective. Reliance then advanced a contention that there were nevertheless effective escort arrangements in relation to Mr Wamala which were for “the custody of detained persons who are temporarily outside [authorised] premises” (see stage (8) of Reliance’s oral closing submissions as set out in section F9.6 above). The first difficulty is that I was not shown anything in the 2010 Services Agreement dealing with escort arrangements of that type. Even if that difficulty here can be overcome, however, I cannot accept that any such escort arrangements for Mr Wamala came into being. The reason is that Reliance’s submissions in this regard have two obvious flaws: UKBA had not directed Reliance to take custody of Mr Wamala as a detained person temporarily outside authorised premises, and the escorts’ avowed purpose was different: they sought and obtained custody of Mr Wamala for removal on flight QR2. The only direction that UKBA had given Reliance in relation to Mr Wamala was the MS778 movement notification. That direction plainly authorised Reliance to take custody of Mr Wamala only for the purpose of his removal to Uganda on flight MS778.

Reliance’s submissions did not seem to me to grapple with these obvious flaws. Instead, in large part, they demolished arguments which Mr Wamala had not advanced. The most striking of these was the suggestion that under Mr Wamala’s arguments he had become a free man. This suggestion was nonsense. Mr Wamala did not dispute that his duty was to return to detention. His arguments on this aspect, in effect, would put him in the same position as he would have been in if imposters had come to Brook House IRC and taken custody of him. That would not mean that he ceased to be a person who was detained: he was detained at Brook House IRC. All that had happened was that Brook House IRC had given up custody of him on a false basis. In that regard Brook House IRC received an amended movement notification that was presented as if it had been authorised by UKBA, whereas in fact it had not been and could not lawfully have been authorised by UKBA. Mr Wamala did not dispute that his duty was to return to detention in accordance with any instruction given by UKBA. Thus Reliance’s limitation on freedom contention (stage (11) of my summary in section F9.6 above of Reliance’s September 2015 submissions), assuming it to be right, does not warrant Reliance’s unlawful freedom criticism.

In other arguments the submissions for Reliance embarked upon the task of finding a way in which, even though Reliance had taken custody of Mr Wamala without any effective instruction from UKBA to do so, the escorts’ illegitimately gained custody of Mr Wamala attracted the 1999 Act duties. This task was bound to fail, for it was inconsistent with fundamental principles of the common law and of the interpretation of statutes. As to the common law, I need do no more than refer to Mr Wamala’s basic principles assertion, and the celebrated decision in Entick v Carrington (see the summary in section B9.6 above of Mr Wamala’s opening submissions). In the passage in question the submissions for Mr Wamala were seeking to answer submissions in Reliance’s skeleton argument. Those submissions included extravagant contentions that on Mr Wamala’s case a minor defect in a removal direction would entitle Mr Wamala to resist attempts to restrain him, to escape at will, or to commit other offences. However relevant submissions for Mr Wamala made no such contentions, being concerned at that stage with Mr Wamala’s entitlement to use reasonable force to resist removal in the absence of removal directions. Reliance’s elision contentions do not work at common law, for if Mr Wamala is doing no more than what is permitted by the common law, then he will not be guilty of any common law offence. As to the interpretation of statutes, both in relation to the circumstances in which an offence will be committed, and in relation to the grant of powers to escorts which would curtail the rights of others, it is not necessary to go beyond Morris v Beardmore: the clearest possible language will be required before the statute could be interpreted in a way which would impair Mr Wamala’s entitlement to use reasonable force to resist unlawful force. Reliance accepted that that entitlement arose by virtue of the fact that there were no removal directions in place for flight QR2. To my mind, that entitlement arose just as much by virtue of the fact that the escorts had no authority to take custody of Mr Wamala.

