N v Secretary of State for the Home Department [2014] EWHC 3304 (QB)

[2014] EWHC 3304 (QB)Case No TLQ/14/0194
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/10/2014
Before
MR JUSTICE PHILLIPS
Between
NClaimantSecretary of State For The Home DepartmentDefendant
Ms Victoria Laughton (instructed by Wilson Solicitors LLP) for ClaimantMr Colin Thomann (instructed by Treasury Solicitor’s Department) for DefendantHearing Hearing dates: 11 th, 12 th& 13 th June 2014
JudgmentMr Justice Phillips :
[1]The claimant, a national of Uganda, claims damages for unlawful immigration detention and for misfeasance in public office. The unlawful detention claim relates to the period from 12 July 2012 to 26 September 2012, the claimant’s case being that she should not have been detained because there was independent evidence that she was a victim of torture, rendering her detention contrary to the defendant’s published policy. The defendant, the Home Secretary, denies that there was independent evidence of torture in the claimant’s case.[2]The claim for misfeasance in public office relates to the defendant’s attempt to remove the claimant to Uganda on 15 August 2012 by placing her on a plane at Heathrow airport at a time when the defendant had not considered representations by the claimant as to why she should not be removed. The defendant accepts that that attempt at removal was unlawful, but denies that the relevant officials knew they were acting unlawfully or were reckless in that regard so as to render the defendant liable for misfeasance. It is further denied that the claimant’s detention during that short period on 15 August was unlawful.[3]An order has been made pursuant to CPR 32.2(4) that the claimant’s identity must not be disclosed.

The Facts

[4]There is no dispute as to the essential facts. The claimant arrived in the United Kingdom on 7 March 2007 on a valid visit visa and was later granted leave to remain until 1 September 2010. The claimant then overstayed. On 25 June 2012 she claimed asylum on the basis of her sexuality, asserting that she would be at risk of persecution on return to Uganda due to being a lesbian. The claimant was taken into immigration detention on that same day and transferred into the Fast Track Process.[5]On 26 June 2012, during her Medical Admission Review, the claimant referred to being a victim of torture outside the UK, but accepts that she told the nurse assessing her that her solicitors had said that she did not need to have a medical examination. The nurse recorded the following:
“Rule 35 not completed because resident indicates she has discussed with her solicitor who has advised her that the extent of the torture is mere and has no impact on her presently”
[6]The claimant was interviewed in respect of her asylum claim on 29 June 2012 but, by a decision letter dated 3 July 2012, her claim was refused. The defendant rejected the claimant’s claim to be a lesbian due to inconsistencies in her account and her failure to produce any substantial evidence to support her claim. The defendant did not find her to be credible. As for allegations of torture, the decision letter : i) recorded that, during her interview, the claimant claimed that she had been subjected to beatings and abuse by her mother and uncle in Uganda because of her sexuality, being hit by belts and hit on the leg with a hot spoon and that she had two scars on her legs as a result; ii) further recorded that the claimant said that she had other scars on her body as a result of unrelated incidents including accidentally burning herself with porridge and fungal infections; iii) concluded that the injuries the claimant claimed to have sustained could be “everyday” injuries.[7]The claimant appealed against the defendant’s decision. In the meantime, on 11 July 2012, the claimant made a fresh assertion that she had been a victim of torture. An examination was carried out by a nurse at the detention centre and a report was prepared headed “Detention Centre Rule 35, Report of Special Illness or Condition (including torture claims)” (“the Report”) stating:
“Subject alleges she was physically tortured by family members in Uganda sometime in 2003. She reports that this was due to her sexuality of being lesbian. She suffered scars on both legs from belt beating and also hot cooking oil. She reports mental and physical torture as per body map attached.”
[8]The body map attached identified(1) a scar on the claimant’s left leg, described as “Scar (1/2 cm) from belt beating” and(2) a scar on the claimant’s right leg, described as “Scar (1/2 cm) from hot cooking oil”.[9]The Report was duly provided to the defendant. However, by letter dated 12 July 2012 the defendant rejected the claimant’s claim to be a victim of torture. The defendant pointed to the reasons in the decision letter dated 3 July for rejecting the claimant’s contention that she had been tortured, stating that the Report provided no new evidence in support of her claim and concluding that the claimant had failed to provide any evidence to support the claim.[10]The following day the claimant’s asylum appeal was heard by the First-tier Tribunal. Judge Bird, who heard evidence from the claimant, did not find that the claimant was a lesbian and concluded that her account was opportunistic and a means of remaining in the UK. Permission to appeal was refused by the First Tier Tribunal on 23 July 2012 and by the Upper Tribunal on 27 July 2012. Removal directions were set for 4 August 2012, but on that date the claimant refused to board the plane, having first swallowed a washing tablet and ibuprofen tablets in what may have been a suicide attempt.[11]On 9 August 2012 removal directions were re-set for 15 August.[12]The claimant served fresh representations on both 14 August and on the morning of 15 August 2012. Judicial review proceedings were commenced on the latter date, accompanied by an application for an order staying her removal.[13]Mr C.M.G. Ockelton, sitting as a Deputy

