Mr Justice Wyn Williams:
Introduction
- In these proceedings the Claimant seeks damages for the tort of false imprisonment. He alleges that the Defendant's servants or agents falsely imprisoned him from 30 June 2011 until 6 September 2012. The Claimant argues that he is entitled to compensatory damages, aggravated damages and exemplary damages.
- The Defendant asserts that the Claimant was not falsely imprisoned at all; rather he was detained lawfully throughout the period in question in exercise of the power to detain conferred upon the Defendant by section 36 of the UK Borders Act 2007 (hereinafter referred to as "the 2007 Act"). Alternatively she argues that even if false imprisonment is established the Claimant is entitled to nominal damages only.
- I heard oral evidence from the Claimant himself. The Defendant relied upon a witness statement from Mr Andrew Middleton, an employee of the Home Office. He played no part in the decision making process in this case but he reviewed the paper work and provided views upon it. He was not required to give oral evidence before me and, accordingly his evidence is not contradicted. The Trial Bundle contains a significant number of documents which were put before me without the need for their authors to prove each document. Following Counsel's opening of the case on behalf of the Claimant, I considered an application to amend the Particulars of Claim. I granted the application and gave my reasons for so doing in an oral judgment.
- In the remainder of this judgment the word Defendant is used not just to identify the Defendant herself and /or the Home Office but also to encompass all the employees or agents of UKBA or the Home Office who have been involved in decisions relating to the Claimant's detention between 30 June 2011 and 6 September 2012.
The Claimant's factual case as pleaded
- The following is a summary of the factual basis upon which the Claimant pursues his claim. As will become apparent there are a number of important factual disputes between the parties. However, in this short section of my judgment I set out what the Claimant now alleges.
- The Claimant was born and brought up in Sierra Leone. His father was a British citizen, originally from Lebanon; his mother was African whose country of origin is unknown to the Claimant. The Claimant was originally one of four children. One of those children, a sister called Patricia, died in 2010.
- The Claimant arrived in the UK in 1997. Shortly before his arrival in this country the Claimant's parents were killed in front of him, his family home was burnt down and he, himself, was held hostage and tortured by rebel soldiers. All this occurred in the context of a civil war then raging in Sierra Leone.
- Following his arrival in the UK the Claimant claimed asylum. At or about that time he was granted leave to enter for a period of 6 months. However, the application for asylum was refused "for non compliance" on 30 May 2003.
- The Claimant has struggled to adjust to life in the UK. He has three children by two different partners. He is addicted to heroin having started to use the drug in or around 2001.
- On 30 April 2010 the Claimant was sentenced at the Crown Court to a total term of imprisonment of three years and nine months. This sentence was for the offences of robbery and failing to surrender. The Claimant was due to be released from that sentence on 30 June 2011. However, on that day the Defendant exercised her power to detain the Claimant. There is no dispute about the fact that the Defendant was purporting to exercise a power to detain conferred upon her by section 36(1) of the 2007 Act.
- An important aspect of the Claimant's factual case is his assertion that he was the victim of torture at the hands of a rebel group prior to his departure from Sierra Leone. His pleaded case is that he gave a truthful account of the history relating to his torture when he was interviewed on 7 February 2011 in respect of an asylum claim which he had made upon being informed that he was liable to be deported following the completion his sentence. In the light of that assertion and the fact the Defendant now disputes the credibility of this account I set out below the salient questions and answers as recorded contemporaneously by the Defendant.
"Q1. Why do you fear returning to Sierra Leone?
A. I fear for my life is going to be at risk. The people that burnt my house down and killed my parents I'm scared they are still going to be there the rebels they call RUS, Revoluntary United Front.
Q2. When did they burn your house down what was the date?
A. This was June, me parents shot, me house get burnt down, I was captured taken to the bush with them. I was with them about 3-4 days being mistreated humiliated, abused and everything and then fortunately we escaped me and one of the other guys and made it to the city. This happened in Mayamba. I was in Freetown living rough no fixed abode when I heard it on the radio all British Citizens should make their way down to Lumbly Beach so that's where the evacuation was taking place to a ship. I was taken by helicopter to the ship in the middle of the sea. This was by the American marines. From the ship I spent one night then I was taken to Guinea that is the neighbouring country to Sierra Leone. So I slept in Guinea that night in a hotel. Then the next day we boarded a plane from Guinea straight to Stansted Airport.
Q3. What date did the rebels burn your house down?
A. I can't remember the actual day it was 97.
Q4. What month in 1997?
