Death at Colnbrook IRC

A tragic death today of a detainee at Colnbrook IRC. This comes just over a month after the Shaw review into detention centres in which it was clear “a lot needs to be done
at Colnbrook to ensure that detainees’ needs are properly met“.

The review also found that the academic literature “demonstrates incontrovertibly that detention in and of itself undermines welfare and contributes to vulnerability“.

While the exact circumstances surrounding this death are unconfirmed, it underlines the need for urgent action on the part of the Government. Despite promising “significant and transformative reform” in his response to the Shaw review, the Minister for Immigration James Brokenshire has yet to act.

 

See http://detentionaction.org.uk/death-at-colnbrook-irc for further comment.

Unlawful detention judgment in R (Babbage) v SSHD [2016] EWHC 148 (Admin)

In a judgment handed down on 1 February 2016 Mr Justice Garnham gave detailed reasons for his decision, announced on 15 December 2015, that the continued detention of a Zimbabwean national who had been administratively detained by the SSHD for more than two years was unlawful.[1]  The judgment raises questions about the legality of the practice of detaining Zimbabwean nationals who do not have a current Zimbabwean passport and who are unwilling to return voluntarily. It also raises questions about the practice of pursuing prosecutions of such individuals under s.35 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”) for, essentially, declining to accept voluntary return.

A briefing note on the case can be found here.

 

Case summary:

Mr Babbage came to the UK as a child in April 2003 and was granted leave to remain via the rules on UK ancestry. From 2008 to 2011 he “built up a serious criminal record” (§28) culminating in May 2011 with a conviction for robbery, for which he received a 2 ½ year sentence. The Probation Service assessed his risk of harm as “medium”. In 2012, after his conditional release date, he was granted immigration bail but shortly after release he breached his bail conditions and the conditions of his licence and was recalled to custody to serve the remainder of his sentence. At the end of his sentence he was held in immigration detention but was again granted immigration bail. Again, he breached his bail conditions. On 6 October 2013 he was arrested for assault but the matter was not pursued by the police. When he was released from police custody he was again held in immigration detention.

 

As at the date of the hearing on 9 December 2015, Mr Babbage had been held continuously in administrative immigration detention since 7 October 2013. The judge made clear at the outset of his judgment his view that Mr Babbage was “likely, if released, to abscond and to commit further offences” (§1). The key question was whether there was a realistic prospect of removing him to Zimbabwe within a reasonable period of time. The task for the Secretary of State in demonstrating that there was such a realistic prospect was made all the more difficult by a failure to comply with orders for disclosure and a decision not to file witness evidence (see §§5-26).

 

For a number of years, it has only been possible for the Home Office to return Zimbabwean nationals where either they have a current passport or they are willing to return voluntarily.[2]  The judge accepted that this was unlikely to change, see §95:

The Zimbabwean authorities’ position has been made clear over a prolonged period; they will not accept the return of those who do not hold a current passport other than from those willing to go back. There is nothing to suggest that stance is likely to change in the foreseeable future…

 

Mr Babbage’s Zimbabwean passport had expired. At the hearing, counsel for the SSHD accepted that in order for the Zimbabwean High Commission (“ZHC”) to issue an emergency travel document he would need to: (1) sign disclaimer indicating his willingness to return voluntarily and (2) confirm this at a face to face interview with the ZHC.

 

On a number of occasions, the SSHD had sent Mr Babbage a form IS35 “Request for co-operation with the re-documentation process”, specifying that he was required to (a) attend for an interview with the ZHC to answer questions “accurately and completely” and (b) sign the attached voluntary return disclaimer. The documents stated the SSHD’s belief that the actions “will or enable a travel document to be obtained” and “possession of a travel document will factilitate your deportation or removal”. The documents went on that “[f]ailure to comply with the requirement(s) above, without reasonable excuse, is a criminal offence punishable by up to 2 years imprisonment”. A central part of the SSHD’s case was that Mr Babbage might change his mind about voluntary return and once it was clear that he would not the SSHD could detain him pending consideration of whether he should be prosecuted under s.35 of the 2004 Act.