In the circumstances I reach the following conclusions in relation to Reliance’s contentions:

I turn to set out my conclusions in relation to the period when Mr Wamala was going up the staircase. In the circumstances described above, my conclusion is that none of Reliance’s justifications permitted the light holds. The escorts were seeking to ensure that Mr Wamala went up the staircase so that he could be removed on flight QR2, but this was an unlawful removal and Mr Wamala was entitled to use reasonable force to resist it. That entitlement, if it is to be of any substantive value, has the consequence that the escorts were not permitted to adopt the light holds, for they would impair Mr Wamala’s ability to exercise his right of resistance. Moreover:

Accordingly I conclude that Reliance is liable to Mr Wamala in damages for the force used in adopting the light holds, and the threat of future force which was inherent in the adoption of the light holds.

It is common ground that on entering the aircraft Mr Wamala approached Ms Lertsakdadet. In section F6 above, I have made findings that:

Also in section F6 above I have reached conclusions, so far as relevant for present purposes, that:

In section F7 above I have reached conclusions that once Mr Wamala was on the floor of the aircraft:

As regards the injuries to Mr Wamala during this period, I consider in sections F10.2 to F10.6 below whether Reliance can rely upon its proposed general prevention of escape justification, the self defence justification, the prevention of crime justification, the keeping the peace justification, and the 1999 Act duties justification. I add that section F10.3 also deals with Mr Wamala’s case that excessive force was used by the escorts, and that in section F10.4 I examine Reliance’s case on the 2005 Order and the 2009 Order. In section F10.7 I set out my conclusions.

I can deal with the proposed general prevention of escape justification shortly. For similar reasons to those set

Prevention of escape might, to the extent that escape from detention under the Immigration Acts may constitute a criminal offence, fall within the prevention of crime justification. No attempt, however, has been made by Reliance to identify the circumstances where such an escape constitutes a crime. Nor have the parties’ submissions examined the extent of a common law right to prevent escape by immigration detainees. In these circumstances I express no view on whether prevention of escape could have the potential to be a defence to trespass to the person in the present case.

Where an assailant menaces the physical security of a victim, the common law permits that victim to act in self defence by warding off the assailant using such means as are reasonably necessary for the victim’s own protection. If Mr Wamala were indeed an assailant, then to the extent that he menaced the physical security of any particular escort, that escort would, in accordance with this principle, be entitled to use reasonable force for the purpose of warding off Mr Wamala.

In this regard, however, there is an important concession (“Reliance’s reasonable resistance concessions”) by Reliance in paragraph 40 of Reliance’s September 2015 submissions:

The premise to this concession is that the force used by Mr Wamala was indeed used for the purpose of resisting his unlawful removal. I am satisfied that this premise is met. All the actions of Mr Wamala from the time he entered the aircraft and throughout the struggle were aimed at preventing him from being strapped into his seat on the aircraft for removal. In that regard:

In the light of Reliance’s reasonable resistance concession, and my finding that the premise of that concession is met, it is not open to Reliance to assert that the escorts acted in self defence. So long as Mr Wamala was using no more than reasonable force, what he did by way of menacing the physical security of the escorts was lawful. In these circumstances Mr Wamala was not the assailant. The common law right of self defence does not arise where the so-called assailant has an entitlement to use force and is acting within that entitlement. It was the escorts who, by using force to bring about an unlawful removal, were the assailants. Mr Wamala was the victim and was himself entitled to the benefit of the common law of the right of self defence. The duty of the escorts in response to Mr Wamala’s use of force was not to seek to counter that use of force. Their duty, although they did not appreciate it at the time, was to stop trying to bring about the unlawful removal of Mr Wamala. The fact that the escorts did not appreciate that the removal was unlawful no doubt explains why they thought they were entitled to counter Mr Wamala’s use of force. Whether they could reasonably have been expected to have appreciated that the removal was unlawful does not matter. Once it is established, as is clearly established in the present case, that the escorts’ attempts at bringing about removal were themselves unlawful, Mr Wamala had a clear legal entitlement to use force reasonably necessary to resist removal, and to insist that the escorts were in the wrong, both in maintaining the force that they had used originally, and in using additional force to counter his attempts at self defence.