Judge of the High Court, refused the application for a stay, observing:

“1. There is no reason to suppose that the defendant will break the law by removing the claimant before responding to her representations. 2. The most recent representations do not assist the claimant. (i) There has been a very recent appeal, and neither this claimant nor anybody else needs a lawyer to enable them to tell the truth. (ii) As well as noting that the claimant produced no evidence for the period 2007-2010, the Tribunal Judge made negative findings on the credibility of the evidence the claimant did adduce, in particular finding that her claim as to an existing relationship was not the truth. (iii) The history of this case is important, given the time that the claimant has had available to assemble evidence in relation to her claim if there were any truth in it. It is not for the court to make a decision on the representations, but there is nothing in them that leads me to have the slightest suspicion that they ought to result in a conclusion that there would be a realistic prospect of success before a different judge.”
[14]Although Mr Ockelton refused to stay the claimant’s removal, it remained, by virtue of paragraph 353A of the Immigration Rules, unlawful for the defendant to remove the claimant before her further submissions had been considered. This was expressly reflected in paragraph 1 of Mr Ockelton’s order.[15]However, the defendant accepts that, on receipt of Mr Ockelton’s order at about 13.15 on 15 August, the defendant ceased to consider the claimant’s further submissions and proceeded with her removal process, taking her to the flight which was due to depart for Doha, on route to Uganda, at 15.05.[16]As the claimant’s solicitors were unable to obtain confirmation from Yarl’s Wood Immigration Removal Centre that the claimant’s further representations had been considered, a further urgent application was made orally, Kenneth Parker J ordering that the claimant’s removal be stayed. At some point between 15.20 and 15.38 the defendant received a copy of that order and took the claimant off the plane.[17]On 16 August 2012 Alan Yates, the asylum caseowner within the Home Office with responsibility for the claimant’s case, noted the following on the claimant’s Case Record Sheet:
“Further reps were originally sent to OSCU [the defendant’s Operation Support Certification Unit] who did not deal with them as HCJ Ockleton [sic] refused an injunction. As later injunction now granted the further reps will be dealt with by me”
[18]The further submissions were refused on 28 August 2012 and were not treated as a fresh claim. Yet further submissions were made and were refused on the same basis. However, on 26 September 2012 the claimant was released on bail, bringing to an end her period of detention.[19]Permission to bring judicial review proceedings was granted by HH Judge Antony Thornton QC (sitting as a Deputy High Court Judge) on 19 April 2013. On 9 July 2013 a consent order was signed in which the defendant agreed to reconsider and make a fresh decision on the claimant’s numerous representations within four months and, in the event of a further refusal, to treat them as a fresh claim with an in-country right of appeal. The defendant subsequently refused the fresh claim for asylum on 21 October 2013. However, by determination dated 26 September 2014, First-tier Tribunal Judge Lester allowed her appeal.[20]The consent order of 9 July 2013 further provided that the remainder of the claim (for damages for unlawful detention and misfeasance) was to be treated as a Part 7 claim and transferred to this court.

