For around 15 years, SSHD maintained a published detention policy which included a presumption in favour of liberty. However, following adverse publicity in 2006 caused by the mistaken release of Foreign National Prisoners (FNPs) the then SSHD adopted a new unpublished policy which imposed a near blanket ban on their release.
In September 2008, SSHD amended the published policy – replacing all references to a presumption of liberty with a presumption of detention, but by January 2009 the published policy was changed again to omit the initial amendment.
The appellants were both subject to deportation proceedings having been convicted for offences committed whilst in the UK. Walumba Lumba, a DRC national, was sentenced to 4 years’ imprisonment for wounding with intent, whilst Kadian Mighty, a citizen of Jamaica was sentenced to 42 months imprisonment for possession of Class A drugs with intent to supply.
In the Admin court, Davis J declared that the operation of an unpublished policy which presumed detention was unlawful. He dismissed the other claims.
The Court of Appeal dismissed the appellants appeal on an issue relating to claims for damages, but allowed the SSHD’s cross-appeal on the issue of the presumption of detention. It is against that backdrop that these cases came before a panel of nine Supreme Court Judges.
The Court considers five issues:
(1) whether the unpublished policy maintained by the Secretary of State between April 2006 and September 2008 is unlawful on grounds of public law error;
(2) if the 2006-2008 policy was unlawful, whether detention on the basis of such a policy is unlawful in circumstances where the appellants would have been lawfully detained in any event;
(3) if the detention was unlawful in circumstances where thet could have been detained in any event, whether the appellants are entitled to recover more than nominal damages;
(4) whether the appellants are entitled to an award of exemplary damages; and
(5) in the case of Walumba Lumba, whether there has been a breach of the Hardial Singh principles (essentially whether detention is reasonable).
The Court held that it is unlawful as a matter of public law for the SSHD to maintain an unpublished policy which is inconsistent with her published policy, and which applies a near blanket ban on the release of FNPs – as applied to the appellants between April 2006 and September 2008. As Lord Dyson put it:
“There was a real need to publish the detention policies in the present context. As Mr. Husain points out, the Cullen policies provided that certain non-serious offenders could be considered for release. The failure to publish these policies meant that individuals who may have been wrongly assessed as having committed a crime that rendered them ineligible for release would remain detained, when in fact, had the policy been published, representations could have been made that they had a case for release.”
Breach of a public law duty on the part of the SSHD rendered the appellants’ detention unlawful in principle.
The Court went on to find that trespassory torts (such as false imprisonment) are actionable in themselves regardless of whether the victim suffers any harm. ‘All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so.’
Accordingly, by a majority, the Court held that the fact that the appellants would have lawfully been detained in any event did not affect the SSHD’s liability for their false imprisonment. The fact that the appellants would have been lawfully detained is relevant to damages rather than – as the SSHD argued – to liability.
Since the appellants had suffered no loss it was held they should recover no more than nominal damages in the sum of £1. They were not entitled to additional damages to vindicate the importance of the right and the seriousness of the infringement – as argued by the appellants. Further, the Court unanimously held that the appellants were not entitled to exemplary damages.
As regards the assessment of whether a reasonable period of detention had elapsed in the case of Mr. Walumba Lumba, the Court unanimously held that the risk of reoffending and the legal challenges pursued by the detainee were relevant. The relevance of a refusal to voluntarily return is limited. It is for a Court of first instance to decide the issue so Mr Lumba’s claim was remitted to the High Court.