In section F6 above, I suggested that Mr Charles and Mr Duke, having told Mr Wamala to get to his seat, acted in accordance with their professional instincts by not waiting for a response from Mr Wamala. Those instincts, giving priority to getting Mr Wamala strapped in his seat, did not however justify the degree of violence with which Mr Wamala was pulled away from Ms Lertsakdadet. There was nothing about Mr Wamala’s approach to her which gave any basis for thinking that there would be violence on his part. Still less could there be any possible justification for the handcuffing of Mr Wamala.

Accordingly, even if the escorts had been entitled to insist that Mr Wamala take his seat, they used more than reasonable force in this regard. Mr Wamala was entitled to use reasonable force to resist, and it was in the course of his lawful resistance that Mr Wamala suffered injuries on board the aircraft.

I turn to the position if I had accepted the allegations which I have identified as (a) to (d) in section F6 above when summarising Reliance’s pleaded case. In that event, too, I would have held that the level of force used by the escorts went beyond what was reasonable. In this regard, the use of a pain control technique, which could and did easily go wrong, is a particularly disturbing feature.

In section F9.4 above I noted Reliance’s unlawful acts concession. For the reasons given in that section, although the concession was made in the context of the 1999 Act duties, it must equally apply to the general prevention of crime justification.

I also noted in section F9.4 above that Reliance’s September 2015 submissions included Reliance’s 2005 Order extent contention. This asserted that even if Mr Wamala was entitled to resist removal he nevertheless committed offences under the 2005 Order. If this is to be reconciled with Reliance’s unlawful acts concession, it can only be by reference to the express qualification set out in that concession. This express qualification is that the concession applies on the premise that Mr Wamala “was using reasonable force for the purpose of resisting his unlawful removal”.

Accordingly, in theory, Reliance’s 2005 Order extent contention could be compatible with Reliance’s unlawful act concession if Reliance’s 2005 Order extent contention were limited so that it applied only in the event that Mr Wamala:

The second of these possibilities, however, cannot arise in the present case. It would be incompatible with Reliance’s reasonable resistance concession. As set out in section F10.3 above, if Mr Wamala used force for the purpose of resisting his unlawful removal, and were prosecuted for assault in respect of the force he was using, it is conceded that an assertion by the prosecutor that Mr Wamala had used unreasonable force would not succeed. If there was no such unreasonable force as would undermine Mr Wamala’s defence to a charge of assault, then there was no such unreasonable force as would take the case outside the unlawful acts concession. Thus the only question becomes whether the force used by Mr Wamala was indeed used for the purpose of resisting his unlawful removal. For the reasons given in section F10.3 above I am satisfied that this was indeed the case.

If this reasoning is sound, then there is no need to make further reference to the 2005 Order. Less it be wrong, however, I briefly indicate the approach that I would have taken in relation to Reliance’s claim that the force used by the escorts could be justified on the basis that the escorts used such force as was reasonable in prevention of offences under articles 73 and 78 of the 2005 Order:

In section F9.5 above I noted that Reliance had not suggested that a person resisting unlawful removal would, if using no more than reasonable force, be committing a breach of the peace. I also noted that the only point argued by way of answer to the keeping of the peace justification was Mr Wamala’s general answer, to which Reliance gave the two general replies. Both those observations apply to the submissions concerning the position on board the aircraft. The result is that the keeping the peace justification ceases to be an independent justification for the escorts’ actions on board the aircraft.

For the reasons given in section F9.7 above, I conclude that the 1999 Act duties justification did not arise in the circumstances of the present case. That conclusion applies equally to the position in relation to the use of force by the escorts on board the aircraft. In addition, as to the specific duties set out in the subparagraphs of paragraph 2(3) of Schedule 13 to the 1999 Act:

For the reasons given in sections F10.1 to F10.6 above, Reliance is not assisted by any of the justifications which it says applied to the period when Mr Wamala was on board the aircraft.