A. Around between April and May.
Q5. What date were your parents killed?
A. The same time when the rebels attacked the town there was gunshot rapid firing everyone was running in the bush hiding there were dead bodies on the floor. They were burning houses down.
Q6. Were your parents killed the same day as your house was burnt down?
A. Yes all happened on the same day when they attacked the town when they take over the town approx 9-10 hours there was rapid firing everywhere.
Q7. Were your family targeted specifically?
A. Yeah they were because my father was a prominent business man. He was a well known man he was a foreigner he was white.
Q23. What happened when your parents were killed and your house was burnt down?
A. The rebels entered the town they were firing gunshots everywhere. People were running for their lives going into bushes everything. The rebels take over the town. I escaped after that I realised my parents had been killed and my house has been burnt down. After I make my way to the city. When you are in the bush people would sneak back to the town and then come back with the news about what happened in the town. So you got to know what was going on.
Q24. How long were you in the bush for?
A. About three days.
Q26. When the rebels entered the town did you go straight to the bush to hide?
A. Yes, everybody was running a few of the guys got caught by the rebels, if you got caught they forced you to join, they give you a gun and everything.
Q27. Did you get caught by the rebels?
A. Yeah when I was in the bush.
Q28. When did you get caught?
A. When we escaped we went into the bush.
Q29. Who were you in the bush with?
A. With some other civilians that escaped the town.
Q30. Where were the rebels?
A. They were in the town.
Q31. When did you get caught by the rebels?
A. We were in the bush when the rebels attacked the town.
Q32. Where did the rebels catch you?
A. No I escaped
Q33. Were you caught by the rebels?
A. No I was not caught by the rebels I escaped.
Q34. In question 2 you stated "I was captured taken to the bush with them. I was with them about 3-4 days being mistreated, humiliated abused and everything". You have just stated in Q33 that you were not caught by the rebels.
A. This was not June that they burnt me house down this between May I can't remember it was way back I cannot remember the whole thing. I was in the bush with the rebels. Then me and my friend escaped. It was way back I can't remember. When I said I wasn't caught I should have said I was.
Q35. If you should have said you was captured why did you say you wasn't?
A. Well yes I was caught. Can you change it please?
Q36. No I can't you said no and I have to record what you say.
A. I don't know if I want to carry on with interview. Please change it, it will affect my claim.
Q37. No I cannot change it it is what you said. I have to record what you say are you happy to continue with the interview?
A. No you are complicating things.
Q38. Do you want to continue with interview?
A. No because you make it look like I am lying.
Q39. I am not making it look like you are lying. I record what I ask and what you say. Do you wish to terminate the interview?
A. No let's carry on.
Q41. Were you or were you not caught by the rebels?
A. We were caught by the rebels when they attack in the bushes everywhere.
Q42. Where did they catch you?
A. When we were running to the bush leaving the town.
Q43. How were you caught?
A. They were in the bush. They jumped out with guns then we were caught. I've seen a lot of things a lot of horrible things all I can remember is when I got back to the city.
Q44. Where did they take you?
A. They took us to the bush, small villages in the bush.
Q45. What did they do to you?
A. They get some other people there they forced you to join them. I was beaten up forcing me to join them. Then fortunately me and my friend escaped.
Q47. How many times were you beaten?
A. I can't remember.
Q48. How did you escape?
A. I can't remember. How I escaped it's what I'm thinking now (long pause) when they were not around sometimes they go out to attack other places. It was when they were out my friend I was with knew the area I can't be bothered to think of this I can't remember all the horrible things that I have seen. I get flashbacks I can't remember everything. I want to stop now"
These questions and answers are to be found in the Trial Bundle at pages 981L to 981T.
- The Claimant also relies upon accuracy of "notes" which were available to the Defendant at the time he was transferred from prison to "immigration detention" which occurred on 14 August 2011 (see paragraph 17 of the Amended Particulars of Claim). These "notes" were not identified specifically during the course of the hearing. However, I do not understand it to be the Claimant's case that he was interviewed by anyone about his alleged history of torture during July/August 2011 when the transfer was being arranged. Accordingly, any notes which were created in that period would have been based upon statements made by the Claimant on earlier occasions.
- The Claimant was not released from prison on 30 June 2011. He remained in prison, at HMP Bullingdon, until 14 August 2011 albeit that he was detained pursuant to the 2007 Act. He was transferred from HMP Bullingdon to Harmondsworth Immigration Removal Centre (IRC) on 14 August 2011. The Claimant alleges that "the fact that [he] was a victim of torture was known or should have been known to staff upon arrival at Harmondsworth" (see paragraph 18 of the amended Particulars of Claim). The Claimant was not examined by a doctor either within a short time of his arrival at Harmonsworth or at all.
