The Supreme Court has ruled that it was unlawful and a “serious abuse of power” for the Home Office to follow an unpublished policy on the detention of foreign national prisoners which contradicted its published policy. Two convicted prisoners were therefore unlawfully detained.
This fascinating 6-3 majority decision could be important in respect of setting the boundaries for the courts’ scrutiny of executive powers. It is also, for the record, not a decision which is based on human rights. The appellants are both convicted criminals (and foreigners too), so the court may be criticised for upholding their human rights despite their criminal actions. But this is a case decided on traditional public law grounds, which preceded the human rights act by many years. As Lord Hope put it:
199. These limitations [on the power to detain] were devised long before the Human Rights Act and have been accepted without question ever since. They stem from the long-established principle of United Kingdom public law that statutory powers must be used for the purpose for which they were conferred and not for some other purpose: Padfield v Minister of Agriculture, Fisheries and Food  AC 997. They were not inspired by article 5(1)(f) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and it does not follow that, because detention would be permissible under article 5(1)(f), it is also permissible under United Kingdom law.
For the full background, see the UK Supreme Court Blog’s case preview. In summary, between April 2006 and 9 September 2008 the Home Office published a policy which said that in cases of immigrants detained and waiting to be deported, there was a presumption that they would be released. However, it actually followed an unpublished policy which favoured detaining them instead.
The court was highly critical of the Home Office for doing so. Lord Dyson said:
[T]here was a deliberate decision taken at the highest level to conceal the policy that was being applied and to apply a policy which, to put it at its lowest, the Secretary of State and her senior officials knew was vulnerable to legal challenge. For political reasons, it was convenient to take a risk as to the lawfulness of the policy that was being applied and blame the courts if the policy was declared to be unlawful. 
The two appellants were both convicted criminals. Lumba, a citizen of the Democratic Republic of Congo, was convicted of a number of offences in the UK including assault occasioning actual bodily harm and inflicting grievous bodily harm. Mighty, of Jamaica, convicted of 14 offences including robbery, possession of a class A drug with intent to supply and offences of attempting to escape from detention and occasioning actual bodily harm. He was sentenced to 42 months in prison on 19 May 2006 but released on bail on 28 July 2008.
The court ruled that their detentions pending deportation had been unlawful, for the following reasons (based on the court’s press summary – numbers in square brackets refer to paragraph numbers in the judgment):
The court considers five issues: (1) whether the unpublished policy maintained by the Secretary of State between April 2006 and September 2008 is unlawful on grounds of public law error; (2) if so, whether detention on the basis of such a policy is unlawful in circumstances where the appellants would have been lawfully detained in any event; (3) if so, whether the appellants are entitled to recover more than nominal damages; (4) whether the appellants are entitled to an award of exemplary damages; and (5) in the case of Walumba Lumba, whether there has been a breach of the Hardial Singh principles.
The requirements of public law
The court holds unanimously that it is lawful for the Secretary of State to operate a policy which sets out the practice that she will normally follow in deciding whether or not to detain FNPs pending their deportation, provided that the requirements of public law, Hardial Singh and Article 5(1)(f) of the ECHR are respected: - . However, as regards the application of the statutory power to detain, it is unlawful in public law for the Secretary of State to maintain an unpublished policy which is inconsistent with her published policy and which applies a near blanket ban on the release of FNPs: -. Such a policy was applied to the appellants between April 2006 and September 2008: .
Liability in false imprisonment
Breach of a public law duty on the part of the person authorising detention is capable of rendering that detention unlawful and did render it unlawful in this case: -, -, . Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. Accordingly, by a majority, the court holds that the fact that the appellants would have lawfully been detained in any event does not affect the Secretary of State’s liability in false imprisonment: , -, , -, , -. Lords Phillips and Brown (with whom Lord Rodger agrees) dissent and hold that because the appellants would have been lawfully detained the Secretary of State is not liable to them in false imprisonment: -, -.
By a majority, the court holds that the fact that the appellants would have been lawfully detained is relevant to damages rather than to liability. Since the appellants have suffered no loss they should recover no more than nominal damages of £1: -. They are not additionally entitled to damages to vindicate the importance of the right and the seriousness of the infringement: -, -, - (Lords Hope, Walker and Lady Hale dissenting: -, , -). Further, the court holds unanimously that the appellants are not entitled to exemplary damages: -.
Reasonableness of the length of detention under the Hardial Singh principles
As regards the assessment of whether a reasonable period of detention has elapsed, the court unanimously holds that the risk of reoffending and the legal challenges pursued by the detainee are relevant. The relevance of a refusal to voluntarily return is limited: -. It is for a court of first instance to decide whether Mr Lumba’s detention for almost 56 months was in breach of the Hardial Singh principles. Accordingly, his claim is remitted to the High Court: -.
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