CR1-10-11-15-Session1_IMX30_1.mxf

Session: am
Session date: 2010 Nov 15

CASE ID: UKSC 2010/0062
Case name: Walumba Lumba (Congo) 1 and 2 (Appellants) v Secretary of State for the Home Department (Respondent)
Case summary:
Judgment: The Supreme Court, by a majority, allows the appeals. Lord Dyson gives the lead judgment. The majority hold that the Secretary of State is liable to both appellants in the tort of false imprisonment as the statutory power to detain them was exercised in breach of public law duties (Lords Phillips, Brown and Rodger dissenting). The appellants are, however, only entitled to nominal damages assessed at £1 (Lords Hope, Walker and Lady Hale dissenting). They are not entitled to exemplary damages. The court remits to the High Court the question whether Mr Lumba was detained for longer than a reasonable period in breach of the principles in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (the Hardial Singh principles).
Reasons for the judgment: The court considers five issues: (1) whether the unpublished policy maintained by the Secretary of State between April 2006 and September 2008 is unlawful on grounds of public law error; (2) if so, whether detention on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 so, 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. The requirements of public law: The court holds unanimously that it is lawful for the Secretary of State to operate a policy which sets out the practice that she will normally follow in deciding whether or not to detain FNPs pending their deportation, provided that the requirements of public law, Hardial Singh and Article 5(1)(f) of the ECHR are respected: [40]-[55]. However, as regards the application of the statutory power to detain, it is unlawful in public law for the Secretary of State to maintain an unpublished policy which is inconsistent with her published policy and which applies a near blanket ban on the release of FNPs: [26]-[38]. Such a policy was applied to the appellants between April 2006 and September 2008: [21]. Liability in false imprisonment: Breach of a public law duty on the part of the person authorising detention is capable of rendering that detention unlawful and did render it unlawful in this case: [62]-[88], [198]-[207], [221]. Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. Accordingly, by a majority, the court holds that the fact that the appellants would have lawfully been detained in any event does not affect the Secretary of State’s liability in false imprisonment: [62], [64]-[88], [197], [208]-[211], [221], [239]-[247]. Lords Phillips and Brown (with whom Lord Rodger agrees) dissent and hold that because the appellants would have been lawfully detained the Secretary of State is not liable to them in false imprisonment: [319]-[334], [343]-[360]. Damages: By a majority, the court holds that the fact that the appellants would have been lawfully detained is relevant to damages rather than to liability. Since the appellants have suffered no loss they should recover no more than nominal damages of £1: [90]-[96]. They are not additionally entitled to damages to vindicate the importance of the right and the seriousness of the infringement: [97]-[101], [222]-[237], [253]-[256] (Lords Hope, Walker and Lady Hale dissenting: [176]-[180], [195], [212]-[217]). Further, the court holds unanimously that the appellants are not entitled to exemplary damages: [150]-[169]. Reasonableness of the length of detention under the Hardial Singh principles: As regards the assessment of whether a reasonable period of detention has elapsed, the court unanimously holds that the risk of reoffending and the legal challenges pursued by the detainee are relevant. The relevance of a refusal to voluntarily return is limited: [106]-[128]. It is for a court of first instance to decide whether Mr Lumba’s detention for almost 56 months was in breach of the Hardial Singh principles. Accordingly, his claim is remitted to the High Court: [129]-[148].
Hearing start date: 2010 Nov 15
Hearing end date: 2010 Nov 18

CASE ID: UKSC 2010/0063
Case name: Kadian Delroy Mighty (Jamaica) (Appellant) v Secretary of State for the Home Department (Respondent)
Case summary:
Judgment: The Supreme Court, by a majority, allows the appeals. Lord Dyson gives the lead judgment. The majority hold that the Secretary of State is liable to both appellants in the tort of false imprisonment as the statutory power to detain them was exercised in breach of public law duties (Lords Phillips, Brown and Rodger dissenting). The appellants are, however, only entitled to nominal damages assessed at £1 (Lords Hope, Walker and Lady Hale dissenting). They are not entitled to exemplary damages. The court remits to the High Court the question whether Mr Lumba was detained for longer than a reasonable period in breach of the principles in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (the Hardial Singh principles).
Reasons for the judgment: 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 so, 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 so, 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. The requirements of public law: The court holds unanimously that it is lawful for the Secretary of State to operate a policy which sets out the practice that she will normally follow in deciding whether or not to detain FNPs pending their deportation, provided that the requirements of public law, Hardial Singh and Article 5(1)(f) of the ECHR are respected: [40]-[55]. However, as regards the application of the statutory power to detain, it is unlawful in public law for the Secretary of State to maintain an unpublished policy which is inconsistent with her published policy and which applies a near blanket ban on the release of FNPs: [26]-[38]. Such a policy was applied to the appellants between April 2006 and September 2008: [21]. Liability in false imprisonment: Breach of a public law duty on the part of the person authorising detention is capable of rendering that detention unlawful and did render it unlawful in this case: [62]-[88], [198]-[207], [221]. Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. Accordingly, by a majority, the court holds that the fact that the appellants would have lawfully been detained in any event does not affect the Secretary of State’s liability in false imprisonment: [62], [64]-[88], [197], [208]-[211], [221], [239]-[247]. Lords Phillips and Brown (with whom Lord Rodger agrees) dissent and hold that because the appellants would have been lawfully detained the Secretary of State is not liable to them in false imprisonment: [319]-[334], [343]-[360]. Damages: By a majority, the court holds that the fact that the appellants would have been lawfully detained is relevant to damages rather than to liability. Since the appellants have suffered no loss they should recover no more than nominal damages of £1: [90]-[96]. They are not additionally entitled to damages to vindicate the importance of the right and the seriousness of the infringement: [97]-[101], [222]-[237], [253]-[256] (Lords Hope, Walker and Lady Hale dissenting: [176]-[180], [195], [212]-[217]). Further, the court holds unanimously that the appellants are not entitled to exemplary damages: [150]-[169]. Reasonableness of the length of detention under the Hardial Singh principles: As regards the assessment of whether a reasonable period of detention has elapsed, the court unanimously holds that the risk of reoffending and the legal challenges pursued by the detainee are relevant. The relevance of a refusal to voluntarily return is limited: [106]-[128]. It is for a court of first instance to decide whether Mr Lumba’s detention for almost 56 months was in breach of the Hardial Singh principles. Accordingly, his claim is remitted to the High Court: [129]-[148].
Hearing start date: 2010 Nov 15
Hearing end date: 2010 Nov 18