 

At the hearing, counsel for the SSHD was pressed on what the constituent parts of the s.35 offence would be in Mr Babbage’s case. The response was confused and included a submission that failing to complete a voluntary return disclaimer when required to do so would be an offence under s.35 whilst completing a voluntary return disclaimer when the individual did not intend to voluntarily return would also.[3]

 

The judge dealt with two important issues which occur repeatedly in such cases.

 

Firstly, whereas the SSHD had repeatedly relied upon expeditious consideration of prosecution under s.35 as justifying ongoing detention, the judge held that such consideration of s.35 prosecution was not a lawful basis to maintain immigration detention. The power could be exercised solely to effect deportation, and not to facilitate prosecution for refusing to return voluntarily. Secondly and in any event, as to s.35 prosecution, the judge concluded that if voluntary return did not reflect the individual’s true intention, then he could not properly be required to sign a voluntary disclaimer to facilitate his removal and/or he would have a reasonable excuse for not doing so. The judge stated:

74. I cannot see how it can conceivably be said that pursuit of the possibility of prosecution under Section 35 can justify the Claimant’s detention. The first principle set out by Lord Dyson in Lumba was that the Secretary of State can only use the power to detain for the purpose of deporting the person concerned. If the true purpose for detaining him was to prosecute him under Section 35, that was not a lawful exercise of the power.

75. In any event, I have the gravest doubt whether a breach of Section 35 could be made out against the Claimant. The Claimant was being asked to sign a document indicating that he intended to leave the United Kingdom. If, in truth, he did not intend to leave the United Kingdom he could not properly be required to sign the voluntary disclaimer; or to put it another way, he would have a reasonable excuse for not doing so.

 

 

Although as stated the issue of past detention was not before the Court, the judge held that there had been no realistic prospect of returning Mr Babbage to Zimbabwe since “at least, August 2015” (§2).

 

The judgment also gives important guidance as to the SSHD’s duty of disclosure/ candour. In this case, the Judge criticised the failure of the SSHD and her advisers to provide documents of their own volition, when then prompted to do so by solicitors, and when the Mr Babbage subsequently obtained an order from the Court that she disclose “all documents relevant to the reasons for the Claimant’s detention”. The SSHD failed in response to disclose all such documents, and disclosed others in redacted form which was explained on the basis that GLD took the view that they were not relevant to the areas of dispute or were sufficiently covered by other documents that had been disclosed. The Judge said that:

19… It is wholly unacceptable for those acting for the Secretary of State to ignore or disregard the orders of the Court. Furthermore, once a Judge of this Court has identified specific documents which are required to be disclosed, there is no basis for the exercise of any discretion by the Secretary of State’s advisers. If the document falls within the class covered by the Order, it must be disclosed.

20. In particular, it is not open to the Secretary of State, or her advisers, to decide that some of the documents falling within the category made subject to the Order ought to be redacted to protect some interest of the Home Office or because they do not appear, to the Secretary of State, to be relevant to the issues in the case. The Order of the Court determines relevance and disclosability.

21. If it is thought that there are grounds on which material covered by the Court Order should be redacted before it is disclosed to the other party (or, conceivably, even to the Court) then a proper application should be made for the Order to be varied to accommodate that concern. What must never happen is that those acting for the Secretary of State (or any other party) decide, off their own bat, not to disclose material subject to an order of the court because they judge it irrelevant.

22. This case concerned allegations of unlawful detention. In such cases, an especially careful approach is necessary, by those acting for the Secretary of State, to issues of disclosure. It is plain there was no such approach here.

