Muuse v Secretary of State for the Home Department [2009] EWHC 1886 (QB)

Case No HQ07X01899[2009] EWHC 1886 (QB)IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISIONDate 17/07/2009
Before
JLW QC
Between
ABDILLAAHI MUUSEClaimantV
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

JUDGEMENT

[1]This is a claim for damages for false imprisonment, breach of the Data Protection Act, unlawful discrimination, breach of human rights, negligence, and misfeasance in public office. The Defendant admits false imprisonment but disputes the other heads of claim and, if proved, the Claimant’s right to recover damages in respect of them. In addition to seeking compensatory damages the Claimant seeks aggravated and/or exemplary damages.[2]This claim was first listed for hearing on 25th November 2008. The Claimant apparently had difficulty in getting to court and the hearing did not commence until 2pm. The Defendant had served no witness statements. In the course of his helpful opening Mr Jafar for the Claimant stated the Claimant would provide more details of his allegations when he gave evidence but accepted the suggestion that such details should be provided by a further witness statement. That further witness statement was provided the following morning and was met with an application by the Defendant for an adjournment, which I granted. At the adjourned hearing on 26th January 2009 the Defendant again requested an adjournment stating he had been unable to obtain the evidence he was seeking in the time available. The Claimant did not object and I granted a further adjournment on terms. In the event the Defendant served 2 witness statements, including a witness statement from Ms Debbie Freeman, a prison officer at HMP Woodhill (“Woodhill”) who had been named by the Claimant in his second witness statement. Both statements were dated 24th April 2009. The resumed hearing was listed for Thursday 28th April 2009. At this resumed hearing the Claimant sought, and I granted, an adjournment to investigate the contents, in particular, of Ms Freeman’s statement and documents she referred to. At the same time I made further orders to ensure these matters were attended to promptly and that all relevant documents were put in a core bundle. On 30th June 2009 the trial resumed. In the event the only witnesses who gave evidence before me were the Claimant and Ms Freeman.

Background facts

[3]The background facts are not in issue. The Claimant, now 40 years old (DoB 1st July 1968) was born in Somalia. His witness statement says he married in 1988/89 and he and his wife then moved to Ethiopia where his first son was born in 1993. In 1994 his wife and son fled to the Netherlands and he joined them a year later. They sought and were granted asylum there and in the period 1995 – 2001 together had a further 4 children. In 2000 / 2001 he acquired a Dutch passport and came to England with his wife and children. Thereafter he settled down in Milton Keynes but made occasional trips to Holland. In 2003 his wife gave birth to their sixth child.[4]His relationship with his wife deteriorated and in 2005 he was made the subject of a restraining order in the Milton Keynes Magistrates Court. On 18th February 2006 he was charged with common assault and 2 breaches of the restraining order. He was detained in custody until 7th July 2006, when he appeared at Aylesbury Crown Court where he was released on bail upon condition that his passport was surrendered, which it was on 8th July 2006. On 8th August 2006 he re-appeared at Aylesbury Crown Court where he pleaded guilty and was sentenced to concurrent 3 months imprisonment on each of the breaches and 6 months consecutive for the assault. He had already been in custody for 147 days and the judge ordered his immediate release.[5]However, he was not released but was detained in custody until 15th December 2006, a period of 128 days. It is now accepted that this detention was unlawful and that he is entitled to recover damages for false imprisonment in respect of it.[6]The Claimant asserts that his false imprisonment resulted from high handed, insulting, malicious and oppressive conduct by the Defendant. The Defendant’s case is that the Claimant was detained pending consideration of deportation, that his detention occurred through innocent error because he believed the Claimant was a Somali national and that the Claimant’s identity was confused with that of another of similar name.[7]Before dealing with the merits of these competing claims it may be helpful to set out the procedures laid down for deporting foreign nationals. The western world takes pride in the freedoms it offers its citizens and visitors. This is especially true of the United Kingdom where such freedoms have been and continue to be jealously guarded. Strict procedures have to be followed before anyone may be detained against his will. In the present case the Claimant was detained on the authority of the Immigration and Nationality Directorate (“IND”), now known as the United Kingdom Border Agency (“UKBA”), both departments of the Home Office. For convenience I shall describe this body and its successors as “Immigration”. He was detained by Her Majesty’s Prison Service (“HMPS”), which prior to 9th May 2007 also formed part of the Home Office. Since 9th May 2007 it has formed part of the Ministry of Justice Prior to 9th May 2007 at all material times the Defendant was responsible for the acts and omissions of the Home Office and HMPS.

The procedures to be followed for detention

[8]Section 3(5)(a) Immigration Act 1971 provides that a person who is not a British citizen may be deported from the United Kingdom where the Secretary of State deems his departure to be conducive to the public good. Section 3(8) provides that the onus of proving British citizenship or entitlement to any exemption under the Act lies on the person asserting it. Statutory provisions enable a person to be detained pending a decision on whether or not to deport him. At the same time statutory and other provisions exist to protect and safeguard such a person’s interests by laying down strict procedures to be followed before and during his detention.

(i) Rule 9 of the Detention Centre Rules 2001 provides :

“Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly.” (ii) The Home Office’s Operations Enforcement Manual supplements these Rules with instructions to immigration officers which the public are entitled to expect will be adhered to. Relevant provisions in the Manual, which I understand was current at the time This is regularly updated. It is difficult to obtain earlier versions. The version put before me by Counsel for the Claimant was not disputed by the Defendant as applicable. were contained in Chapters 38, 64 and 75: Chapter 38 (a) Para 38.1 states : “To be lawful, detention must not only be based on the statutory powers and accord with the limitations implied by domestic and Strasbourg case law” and accord with stated policy. And that : “In all cases detention must be used sparingly and for the shortest period necessary.” (b) Para 38.3.4 states that once detention has been authorised “it must be kept under close review to ensure it continues to be justified”. (c) Para 38.6 states “The Government stated in the 1998 White Paper that written reasons for detention should be given at the time of detention and thereafter at monthly intervals”
. It also states : i. Once it has been identified that the person is one who should be detained, the checks detailed in Form IS91RA Risk Assessment should be undertaken “in advance as far as possible, in a planned operation visit when it is anticipated detention will be required” (Para 38.6.1). ii. Once a detention location has been decided on, Form IS91RA part B containing a photograph of the detainee must be sent to the detaining agent, (eg a prison governor). “Detaining agents have been instructed not to accept detainees without the correct documentation”. (Para 38.6.2). iii. Form IS91R Reasons For Detention a. “must be served on every detained person at the time of their (sic) initial detention” ; and b. given that such reasons could be the subject of judicial review, it was “important to ensure they are always justified and correctly stated” and a copy retained on file ; c. that it was important that the detainee understood the contents of IS91R (Para 38.6.3).

(d) Para 38(8) states :

“Continued detention in all cases of persons in sole detention under Immigration Act powers must be subject to administrative review at regular intervals. At each review robust and formally documented consideration should be given to the removability of the detainee.... A formal and documented review of detention should be made after 24 hours by an Inspector and thereafter as directed at the 7,14, 21 and 28 day points. At the 14 day stage, or if circumstances change between weekly reviews an Inspector must conduct the review”
. Chapter 64 Chapter 64.6 after pointing out that Section 3.8 of the 1971 Act puts the onus on the subject to establish exemption from detention goes on to say :
“ However, in order to successfully implement deportation action efforts may be made to identify the individual’s identity and nationality prior to this”
. Chapter 75 This deals with detention in criminal cases. It states :
“..... there is no longer a presumption that those completing their prison sentences should continue to be detained pending deportation, particularly if continued detention infringes the person’s Human Rights under Article 5 of the Human Rights Act 1998.”
These are principles which all are entitled to expect will be applied when an individual is detained with a view to deportation. They are designed to prevent arbitrary detention and to protect the right to freedom. The claim for false imprisonment Events prior to the false imprisonment

The claim for false imprisonment

[9]When the Claimant was remanded in custody on 18th February 2006 at Milton Keynes Police Station his Detained Person’s Property Record timed at 01.56 identified as Item 2 a “passport and d/licence in d/p’s (detained person’s) name” and as Item 3 a “brown wallet containing misc. cards and 3 bank cards” which were recorded as retained in “safe keeping”. His Custody Record front sheet timed 01.59 on the same date recorded his place of birth as Somalia but that he was a “National of Holland”. At 09.06 the same day his property record noted receipt of Item 2 by someone called Wilson, who presumably took him from Milton Keynes Police Station to Woodhill where his Resettlement Questionnaire, which records information about new prisoners, dated 18th February 2006 described him as a foreign national of Dutch nationality. His Prisoner’s Property Record compiled at Woodhill on 18th February 2006 recorded receipt inter alia of a passport, driver’s licence and ID card.[10]On 7th July 2006 he appeared at Aylesbury Crown Court where he was admitted to bail on condition that he surrendered his passport at Milton Keynes Police Station by 11am on 8th July 2006. Receipt of the passport at Milton Keynes Police Station from Woodhill was recorded at 10.35 hrs on 8th July 2008. The Claimant was admitted to bail and on 8th July he was given his other property which included his ID card and driving licence. Either the original receipt for the passport or a copy of the receipt was attached to his prisoner’s property record at Woodhill.[11]On 7th August 2008 he surrendered to his bail at Aylesbury Crown Court where he pleaded guilty, was sentenced, ordered to be released but in fact detained in custody as set out in Para 5 above. On 7th August Woodhill had completed an Immediate Release Checklist for the Claimant which stated the Claimant’s nationality was Dutch. A footnote to the checklist states that if the nationality is non-UK immigration checks have to be completed. I was not told what if any checks were made nor, if they were, what the results were.