The Legal Basis for the Claim
- The Claimant advances two bases upon which it is alleged that the whole period of the Claimant's detention was unlawful i.e. it constituted false imprisonment. First, the Claimant asserts that he was detained in breach of the Defendant's published policy. In summary the Defendant's policy is that persons within certain identified categories are normally considered suitable for detention only when very exceptional circumstances can be demonstrated. One of the categories specified by the Defendant in her policy is "those where there is independent evidence that they have been tortured". The Claimant maintains that his detention was in clear breach of this policy. In her closing written submissions Ms Sjovoll puts this allegation forward as her primary case.
- Second, she asserts that the Claimant's detention was unlawful since it infringed the principles formulated in R v- Governor of Durham Prison ex parte Singh [1984] 1WLR 704 known, colloquially, as the "Hardial Singh principles". Those principles were conveniently summarised in the judgment of Dyson LJ (as he then was) in R (I) v- Secretary of State for the Home Department [2003] INLR 196 at page 208 as follows:-
"(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.
(ii) The deportee may only be detained for a period that is reasonable in all the circumstances.
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State would not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."
The Claimant asserts that his detention was unlawful in relation to those principles because (a) there was never any realistic prospect that he could be removed to Sierra Leone and (b) in any event the period of detention was not reasonable in all the circumstances.
The Defendant's Decision-Making Process
- The Defendant adduced no oral evidence from any person directly engaged in the process by which the decision was made to detain the Claimant on 30 June 2011 or to maintain detention until 6 September 2012. Further there was no oral evidence adduced about the reasoning which led to the Claimant's detention on 30 June and his continued detention between 30 June 2011 and 6 September. However there is a good deal of documentation in the Trial Bundle which throws considerable light upon what occurred and why it occurred. As I have said already the parties agree that this evidence is admissible without the need to call the makers of the documents contained within the Bundle. What follows in this section of the judgment is my summary of what the documents reveal interspersed with some factual conclusions.
- In June 2010 the Claimant was served with an appropriate notice specifying that he was liable to automatic deportation. At this stage the Defendant considered the Claimant to be a foreign national and in light of the fact that he had been sentenced to a term of imprisonment of three years and nine months he was thought to be subject to the automatic deportation provisions contained within the 2007 Act.
- A person served with such a notice may complete a questionnaire in response. The Claimant availed himself of this opportunity and within the completed questionnaire he made a claim for asylum. (That was the second time the Claimant had made a claim for asylum; the first application had been made in 1997). Either at the point in time when the Claimant made his second application or very soon thereafter the Claimant appointed solicitors to help him attempt to resist deportation and obtain asylum. The solicitors were Turpin & Miller LLP (hereinafter referred to as "Turpin").
- The process of assessing the claim for asylum began, in earnest, with interviews which took place between the Defendant and the Claimant on 24 September 2010. On that date the Claimant underwent a screening interview and an asylum interview and a verbatim record of what was said was made. On 7 February 2011 a further asylum interview took place I have already referred, extensively, to the record of interview of that date.
- In March and April 2011 there was correspondence between Turpin and the Defendant. By letter dated 9 March 2011, the Claimant was informed that no decision had been made upon his asylum application and that no decision about deportation would be made before 23 March 2011. The letter also requested that the Claimant provide an additional witness statement to support the asylum claim. In a 1etter dated 12 April 2011 the Defendant extended the period for the Claimant to provide a witness statement to 26 April 2011. No witness statement was sent by the Claimant's solicitors within that period. Accordingly on 16 May 2011 the caseworker responsible for reaching a decision upon the Claimant's liability to deportation sent a file to a colleague authorised to make a decision upon the claim for asylum. However, as of 30 June 2011 no decision on the asylum claim had been made.
- As the date for the Claimant's release from his sentence approached the Defendant began consideration of whether she should exercise the power to detain the Claimant under the 2007 Act. On 9 June 2011 a caseworker made a recommendation that the Claimant should be detained under Section 36(1) of the 2007 Act as from 30 June 2011. The rationale for that recommendation is contained in a "Minute of Decision" (Trial Bundle pages 150 -152):-
"Mr Assad was served with a refusal to vary leave or enter or remain in 2003, his claim for asylum was also refused. He failed to leave the United Kingdom as required. He has a history of drugs and alcohol abuse.