23. It strikes me as astonishing that more than 20 years after the decision of the House of Lords in M v The Home Office [1994] 1 A.C. 377, it should be necessary to set out what are, in truth, elementary principles of constitutional law…

25. Since the hearing in this case, I have received a letter from the head of the division of GLD responsible for this case, providing a fulsome apology to the Court, confirming that training in duties of disclosure was provided to those responsible for cases such as this, and indicating that “a review of disclosure in all claims where detention within [the relevant] team which challenge use of the power of detention” had been initiated.”

 

That letter referred to at para 25 said that “This matter has been considered at the highest levels in GLD” and that “your Lordship will of course be aware of our published guidance, “Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings” (“the Hogg guidance”)”. Natalie Lieven QC, acting for GLD at the hearing on 15 December 2015, confirmed to the Court that GLD continues to comply with the Guidance (which is published at [2010] JR 177) and has no internal policy or practice departing from it (transcript, p. 8B-C).

 

 

Analysis

The judgment is likely to be of use in other cases as follows:

 

  • In challenges to immigration detention: unless a Zimbabwean national has a current passport, the SSHD will only be able to enforce removal where he/she is willing to accept voluntary return. Once it is apparent that a detainee is unwilling to voluntarily return, the detainee should be released, even where there are significant risks of absconding and re-offending/harm. As the judge said “Those risks go to, and may have a very significant effect upon, what is to be regarded as a reasonable period of detention prior to the proposed removal. But the acid test is always whether there is a realistic prospect of effecting a return.” (para 90)

 

  • In all immigration detention challenges, detention cannot be justified by reference to expeditious steps to prosecute the claimant under s.35 because he continues to decline voluntary return (or to prosecute on any other ground). The power of detention can be exercised only for the purpose of effecting deportation, where there remains a realistic prospect of doing so. This applies regardless of the strength of the prosecution case.

 

  • Someone should not in any event be referred for prosecution under s.35 of the 2004 (or threatened with prosecution) for declining to complete a voluntary return disclaimer or state an intention to return, or for declining to say at a travel document interview with their national authorities that they are willing to return voluntarily if that does not correspond to their true intention.[4] The judgment means that it is exceptionally unlikely that someone could be convicted on this basis

 

  • The guidance on candour and disclosure is useful in the numerous cases where there are failings by the SSHD/GLD in this regard, together with highlighting the importance of an order for specific disclosure in such cases, and establishing the steps that the SSHD must take should she wish to redact or withhold a document covered by such an order. The judgment also confirms that the consequences of such failings and of the failure to lead witness evidence is that adverse inferences should be drawn against the SSHD where the position in the documents before the Court is unclear.

 

 

Mr Babbage was represented by Mark Henderson of Doughty Street Chambers and Jed Pennington and Rachel Etheridge of Bhatt Murphy.

 

 

Footnotes:

[1] There was no claim for damages for historic detention before the Court, essentially in order to secure an expedited final hearing and due to inadequate disclosure meaning that it was not possible for adequately particularise such a claim.  Mr Babbage repeatedly made clear that such a claim would be pursued separately, and no objection was raised to this course.

[2] See The Queen (Mhlanga) v SSHD [2012] EWHC 1587 (Admin), in particular at §§18-20.

[3] See transcript of 9 December 2015 hearing, pp53-54 and 60-63.

[4] NB a flat refusal to attend an interview is one of the matters in s.35(2) for which an individual may be prosecuted.

Mark Henderson interviewed by LexisNexis on High Court unlawful detention judgment in Tarakhil

Mark Henderson has been interviewed by leading law publisher LexisNexis about the High Court’s judgment in Tarakhil v Home Office awarding substantial damages, including aggravated damages, for unlawful detention by the Home Office resulting from public law errors in its decision making.

Read the full interview here.

This article was first published on Lexis(r)PSL 21 January 2016.

 

Mark Henderson is a member of Doughty Street’s immigration detention team.