The claim that detention was unlawful from 12 July 2012

[21]The claimant does not dispute that she was liable to be detained on 25 June 2012 as a person in respect of whom removal directions may be given, the statutory power to detain such a person being contained in paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (as amended). Neither does she contend that any of the restrictions on that statutory power implied as a matter of common law (the Hardial Singh principles) were applicable in her case. The claimant’s case is that her detention became unlawful on 12 July 2012, the date the defendant rejected her claim to be a victim of torture.[22]The parties are in agreement as to the polices and legal principles applicable to the claimant’s claims to have been tortured and the consequent lawfulness of her continued detention: i) Paragraph 55.10 of Chapter 55 of the defendant’s Enforcement Instructions and Guidance provides that:
“The following are normally considered suitable for detention in only very exceptional circumstances … - Those where there is independent evidence that they have been tortured ..” ii) Rule 35 of the Detention Centre Rules 2001, dealing with “Special illnesses and conditions (including torture claims)” provides that the detention centre’s medical practitioner “(3) … shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture” and the manager “(4) ..shall send a copy of any report under paragraph ..(3) to [the defendant] without delay”. iii) In R (on the application of EO) v. Secretary of State for the Home Department [2013] EWHC 1236 (Admin) , Burnett J. held at paragraph 82 that: “the word “torture” in the detention policy means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purpose as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committee, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind.”
The defendant has adopted that definition in her Detention Rule 35 Process Guidance. iv) The requirement of ‘independent evidence of torture’ is not the same as a requirement of proof that there had been torture, and the underlying credibility of a detainee does not go to the question of whether something amounts to independent evidence of torture. But such evidence must necessarily be something beyond the say so of the person concerned: EO v. SSHD (above) at paragraph 68. v) The failure of the defendant to comply with her published policies without good reason is a public law error. But not every breach of public law is sufficient to give rise to a cause of action for false imprisonment: the breach must bear on and be relevant to the decision to detain: R (Lumba) v. Secretary of State for the Home Department [2011] 2 WLR 671 per Lord Dyson, paragraphs 26 and 68. vi) The defendant’s policies do not require a medical practitioner to provide any particular detail in a Rule 35 report and it is not a failure by the defendant to comply with her policy if the medic fails to see signs of torture (even if that amounted to negligence) or if he fails to ask for further information. Further, the involvement of a nurse in the Rule 35 reporting process is not a breach of policy and, even if it were a breach, it would not be sufficient to render detention unlawful: see EO (above), paragraphs 59, 61, 64. vii) The construction of the defendant’s policies and the question of whether they were applied correctly is a matter for the court. But if the policies have been applied correctly, the defendant’s conclusion on their application can only be challenged on Wednesbury grounds.[23]In the light of the above, it is common ground that the single issue which arises under this heading is whether the defendant made a public law error in refusing to accept that the Report was, on its face, independent evidence of torture. The defendant does not suggest that, if there was such a public law error, the claimant could in any event have been detained on the basis that there were very exceptional circumstances in her case justifying such detention.[24]On proper analysis, the Report would appear to provide independent evidence of no more than that the claimant had one very small scar on each of her legs, in no way indicative, in itself, of a sinister cause. The attribution of those scars to abuse which might amount to torture is clearly by way of recording the claimant’s allegations and is no more than her “say so”. The author of the report does not express any view as to the merit of the allegations nor as to whether the scars are consistent with her contentions, perhaps not surprisingly given their size, location and alleged age (some 9 years). In my judgment the report cannot be said to have provided independent evidence that the claimant had been tortured. But, in any event, it is impossible to say that the defendant’s decision to that effect was irrational.[25]In that regard, it is noteworthy that scars recorded in the Report are significantly less serious than the scars and injuries initially recorded in the case of EO v. SSHD (above). In that case the doctor who had examined EO in the detention centre wrote the following in the rule 35 report (see paragraph 89):
“Allegation of torture in Nigeria in 2008-2009, was beaten and sustained injuries to nose and scalp Scars 1. Nose deformed due to possible fracture? Nasal bone. 2. 0.3 cm scar on bridge of nose. 3. Multiple scar x4 on scalp ranging from 5cm to 1cm. 4. Scar 1 cm on lower lip.”