The Claimant’s detention

[12]The Claimant told me that as he and his wife were leaving the court he was asked by a policeman to come downstairs. He explained that the “policeman” was one of those who escorted prisoners into the dock. I am satisfied that he was referring to a prison warder or security man employed by the HMPS. He agreed to do so and in due course was told he was going to be detained in Woodhill. He asked why and was told it was for immigration. He spoke to his barrister and showed him his Dutch ID card. His barrister went off to telephone and came back stating he had given the ID information to the Home Office and told him that if he were not released the following day his detention would be unlawful. He was then taken to Woodhill. At Woodhill his property was listed. It is described as including “Netherlands Driving Licence and Netherlands ID card.” but there is no reference to his passport. He said that he was not served with any document authorising his detention. On 7th August the Prison Population Management Unit (“PPU”) was informed by fax timed at 15.32 that the Claimant was to be released that day. This document stated his nationality was Somalian and was forwarded by the PPU to Immigration. On 10th August his then solicitor at Pictons LLP, wrote to him at Woodhill summarising what his sentence had been but also stating :
“ I understand that the immigration department have issued papers authorising your detention and so you can remain at HMP Woodhill. I have asked (person named) to contact you regarding this matter as your barrister advised that he thinks this could be an unlawful detention as you are an EU citizen.”