Mr Assad is aware that if his current claim for asylum was to fail he would be considered for deportation. His children have all been adopted and he would not be permitted contact with them if he were to be released. Mr Assad is considered to be a risk of absconding as he does not appear to have any strong ties with the United Kingdom. Also, part of his conviction was failing to surrender to custody.
Due to Mr Assad's past history of substance abuse it is considered that he could re-offend if released. Particularly as he does not seem to have any close ties to the UK to encourage him to abide by UK laws. It is noted that he has not been visited whilst in prison.
Mr Assad has been convicted of a serious crime and therefore he is considered to be a risk to the public. Although there appears to be no current threat of violent behaviour, I propose that we detain Mr Assad."
- The recommendation to detain was considered on 22 June 2011. Authority for detention was given and the reasoning for that decision was as follows.
"Detention authorised beyond his custodial sentence:
Mr Assad has not submitted any evidence of lawful basis to remain neither has be provided any evidence (although he has children) of established ties with or in the UK. Although there is no evidence of previous absconding, the fact that his crime suggests a demonstration of disregard for immigration control and with the knowledge that the UKBA intends to deport him he is viewed as a potential absconder. It is believed asylum decision will be made within a reasonable timescale.
Although we have his details as an SL nationality, he claims that he has right of abode in UK. But UKBA is unable to identify his/parent details to match. Despite this it is felt that continued detention is still reasonable because Mr Assad has not provided any evidence of his nationality. I refer to your Minutes and noted that he is risk to the public. He poses a risk of harm to the public if released due to the nature of his conviction, risk of further offending and as well as his likelihood of absconding. These factors outweigh the presumption to release."
- On 23 June 2011 the Claimants' solicitors wrote to the Defendant enclosing the Claimant's signed witness statement. In it the Claimant wrote:-
"1. I was born on 4 April 1970 in Sierra Leone. My father was originally from Lebanon, but I think he came to Sierra Leone as a child with his parents. He was born in 1935.
2. We lived in a small town in Sierra Leone called Moyamba.
3. Problems began locally with the civil war and the actions of the Revolutionary United Front. In 1993 my family house was burnt down. My parents were in it at the time and they were killed.
4. So many people died at this time, there were none of my friends and family left.
5. I do not know if the burning of my parents' house was targeted. It may well have been. My mother's family were involved in politics, with the All Peoples Party. My father was a business man in Moyamba
..
6. I had three brothers and two sisters. One of my brothers and my two sisters are in the UK. I have lost contact with my other two brothers since before all the problems. I presume them to be dead.
7. When the rebels came to my village they took all the young men of an age to be useful to them. They took more than twenty of us, including me.
8. They took us into the bush land. They told us we had to join them or they would kill us. I did not want to join them. I was not politically active and did not understand the politics behind any of what was going on, but I knew that it was not right to kill innocent people and I did not want to be a part of that.
9. I was scared I would be killed. They would beat us with sticks and canes and burn our skin with the ends of their cigarettes. I had scares from this, but mostly they are gone now.
10. After a few days in the bush, I managed to escape. I knew that if I was caught I would be killed but I thought I just had to try. I could not stay and be trained in their army and kill innocent people.
11. I managed to get away and got to the city, Freetown. I wanted to get out of the county. I tried to get a passport but was told that I could not have a Sierra Leone passport because I was not a national of that country.
12. I had my birth certificate and my dad's passport. I went to the British High Commission with these documents and I was given a British passport. This was in July 1995.
13. All the British people were being evacuated because of the war.
We went on the ship to Guinea, and from Guinea I flew to Stansted for safety.
14. I arrived in the UK on 6 June 1997. In July 1997 I claimed asylum. I have not left the UK since that time. My passport was taken from me when I claimed asylum and I have still not had it back."
There is no documentation within the Trial Bundle which shows what happened to this witness statement once it was received by the Defendant. Further, Mr Middleton, in his witness statement, does not deal with what might have happened to it. That said, there is no dispute that the Defendant received it; it was disclosed to the Claimant's current solicitors either by virtue of a freedom of information request or during the course of and because of these proceedings.
- On 23 June 2011 the Defendant wrote to the Claimant to inform him that it had been decided that he should be detained pending deportation. The letter contained the reasons which were said to justify the detention. They were as follows:-
"You have previously failed or refused to leave the United Kingdom when required to do so. Your original claim for asylum was refused in 2003. You refused to leave the United Kingdom as required.
