Detention damages

In this update we consider the issues of false imprisonment, Article 5 (right to liberty) and damages.

In our recent article (here) we covered two judgments that provided useful commentary on the nature and scope of Article 3 of the European Convention on Human Rights (the Convention). We now turn to the issues of false imprisonment, Article 5 (right to liberty) and damages further to the decision of the Supreme Court in R (Hemmati & Ors) v Secretary of State for the Home Department [2019] UKSC 56.

The case involved five individuals who arrived in the UK illegally and claimed asylum. They were detained for a period of time pending removal from the UK pursuant to the Immigration Act 1971. In very simple terms, the detentions were held to be unlawful as the authorising policy (Chapter 55 of the Enforcement Instructions and Guidance – EIG) was itself unlawful. However, it is how the Supreme Court dealt with the Secretary of State’s (SoS) contention that the individuals were only entitled to nominal damages that is the focus of this update.

The SoS contended that it was settled law that only nominal damages should be awarded as it was inevitable that the individuals would have been detained lawfully had the SoS appreciated the unlawfulness of the EIG. This argument was unanimously rejected. As Lord Kitchin put it, it can be no answer to a claim for damages for unlawful imprisonment that the detention would have been lawful had the law been different (para 112, emphasis added).

Importantly, whilst dismissing the SoS’s argument on this point, the court nonetheless approved the established principle that, “a claimant will be awarded nominal damages if it is established that the detention could have been effected lawfully under the existing legal and policy framework” (para 112). It therefore cited with approval the key cases affirming this principle, dealing with them as follows:

  • R (Lumba) v SoS for the Home Department [2011] UKSC 12 - had the SoS applied her published policy, it was inevitable that the appellants would have been detained such that their detention, whilst unlawful, was at all times justifiable.
  • R (Kambadzi) v SoS for the Home Department [2011] UKSC 23 – the claimant’s detention was unlawful because it had not been reviewed in accordance with the published policy. However, the claimant would have been detained had the correct procedures been followed.
  • Parker v Chief Constable of Essex [2018] EWCA Civ 2788 – had the correct procedures been followed, the claimant could and would have been arrested lawfully such that he could only recover nominal damages.

Accordingly, whilst the Hemmati case itself was not one for nominal damages (because the underlying legal and policy framework did not provide a basis for lawful detention), the ‘nominal damages’ principle remains sound. Indeed, the Lumba and Kambadzi judgments were the basis for the Court of Appeal’s decision in the case of Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 in which only nominal damages were awarded further to technical failures to comply with the Mental Health Act 1983 resulting in the unlawful detention of a patient in hospital.

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