Scars

[26]Burnett J. nonetheless held (paragraph 96) that the Home Office case worker in that case:
“was entitled to conclude that the report … did not amount to independent evidence of torture. It recorded an allegation of torture and noted a range of scars. It expressed no opinion about the likely causation of those scars or their consistency or otherwise with EO’s account. Without more they did not provide independent evidence of torture. Their nature, as described, was non-specific.”
[27]Ms Laughton, counsel for the claimant, argued that the claimant’s case was comparable to that of CE, also considered by Burnett J. in EO v. SSHD, in which a report of scarring was held to be independent evidence of torture. However, that was a case of an unusual allegation, CE claiming she had been forced to traffic drugs in her breasts. The rule 35 report recorded that there were scars under her breasts, but did not attribute them to any particular injury. Burnett J. nonetheless held that the report did provide some independent evidence of her account: the scars demonstrated that her breasts had been operated on. The report therefore did not merely repeat her account of ill-treatment. In contrast, the Report in the claimant’s case did no more than identify small non-specific scars and repeat the assertion that they were caused by physical abuse.[28]Ms Laughton contended that the defendant’s decision of 12 July 2012 was nevertheless contrary to her policy and unlawful because the Report was rejected as independent evidence of torture “purely on the basis” of the defendant’s earlier decision of 3 July 2012 to refuse the claimant asylum and therefore wrongly considered the claimant’s credibility rather than focusing purely on the independent evidence. In my judgment that contention does not fairly reflect the defendant’s decision and is without merit. The reference in the decision letter of 12 July to the earlier decision letter is specifically to paragraph 15f, in which the defendant had considered the very same scars as are recorded in the Report and concluded that they could be everyday injuries and that there was no evidence to corroborate the allegation of torture. It was not a finding based on credibility, but on an assessment of the independent evidence, to which the defendant was entitled to cross-refer in response to what was, in substance, a claim based on the very same evidence advanced only few days later. The decision letter of 12 July 2012 makes it plain that the Report had been considered and that the claimant had not provided any evidence to show that she had been a victim of torture. I can find no breach of policy in that decision or the process by which it was reached.[29]It follows that, in my judgment, the claimant’s detention remained lawful in the period after 12 July 2012, subject only to consideration of her further claim, to which I now turn, relating to the period during which the defendant attempted to remove her on 15 August 2012.

The claim that detention became unlawful on 15 August 2012

[30]Paragraph 353A of the Immigration Rules provides that: “.. An applicant who has made further submissions shall not be removed before the defendant has considered the submissions under paragraph 353 or otherwise”.[31]As noted above, the defendant accepts that, in direct contravention of that prohibition in the Rules (which was expressly referred to in Mr Ockelton’s Order), officials acting on her behalf proceeded with the claimant’s removal without having considered the claimant’s further submissions and thereby acted unlawfully in carrying out their public office.[32]The claimant contends that, once the defendant was proceeding to remove her unlawfully, her detention was for an unlawful purpose with the result that the detention itself could be unlawful. Ms Laughton referred to R (Karas) v. Secretary of State for the Home Department [2006] EWHC 747 (Admin). However, that was a case in which it was held that the claimants had been detained one evening with a view to removing them before the opening of business the next morning so as to deny them access to legal advice and to the court. Munby J. held:
“I am driven to conclude that the claimants’ detention was deliberately planned with a view to what in my judgment was a collateral and improper purpose – the spiriting away of the claimants from the jurisdiction before there was likely to be time for them to obtain and act upon legal advice or apply to the court. That purpose was improper. It was unlawful. And in my judgment it renders the detention itself unlawful.”
[33]In contrast, in the present case the claimant’s detention was undoubtedly for the proper purpose of lawfully removing her pursuant to removal directions which had been lawfully given on 9 August 2012. The fact that the attempted removal on 15 August 2012 was unlawful does not mean that the purpose of her detention ceased to be lawful. The public law error constituted by the failure to consider the claimant’s further submissions before removing her did not bear on or relate to the underlying decision to detain her pending her lawful removal.[34]It follows that the alternative claim for unlawful detention during the attempted removal of the claimant on 15 August 2012 fails. But even if the claimant did have a technical claim in that regard, it is my judgment entirely clear that she would in any event have been detained pending the consideration of her further submissions. In those circumstances the most she would have been entitled to under this head of claim for her loss of liberty is nominal damages, causation being relevant to the question of recoverability of damages: see, for example, R (Kambadzi) v. Secretary of State for the Home Department [2011] UKSC 23 per Lady Hale at paragraph 89.