Events thereafter

[13]The Defendant has disclosed a number of dated documents in an attempt to explain the sequence of events from and including 7th August 2006. These documents have come from files compiled for various purposes and include documents put before the Asylum and Immigration Appeal Tribunal (“AIT”) which in due course heard the Claimant’s appeal against an order for deportation, the Defendant’s response to the Claimant’s Race Relations Questionnaire, documents produced by Immigration, and documents from Immigration and HMPS which were contained in the Treasury Solicitor’s file. This has resulted in duplication of some documents.[14]The first in time is Form IS91 dated 7th August 2006, purportedly giving authority to detain the Claimant. All sections of the form have not been completed. It has the Claimant’s prison reference number but no Home Office reference number on it.It has no photograph attached to it although it says that the authority is invalid unless a photograph is attached. It emerged that an IS91 was first faxed to Woodhill on 8th August, the day after the Claimant’s detention. Ms Freeman said that a copy of this document retained on the prison file contained a photograph of the Claimant. She said in her witness statement that most immigration documents were received by HMPS by fax but it was not common practice to fax copies of photographs because they did not reproduce. In the IS91 the Claimant’s nationality was described as “SOM”. It does not record any alias for the Claimant, although later it was later to be suggested he had an alias, and that there may have been confusion between the Claimant and someone else with a similar name.[15]The Defendant has not called any witness to explain how this form came to be issued, in particular to explain what evidence was considered and by whom to justify its issue. The Defendant’s computer records record that this document was authorised over a month later on 10th September 2006. I was told and accept that the person who signed the initial IS91 is not the same person who authorised in September. The person who authorised in September has not been called to explain what evidence he/she considered to justify issue and why a second authority was given. No attempt has been made by the Defendant to contradict the Claimant’s assertion that the original IS91 was not signed, as it should have been, by a senior Criminal Case Directorate officer, although the name was at one stage disclosed when the document was produced. On the face of it the IS91 dated 7th August is not valid, and even if the document was sent by fax on 8th August it appears its issue may not have been formally authorised until 10th September 2006.[16]The Claimant stated he was never served with any IS91and the Defendant by his counsel, Mr Poole, has accepted that there is no evidence that an IS91 was ever served on the Claimant.[17]The Claimant should also have been served with an IS91R Reasons for Detention form. No such form or copy has ever been disclosed. Nor is there any evidence that one was ever served on the Claimant. Mr Jafar has invited me to consider that 10th September was when the Defendant first considered the Claimant’s detention at Woodhill. I accept that 10th September was the first time that the issue of an IS91 for the Claimant was considered by anyone authorised to issue IS91s.[18]Where deportation is intended then the Defendant has to issue a Notice of Decision to Make a Deportation Order (ICD 1070). The Defendant has disclosed an ICD 1070 addressed to the Claimant and dated 11th September 2006. This informed the Claimant that the Secretary of State proposed to give directions “for your removal to Somalia, the country of which you are a national or which most recently provided you with a travel document / or which there is reason to believe that you will be admitted”. It stated he was entitled to appeal, set out grounds for appeal and stated a notice of appeal was enclosed.[19]The Defendant has also disclosed a letter (ICD.0776A) dated 11th September 2006 from Immigration to The Governor at Woodhill. It asked him to inform the Claimant of the decision to make a deportation order against him, stated that enclosed with the letter were the ICD.1070 and Forms ICD 1041 and ICD3066 which should all be served on the prisoner as soon as possible and asked that the sender be telephoned when this had been done. The letter listed as enclosed with it “Notice, appeal forms, disclaimer, Authority for detention and IS91RA”. Disclosed with this letter was a further letter dated 11th September 2006 (ICD.1913 CCD) addressed to the Claimant and stating why “having carefully considered the particulars of your case” the writer was satisfied his detention was justified because he was liable to abscond and setting out grounds relied on as a basis for detaining him.[20]If the letter (ICD.0776A) dated 11th September 2006 was sent, and there is no evidence that it was or at least was sent on or close to that date, Form ICD.1070 should have been served on the Claimant straight away but there is no evidence that this happened. Ms Freeman told me that service of such documents was undertaken by Resettlement and that a record should have been kept by Resettlement in their Legal Services file and by the Discipline Clerk. The Resettlement Legal Services file is no longer available : Ms Freeman said it was not contained in the prison file shown to her when she was preparing her witness statement earlier this year. The Discipline Clerk’s records, have not been disclosed to support any case that such a document was served and apparently they too are missing[21]Service of ICD.1070 is, however, recorded on the box provided in the ICD.1070 form which was in due course contained within the documents compiled by the Claimant’s solicitors for his appeal against the deportation order. The Claimant’s case is that he was not served with this document until 3rd November 2006, the date contained on his Notice of Appeal to the AIT. This appears to be confirmed by a record dated 3rd November 2006 on the Defendant’s GCID sheet for the Claimant – “RFDL completed and faxed to HMP Woodhill to be served on sub. Spoke to Julie who confirmed that RFDL has been served on subject”.[22]In her witness statement Ms Freeman stated that the delay between 11th September and 1st November, which she took as the date of service, may have been partly because there was only a small number of staff at Woodhill able to serve immigration documents, that at any time up to 150 foreign national prisoners were held and she was on leave in the first 2 weeks of October. This explanation is not very convincing. In the copy ICD.1070 produced by the Defendant for the AIT hearing, the date of service box was blank, nor is any date of service contained in the copy disclosed from the Data Protection Act file although the covering letter asserts the document was served on 1st November. When Ms Freeman gave evidence she expressed surprise that it had taken such a long time to serve such a document and was hard pressed to explain it. She offered no explanation why this surprise had not been mentioned in her witness statement, which evidently was designed to offer some explanation for the delay. In evidence she said she had not known such documents served so late – it was way beyond the time limit. If she had received a document way past its date she would have let Immigration know, as she would if she had sat on it for a month. There is no record of any such contact. She said that if it was a whole month that would suggest she did not have the document.[23]Detainees should also receive progress reports. The Claimant should have received such a report in September. He did not. The Defendant has disclosed a fax cover sheet addressed to The Custody Office at Woodhill attaching a monthly progress report dated 23rd October 2006 and, enclosing a copy of a bio-data form for the Claimant for completion and return. There is no evidence that any other report was compiled and no evidence that this report, if sent, was ever served on the Claimant. A completed bio-data form disclosed is dated 29th October 2006.[24]On 3rd November 2003 Immigration sent a Notice of Decision to make a Deportation Order (ICD.1914) to the Claimant stating that they had on 11th September 2006 written seeking reasons why he should not be deported, that no representations had been received, that his deportation would be conducive to the public good, that the Secretary of State regarded as particularly serious his convictions for assault and harassment and that he would be deported to Somalia. This letter was faxed to Woodhill and on this occasion I am satisfied it was passed on to the Claimant, probably with an ICD.1070.[25]When requesting an oral hearing of the Claimant’s appeal against the deportation order the Defendant wrote stating :
“On 1st November 2006 the appellant was informed of the decision to make a deportation order against him and was asked for any reasons why he considered he should not be deported. No reply was received by 3rd November 2006 and on 3rd November 2006 the appellant was notified that he was to be deported to Somalia.”
[26]I was told that a potential deportee has 5 days to provide those reasons. The writer of this letter was either unaware of that or chose to disregard it. She evidently did not consider the practicability of returning reasons within 2 days. Such a letter hardly instils confidence that the affairs of detainees are in competent and reliable hands. If I am right in concluding that ICD.1070 was served on 3rd November no time for appeal was allowed at all.[27]Meanwhile on 28th September 2006 the Claimant had instructed solicitors to represent him. He said this has been organised for him by his wife and took some time because there were few solicitors specialising in immigration in his area. Ms Freeman stated she had handed the Claimant a list of solicitors on 25th August 2006 and that at the top of the list were Pickup and Jarvis, the Claimant’s present solicitors. She recorded this on the resettlement log which was produced, where the month of this date is not too clear. Unless it is mere coincidence, it seems likely that Pickup and Jarvis’ name was passed on quickly by the Claimant to his wife who may well have been hitherto unsuccessful in finding a specialist solicitor.[28]The conduct of the Claimant’s solicitors, and in particular of Ms Harleena Basi, the solicitor with conduct of the matter, is one of the few refreshing aspects of this case. Following receipt of instructions in late September she set about trying to obtain to confirm the Claimant’s Dutch nationality. Having spoken to the Aylesbury Crown Court she was told that the Claimant’s passport had been sent to Milton Keynes police station, from whom she then sought the passport, drawing a blank. She also wrote to the police station and the court. On 10th October she wrote to the Dutch embassy seeking confirmation of the Claimant’s Dutch nationality. On 11th October she wrote to the Governor at Woodhill urgently seeking the original or a copy of the Claimant’s ID card which Woodhill held : she received no reply. On 1st November she wrote to the Immigration Criminal Casework Department asserting the Claimant was a Dutch national, stating that the authorities may hold his passport and ID card confirming this and requesting a copy of their records held on the Claimant and copies of any relevant documentation. This letter also went unanswered. In his Response to the Claimant’s Race Relations Questionnaire the Defendant stated that as a result of this letter the Defendant was aware in early November 2006 that the Claimant asserted Dutch nationality but wanted proof of this. The Defendant already had that proof.