Section F8 above is concerned with what happened after the order to leave the aircraft, and thus includes findings on what happened once the struggle was over. In relation to that period, there are four matters which either caused or may have caused injury to Mr Wamala:

The events that I have identified above all seem to me to be direct consequences of the use of unlawful force by the escorts during the period prior to the ending of the struggle. By the time that the struggle came to an end all those who had been involved in it had been exhausted. The result of the struggle was that Mr Wamala was, in the immediate aftermath of the struggle, in no fit state to get up and make his way down the staircase into the van. It was in those circumstances that the events I have described ensued. As it seems to me, it was the unlawful use of force by the escorts which directly led to all those things occurring.

Should it be relevant, I note that in section F7 above I concluded that the escorts did not stop to check on Mr Wamala’s wellbeing. I can understand why the escorts wished to get Mr Wamala and themselves off the aircraft as quickly as possible. This does not, however, in my view excuse the failure to check on Mr Wamala’s wellbeing before dragging him to the aircraft door and proceeding in a manner which led to the remaining events noted above.

I note also that it was not suggested by Reliance that when Mr Wamala hit the bottom of the staircase this was the result of a deliberate act on his part.

As to Mr Wamala being pulled into the van, for the reasons given in section F8 above, the conduct of the escorts in this regard cannot possibly be justified.

I noted in sections A1.7 and A5.5 that Mr Wamala claims damages under section 6 of the Human Rights Act 1998 for breach by Reliance of Article 3 of the European Convention on Human Rights. As also noted in section A5.5 above, two propositions were advanced in Mr Wamala’s skeleton argument as to the relevance of the Convention. The first was that the common law should be read consistently with Article 3 so as to provide at least equivalent protection. It is not, however, necessary to examine this proposition. Mr Wamala has not identified any aspect of the present case in which the common law fails to achieve at least equivalent protection to that which would be achieved in a claim under Article 3.

The second proposition was that the damages claimed by Mr Wamala at common law could equally be awarded under Article 3. Again, I do not need to examine this proposition: there is no contention by Mr Wamala that in the present case his claim under Article 3 would give rise to damages which are not recoverable at common law.

In both these respects I think it undesirable for me to attempt to examine these two propositions. Consideration of these propositions should, in my view, be left to be dealt with in a case where they would make a difference to the outcome.

Damages

I noted in section A1.7 above that Mr Wamala claims ordinary damages, aggravated damages and exemplary damages. Ordinary damages are dealt with generally in section G2 below, and in Annex 2 to this judgment. Aggravated damages are dealt with in section G3 below. Exemplary damages are dealt with in section G4 below.

Before turning to section G2, however, I deal with two preliminary matters in section G1.2 and G1.3 below.

Reliance advances a contention as to the position if the basis upon which Mr Wamala succeeded was only by reason of the fact that no fresh removal directions had been served on Mr Wamala for the Qatar flight. This contention appears to proceed on the basis that if fresh removal directions had been served on Mr Wamala for flight QR2, then the escorts would have been entitled to use force for the purpose of bringing about Mr Wamala’s removal, and that the force in fact used by the escorts was no more than reasonable force for this purpose. For reasons given earlier in this judgment that assumption would not be right: on board the aircraft the escorts used more force than was reasonably necessary for the purpose of ensuring Mr Wamala’s removal. Thus, if I am right to hold that the escorts used more force on board the aircraft than was reasonably necessary, the premise for Reliance’s contention has not been satisfied, for the outcome that the contention postulates has not occurred.

In case I am wrong, however, I make brief comments below on Reliance’s contention in this regard. I do so on the assumption that the postulated outcome identified above has occurred.