GB v Home Office [2015] EWHC 819 (QB): Case comment

‘Home Office owes non-delegable duty to detention centre detainees in respect of medical care’

In GB v Home Office [2015] EWHC 819 (QB) Coulson J found, as a preliminary matter, that the Home Office owed the claimant a non-delegable duty of care in respect of any negligent acts or omissions on the part of medical care providers at Yarl’s Wood IRC. The case will now proceed to trial.

This case is an important application of the Supreme Court’s judgment in Woodland v Swimming Teachers Association and Ors [2014] AC 537 to the immigration detention context.

The claimant, a Nigerian woman in her 30s, had been detained at Yarl’s Wood under immigration powers. While there, she was prescribed Mefloquine (an anti-malarial drug) as it was proposed to remove her to Nigeria where malaria is commonplace. The claimant claims that the drug caused her to suffer a severe psychotic reaction. A trial of a preliminary issue was ordered on whether or not the Home Office owed her a non-delegable duty of care in the provision of medical care at the centre.

Coulson J rejected the Home Office’s attempt to distinguish between prisoners and detainees (the former having been expressly identified by Lord Sumption in Woodland as likely to satisfy his first requirement of vulnerability or dependency): “Inmates of both establishments have one vital feature of their lives in common: they are held against their will and cannot leave the place where they are detained…[they] are thus dependant on the protection of the defendant.” (para.25)

He considered that there is a significant element of control in these circumstances, and a positive duty to protect the claimant from harm (para.28). Indeed, it was in recognition of that positive duty that the Detention Centre Rules and relevant IDIs were made. Lord Sumption’s second requirement of an ‘antecedent relationship’ was consequently satisfied.

The defendant sought to argue that the medical situation was no different from that of someone at liberty. However, that was soundly rejected by Coulson J who agreed with Mr McCullough QC that these submissions were “unreal”: GB was detained by the Home Office and was obliged to accept the medical treatment she was given. “There was no free choice” and the third of Lord Sumption’s ingredients was also made out (para.31).

Of the five elements identified by Lord Sumption in Woodland, Coulson J found the fourth the most difficult to apply to the present case, namely whether the provision of medical treatment (delegated to Serco) was an integral part of the positive duty owed. However, he concluded that it was for two reasons, one general and one specific.

  1. Firstly, the Detention Centre Rules emphasise the importance of the provision of proper medical care to detainees and “on a fair reading of those documents…this was an integral part of the duty owed to GB” (para.35).
  2. Secondly, and even if wrong about the first reason, on the specific facts of this case, the prescription of anti-malarial drugs was an integral part of the duty owed to this claimant as the Home Office was preparing for at least the possibility of her removal to Nigeria; GB was given Mefloquine to prepare for that removal. The prescription of the drug therefore arose directly out of the Home Office’s detention and control of the claimant prior to removal and was thus an integral part of the positive duty assumed towards her (para.36).

As Coulson J said, his reasoning in this regard meant that the final of Lord Sumption’s elements was also satisfied, although the question of whether or not there was negligence as a matter of fact will be a matter for trial.

Finally, Coulson J concluded it would be fair, just and reasonable to impose a duty in this case. The argument of the defendant amounted to a submission that, since the doctor or Serco were more ‘directly’ responsible for what had happened, it would not be fair to impose potential liability on the Home Office; however, as Coulson J pointed out, “this submission, taken to its legal conclusion, would have defeated the existence of the non-delegable duty in Woodland” (para.41).

As Coulson J stated at paragraph 43 of his judgment:

It is also worth undertaking something of a reality check at this point. The defendant decided to detain GB, and consequently had clear responsibilities for her treatment as a detainee as a result. It would not be just, fair or reasonable to conclude that those responsibilities disappeared simply because of an outsourcing decision.”

This case represents an important extension of the Woodland principles to the immigration detention context. Coulson J found no difficulty in rejecting the defendant’s arguments that the first three of Lord Sumption’s ‘features’ are not applicable to immigration detainees.