You have previously failed to comply with conditions placed upon you by the police or the courts. It is noted that part of your conviction was failing to surrender to custody.
You have not produced satisfactory evidence of your identity, nationality or lawful basis to remain in the United Kingdom. You have failed to provide any evidence that your stay in the United Kingdom is lawful.
You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place. You have failed to provide any evidence that you have any close ties to the United Kingdom.
You have shown a lack of respect for United Kingdom law as evidence by your convictions for serious crimes, namely robbery and failing to surrender to custody.
You have been assessed as posing a risk of harm to the public because you have committed the above offence and there is a significant risk of your re-offend.
Your unacceptable character, conduct or associations leaves us to believe that if you were to be released you would go on to re-offend or abscond.
The Secretary of State is not satisfied that your relationships with the United Kingdom are of sufficient proximity to give rise to family life for the purposes of Article 8.
In reaching this decision the Secretary of State has balanced your right against the wider rights and freedom of others and the general public interest. The Secretary of State has weighed up the extent of your possible private and family life against your criminal convictions. She considers that her actions are proportional to a social need being fulfilled and does not accept the decision to maintain your detention would breach Article 8. It is considered that your detention is justified for the reasons stated in this letter. Your detention will be reviewed on a regular basis meanwhile your application will be considered without any unavoidable delay."
- On 27 June 2011 Turpin wrote to the Defendant to ask that there should be forwarded to them any information that it held relating to the Claimant being a citizen of Sierra Leone. The letter went on to assert that at least one of the Claimant's siblings, Eric Assad, had been granted indefinite leave to remain in the United Kingdom. Information about his case was included with the letter. The letter ended by asserting that any "continued immigration detention" would be unlawful. That assertion was predicated upon the suggestion that the Claimant's case was indistinguishable from that of his brother. Notwithstanding this representation the Claimant was detained on 30 June 2011.
- In the light of the above the following conclusions seem inescapable. First, no representations were made to the Defendant, prior to the Claimant's detention, to the effect that the detention of the Claimant would be unlawful by reason of the fact he had been the victim of torture sometime in the past. That said the Defendant was in possession of the records of the asylum interviews and a signed witness statement dated 14 April 2011 but received, probably, in the last days of June which asserted that the Claimant had been the victim of significant ill-treatment, at the very least, for a period of a few days when he was resident in Sierra Leone. It may be, of course, that these documents were not all held together. It is readily understandable that they may not have been held in the same file.
- On 6 July 2011 Turpin wrote to the Defendant requesting that the Claimant be given temporary admission, or alternatively, that he should be transferred to an immigration detention centre. The Defendant responded by letter dated 7 July in which confirmation was given that a referral had been sent to the detention management estate with a view to obtaining a place for the Claimant.
- On 8 July 2011 the Defendant submitted an application to the Sierra Leone High Commission for an emergency travel document so as to permit the Claimant to be returned to Sierra Leone. According to the witness statement of Mr Middleton on the same date UKBA received information to the effect that a British citizen's overseas passport had been issued to the Claimant on/or about 14 July 1995 and that the issuing officer must have been satisfied that the Claimant was entitled to such a passport. It was also on 8 July 2011 that the Defendant notified Turpin that the request for temporary admission was refused and that steps were being taken to investigate the Claimant's nationality.
- On 18 July 2011 Turpin wrote again seeking temporary admission for the Claimant or, in the alternative, transfer to immigration detention. The Defendant replied by letter dated 20 July 2011 informing Turpin that the Claimant's request for transfer to immigration detention would be granted subject to the carrying out of an appropriate risk assessment and available space.
- On 21 July 2011 the Defendant conducted a review of the Claimant's detention. The review recognised that there were barriers to removal. They were the fact that the asylum claim could not be considered until the Claimant's nationality had been established and second that a deportation order could not be made until the asylum claim had been determined. Nonetheless the officer conducting the review recommended that detention be maintained and that recommendation was accepted. The officer who actually authorised detention wrote:-
"Detention authorised at the one month stage. Subject poses a risk of harm due to nature of conviction for robbery and poses a risk of absconding due to the offence of failing to surrender to custody, little reliance can be placed on him complying with reporting restrictions if released. Caseworker is liaising with CSIT to attempt to establish subject nationality so that asylum claim can be decided and deportation case progressed. Release referral was sent to the Strategic Director and he stated subject should remain detained and to get back to him in three months if nationality has not been established. These factors currently outweigh the presumption to release. "
- On 27 July 2011 Turpin submitted a bail application on behalf of the Claimant. The next day the Defendant wrote to the authorities at HMP Bullingdon asking that they encourage the Claimant to complete and return an application for an emergency travel certificate which could be submitted to the Sierra Leone High Commission.