[29]Then one line of enquiry produced fruit. She had contacted Working Solutions who had employed the Claimant, or placed him in employment, for a few hours in January 2006 and had taken a photocopy of his passport for their records. On 3rd November they sent Ms Basi a copy of the Dutch passport which she received on the 7th November. She now had positive evidence with which to confront Immigration and she did so with the result that ultimately the Claimant was released. The Claimant has every reason to be very grateful to Ms Basi. Without her persistence and commitment to his case I conclude it is likely that he would have been deported.[30]Having received the Notice of a Decision to make a Deportation Order the Claimant forwarded it to his solicitors who received it on 8th November 2006 and promptly instituted an appeal to the AIT seeking one day’s extension of time to do so. Their notice stated inter alia that the Claimant was a Dutch national, had not been sentenced to imprisonment for 2 years or more, was not a threat to security and his detention had been unlawful. They enclosed a photograph of the copied page of his Dutch passport, the police Custody Record front sheet recording that he was a national of Holland, and various copy letters.[31]On 15th November 2006 the Minister of State signed the Deportation Order. The Defendant states it was not until this date when he received the Claimant’s appeal documents that he knew the Claimant may have had Dutch Nationality. Having received the notice of appeal asserting that the Claimant was Dutch and enclosing a copy of a page of his Dutch passport one might expect that Immigration would promptly followe up the information provided. A telephone call to Resettlement at Woodhill could have resulted in the Claimant’s prison file being consulted which would have revealed that they held his Dutch ID card. Looking at their earlier held records on him would also have revealed that. But it appears that matters drifted until 11th December 2006 when the Claimant’s appeal was heard.[32]On 11th December the Claimant was being taken by vehicle to the AIT hearing at Nottingham when the prison authorities were told that his presence there was no longer required. Evidently the message was passed on to the escorts. He told me, and I accept, that the vehicle stopped in what he described as “a field, a farm like a forest” and that he was “really frightened and thought they would kill me there”. After about half an hour they returned to Woodhill. He said, and I accept, that he was given no explanation about what was happening.[33]The AIT’s determination recorded that it had become apparent that the Appellant had Dutch nationality and that the Defendant conceded there was no basis for removal, the Secretary of State accepting that the only reason for refusal had been based on the Appellant’s criminality.[34]Although the Defendant had taken the view that there were no longer any grounds to detain the Claimant no steps had been taken to free him prior to 11th December and even then he was not freed on that date. It was not until 15th December 2006 that he was released from Woodhill. I have had no explanation for this delay. The Claimant is recorded as signing for all his property as taken on discharge but with a note “Only nationality documents with The Home office”. It is clear that he was not given all his property. He denies it was his signature stating he had refused to sign any documents as he was scared about what he was signing and that as far as he could remember he would not sign anything. The Claimant’s account of what happened following detention[35]The Claimant’s witness statement dated 1st December 2006 made for the purposes of his AIT appeal included the sentence :
“Despite my desperate attempts to obtain copies of my passport and ID card, no-one here has given me copies, confirmed that they are held or even admitted that I have Dutch nationality”
. It did not state what attempts he had made.[36]His first witness statement made for the purposes of this action and dated 9th June 2008 stated:
“ I tried to communicate with the Home Office whilst I was still detained after the end of my criminal sentence to remind them I was a Dutch national because I did understand the basic reason I was being detained then was for immigration purposes and I was aware that as a Dutch national I should not be deported. I made a request to the authorities at Woodhill prison in Milton Keynes ...to be able to see somebody from the immigration service and pointing out that I was a citizen of Holland. I also asked the prison authorities to locate my passport and ID card. However nothing happened immediately in response to those requests. Indeed the prison authorities...simply stated I should go back to Africa where I came from.”
[37]In his second witness statement dated 25th November 2008 he gave a fuller account of what happened, which he repeated in evidence and which I deal with below.[38]The Claimant gave evidence, sometimes in English replying of his own initiative, at other times via an interpreter. He was voluble and when he spoke in English he was sometimes difficult to understand. He seemed to me to have a working knowledge of English. His oral evidence accorded in essentials with his written statements. He was unsure about dates, as could be expected.[39]He said that for a month no-one came to talk to him and that every morning he went to Reception and filled out a general application form asking for his documents and why he was in detention. HMPS should record applications made by detainees. The Defendant has disclosed only 2 general application documents dated respectively 25th September and 17th October 2006.[40]The general application dated 25th September records the Claimant’s application as :
“I require to see somebody from immigration urgently because of my retention in Woodhill. I am a citizen of Holland and am a EU citizen. My passport is held by the police station Milton Keynes Central or by the prison authorities”
The action to be taken was recorded on 26th September as “Refer to Resettlement” and the application was to be recorded in the Applications Book. The matter was referred to Resettlement where it was dealt with by an officer. He replied to the query : “Having checked our property records we have no record of your passport being passed on to anyone other than yourself. Our attempts to locate your passport with the police have been unsuccessful. This matter is now with the Immigration Service they will try to locate your passport”.[41]Ms Freeman stated that to give this response the officer would have had to go to the Claimant’s sealed valuable property bag and checked. She said that this was a plastic bag which one could see through. If he was able to check the Claimant’s property without opening the bag then he would have been able to see the Dutch ID card and driving licence within. Given that an ID card is acceptable as evidence of nationality and given the nature of the enquiry it is very surprising that he failed to note the ID card. There is no entry in the resettlement log, as there should have been, of what he is supposed to have done nor is there any record that he contacted Immigration. One has to query whether he did anything in response to the application.[42]The general application dated 17th October states :
“In stored property there is a Netherlands ID card can you please let me know the driving licence number which is printed on it also National Insurance number which is wrote (sic) on it. I need this information for immigration office”
. The action taken by the officer is recorded as “FWD to Reception”. The action taken by the senior officer includes the provision of information namely the numbers of the Claimant’s “National ID” and “Sofie nummer” (Social security number).[43]Ms Freeman stated that following initial meetings when CCT1s and a Resettlement Questionnaire are completed (see para 52 below), resettlement officers’ meetings with prisoners should be recorded in the resettlement log but she accepted that this did not always happen. She produced pages from the resettlement log recording meetings with the Claimant. In all the log records 4 meetings : the first on 14th August records that permission for a telephone call was refused ; 25th August records “immigration info and sols (solicitors) list issue(d)” ; 13th September “sols correspondence” and 21st October “To locate passport”. All these, save the last, has Ms Freeman’s initials alongside it indicating that she attended to the request and, she said, met the Claimant. Mr Jafar pointed out that entries are not necessarily in date order and that there are gaps in the record. There is no record of any meeting at any stage to hand over any IS91 or allied documents. I do not regard the resettlement log as a reliable record. If it were reliable it would put a serious question mark against the Claimant’s assertion that he was constantly raising his plight with the authorities and receiving no assistance.[44]He said that after one month in detention, just after the first week of September, he was called to the Resettlement Office, which he said was where the Home Office was based. He was asked, but refused, to sign a letter, said he was Dutch whereupon the Home Office officer, whom he thought was called Debbie Freeman, said to him “You are not Dutch, look at you, you are African”. He said he had documents but was told the documents were fake and then the interviewer read out what from a document that the Dutch Government did not want him returned. He was not shown the document. He said that in late September, after his wife found a solicitor who would help him, he sometimes received responses to the general applications he made.[45]He said that about a month after the first meeting he was called to Resettlement where he was told he was not Dutch and was to be sent back to Somalia. He said he was terrified. He was given a form, which he thought was the bio-data form which the Defendant has disclosed. This form contains parts which appear to have been pre-typed such as the Claimant’s Home Office reference, the Claimant’s name, date of birth and nationality (stated as Somalian), other parts dealing with members of his family and their nationalities were completed by Ms Freeman, in part she said from information held elsewhere. On the form the Claimant has written what he said had been his address in Holland, but what Ms Freeman said she thought was the address where his Dutch passport was issued. The Claimant said that when he said he was Dutch he was told he was Somali and was illegal, that he had no family or friends or documents, to which he said he gave his details again, and was asked whether he had come by boat or plane and asked whether he had been living in London. The bio-data form is dated 29th October 2006. Ms Freeman did not record any meeting to complete this form on the resettlement log. I accept what the Claimant says of this meeting but I am unsure when it occurred. I consider it probably took place on or close to 29th October rather than earlier.[46]He says that next he received the Notice of Decision to make a Deportation Order which was sent to his room. If that was how it was served it is understandable how copies later produced had no date of service filled in. He forwarded this to his solicitors.[47]The Claimant said that in all he had 3 meetings with “the Home Office”. He said that on each occasion he said he was a Dutch citizen, told them his documents including his ID card were in Reception and that he had a wife and children. On each occasion uniformed Woodhill staff were present. He said that on the third occasion he was asked whether he had come to the UK to plant bombs and was asked where he had planned to bomb. He said he was terrified and had not replied. He first mentioned this in his second witness statement.