It was to be expected the ingredient Coulson J found most difficult to grapple with was the fourth feature: is the provision of medical care an integral part of the positive duty assumed by the defendant. Ultimately, however, he resolved this resoundingly in the Claimant’s favour, finding reasoning of both general and specific application to support his finding that it was an integral part. The Judge’s findings are such that medical care provided in immigration detention pursuant to the Detention Centre Rules forms part of the positive duty; it remains to be seen whether there will be an attempt to distinguish this case from other cases involving the provision of other types of medical care on those facts.

[As an aside, Coulson J also resoundingly rejected the submission that the Crown Proceedings Act 1947 operated to prevent any liability on the part of the Crown in respect of the non-delegable duty he had identified.]

Doughty Street’s Michelle Knorr was led by Angus McCullough QC; they were instructed by Kay Everett at Wilson Solicitors LLP).

Julie Anderson, instructed by the Treasury Solicitor, acted for the Defendant

Court of Appeal dismiss government appeal against DFT ruling in High Court

The Court of Appeal today dismissed the Lord Chancellor’s appeal against the High Court ruling that the Detained Fast Track appeals process is unlawfully unfair to asylum-seekers.

The Court upheld the High Court order of 12 June 2015 quashing the procedural rules governing the Detained Fast Track asylum appeals process.

Lord Justice Dyson MR, in the lead judgment, observed that that “the consequences for an asylum seeker of mistakes in the process are potentially disastrous”,  and concluded that “the FTR [Fast Track Rules] does not strike the correct balance between (i) speed and efficiency and (ii) fairness and justice.  It is too heavily weighted in favour of the former”.

For a full text of the Court of Appeal judgment please click here.

Please click here for Detention Action’s press release.

The Court of Appeal ruling is likely to further delay the Government’s plans to reinstate the DFT system. A suspension was announced by Minister for Immigration James Brokenshire on 2 July 2015.  He stated on that occasion to Parliament that he hoped the suspension ‘would be short in duration, perhaps only a matter of weeks.’

Since the suspension of the appeals process on 26 June 2015 (following the Detention Action judgment in the High Court), 323 asylum-seekers have been released from the Fast Track according to Home Office Minister Lord Bates yesterday.

Doughty Street’s Charlotte Kilroy acts on behalf of Detention Action along together with Sonal Ghelani at the Migrant’s Law Project and Nathalie Lieven QC.

Home Office breached duties towards potential victims of trafficking & sexual minorities in DFT

On Monday 20 July 2015, Mr Justice Blake approved an agreed order and statement of reasons making eight declarations that three potential victims of trafficking had been unlawfully detained in the Detained Fast Track asylum process (DFT). The declarations were read into the judgment.

The Order was made in respect of the second part a wide ranging challenge by the Claimants to the decisions taken in their cases in the DFT, despite their asylum claims being unsuitable for quick processing, because they all raised indicators at the outset which required further investigation.

The first group of cases led to Orders on 3 July 2015 that the DFT as operated created an unacceptable risk of unfairness. This included certain categories of vulnerable or potentially vulnerable applicants where further investigation was required, for example in potential torture or trafficking cases.

The second group of test ‘trafficking and equality cases’ involved Claimants who had raised indicators of trafficking and torture or claims of sexual orientation from the outset (e.g. at the screening interview).

Those indicators should have led the Home Office to recognise that their claims required further investigation and were unsuitable for quick determination. In particular the Home Office failed to:

  • Identify the Claimants as potential victims of trafficking;
  • Investigate their claims;
  • Make a referral into the National Referral Mechanism for the identification of victims of trafficking (the NRM) or a referral to the police for further investigation;
  • Inform the individuals of the NRM process and of their rights;
  • Release them from the DFT.

The Secretary of State accepted that it had breached its obligations towards these potential victims of trafficking under Article 4 European Convention on Human Rights and her published policy on trafficking and on the DFT.

The positive duties under Article 4 ECHR are owed to potential victims of trafficking not only those who have been formally identified as such. That test is met from the moment of contact if there are sufficient indicators that the person is or may have been trafficked: see Rantsev v Cyprus and Russia (2010) 51 E.H.R.R. 1 at [296 & 298].