The claim for misfeasance in public office on 15 August 2012

[35]As set out above, the defendant accepts that her officials, acting on her behalf in their public offices, proceeded with the claimant’s removal when it was unlawful to do so. The issues arising in relation to the claim for misfeasance are(i) whether, following the evidence at the trial, the claimant has established the necessary state of mind on the part of the officials in so acting; and(ii) whether the claimant has established that she was caused material damage.

(i) The state of mind of the relevant officials

[36]It is common ground that the law as to the state of mind which must be proved for the tort of misfeasance is set out in the opinion of Lord Steyn in Three Rivers DC v. Bank of England (No. 3) [2003] 2 AC 1 at 191, 193 and 195-6: “The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is 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. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful. …………. Counsel argued for the adoption of the Caldwell test in the context of the tort of misfeasance in public office. The difficulty with this argument was that it could not be squared with a meaningful requirement of bad faith in the exercise of public powers which is the raison d’être of the tort. But, understandably, the argument became more refined during the oral hearing and counsel for the plaintiffs accepted that only reckless indifference in a subjective sense will be sufficient. This concession was rightly made. The plaintiff must prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act: Rawlinson v. Rice [1997] 2 N.Z.L.R. 651. Later in this judgment I will discuss the requirement of reckless indifference in relation to the consequences of the act. ........... Enough has been said to demonstrate the special nature of the tort, and the strict requirements governing it. This is a legally sound justification for adopting as a starting point that 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. This justifies the conclusion that the test adopted by Clarke J. represents a satisfactory balance between the two competing policy considerations, namely enlisting tort law to combat executive and administrative abuse of power and not allowing public officers, who must always act for the public good, to be assailed by unmeritorious actions.[37]The claimant did not contend that there was targeted malice on the part of the officials who proceeded unlawfully with her removal. It was therefore common ground that the claimant had to establish that those officials acted: i) in the knowledge of, or with reckless indifference to, the illegality of their actions; and . ii) in the knowledge of, or with reckless indifference to, the probability of causing injury to her.[38]The only witness of fact called by the defendant was Mr Yates, the asylum caseowner assigned to the claimant’s case. However, the witness statement signed by Mr Yates in March 20014 did not address the crucial question of why steps were taken, unlawfully, to remove the claimant before her further submissions were considered. It did not even mention the note he made on the claimant’s records on 16 August 2012. When Mr Yates was called to give evidence he corrected several parts of his statement, explaining that the statement had been prepared by “another party” and that he had signed the “wrong version” without changes he had wished to make. All of that was highly unsatisfactory and did no credit to Mr Yates or the defendant. But in any event, what emerged was that Mr Yates was not involved in the relevant events of 15 August because, once removal directions had been set, further submissions would have been sent to OSCU. Mr Yates did not know who at OSCU had made the decision to continue with the claimant’s removal and could not remember to whom he had spoken before making the note on 16 August, recording that OSCU did not deal with the further representations because Mr Ockelton had refused an injunction.[39]The result was that the defendant did not adduce any evidence from the person or persons who made the relevant decision to proceed with the removal of the claimant and whose mental state was in issue, nor any other evidence explaining the decision or the absence of such an explanation. Mr Thomann frankly and fairly stated that the defendant did not rely on arguments as to the scarcity of resources or her heavy litigation burden for the failure to call relevant evidence. He did seek permission to read into the record “an exchange of emails” which had taken place during the trial by way of explanation of the defendant’s failure, but I declined to permit the defendant to adduce last minute hearsay evidence on the crucial issue in the case, particularly in a form which claimant could not prepare for or challenge.[40]There is no doubt that the failure of the defendant to call evidence on this central issue entails that the court may draw strong inferences of fact against her. In R (Das) v. Secretary of State for the Home Department [2014] EWCA Civ 45 the Court of Appeal endorsed the following statement of the position:
“Where a Secretary of State fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party .. The basis for drawing adverse inferences of fact against the Secretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well-known obligations owed to the court by a public authority facing a challenge to its decision [in the words of Lord Walker of Gestingthorpe in Belize Alliance of Conservation Non-Governmental Organisations v department of the environment [2004]UKPC 6 at [86])] ‘to co-operate and to make candid disclosure by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings...”
