“Delay in processing an application whose outcome will affect the liberty of the applicant may require the intervention of the court. R v. Home Secretary ex.p Phansopkar[1976] 1 QB 606 , 626B-G per Scarman LJ is authority for this, if any were needed. This is a principle of the common law. That was a case where the right to family life under Article 8 was engaged rather than the right to liberty, but the common law has always protected the right to liberty. Habeas corpus and bail are creations of domestic law in England and Wales. In R (Noorkoiv) v. SSHD and another[2002] EWCA Civ 770 the Court of Appeal held that the obligation to avoid delay in determining a person's right to be released is a more intense obligation than the duty to try criminal cases within a reasonable time. Lack of resources and administrative necessity do not justify such delays. This was a decision framed in terms of Article 5. It is authority for the need for public authorities to have effective systems for taking steps which are designed to effect the release from detention of any person.”
“82. ... There is no precedent for the circumstances of the COVID pandemic and, in my judgement, the time did come, in early June, when it was clear in this case that there was no reasonable prospect of removal to Iraq. Indeed, in terms, the position was deteriorating in the memo of 6 June. “83. … I cannot find a reasonable basis for a belief that this applicant could be deported in what was for him a reasonable time. As stated, he had already been detained, even on a discounted basis, for three or four months. “84. … In my judgement, it was sufficiently clear after 6 June that no realistic prospect did arise allowing her to remove him within a reasonable time. Allowing for the transfer of information administratively and its consideration, I date the time at which it became unlawful from 8 June. “85. I have come to the conclusion that what happened in this case does not amount to the egregious failure that characterises unlawfulness under Hardial Singh (iv) in respect of the approaches of the Secretary of State to removal in this case. Both the timetable of the attempts made in respect of documentation in respect of removal given the pandemic and in consideration of the issues raised, did not, although in certain cases there were delays, reach the level at which it is possible for this court to interfere and say that it was more than an administrative failure or a series of administrative failures. “86. The position with regard to accommodation is, however, different. The system had been recognised elsewhere as not working as it should. In this case it did not. It did not in large part through what must be categorised by avoidable error and through dilatoriness. The Secretary of State, frankly and properly, admits that there were cumulative failures but does not accept that they reached the appropriate level for a characterisation of unlawfulness. I disagree. When stimulated by reminders and when imposed upon by express urgency from the end of May 2020, accommodation providers appear to have taken about one month (that is to say, about thirty-five days, perhaps more than a month) until 23 June to find what they mistakenly thought was suitable housing. That is so even in COVID conditions. Had the application been promptly dealt with, even from the date of the bail grant on 22 April, that suggests that the system operating under COVID pressure could have produced accommodation by the end of May or the beginning of June. “87. The failure to appreciate Probation would object to housing in West Midlands was a serious one. That, compounded with the sudden and extraordinary pressure of the COVID crisis, resulted in a series of extreme delays to the provision of accommodation. Allowance may come, as I have indicated, for some of those delays due to unavoidable crisis, but there remains, as I have described, a kernel of failing, given the timescales that appear to have been possible once appropriate speed was realised. “88. Once again, the court has great sympathy with hard-pressed services. … . But it is plain to me that the system is not working even when it is working to the best of its capacity. “89. On the facts of this case, even during the crisis, a period of four to five weeks should have seen provision of accommodation for this particular Claimant, given the requirements that he had. That would have taken his release somewhere to early to mid-June, allowing for a period of grace in the Secretary of State. This chimes with my other findings as to the lawfulness of the length of his detention in any event in all the circumstances and it chimes with my findings as to when the reasonable prospect stopped being available. “90. Accordingly, I will make the declarations in respect of a period of unlawful detention between 8 June and17 July 2020 . That is the most favourable to the Claimant under each of the heads.”
“1) The assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular Claimant: see the leading case of Thompson v Commissioner of Police[1998] QB 498 at 515A and also the discussion at page 1060 in R v Governor of Brockhill Prison Ex Parte Evans[1999] QB 1043 . “2) Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration: see Thompson at 516A. A global approach should be taken: see Evans 1060 E. “3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons: (i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and (ii) because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance: Thompson 515 E-F.”
“73. One mistake would be bad enough but at least one could be forgiven. But this number of mistakes and the failure to implement clear procedures is unforgiveable. This is an appalling indictment of the way the Home Office and HMPS were operating in 2006 when detaining [Mr Muuse]. Such conduct reflects an indifference to doing justice on the part of those who dealt with [Mr Muuse]’s case on the [Home Secretary]’s behalf.”