[48]The Defendant disclosed a computer record of a “surgery” meeting with the Claimant on 17th October and later a witness statement by a Mr Stepek who had held the surgery. Mr Stepek was not called to give evidence. These surgeries were held bi-monthly and this appears to have been the only surgery attended by the Claimant. No other surgery record has been disclosed. The computer record refers only to conversation about the Claimant’s matrimonial problems and his children. There is no record of the Claimant maintaining he was Dutch. However on the same day the Claimant put in a general application seekingthe driving licence number which is printed on his ID card and his National Insurance number stating he needed this information for the “immigration office”. It would be very surprising, given his concerns, if he had not mentioned these matters to Mr Stepek.[49]A note dated 24th October 2006 on the Claimant’s residential wing record states that the writer, presumably a wing officer, had contacted Milton Keynes police station on the Claimant’s behalf, that they had checked his custody record for 15th and 24th July when he had been taken into custody by police and there was no sign of a passport being in the Claimant’s possession on those dates. That would be understandable as the passport had earlier been surrendered to the police. The note however shows that the Claimant must have asked the wing officer to contact the police about his passport. The Defendant’s response[50]Ms Freeman was the only witness called by the Defendant. At the time she was the Foreign Nationals and Legal Services Officer in the Resettlement Department at Woodhill. She was one of a department of about 12 people and said she was the lead officer dealing with immigration matters. She would respond to queries raised by Immigration. If, for example, Immigration had asked her to check the Claimant’s documents held she would have done so.[51]She said she knew the Claimant from his earlier period of custody and met him on many occasions. She described him as someone who had been uncooperative throughout the time she had been seeing him, aggressive and argumentative with her. She maintained she had made clear, or rather would have made clear, to the Claimant, when she met him, or rather would have met him, on his readmission to custody on 7th August 2006 or within a week thereafter that if he had acquired a different nationality from that he had at birth he needed to provide the authorities with suitable documentation such as a passport or naturalisation document. She found it “difficult to accept” that no-one had gone to see the Claimant in his first month of detention. She said that if staff were unable to answer the Claimant’s queries, an appointment would have been made for him to see her “at the earliest possible date”. She said the Claimant never asserted Dutch nationality until after he was issued with ICD1070 in November 2006. I observe that her understanding of the address the claimant had written on the bio-data form dated 29th October had been that it was the office which had issued the Claimant’s Dutch passport. Her response to him had been to ask him to provide the supporting information. She had not known what was in the Claimant’s property. Had she done so she would have sent the identification information off to Immigration. She said she recalled meeting the Claimant on 29th October, explained to him who she was and that part of her job was to issue forms issued by Immigration, asked him whether he could understand English sufficiently to understand what she was saying and “the forms she would be giving him”. She did not at that point in her statement say she handed him any forms. Later in her witness statement she referred to completing the bio-data form that day.[52]She provided background information which helped me in understanding what information collecting systems the Defendant had in place. She explained the following.(i) Whenever a person is detained in prison (save e.g. on return from daily trips to court) 2 forms have to be completed (a) a form CCT1 has to be completed at interview by a resettlement officer recording details of the subject including his nationality, contact address and telephone number for emergency, whether married, has children etc.. A copy is forwarded to Immigration. (b) A Resettlement Questionnaire is also completed at interview, which records similar information but also deals with matters HMPS needs to know. This record is kept at the prison.(ii) A CCT1 form had been completed in February 2006 and recorded the Claimant’s nationality as Dutch. This would have been sent to Immigration. The reason the information had been given to Immigration was for them to confirm it and she would have hoped that in February 2006 they would have confirmed the Claimant’s Dutch nationality. There would be a document in the prison file stating that Immigration had confirmed his nationality. Immigration would have had to confirm he was legally here, whatever the situation. If they had not done so, steps would have been taken to remove him and an immigration warrant would have been issued. In February 2006 she had dealt with some of the Claimant’s interviews.(iii) Similarly when a person is detained in police custody, Immigration is informed of the details recorded on his custody sheet. In the present case the Claimant’s police February 2006 custody records that he was born in Somalia and of Dutch nationality. Immigration would confirm his nationality.(iv) Details of any identification documents held by the HMPS should be passed on to Immigration. She would have fully expected details of the Claimant’s ID card to have been passed on to Immigration. There was no good explanation why it had not been. Had it been her responsibility she would have taken copies of such documents and sent them to Immigration.(v) Resettlement handled Immigration documents. Resettlement should record service of such documents and then report to Immigration that service has taken place.(vi) Resettlement kept a Legal Services File which recorded every contact made with a detainee and would include service of Immigration documents and every time he made a general application. That file had been missing from the Claimant’s prison file which she had examined at Croydon earlier this year. She could not explain why. She knew it existed as she had seen it.(vii) Service of Immigration documents and any queries arising were also recorded separately by the Discipline Clerk but no such record was available.(viii) Logs listing general applications are kept on residential wings and resettlement logs recorded applications by and meetings with detainees handled by Resettlement.[53]I have no doubt that Immigration was informed of the Claimant’s detention in February 2006 and of his Dutch nationality.Mr Jafar for the Claimant drew my attention to an entry in a Home Office Referral to the IND Criminal Case Work Team dated “26th February 2007” which records on page 3 in answer to the question “Does the subject have a passport or other proof of identity” the answer “No” with the following details given :
“All items concerning passport European ID card Driving Licence (Dutch) Immigration Office since February of last year 2006”
. European ID card Driving Licence (Dutch) He also drew my attention to a letter dated 7th November 2006 from the UK Immigration Service which states that the Claimant came to the notice of immigration officials “when he was arrested by the police for common assault and 2 counts of harassment”. This letter also states that on 16th February 2006 he had been sentenced to 9 months imprisonment for common assault and harassment (this date is, of course, wrong, it should have been 7th August 2006). Ms Freeman made clear Immigration would have been so informed.[54]Ms Freeman denied that the Claimant had ever until November 2006 maintained he was Dutch or asserted that his documents held at the prison were proof of that. She denied that at any meeting she had said to him “You are not Dutch, look at you, you are African”, told him his documents were fake and then read out what from a document that the Dutch Government did not want him returned (see para 44 above). She said that this assertion made her very angry and was a complete and utter lie. She said she did not discriminate as had been recognised by the Prison Service who had placed her in the top three officers in dealing with foreign nationals.[55]She was a witness well able to stand her own ground. Her initial claimed recollection for meetings with the Claimant became recollections of what would have happened and then what should have happened. She resisted criticism instinctively and in both her witness statement and her oral evidence she was protective of Resettlement although less protective of Immigration. Since the Defendant called no witness from Immigration to justify actions taken or to explain inaction, Ms Freeman had to face many questions which the Defendant would no doubt have hoped not to have had to answer.[56]Whilst the Claimant’s criminal record suggests he may not be the most reliable of persons, that record is one of violence not dishonesty. I see no reason to reject the generality of what he says happened. His evidence remained consistent in essentials. He knew at the outset, having been so informed by his barrister, as I accept, and then by letter by his solicitors, that his detention was illegal because he was a Dutch citizen. It is only reasonable for him to have complained and sought access to his identification documents. And to protest that he was Dutch and mention his documents it is the very sort of thing one would expect him to do. If he was argumentative, as Ms Freeman states, all the more to expect him to be vociferous. I did not get the impression from his evidence that he was someone who would not speak up. That he made applications for investigations into his documents is supported by the few general applications disclosed and the wing record of Milton Keynes police being contacted about his passport. I do not believe he made such requests rarely. Those documents were his lifeline. He instructed solicitors and evidently provided them with a trail to follow.[57]For some unexplained reason there is an almost complete lack of documentary evidence, kept by the Defendant, which could have gone to support the Claimant’s case. The following are missing :(i) the Resettlement Legal Services file and the August 2006 Resettlement Questionnaire which should have been compiled ;(ii) the Discipline Clerk’s records ;(iii) the CCT1s for February and August 2006 (although a later one in 2007 exists) ;(iv) Form IS91R ;(v) any record of service of any Immigration document until early November 2006. The absence of these documents obviously raises suspicion that they deliberately have been removed because their contents, or lack of contents, may point the finger of blame at an individual officer or officers. An alternative explanation is that all or some of them never came into existence : Ms Freeman said the Legal Services file had existed. A yet further explanation is that they have been innocently mislaid. I am not in a position to resolve the reason for their absence. It is clear to me that no reliance can be placed on the resettlement log as an accurate record of contact with the Claimant. I have not seen the residential bay logs. The general standard of record keeping by the Defendant and his agents in this case leaves much to be desired.[58]The Claimant says, uncontradicted by the Defendant save by Ms Freeman’s assertions, and with limited support by his Resettlement Questionnaire dated February 2006 which records no behavioural issues, that he was cooperative during his period of custody from February to July 2006. He accepts he failed to cooperate from August to December 2006 and said he refused to sign any document after his initial property receipt in August 2006 because of the treatment he was receiving and fear of, in effect, signing away his security.