[41]In Muuse v. Secretary of State for the Home Department [2010] EWCA Civ 453 the defendant had detained a Dutch national for a period of four months and taken steps to deport him, notwithstanding that Mr Muuse correctly claimed to be an EU national and that documentary proof was held by the police or prison authorities. Thomas LJ stated:
“It is, in my view, astonishing that no witnesses were called from the Immigration Directorate... the inevitable inference that a court would draw is that no one in the Immigration Directorate was prepared to give evidence to explain the decisions made.”
[42]Ms Laughton submitted that, in the circumstances, it was only necessary for the claimant to demonstrate a prima facie case on the evidence that the relevant officials had the necessary state of mind for the tort of misfeasance: if that was established, the inferences to be drawn from the defendant’s failure to call evidence in answer to that case were sufficiently strong to surmount the claimant’s burden of proof (see the approach endorsed by Brooke LJ in Wisniewski v. Central Manchester Health Authority [1998] PIQR 324 at p. 340). Ms Laughton further contended that there was here such a prima facie case, pointing to the following factors:(i) that the relevant but unknown officials at OSCU must be assumed to have been specialists in dealing with removals and therefore to have well known and understood the legal requirement that they consider any outstanding submissions before proceeding with a removal;(ii) in any event Mr Ockelton’s order, which it should be assumed was read by the relevant officials, made the position as plain as could be;(iii) it is therefore inconceivable that the relevant official or officials did not know that it was unlawful to remove the claimant, a conclusion supported by the absence of any contemporaneous record of their decision.[43]Despite Ms Laughton’s able submissions, I do not accept that the claimant has proved even a prima facie case that the relevant officials acted with reckless indifference to the legality of their actions and their consequences. There is no evidence at all as to the decision making process in this case, and certainly no material which suggests that the officials in question had any motive to act unlawfully towards the claimant or at all, with the potentially adverse consequences which would follow. What is clear is that the decision was made in a short space of time, following receipt of a court order denying the claimant a stay of removal. A mistake or misunderstanding of the meaning and effect of that order (as recorded by Mr Yates the next day) would seem to be the overwhelmingly likely cause of the decision being made to proceed with the claimant’s removal, the possibility of deliberate bad faith being far more remote. The situation is similar to that considered in Dennett v. The London Borough of Southwark [2007] EWCA Civ 1091, where the defendant council failed to adduce evidence to explain why officials had failed properly to progress an application by a tenant to buy his flat. The Court of Appeal overturned a finding of misfeasance in public office, pointing out that it is was for the claimant to establish the serious allegations of bad faith he had pleaded and that:
“Subjective reckless indifference is a possibility but not a necessary inference. There are other possibilities of which the strain of work or incompetence are two.”
[44]Even if there was a prima facie case of reckless indifference on the part of the defendant’s officials, I would not have found the adverse inferences to be drawn from the defendant’s failure to call evidence sufficient to strengthen the case so to find that it was proved on the balance of probabilities. Whilst the defendant’s failure was unfortunate, on the totality of the evidence I am unable to infer that her officials acted in bad faith. However the matter is analysed, oversight or incompetence remains the more likely explanation.[45]It follows that the claim for misfeasance in public office also fails. Although it is not strictly necessary to do so, I will briefly set out below my findings on the claimant’s contention that she suffered material damage by reason of the attempt to remove her on 15 August 2012. (ii) Whether the attempted removal caused the claimant material damage[46]The House of Lords in Watkins v. Home Secretary [2006] 2 AC 395 decided that the tort of misfeasance in public office was not actionable per se but required proof of material damage. Lord Bingham defined material damage as “an expression understood to include recognised psychiatric illness but not distress, injured feelings, indignation or annoyance.”[47]That definition accords with Lord Bridge’s statement of the requirements of injury in torts where damage is the gist of the action in McLoughlin v O’Brian [1983] 1 AC 410 at 431:
“The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet anxiety neurosis or a reactive depression may be recognisable psychiatric illness, with or without psychosomatic symptoms. So, the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that is suffering, not merely grief, distress or any other normal emotion, but positive psychiatric illness.”