In this postulated outcome Reliance submits that Mr Wamala would be entitled to no damages, or, at best, a nominal award of 5p. Reliance comments that this “would reflect the reality that [Mr Wamala] had failed on his case that he was subjected to a serious assault”. This comment is difficult to understand. The mere fact that the force actually used by Reliance would have been permissible if a valid removal direction were in place does not of itself show that Mr Wamala has “failed on his case that he was subjected to a serious assault”. The amount of physical force permissible to bring about a lawful removal may well be considerable, depending on the circumstances. Such a degree of physical force may equally constitute a serious trespass to the person if it is used with the aim of achieving an unlawful removal.

Reliance set out 7 assertions which it said were the reasons why, in the postulated outcome, the damages should be nil (or 5p):

The closing submissions for Mr Wamala rightly pointed out that the assertion at (5) above is unsound. For the reasons given in sections A4 and F above, I have held that Mr Wamala knew that there was no valid removal direction, and for that reason wanted to see the captain. There was no suggestion by Mr Wamala that he wanted to see the captain in any other context. It is no more than speculation for Reliance to assert that if there had been valid removal directions Mr Wamala would have behaved in a manner which would have entitled the escorts to use force on him in the way that they did.

Demonstrating the correctness of assertion (5) is crucial to Reliance’s case in this regard. Without it, the remaining assertions go nowhere. For the reasons given above assertion (5) is incorrect. It follows that even if the postulated outcome had come about, it would have made no difference to Mr Wamala’s entitlement to substantial damages.

For reasons given earlier in this judgment, I have held that even if Mr Wamala’s primary claim had failed, his alternative claim (see section A1.7 above) would have succeeded because the type and degree of force used by Reliance went beyond what was reasonable. Reliance submitted that in that event the damages recoverable would be reduced to take account of the consequences of such use of force as would have been reasonable. In the light of my findings earlier in this judgment, however, this contention will not assist Reliance. From the moment that force was first used against Mr Wamala on the aircraft that force went beyond what was reasonable. It involved the violent pulling away of Mr Wamala and the almost immediate application of handcuffs. There was, however, at that stage, no need to use force at all. For the reasons given in section A4 above, I do not consider that Mr Wamala would have used force if none had been used against him. Accordingly I do not conclude that there is anything which falls to be deducted in the way that Reliance suggests.

Questions arising as to the amount of ordinary damages were dealt with in written submissions. In Annex 2 to this judgment I have adopted a table format in order to summarise those submissions, to set out my comments on them, and to set out my conclusions.

It is common ground that the principles governing an award of aggravated damages are set out in Thompson v Commissioner of Police for the Metropolis [1998] QB 498. In summary, as set out by Lord Woolf MR at page 516:

Reliance accepts that in one respect only Mr Wamala could properly be entitled to an award of aggravated damages. This concerns Mr Wamala’s claim that the force used against him was excessive and oppressive with the result that he was unnecessarily humiliated or degraded by Reliance’s conduct. In the counter schedule Reliance assert that such an award should be no more than £2,000.

The first additional matter said by Mr Wamala to warrant an award of aggravated damages concerns the action of a Reliance employee in amending the MS778 movement notification. That of itself does not to my mind have the consequence that ordinary damages are insufficient to compensate Mr Wamala for the injuries suffered. Nor in my view does the next matter relied upon by Mr Wamala: the fact that he was placed on QR2 despite the absence of removal directions for that flight, in itself justify an award of aggravated damages. What does, however, in my view justify such an award is the reaction of the escorts when Mr Wamala raised the matter. Mr Charles said that he was “not bothered”, and other escorts simply laughed when Mr Wamala said that his documentation was in his luggage.

A further matter relied on by Mr Wamala is that after the incident on Christmas eve Reliance told UKBA that the risk assessment for Mr Wamala should state that he had been violent and aggressive without justification and that “very robust escorts” should be used in future. This had consequences for Mr Wamala which can properly be described as severe. He was thereafter treated as a violent and aggressive detainee. Among other things, when attending court for the purposes of litigation seeking to prevent a later attempt to remove him, Mr Wamala was brought to court in handcuffs. Earlier, at Colnbrook IRC, Mr Wamala was held in segregation for a lengthy period, which it seems to me is likely to have been attributable to the account of events on Christmas eve given by Reliance.