[59]Having seen him give evidence and his response, especially when being cross-examined, I do not regard him as someone who would not speak up in his own interests. Yet, if Ms Freeman be correct he never at any early stage mentioned he was Dutch. The fact that no CCT1 and Resettlement Questionnaire for August 2006 has been produced suggests the possibility that no such documents were compiled for the Claimant and therefore no meeting to compile them. I do not accept Ms Freeman’s evidence that she explained or would have explained to the Claimant at the outset of his return to custody that if he had changed his nationality he should say so and produce documents in support. The Claimant’s account that he was not served with any Immigration document until early November would explain why no-one would have been concerned to visit him for the first month since, on the face of it, there was nothing to see him about. The resettlement log entries are for incidental matters until 21st October and the earliest meeting of substance recorded was at the surgery, when an Immigration official visits the prison, on 17th October.[60]I did not find Ms Freeman a satisfactory witness. It is extremely surprising that, if as she said she had dealt with the Claimant and seen him on many occasions, and being the lead officer in what was a comparatively small department, she did not know that he was claiming that he was Dutch. Late in her evidence she stated that she knew the Claimant had been claiming he was Dutch and it seemed to me that she was at this stage referring to earlier than early November 2006, or 29th October for that matter. If she had not dealt with him save once as he says, or only on a few occasions, then as lead officer I would have expected her to get to know of his claims this from conversations with others who dealt with him. The Claimant’s evidence suggests that some prison officers dealing with him, including Ms Freeman, closed their minds to his protestations.[61]As to whether or not there was a meeting between the Claimant and Ms Freeman in early September where it was claimed Ms Freeman said “You are not Dutch, look at you, you are African”, told him his documents were fake and then read out what from a document that the Dutch Government did not want him returned, I accept he had a meeting with somebody in early September and that it went along the lines he described but I am not convinced it that meeting was with Ms Freeman. The Claimant initially said the meeting was with a person whom he “thought” was Debbie Freeman. Cross-examination proceeded on the basis, without demur by the Claimant, that it had been with Ms Freeman. In re-examination he said he had seen Ms Freeman walking around but had met Ms Freeman only once and in the September. He went on to say that at the meeting she had given him a form for which there was 5 days to appeal which would have dated the meeting to early November.[62]In re-examination the Claimant also said “My memory is not all that good. It is the dates I struggle with but I clearly remember I only saw her once”. It may well be that at this stage in his evidence he was also confusing the bio-data form with the appeal form. I am satisfied he met her when the bio-data form was dealt with, probably on or close to 29th October. The Defence case[63]The Defendant admits false imprisonment. He accepts that the basis relied on for deporting the Claimant was the Claimant’s criminality and that his term of imprisonment did not meet the 2 year threshold required for deporting EEA nationals. His case is that on 7th August 2006 he believed the Claimant was a Somali national and decided it would be conducive to the public good to make a deportation order against him and that he did not know that the Claimant was a EEA national until this was asserted in the Claimant’s appeal, notification of which was received on 15th November 2006, following which enquiries were made.[64]In his response to the Claimant’s Race Relations Questionnaire the Defendant had said :
“The Home Office on or about 8th July 2006 recorded the Claimant as “Dutch” as well as Somali, but working from information received from the Prison Service’s Population Management Unit on or about 7th August 2006 recorded his nationality as Somali”
. This latter mistake was compounded by confusion with another Somali of similar name and sharing the same day and month of both (sic) who had previously been deported from the UK.”[65]But a return to the PPU is hardly a basis for detaining someone when the Defendant has other information recording a Dutch nationality and has access to information recording his Dutch nationality in a file already existing for him. Nor has the person making the decision been called to explain his/her reasoning, nor whether he/she was authorised to make the decision, even though this information has been was sought by the Claimant’s solicitors.[66]Details of the Somali with a similar name have been disclosed in an undated document belonging, it appears to Immigration’s Criminal Casework Team. This refers to “Hawa Abdullahi with, written alongside it, “alias Muuse Abdullahi 1/7/68 Muuse Abdullahi” with nationality stated as “Somalia”. But, as Mr Jafar points, this Somali is recorded as female, the date of birth has been altered from 1/7/68 (the Claimant’s date of birth) to “1/7/1969?” and the prison number (the Claimant’s prison number) has been crossed out. Further, the document, clearly designed to record details of a conviction or convictions has no conviction details recorded on it. All this caused Mr Jafar to question the authenticity of the document. He pointed out that in addition to the prison number, the Home Office reference is that of the Claimant and suggested this document was probably created for the purposes of creating confusion and that the earliest documents produced by the Defendant mentioning the alias “Hawa” for the Claimant are dated December 2006, by which time his nationality had been confirmed.[67]Mr Jafar also points out that the name Hawa was linked to the Claimant as early as August 2006. He drew my attention to 3 Home Office Warehouse print-outs, each with the same Home Office reference and same date of birth, both the Claimant’s. The first, created on 9th August 2006 is for Abdiullah Muuse and states the nationality as Somali ; the second and third are both created on 5th September 2006, one for “Abdullaahi Hawa” and the other for “Abdullaahi Mwse” but both state the nationality as “Netherlands”. He says the name “Hawa” is linked to a Netherlands nationality which militates against the confusion alleged. He suggests some of these names have been made up.[68]I am not prepared to accede to Mr Jafar’s suggestion that the documents he identifies have been created to create confusion as opposed to resulting from incompetence. But what is clear to me is that it would be difficult to see confused identity resulting from looking at the Immigration Criminal Casework Team document, and that on the computer system “Hawa” was linked to Dutch, not Somali nationality. I note too that no alias is recorded on any February 2006 record or any of the more formal records relating to the Claimant created between August – November 2006. The suggestion of confused identity seems a weak afterthought.[69]Nor has the Defendant explained what enquiries were made which resulted in the discovery that the Claimant was a Dutch national and precisely when the discovery was made. It is asserted that upon receiving notification of his appeal on 15th November 2006 “enquiries were urgently made” to establish the Claimant’s true nationality but I have been provided with no evidence of what, if any, enquiries were made. All the Defendant had to do was consult the Claimant’s already existing file. No evidence has been put before me of when confirmation of Dutch nationality was received and by whom and by what means nationality had been confirmed. Nor has the Defendant explained why, once it had been confirmed that the Claimant was a Dutch national, he was not released. Nor has any explanation has been proffered for the 4 day delay beyond 11th December 2006, or longer, if confirmation of nationality had been obtained earlier.[70]In short, the Defendant’s case has comprised assertion not substance. Conclusions of fact[71]I find the following facts.(i) The Defendant would have had information on the Claimant’s nationality dating at least from February 2006. It was also agreed between the parties that the Claimant had served a sentence of imprisonment before that which means that information on his nationality should have been available from a date earlier than February 2006.(ii) If the Defendant had been contemplating deportation prior to 7th August 2006, then inadequate, if any, steps were taken prior to 7th August 2006 to discover what the Claimant’s status was and whether it would be appropriate to detain him with a view to deportation.(iii) The Claimant was retaken into custody on 7th August 2006 without justification and without any lawful authority having been issued.(iv) The Claimant was not at that stage given any formal reasons for his detention.(v) The Claimant’s case was not reviewed as it should have been.(vi) When in custody the Claimant persistently protested his Dutch nationality and that his Dutch ID card was held in his property yet insufficient, almost nothing, was done to verify his claims. In particular, HMPS took no initiative to discover why he was being held and to verify the claim to Dutch nationality he was making, which they could have done by simply checking his property.(vii) Immigration set in play the process of deporting the Claimant without any adequate investigation of his status and without adequate justification according to their own guidelines. Ample records that he was Dutch were available to them.(viii) Having set in play the process Immigration appear to have been intent on pursuing it to the end in disregard of the safeguards to be observed and did so to the extent that in early November 2006 the process was accelerated at double quick speed regardless of appeal rights with the result that the notice of deportation was signed by the Minister on 15th November 2006, even though solicitors had been sent proof of the Claimant’s Dutch nationality on 6th November 2006. It is no excuse that the contents of this letter did not reach the decision maker until 15th November 2006, an assertion not supported by any evidence. If it did not the system in operation was defective.(ix) Even after notice of the Claimant’s appeal was served on them it took the Defendant until 11th December to acknowledge publicly that the Claimant had a sound case.(x) Even then when the AIT had allowed the appeal no interest appears to have been taken by anyone on behalf of the Defendant to ensure the Claimant was promptly released.(xi) When the Claimant was released it was without the very documents so necessary to prove his status. It is not disputed that his Dutch ID card and his driving licence were not released to him until 13th May 2007.[72]The Claimant’s passport has never been returned to him. I cannot on the evidence conclude that was due to failure by the Defendant as opposed to the police authority who had had custody of it, for whose actions the Defendant is not vicariously liable.[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 on the way the Home Office and HMPS were operating in 2006 when detaining the Claimant. Such conduct reflects an indifference to doing justice on the part of those who dealt with the Claimant’s case on the Defendant’s behalf. The other heads of claim[74]Before dealing with damages, I shall deal briefly with the claims brought for breaches of the Data Protection Act, Unlawful Discrimination, Breach of Human Rights and Negligence. Breach of duty under the Data Protection Act 1998[75]The Particulars of Claim assert that the Defendant wrongfully imprisoned the Claimant because he failed properly to process his personal data in accordance with the Data Protection Act 1998. Section 13 of the Act provides that a person suffering damage and/or distress due to a contravention of any of the Act’s requirements by a data controller is entitled to compensation from the data controller for that damage and/or distress.[76]Mr Jafar has not satisfied me that the Claimant has suffered any damage or distress which will not be compensated by damages for false imprisonment. I shall therefore not take this matter further.