The Secretary of State further accepted that it had been unlawful to:

  • detain Y as the claim based on sexual orientation required further investigation and was unsuitable for quick determination.
  • detain Y and PU as rule 35 reports raised potential claims of torture and required further investigation – in breach of Article 5 ECHR and the common law; and
  • operate the DFT without complying with s. 149 of the Equality Act 2010 – and that certain vulnerable groups were at unacceptable risk of unfairness.

The order and statement of reasons is available Here.

The declarations made follow on from:

  • the Ministerial Statement on 2 July 2015 by James Brokenshire that the DFT was being suspended following a number of legal challenges

https://dscdetention.wordpress.com/2015/07/02/minister-suspends-dft-policy/

http://www.parliament.uk/documents/commons-vote-office/July%202015/2%20July/6-Home-Asylum.pdf

  • The legal challenges referred to by the Minister namely the Detention Action litigation in which Charlotte Kilroy acted

https://dscdetention.wordpress.com/2015/07/02/court-of-appeal-ends-fast-tracking-of-asylum-appeals/

The declarations are likely to have an impact on potential future challenges. The Secretary of State has agreed to notify detainees who has had a fast-track asylum decision/appeal of the Detention Action litigation and the HBF/trafficking & equality cases, and given four days to take legal advice and to decide whether to make further representations. Those who have been released or removed are not being notified.

ILPA has raised concerns. Further concerns still arise from the interim policy instruction which allows the detention of asylum seekers to continue though the DFT is suspended.

Indeed, Blake J was clear that “There may be issues for others who have not brought a judicial review and have not challenged the policy but that will be a matter to be dealt with in due course.”

Further information can be found here:

http://www.theguardian.com/politics/2015/jul/20/theresa-may-unlawfully-detained-potential-trafficking-victims-court-rules

Catherine Meredith acted for the Claimant Y with Marcela Navarette and Ruth Budge at Wilson Solicitors LLP

Minister suspends DFT policy

The Home Office have issued a ministerial statement suspending the detained fast track policy in light of a number of recent successful challenges by Detention Action in Detention Action v SSHD [2014] EWHC 2245 (Admin), Detention Action v SSHD [2014] EWCA Civ 1634, and Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors [2015] EWHC 1689 (Admin).

Minister James Brokenshire stated that:

“Recently the system has come under significant legal challenge, including on the appeals stage of the process. Risks surrounding the safeguards within the system for particularly vulnerable applicants have also been identified to the extent that we cannot be certain of the level of risk of unfairness to certain vulnerable applicants who may enter DFT.

In light of these issues, I have decided to temporarily suspend the operation of the detained fast track policy. I hope this pause to be short in duration, perhaps only a matter of weeks, but I will only resume operation of this policy when I am sure the right structures are in place to minimise any risk of unfairness.”

Click here to read the full statement.

Charlotte Kilroy acts on behalf of Detention Action along together with Sonal Ghelani at the Migrant’s Law Project and Nathalie Lieven QC.

Court of Appeal ends fast tracking of asylum appeals

The Court of Appeal has lifted the stay on the Order made by Nicol J declaring that the Fast Track Appeals Rules are ultra vires and granting an order quashing them in Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors [2015] EWHC 1689 (Admin) (12 June 2015)

In that judgment, Mr Justice Nicol quashed the procedural rules governing the Detained Fast Track asylum appeals, having found that the Fast Track Rules ‘do incorporate structural unfairness’ and were therefore unlawful.

However, he granted the government a stay on the Order until the government’s appeal is heard, on the grounds of the inconvenience to the government of suspending the process.  This stay has now been lifted.

This means that until the Court of Appeal decides the Lord Chancellor’s appeal against Nicol J’s judgement, no appeals can be determined through the DFT.