[48]In Hussein v. Chief Constable of West Mercia [2008] EWCA Civ 1205 Maurice Kay LJ expressed the obiter view (at paragraph 20) that material harm included “grievous non-physical reaction” not amounting to a psychiatric illness, considering that the “normal human emotions” discounted by Lord Bridge did not cover “significantly abnormal manifestations of non-physical sequelae”, but that if that approach did not live easily with the established approach in cases of negligence resulting in personal injury, misfeasance in public office should be treated exceptionally.[49]The respective experts, Dr Roxane Agnew-Davies, a clinical psychologist instructed by the claimant, and Professor Anthony Maden, a consultant forensic psychiatrist instructed by the defendant, agreed that the claimant developed a Depressive Episode/Major Depressive Disorder whilst in detention, although they disagreed on the severity of the depression and whether it continued after the claimant was released from detention.[50]The experts also agreed(i) that the claimant’s depressive and trauma symptoms whilst in detention were primarily a function of her fears of being returned to Uganda, including that she would be killed and/or subjected to further barbaric treatment; and(ii) that these fears and her mental distress were acutely exacerbated during the attempted removals.[51]The crucial question, however, is whether the actions of the defendant during the course of the unlawful attempted removal on 15 August 2012 caused a material deterioration in the claimant’s existing underlying condition. Dr Agnew-Davies expressed the firm view (agreeing with her colleague, Lucy Kralj, who had examined the claimant) that had the attempted removals not taken place – and particularly the attempt of 15 August – her acute symptoms would not have arisen so severely, in particular her symptoms of Intrusion and Arousal. In oral evidence, however, Dr Agnew-Davies was unable to say how much impact the two hour period on 15 August would have had: she considered that the attempted suicide (which occurred on 4 August 2012) was more sinister.[52]Professor Maden, on the other hand, considered that the attempted removal did not exacerbate the claimant’s underlying condition, the long term threat of return to Uganda being more relevant than the brief episode on 15 August.[53]In my judgment, to the extent that there is a disagreement, the view of Professor Maden is to be preferred for the following reasons: i) The claimant was detained for the purposes of removal to Uganda for three months, during which removal directions were issued on three occasions. In the context of that lengthy period during which the recognised cause of her depressive illness (the fear of return to Uganda) was continually present, it is impossible to attribute any material deterioration in her underlying condition to the short episode of the unlawful attempt to remove her on 15 August, despite any symptoms exhibited that day. As Professor Maden explained, and I accept, transient fluctuations in symptoms is not evidence of deterioration in the claimant’s condition. ii) The claimant’s medical records whilst in detention in fact appear to record that her symptoms of depression improved during her stay at the centre, apparently responding to medication. Dr Agnew-Davies accepted that the notes appear to demonstrate that, at least, the claimant’s condition did not deteriorate. It is clear from the notes that the claimant was not slow in reporting a range of health concerns, but she expressed no health concerns either before or after her attempted removal on 15 August. Further, after her release the claimant ceased taking anti-depressants and did not seek further medical help prior to seeing a doctor for the purposes of this claim.[54]Ms Laughton argued, in the alternative, that even if the claimant did not suffer a material deterioration in her underlying condition, she did suffer grievous non-physical reactions revealed by significantly abnormal manifestations, within the category of harm which Maurice Kay LJ would consider sufficient for a claim for misfeasance to succeed.[55]The claimant’s account of the unlawful attempt to remove her on 15 August 2012, which was not challenged by the defendant in any respect, explained how she was escorted to the airport and taken onto the plane by four officers, who made it plain that they were authorised to use force and had handcuffs ready to use. The claimant described herself crying, sweating and shaking, as being terrified of being returned to Uganda and stated that she felt “in so much pain”. The experience, including being watched whilst she went to the toilet and searched afterwards, made her feel like a criminal, devalued, “like nothing”. Whilst speaking to her partner on the phone from the plane, she felt very distressed and, as the plane was about to leave, she felt really frightened.[56]Whilst no doubt the attempted removal was a traumatic experience, the matters described by the claimant do not, in my judgment, go further than normal human emotions brought on by such an event. Such emotions would not amount to material damage even if the approach suggested by Maurice Kay LJ in Hussein should to be followed in misfeasance cases (which it is not necessary for me to decide).[57]It follows that the claimant has not established that she suffered material damage by reason of her unlawful removal on 15 August 2012, so her claim for misfeasance in public office would have failed on that basis also.

Conclusion

[58]The claim is accordingly dismissed.[59]I would like to add that I am particularly grateful to both Ms Laughton and Mr Thomann for their able written and oral submissions.

Cited in 1 later judgment