(B) and 20 of the Race Relations Act

[77]The Claimant argues that that the Defendant does not normally treat European nationals as he did the Claimant and that the only reason he treated the Claimant as he did was because of the Claimant’s ethnic origin or race, that the Defendant irrationally ignored the data before him and that there was no objective basis for concluding that the Claimant was not a Dutch national but was a Somali national. In addition he relies on the fact that when the Claimant attempted to assert his nationality he was told he should go back to Africa.[78]The Defence denies discrimination. In his submissions Mr Poole relied on the Defendant’s Response to the Claimant’s Race Relations Questionnaire and on Section 19 D of the Race Relations Act 1976. The Response set out the case the Defendant has advanced when dealing with the claim for false imprisonment. Section 19D provides it is not unlawful for (a relevant person) to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration functions. During his closing submissions Mr Poole accepted that this provision did not provide a blanket immunity and that it could apply only to bona fide exercise of the immigration function. I agree.[79]I am not satisfied that his detention was the result of racial discrimination. Words such as “Look at you, you are African” and the suggestion that he should go back to Africa may cause offense, but in a prison context, where rough offensive language is not unknown I am not satisfied that such should sound in any damages which will not be embraced by my award for false imprisonment. Breaches of the Articles of the European Convention of Human Rights, namely Article 3 (Inhuman and degrading treatment), Article 5 (right to liberty and security), Article 8 (right to respect for private and family life), and Article 14 (Prohibition on Discrimination)[80]The Claimant asserts that his detention without lawful authority was in breach of Article 5, that his detention and threat of deportation were in breach of Article 8, that the unlawful discrimination he suffered was in breach of Article 14, and that all amounted to a breach of Article 3.[81]I agree that Article 5 has been breached and, accepting as I do that the Claimant was told he should go back to Africa, that there may be a prima facie breach of Article 14. Breaches of Articles 3 and 8 are not so clear.[82]These very rights, save for the right not to be discriminated against, are, on the facts of this, the very rights that are protected by the tort of false imprisonment and any breaches thereof will be properly compensated for by damages for false imprisonment. I have dealt with discrimination above. Negligence[83]On the facts of this case, this allegation does not add anything to the allegation of false imprisonment. Misfeasance in public office[84]The Law In Three Rivers DC v Bank of England (No 3) HL [2003] 2AC 1 the House of Lords reviewed for the first time the requirements of the tort of misfeasance in public office. The allegations were that Defendant was liable for misfeasance in public office by either wrongly granting a licence to BCCI or failing to revoke its licence when they knew, believed or suspected that it would probably collapse without being rescued. The House was called upon to review the requirements of the tort prior to any evidence having been given about the conduct of the Bank’s officials. The facts were very different from the facts of the present case and Lord Steyn when stating the approach being adopted by the House said at p 190 C :
“Your Lordships are, however, not asked to prepare an essay on the tort of misfeasance in public office but to state the ingredients of the tort so far as it may be material to the concrete disposal of the issues on the pleadings in this case.”
[85]When considering the ingredients of the tort, having identified the two requirements that the defendant must be a public officer and acting in the exercise of his power as such he dealt at p191D onwards with the required state of mind to be proved, distinguishing between two different forms of liability for misfeasance in public office : targeted malice by a public officer, ie conduct specifically intended to injure a person or persons, conduct involving bad faith in the sense of the exercise of public power for an improper or ulterior motive ; and where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff, which involved bad faith inasmuch as the public officer did not have an honest belief that his act was lawful.[86]Having concluded that targeted malice did not apply in that case he concentrated on the distinctive features of the second type, concluding after stating that liability could be founded on reckless indifference : “......in both forms of the tort the intent required must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs. This results in the rule that a plaintiff must establish not only that the defendant acted in the knowledge that the act was beyond his powers but also in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member. In presenting a sustained argument for a rule allowing recovery of all foreseeable losses counsel for the plaintiffs argued that such a more liberal rule is necessary in a democracy as a constraint upon abuse of executive and administrative power. The force of this argument is, however, substantially reduced by the recognition that subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient.Recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not, is therefore sufficient in law. “[87]The Claimant alleges that the Defendant’s conduct amounts to misfeasance in public office. Mr Jafar says the Defendant has given 3 explanations for his illegal conduct in detaining the Claimant : lack of knowledge of the evidence supporting the claim of Dutch nationality until November 2006 ; confusing the Claimant with another of a similar name ; and knowing of the Claimant’s evidence but not believing it. He suggests the first and third are mutually exclusive and that any alleged lack of belief is not objectively sustainable, which he says amounts to bad faith. He asserts that the confusion of identity is bad faith in itself.[88]The conduct of the Defendant’s officers has to be considered. There is no evidence which could justify a finding that the Claimant was the subject of targeted malice. This case, if a case of abuse of power, falls into Lord Steyn’s second category where reckless indifference to the consequences of one’s act in the sense of subjective recklessness ie not caring whether the consequences happen or not is sufficient for liability.[89]I have been provided with no witness by the Defendant to offer any acceptable explanation for the many failures that have occurred in protecting the Claimant’s interests. There has been wholesale disregard of the precautions which ought to have been taken to protect his interests. He was detained without thorough consideration by a responsible person of whether he should be, initially without any written authority and then without any proper authority ; documents which should have been served on him were either not issued and/or if issued were not served on him ; there were not robust, regular and documented reviews ; there was a rushed operation to deport him in disregard of his rights of appeal ; it took from 15th November according to the Defendant (earlier on the Claimant’s case) to 11th December 2006 for the Defendant to confirm the Claimant’s nationality when he already knew what it was and tangible evidence, in the form of the ID card, was in his control. Even then the Claimant was not released until 15th December 2006.[90]I am quite satisfied that such a state of mind has been established on the part of some of the Defendant’s officers. Those concerned with the detention of others with a view to deportation and with the process of detention prior to a decision being made to deport are directed to the numerous precautions which have to be taken to safeguard the freedom of individuals. They cannot but be aware of the need to exercise great care in the decisions they recommend and / or make and the need for clear evidence to be obtained in support of their recommendations or decisions. Immigration staff made decisions about the Claimant that they could not have made had they not been indifferent to the consequences for the Claimant. Those who have the day to day care of detainees have a duty to heed the reasonable requests and assertions of detainees and have procedures to follow to ensure detainees rights are observed and that detainees are not needlessly detained. In the present case the Claimant’s requests went for the most part unheeded and I am driven to conclude that some HMPS staff did not care whether the Claimant was deported or not.[91]I am satisfied that misfeasance in public office is proved both against Immigration and HMPS and therefore against the Defendant. Damages[92]There is no dispute that the Claimant is entitled to compensatory damages but his entitlement to aggravated and exemplary damages is challenged by Mr Poole.[93]In Thompson v Commissioner of Police of the Metropolis [1998] QB 498 Lord Woolf MR dealt with aggravated damages as follows : At p512 “As the Law Commission point out in their admirable consultative paper Aggravated, Exemplary and Restitutionary Damages (1993) (Consultation Paper No. 132) para. 2.17 et seq. there can be a penal element in the award of aggravated damages. However, they are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated. This injury which is made worse for the plaintiff because it is more difficult to excuse when the malicious motives, spite or arrogance on the part of the police (sic): see Rookes v. Barnard [1964] A.C. 1129, 1221 et seq.,per Lord Devlin.” At p 516B-D “(8) ... 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 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. .... (10) We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than a £1,000. We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest. (11) It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned.”[94]At p516G he said of exemplary damages:
“(12) Finally the jury should be told in a case where exemplary damages are claimed and the judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. It should be explained to the jury: (a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants; (c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public (this guidance would not be appropriate if the claim were to be met by insurers); (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.”
[95]In Rowlands v The Chief Constable of Merseyside Police [2006] EWCA Civ 1773, where the court also upheld the long applied understanding that someone in the position of the present Defendant could be held vicariously liable for exemplary damages, Moore-Bick LJ, with whom Richards LJ and Ward LJ agreed, further considered aggravated and exemplary damages. At para 26 he stated when considering aggravated damages :
“Whether damages awarded to compensate the claimant for distress, humiliation and injury to feelings are treated as part of basic damages (as Thomas LJ suggested in Richardson v Howie [2004] EWCA Civ 1127...or are separately identified by the name of aggravated damages, the important factor to bear in mind is that they are primarily intended to be compensatory, not punitive and that any injury for which compensation has been given as part of the award of basic damages should not be the subject of further compensation in the form of an award for aggravated damages.”
Assessment of damages in the present case[96]The normal approach to compensatory, aggravated and exemplary damages is to approach them in that order, to proceed to aggravated damages where there are aggravating features but only to exemplary damages where it is considered that there should be a punitive award over and above the total of basic and aggravated damages : see Lord Woolf in Thompson cited above. Both basic and aggravated damages take into account the circumstances of the case and the effect of the imprisonment on the Claimant. In Thompson at page 512 Lord Woolf said of aggravated damages that they are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated. The authorities suggest that although there may be a punitive aspect to aggravated damages – Lord Woolf seems to have seen it primarily in the reaction of the Defendant - basic and aggravated damages are primarily compensatory whereas exemplary damages are punitive. Decisions on damages[97]It is important that awards in cases of false imprisonment should keep in line with each other and not be out of step with awards in personal injuries cases, although, of course, each case will depend on its own circumstances. In Miller v Independent Assessor [2009] EWCA Civ 609 Kennedy LJ pointed out the need for assessors to consider the guidelines in Thompson and consider awards in the civil cases and decide how best to apply them.[98]Both counsel have helpfully referred me to a number of authorities on damages for false imprisonment, each adopting Thompson as the starting point. In Thompson Lord Woolf after stating that basic damages will depend on the circumstances and degree of harm suffered, stated at p515D-F :
“5) In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for 24 hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale.”