This is the link to Detention Action’s press release: http://detentionaction.org.uk/breaking-news-court-of-appeal-ends-fast-tracking-of-asylum-appeals

This is the link to the report on BBC news: http://www.bbc.co.uk/news/uk-33285443

 

Doughty Street’s Charlotte Kilroy acts on behalf of Detention Action along together with Sonal Ghelani at the Migrant’s Law Project and Nathalie Lieven QC.

Calls for time limit on immigration detention and automatic judicial oversight

On 26th May 2015 Bail for Immigration Detainees (BID) and the Human Rights Lawyers’ Association (HRLA) held a public meeting to consider the future for immigration detention in light of the report of the Parliamentary Inquiry which recommended the introduction of a 28-day time limit on immigration detention and increased judicial oversight of detention. BID has published a policy statement on the importance of adequate safeguards for immigration detainees including the introduction of automatic judicial oversight. Speakers at the meeting included Paul Blomfield MP, one of the co-chairs of the Parliamentary Inquiry; Pierre Makhlouf of BID; Emma Mlotshwa of Medical Justice who spoke about the terrible impacts of detention and the need for radical changes to the system of immigration detention; and Doughty Street’s Alison Pickup whose paper arguing from a legal perspective for the need for automatic, regular judicial oversight of detention you can read here: Power to detain for immigration purposes – the importance of judicial oversight.

No entitlement to substantial damages where claimant could and would lawfully have been detained under another power

By Laura Dubinsky

Lee Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 marks a significant extension of the no loss/ no substantial damages principle.

The Supreme Court has previously held, in the context of detention under the Immigration Acts, that there is an entitlement only to nominal damages where the authority to detain is flawed by material public law error but detention would have been inevitable even had the error not been committed (Lumba and Mighty [2011] UKSC 12, [2011] 2 WLR 671; Kambadzi [2011] UKSC 23, [2011] 1 WLR 1299). The rationale is that the purpose of damages, other than exemplary damages, is to compensate loss actually suffered. See for example the discussion in Lumba and Mighty at §95 per Lord Dyson, §176 per Lord Hope, § 254 per Lord Kerr; see also Lord Blackburn’s dictum from Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 at 39 ‘that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation’.

In Bostridge v Oxleas, the Court of Appeal (the Chancellor; Vos and Christopher Clarke LJJ) upheld the order of the Administrative Court awarding only nominal damages of £1 to a mentally disordered patient who had been unlawfully detained in hospital for 422 days.  The appellant was a schizophrenic who had been detained under s.3 Mental Health Act.  He was made subject to a flawed Community Treatment Order; the NHS then purported to recall him to hospital under s.17E (6) Mental Health Act.  There was no power to hold him. Throughout the appellant’s detention, his readmission to hospital would have been indicated under s.3 Mental Health Act, although this would have required actions by third parties (two medical practitioners and either the patient’s nearest relative or an approved mental health professional).  The Court reasoned that the appellant had suffered no compensatable loss and so was entitled to substantial damages neither at common law nor under Article 5(5) ECHR.

Bostridge v Oxleas represents a double extension of the no loss/ no substantial damages principle: first, to cases in which there existed no power to detain; and second, to cases in which the hypothetical lawful detention would have required actions by third parties. It is the latter extension (third parties) that is particularly problematic. It involves the court in an extended hypothetical exercise involving the possible actions of multiple potential detainers; and has the unattractive consequence that for as long as a person could and would be detained under one power, he can be unlawfully detained under any other power (or without power at all) without entitlement to substantial damages for the detainee nor real sanction for the detainer. The case may revive the debate concerning vindicatory damages (whether there may be some intermediary form of damages to sanction unlawful detention even where no loss has been suffered).  The particular facts (£1 for 422 days) also vividly illustrate Lord Brown and Lord Rodger’s warning in their dissenting judgment in Lumba and Mighty that the award of only nominal damages would devalue the constitutional protection of the tort of false imprisonment.