- On 2 August 2011 the First Tier Tribunal refused the Claimant's application for bail. The next day Turpin wrote to the Defendant asserting that the Claimant's asylum claim ought to be determined without awaiting confirmation of his citizenship rights. On 5 August 2011 the Defendant responded by disagreeing with that suggestion; Turpin was asked to encourage the Claimant to complete an application for an emergency travel document.
- The transfer to Harmondsworth IRC took place on 14 August 2014. I received no oral evidence about what occurred immediately upon transfer but there is a relevant document within the Trial Bundle. Pages 604 to 613 appear to be one document which is intended to be completed by a nurse and a doctor. If completed it would constitute a record of an assessment by those health care professionals. In the Bundle the pages are out of sequence but it is clear when the document is properly arranged that the first seven pages are intended to be completed by a nurse following a medical assessment by the nurse and the following three pages are intended to be completed by a general practitioner.
- The first seven pages of the document within the Bundle have been completed; those pages were completed by a nurse named Nancy Nyamande; page 7 has her signature and printed name. The last three pages have not been filled in; they are completely blank and there is no signature on the last page.
- Page 4 of the document (Trial Bundle page 610) has a number of boxes which need to be completed. One of the boxes has within it:-
"Torture claim made: y/n (please circle)"
The next box is headed "Details of Torture Claims (if applicable)" and finally there is a box divided into two which asks the nurse to specify whether consent has been given to notify the immigration authorities of a torture claim and, further, asks the nurse to specify whether or not "Rule 35" has been submitted as to which see below. The form completed by Nurse Nyamande specifies that no torture claim has been made; the letter n is circled. Unsurprisingly, therefore, the box which permits details of a torture claim to be made is blank. Similarly there is no indication of any consent for the immigration authorities to be notified of a torture claim.
- Page 5 of the document (Trial Bundle page 606) is also instructive. That contains a box in which details can be provided as to the Claimant's mental health and or mood. The nurse wrote in this box:-
"Mood was observed to be stable and he communicated well. He kept eye contact. Complained of pain from the ulcer area and hernia which he said he is awaiting repair. Denied having suicidal thoughts. He reported he was on methadone
.every morning."
Almost immediately below this box the nurse has indicated that in her opinion the Claimant was suffering from depression. She has also noted that there was no history of self harm or suicide attempt and no current thoughts of self harm or suicide attempts.
- It was also incumbent upon Nurse Nyamande to complete a risk assessment and a disability questionnaire. She did both those things on 14 August 2011. The disability questionnaire is signed not just by the nurse but also by the Claimant. In answer to the question "does the detainee have any form of disability" the answer no is circled. That is despite the fact that it is clear from the document that a person with mental health issues may be considered to be under a disability (see Bundle page 615).
- Pages 616 to 618 of the Trial Bundle consist of notes made during medical examinations undertaken while the Claimant was at Harmondsworth. It is clear, for example, that the Claimant was seen by a doctor on 16 August 2011 and although the doctor's writing is difficult to read the consultation clearly related to a perforated ulcer from which the Claimant was then suffering. In the notes that follow it is clear that a number of consultations took place, all, apparently, relating to physical issues.
- The Defendant carried out a second detention review on 15 August 2011. It was decided that detention should continue. The decision was motivated by much the same considerations as had influenced the initial decision to detain.
- On 1 September 2011 Turpin wrote to the Defendant pointing out that the asylum claim was still outstanding and asserting that the Claimant had signed an authority, twice, for the Defendant to approach the Sierra Leone High Commission in relation to the provision of an emergency travel document. Additionally, the solicitors asserted that the Claimant was not removable to Sierra Leone.
- On 2 September 2011 the Claimant himself wrote a long and detailed letter to the Defendant. The letter raised a number of points including the Claimant's assertion that he had been issued, quite legally, with a British passport as a British overseas citizen. The Claimant also made many points about his history, health, family and desire to remain in the UK. He enclosed a number of documents to demonstrate the efforts which he had been making in prison to reform. It is noteworthy, however, that nowhere in his long and detailed letter did he raise the impact which detention was having upon him by reference to any history of torture.