[99]Mr Poole referred me to R v Governor of Brockhill Prison ex p Evans [2001] 2AC 19 where the House of Lords held £5000 appropriate for 59 extra days’ detention resulting from a prison governor’s innocent and blameless interpretation of the law based on earlier court decisions and made no award of aggravated damages. In both ex p Evans and the present case the initial detention had been lawful but, as Mr Jafar pointed out, the facts of ex p Evans are far removed from the facts of the present case.[100]He also referred me to R v Special Adjudicator and Secretary of State for the Home Department ex parte Bouazza [1998] INLR 315, a decision of Kay J, and the assessment of damages in that case by Master Turner, also a case where detention had been initially been lawful. In Bouazza detention overall was between 30th June 1995 and 10th July 1996 but was held by Kay J to have been unlawful only between 8th May and 10th July 1996. Master Turner awarded damages of £10,000 for 63 days detention and clearly took into account the fact that from April 1996 onwards, prior to the illegal detention, the Claimant had the “horrendous news” that he was likely to be returned to Algeria where he would face persecution “and that each day spent in detention was a further day in which he feared the subsequent removal to Algeria”. He did not regard a dilatory and tardy review of material leading to the unlawful detention as justifying an award of aggravated damages. He made a separate award of £8,000 for exacerbation of psychiatric damage resulting from the unlawful detention.[101]I was also referred to Lunt v Liverpool Justices (CA Transcript) 5th March 1991, which precedes Thompson and where the Court of Appeal increased a Master’s award of £13,500 to £25,000 for 42 days unlawful detention : Mr Lunt was described by Bingham LJ as “a man in later middle age, of good reputation, with no previous experience of incarceration, not in the best of health, who lost his liberty ...unlawfully, for 42 days and who did so in circumstances of extreme unpleasantness”.[102]Mr Poole also drew my attention to : R (Johnson) v Secretary of State for the Home Department [2004] EWHC 1550 ; B v Secretary of State for the Home Department [2008] EWHC 3189 ; and Miller v Independent Assessor [2009] EWCA Civ 609.[103]The judgment in Johnson records the periods of detention – an initial 6 days lawful detention followed by 53 days unlawful detention for a 64 year old West Indian – but does not record the award. This was agreed by the parties at £15,000, according to The Immigration Nationality and Refugee Law Handbook referred to by Mr Kenneth Parker QC in his judgment in B (see following paragraph). This would equate to about £17,850 today. In his closing submissions Mr Poole stated that an award of about £17,000 was made which would equate to about £19,230 today.[104]In The Queen on the Application of B v Secretary of State for the Home Department [2008] EWHC 3189 (Admin) Kenneth Parker QC, a Deputy High Court Judge, on written submissions, following a trial on liability, awarded basic damages of £32,000 for unlawful detention of an assumed torture victim for about 6 months, after consideration of awards set out in the JSB Personal Injuries Guidelines for Post Traumatic Stress Disorder. He awarded aggravated damages of £6,000 because the Defendant failed to apply the Detention Centre Rules and operating policies and because he maintained an unjustifiable defence to the claim. Mr Poole has pointed out that in the present case liability for false imprisonment is admitted and that both on an earlier occasion and in cross-examination he apologised to the Claimant for that illegal detention. Mr Kenneth Parker QC made no award of exemplary damages as he considered the Defendant’s serious shortcomings in his treatment of the claimant were not deliberate or intended to cause harm and the public interest did not require that, in addition, the defendant be punished for his illegality. The award in B was considered a helpful comparator by the Court of Appeal in Miller. The claim[105]The Particulars of Claim described the damage as “loss of liberty, injury to feelings on account of the humiliating and/or degrading and/or discriminatory treatment during detention, deprivation of family contact and emotional damage and depression”.[106]In his second witness statement dated 25th November 2008 the Claimant said :
“At Woodhill I was terrified. For a whole month no one came to talk to me, no one gave me any written explanation or any documents. I did not know why I was detained but I knew that I had rights as a Dutch citizen. During that month every morning I went to reception and filled out a general application form, asking for my documents and why am I in detention. I never got a response. No one came to see me. I could not sleep.”
[107]He again said he was “terrified” when he was told he was going back to Somalia (see Paragraph 45 above) and he mentioned fearing for his life when the vehicle taking him to the AIT hearing stopped in some out of the way place (Paragraph 32 above). He did not otherwise deal at any length in his oral evidence with the effect of the detention on how he felt. I have not been provided with any information on conditions at Woodhill. Although I have not been provided with any medical evidence whereby I could conclude that he had been clinically anxious or depressed by his detention, I have no difficulty in concluding that he would have felt great concern about his position and what was going to happen to him and, in particular that he would have suffered considerable anxiety about whether or not he would be deported to Somalia. The longer he was detained, with no comfort from the authorities, the more anxious I conclude he would have felt, especially after being served with deportation documents. His solicitors’ success in obtaining a copy of his passport, about which he was notified, may have eased his anxiety a little, but it produced no early reaction from the Defendant. I accept his account about his aborted trip to the AIT hearing on 11th December and of the fear he experienced when the vehicle stopped for half an hour. His general concern must still have been present when he was not released immediately following the tribunal’s decision.[108]As to the Claimant’s character, in his first witness statement he stated he used to take “caat” which had a “negative effect” on him and broke windows and a patio door so that his wife called the police. He said he was made the subject of a restraining order in 2003. In 2005 he was sentenced to 70 days’ imprisonment for harassment and was released on 18th November 2005. His marriage had its troubles. It appears he had been living apart from his wife (although he retained some contact with her when in custody) and therefore his children from early 2006. I have no difficulty in concluding that separation from his children would have added to his concerns but to what extent is difficult to assess.[109]He was in custody lawfully from 18th February to 8th July 2006. This, and his pre-August 2006 experience of custody is relevant when considering the effect of the 128 days unlawful detention on him. His unlawful detention was not his first experience of prison nor was it to be his last : following his release in December 2006 he was in February 2007 rearrested and on 20th March 2007 was sentenced to 80 days imprisonment for breach of a restraining order, in October 1997 to 10 weeks custody for breach of a restraining order and in May 2008 he was sentenced to a total of 15 months imprisonment for offences of battery, harassment and breach of a restraining order. He has attributed his post 2006 imprisonment to the consequences of his unlawful detention but I have seen no evidence to support that assertion. Most if not all of his offending appears to be linked to domestic violence.[110]Mr Jafar has suggested that an award of £20,000 for the first month is appropriate reducing thereafter by 10% a month, which he says would produce an award of basic damages in the region of £55,000. He suggests an award in the region of £75,000 for aggravated damages. Mr Poole has submitted an award of £20,000 is appropriate for basic damages and, if appropriate, an award of about £6,000 for aggravated damages. Mr Jafar sought exemplary damages but did not advance any figure. Mr Poole submitted exemplary damages were not appropriate.[111]The Claimant, having already had considerable experience of custody, would not have been subject to the initial shock and experience that first time custody can bring. I am not satisfied that in this case it would be appropriate to start with Lord Woolf’s £3000 (updated by inflation to about £4,100), for the first 24 hours. I have heard no evidence that the physical conditions of his detention were unacceptable. I am left with having to do my best with the help only of his evidence of the effect of custody on him and what I am satisfied I can fairly infer.[112]I have referred in paragraph 107 above to matters which I believe it appropriate to bear in mind in assessing damages. The present case is unusual, since it is not, in my judgment, one where aggravating factors may be found in the manner of arrest, or where humiliation or injury to pride and dignity play any significant part beyond that implicit in being imprisoned and for which basic damages are appropriate. This imprisonment was worse for the Claimant than simple imprisonment because it was in circumstances where he was wrongly put at real risk of deportation, with the fears and anxiety that such brought. That is something which could be allowed for as part of basic damages or by way of aggravated damages. I consider it preferable that there be separate awards of basic and aggravated damages to enable the award to be better understood. I consider the Defendant’s conduct to be so bad that it is worthy of punishment, beyond that which the Defendant may perceive in the awards of basic and aggravated damages. I propose therefore to make awards of basic, aggravated and exemplary damages. 113 I award £25,000 basic damages and aggravated damages of £7,500, a total of £32,500.[114]Mr Jafar has also sought an award for the Claimant’s loss of income during his unlawful detention and thereafter until his ID card and driving licence were returned to him on 13th May 2007. The Claimant said in cross-examination that since coming to the UK he had been employed by at least 11 and probably not more than 20 employers, mostly it seemed for relatively short periods. I have not been provided with details of his employments and earnings. His February 2006 Resettlement Questionnaire recorded his main source of income as “benefits”. As events turned out he was returned to custody in early 2007, shortly after being released and therefore unable to work when detained.[115]I am not prepared to find he would have been in employment during his period of unlawful detention nor, so far as the period December 2006 – May 2007 is concerned, that when at liberty he would have been able to earn more than any benefits he would have been entitled to. I am afraid this claim fails for lack of evidence. Exemplary damages / damages for misfeasance in public office[116]There is inevitable overlap in the factors which are relevant to aggravating and exemplary damages and damages for misfeasance in public office. As Lord Woolf pointed out in Thompson at p513A “the very circumstances which will justify an award of aggravated damages are probably the same as those which make it possible to award exemplary damages”. It seems to me that in a case like the present any award of exemplary damages will likely equate if not exceed any award for misfeasance in public office, save possibly for specific of heads of damage advanced. Care has to be taken to avoid double counting.[117]But what makes the Claimant’s imprisonment far more serious than the more usual case, which itself is serious enough, is the high handed and oppressive way in which it was not only initiated but maintained for such a long time in complete disregard of laid down procedures. The decision to imprison him, keeping him in custody without good cause and adequate explanation, disregard of the concerns I am satisfied he expressed to prison officers, acceleration of his deportation in early November, when his nationality could easily have been confirmed from the outset, not publicly acknowledging his nationality until 11th December and then not ensuring his immediate release were individually and cumulatively “high handed” and “oppressive”. These factors, in my judgment justify a significant punitive award.[119]In Thompson at p516G Lord Woolf said :
“(13) Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.”
Adjusted for inflation these figures would now be approximately £6,800, £34,000 and £68,000.[120]I consider the conduct of the Defendant’s servants or agents is particularly deserving of condemnation. I consider exemplary damages of £27,500 are appropriate.[121]I do not consider it appropriate to make any further award for misfeasance in public office.[122]Finally, I have considered whether adding these awards to total £60,000 produces an award out of proportion to the facts and merits of this case and is out of line with other decided cases. I conclude it does not.[123]Although a declaration was claimed that has not been pursued.[124]I will hear any applications, if the parties cannot agree an appropriate order. JLW QC

Cited in 8 later judgments