“In these circumstances, the actions of the officials can only have been explicable on the basis (1) that the officials were recklessly indifferent to the legality of their actions or (2) that they were either too incompetent to exercise the powers entrusted to them or grossly negligent in the discharge of their duties. The second alternative is a defence expressed in other contexts as “I did not act in bad faith or dishonestly, but I was very foolish.”
“(iii) The requirement of oppressive, arbitrary or unconstitutional conduct “69. A number of authorities were cited as being helpful in determining how Lord Devlin's summary of the legal position should be refined including Holden v Chief Constable of Lancashire[1987] QB 380 and AB v South West Water[1993] QB 507 . In the first case, Puchas LJ considered that, although Lord Devlin used the words “oppressive, arbitrary or unconstitutional” disjunctively, it was not enough that the action be simply unconstitutional; there had to be an improper use of “constitutional or executive power”
“It was gross misuse of power, involving tortious conduct by agents of the government.” “70. Lord Devlin's phrase “oppressive, arbitrary or unconstitutional” must be read, as was made clear by Lord Hutton in Kuddus v Chief Constable of Leicestershire [2001]UKHL 29,[2002] AC 122 at paragraph 89, in the light of Lord Devlin's further view at page 1128: “In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum.” “As Lord Hutton observed, the conduct had to be “outrageous” and to be such that it called for exemplary damages to mark disapproval, to deter and to vindicate the strength of the law. “71. In my view, the guidance given by Sir Thomas Bingham MR and Lord Hutton is sufficient. There is no need for this to be qualified by further looking for malice, fraud, insolence cruelty or similar specific conduct. There is no authority that supports Dr McGregor's view to this effect.”
“Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or this any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and trial are conducted...It should be strongly emphasised…that the total figure for basic and aggravated damages should not exceed…fair compensation for the injury which the plaintiff has suffered.”
“The outcome is that Mr Johnson was detained from 12 June to 19 July, that is 5 weeks and 3 days, so a process could be carried out which was designed to take 7 days. The administrative convenience of the process was the only justification for the detention: see Saadi. His detention should have been subject to review at various stages during the intended 7 days and if it was considered that his claim could not be processed in that period, or approximately that period, he should have been released. As I have said no explanation or justification for what occurred has been provided.”
“ ... the application for judicial review was issued on 12 August. On 13 August Mr Johnson was taken to Heathrow through a failure of communication. He had an unpleasant time and was not returned to Oakington until between 2 and 3 the next morning. He then continued to be detained. On 15 August Mr Johnson was granted bail by an adjudicator. The grant of bail was opposed by the Department on the ground in part that ‘On12 June 2003 he was arrested for motoring offences by the police. Subsequent enquiries revealed his immigration status and he was served with papers as a section 10overstayer.’ As is now accepted there was no justification for this at all. I have a note of the hearing made by counsel for Mr Johnson. It was not submitted that there were other reasons why Mr Johnson was likely to abscond or that he would not cooperate with his removal if, in due course, that came about.”
“10. The Immigration, Nationality and Refugee Law Handbook (2006 edition) states at page 1208 that damages of£15,000 — about£17,000 in today's money — were agreed between the parties. The statement is likely to be reliable because the editor of the handbook was counsel for the claimant in Johnson . I accept that the figure of£15,000 —£17,000 in today's money — resulted from a negotiated settlement and that it is not possible to gauge exactly the factors that underlay the settlement. However, it was a figure agreed against a similar background by the same body that is the defendant in this case and by an experienced practitioner in the relevant field.”
“59. In my view plainly there was evidence on which the judge could have reached the conclusion that the officials in both the Immigration Directorate and the Prison Service had acted with reckless indifference to the illegality of Mr Muuse’s detention. It is, in my view, astonishing that no witnesses were called from the Immigration Directorate. The reason given in the Further Information provided by the Home Secretary was: “It is not the [Home Secretary]’s policy to call junior staff workers as witnesses in a trial. “This is not acceptable in a case such as this. As was submitted on behalf of Mr Muuse, the inevitable inference that a court would draw is that no one in the Immigration Directorate was prepared to give evidence to explain the decisions made. The failure to call anyone to provide an explanation (particularly as to the assertion of confusion and the failure to release immediately on16 November 2006 ), the lack of documentation which should have existed and the evidence held by the Immigration Directorate and the Prison Service that plainly showed Mr Muuse was Dutch, it would not have been the least surprising if the judge had found that there had been reckless indifference to the illegality of Mr Muuse’s detention.”
“The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.”