- In the three months or so which followed the Defendant was engaged in investigating the Claimant's nationality and taking such steps as were necessary to reach a decision upon his asylum claim. Further there were monthly detention reviews. This all culminated in a decision dated 13 December 2011. That decision was to the effect that the Defendant was obliged to make a deportation order because the Claimant was a foreign national who had been convicted of an offence and sentenced to a period of imprisonment of at least twelve months and none of the relevant exceptions applied. The suggestion which has been advanced by the Claimant that he was a British citizen was rejected and the Defendant's view was that the Claimant could be deported to Sierra Leone.
- The decision notice dealt with the Claimant's asylum claim in detail. It made detailed references to questions which the Claimant had answered in his screening interview on 24 September 2010 and his asylum interviews which took place on 24 September 2010 and 7 February 2011. In particular the decision recorded, in summary, the answers which I have set out in detail in paragraph 11 above. Having set out the substance of those answers and general information related to conditions in Sierra Leone during the decade beginning 1991 the Defendant concluded:-
"You are considered to be a credible witness and therefore based on the above country evidence pertaining to Sierra Leone it is accepted that your parents may have died in the manner you have described and for the reason you have given. It is also accepted you may have been held for a short period by rebels in Sierra Leone and subjected to ill-treatment before escaping."
- The decision letter made no reference to the witness statement which had been sent to the UKBA on 23 June 2011.
- The Claimant was entitled to appeal against the Defendant's decision and he exercised that right. In a determination promulgated on 31 January 2012 the Claimant's appeal was dismissed. The Claimant appeared in person at the First Tier Tribunal. The Tribunal concluded that the Appellant was not a British citizen. It also concluded that his asylum and human rights appeals should be dismissed. On 14 February 2012 the Claimant's application for permission to appeal to the Upper Tribunal was dismissed and his appeal rights have long since been exhausted.
- By the summer of 2012 the Claimant had instructed his current solicitors, Wilson Solicitors LLP (Wilson). On 13 July 2012 Wilson instructed Dr Jane Anderson, a higher speciality registrar in forensic psychiatry, to prepare a report upon the Claimant. Her instructions were to prepare a psychiatric report and "to assist with background issues and specifically to address his risk of future offending".
- The doctor interviewed the Claimant at Harmondsworth IRC on 25 July 2012. She recorded in her report that the documents available to her were the Claimant's prison records dating from 1 August 2009 to 15 August 2011, a bail summary, an appeal determination from the First Tier Tribunal dated 31 January 2012, an OASys assessment report dated 18 May 2010, various certificates, references and UKBA progress reports belonging to the Claimant and her instruction letter from Wilson.
- The report prepared by Dr Anderson contained information provided to her by the Claimant as to his family and personal history. Under the heading "Family History" the doctor wrote:-
"Mr Assad's parents are both deceased. He stated they died during the war in Sierra Leone in the early 1990s; he was unclear as to the cause of their death
.."
However under the heading Personal History the doctor recorded the following:-
"Mr Assad stated that half his family were killed in the war that followed, their houses burnt, and he himself was tied up and beaten when he refused to join the rebels. He attempted to leave in 1995 and eventually left for the UK in 1997 aged 27."
- Under the heading Mental State Examination the doctor wrote:-
"I examined Mr Assad in the Health Care Department at IRC Harmondsworth on 25 July 2012. Mr Assad is a 42 year old man of African origin. He was casually dressed well kempt. He had mistakenly attended legal visits and arrived almost one hour late for his appointment, and was a bit flustered by this, but recovered quickly. He made good eye contact and rapport was easy to establish. He was able to concentrate throughout the whole assessment. His personal narrative varied between vague and precise depending on the topic, such that I wondered if there were topics he did not wish to discuss with me. There were several temporal and factual inconsistencies when compared with his First Tier Tribunal evidence and interviews with other assessors.
His speech was normal in tone, rate and volume. Mr Assad's mood was subjectively and objectively euthymic (normal) with normal emotional reactions to the topics we covered. He denied any problems with his sleep, appetite or energy levels. He denied any thoughts of harming himself or others. There were no abnormalities with regard to unusual thinking, beliefs, experiences or perceptions elicited during the assessment. Mr Assad was orientated to time, place and person and I did not identify any concerns with his cognitive ability during the assessment, although his cognitive function was not formally tested."
On the basis of her examination and assessment of documentation Dr Anderson formed the view that the Claimant was not suffering from a mental disorder.