Additional grounds for seeking aggravated damages were set out in Mr Wamala’s October 2015 submissions. To the extent that those matters had not been raised in Mr Wamala’s schedule or in the opening skeleton argument for Mr Wamala I do not consider that it is open to Mr Wamala to rely upon them.

In these circumstances I consider that the appropriate sum to be awarded by way of aggravated damages is £8,000.

Exemplary damages can be awarded in respect of outrageous exercises of unlawful executive power. They can only be awarded if it is clear that an award of basic damages together with aggravated damages will be significantly insufficient to mark the court’s disapproval of the conduct in question and, effectively, to punish and deter the defendant.

The matters said by Mr Wamala to constitute outrageous exercises of unlawful executive power fall into two main categories. The first category concerns Reliance’s conduct in proceeding with removal on flight QR2 when it knew or should have known that important legal requirements had not been complied with. This category involves matters which were relied on as warranting an award of aggravated damages, but which in that context I have rejected, or in large part rejected, because their nature was not such as to impact on Mr Wamala in a way that required additional compensation. The evidence in this case concerning knowledge by Reliance of the lack of removal directions for QR2 offers no satisfactory explanation for how this came about.

The second category concerned Reliance’s conduct in relation to the use of force. My award of aggravated damages includes allowance for the need to supplement the ordinary damages so as to give Mr Wamala full compensation in this regard. In my view, over and above that compensation, there were features of the techniques adopted by the escorts, techniques which according to the evidence were regularly adopted by Reliance’s staff, and the approach to the requirements of the 2010 Services Agreement, which taken together can properly be described as outrageous. I have already expressed my concern about the use of handcuffs incorporating a pain control mechanism in circumstances where this could and did easily go wrong: see the final sentence of section F10.3 above. This was contrary to the 2010 Services Agreement, as the technique used was not one which was approved by the prison service. A second and serious breach of the 2010 Services Agreement was the flagrant disregard of the express prohibition in that agreement of the use of any head restraint. There was a failure to comply with the requirement in the 2010 Services Agreement that handcuffs should only be used with the consent of the captain. Reliance has conducted this litigation on the basis that such matters are insignificant, and that it was appropriate to adopt procedures which Reliance considered to be needed, and had regularly used. This is utterly unacceptable and calls for condemnation. The starting point must be that requirements in the 2010 Services Agreement have been inserted for good reason and must be respected unless and until they are changed.

Taking these two matters together I conclude that an award of £13,000 would be an appropriate sum by way of exemplary damages. To some extent, however, elements in the matters calling for exemplary damages have been compensated by the award of aggravated damages. I will accordingly reduce the award of exemplary damages to £10,000.

Conclusion

For the reasons given in this judgment I conclude that Mr Wamala is entitled to damages for physical and mental injuries in the amounts totalling £30,000 as set out in Annex 2 of this judgment, and is further entitled to £8,000 for aggravated damages and £10,000 for exemplary damages as set out in sections G3 and G4 above. Thus the total award of damages will be £48,000. In that regard, and in relation to declaratory and any other relief, I ask the parties to seek to agree on consequential orders. In relation to Reliance’s application for permission to make the proposed September 2015 amendments to the defence, I have set out in section F10.2 above my reasons for considering that as regards the alterations of the MS778 movement notification, the proposed amendments are incoherent. As regards the proposed additional paragraph (iv), seeking to introduce a general prevention of escape justification, I have set out earlier in this judgment my reasons for concluding that no such justification can succeed. In these circumstances, I cannot accept that Reliance is able to surmount the high hurdle which would need to be surmounted to allow further amendments at such a late stage.

In the main body of the judgment, unless the context otherwise requires, the abbreviation and short forms listed in the first column below have the meaning set out in the second column. Notes in the third column are provided for ease of reference.