- As I have said the primary purpose of the report prepared by Dr Anderson was to assess the likelihood of the Claimant re-offending. Much of her report is concerned with this issue. It suffices that I record that she considered there to be a medium risk of the Claimant re-offending and a medium risk of his causing serious harm.
- From my scrutiny of the papers, I am unable to discern when it was that this report was disclosed to the Defendant. There is no reference to it in the detention reviews which were undertaken immediately after the report was obtained. The probability is that it played no part in the Defendant's decision-making process.
- It is also necessary to mention other aspects of the history as it unfolded in 2012. I can do this by reference to Mr Middleton's witness statement. Either on or shortly before 22 February 2012 the Claimant had a telephone interview with the Sierra Leone High Commission. The responsible official at the Commission reached the provisional conclusion that the Claimant was not likely to be a citizen of Sierra Leone and accordingly it was thought appropriate that there should be a face to face interview between an official of the Commission and the Claimant. On 8 March 2012 the Claimant attended the Commission for such an interview. This was due to take place in the presence of a UKBA officer. However the Claimant was late arriving by which time the officer had left. The probability is that no face to face interview took place on that day. An arrangement was made for an interview on 16 May. Mr Middleton's unchallenged evidence is that the Claimant refused to attend on that date. On 30 May 2012 the Defendant arranged for a further face to face interview at the Sierra Leone High Commission. The meeting was scheduled for 13 June and the Claimant was taken to the Commission on that date. Precisely what transpired on this occasion is not known from the available evidence. However Mr Middleton's witness statement records that at the hearing of the bail application which resulted in the Claimant's release on bail on 6 September 2012 he placed reliance upon a letter dated 5 September 2012 purporting to come from the Sierra Leone High Commission which certified that the Claimant was a British overseas citizen and was not a citizen of Sierra Leone. However Mr Middleton says that this letter was not copied to the Defendant and subsequent enquiries revealed that the application for an emergency travel document on behalf of the Claimant remained undetermined and there had been a request by the Sierra Leone authorities for a further face to face interview with the Claimant which had been scheduled for 4 December 2012.
- The Claimant served a witness statement in these proceedings (dated 20 March 2015) and which stood as his evidence in chief. Paragraphs 24 to 28, in particular, contain a description of the alleged effect upon the Claimant of his detention between 30 June 2011 and 6 September 2012. At paragraph 26 the Claimant explains that his "past torture was affecting [him] a lot in detention". He claims that he was in constant pain and his past torture was always on his mind. Given that evidence, it is surprising, to say the least, that there is not a shred of evidence that the Claimant or Turpin made any representations to the Defendant to the effect that the Claimant should not be kept in detention by reason of his treatment in Sierra Leone. The Claimant's witness statement does not suggest that any such representations were made and there is no correspondence from Turpin or the Claimant personally to that effect.
- What conclusions can be drawn from this history? First, the Defendant did not, at any stage, consider whether the Claimant had been the victim of torture in the context of whether or not he should be detained. However, second, the solicitors acting for the Claimant (Turpin) had been in correspondence about the possibility of the Claimant's deportation to Sierra Leone from early 2011. Turpin acted for the Claimant at the time when the decision was taken to detain him under the 2007 Act. They continued to act for him until late 2011. Not once did the solicitors suggest that detention was inappropriate on the grounds that the Claimant had been a victim of torture within Sierra Leone. Perhaps more importantly not once was it suggested by the solicitors that there was independent evidence that the Claimant had been tortured when residing in that country. Third, there is no evidence that the Claimant himself complained about detention on the grounds that he had been the victim of torture. Obviously, it may very well be that the Claimant did not know the details of the Defendant's policy on detention as it related to persons who had been victim of torture. However if detention was causing him to suffer as he now alleges in his witness statement and for the reason he now alleges it is very hard to explain why there is no mention of it in the copious medical notes and other records which were generated while the Claimant was in custody first serving his sentence of imprisonment and then pursuant to the 2007 Act. Fourth, as a matter of fact, there was no independent evidence in existence specific to the Claimant, either before or during the period when the Claimant was detained, to the effect that the Claimant had been tortured in Sierra Leone before coming to the UK. Fifth, on the only occasion (in the context of his detention) when the Claimant was asked a direct question about whether he had made a claim to have been a victim of torture, i.e. when he was asked by Nurse Nyamande on 14 August 2011, his answer was no.
- There is a factual issue between the parties about whether the Claimant was examined by a general practitioner on the day of his transfer to Harmondsworth. Mr. Fortt, for the Defendant, submits, correctly, that the Claimant's witness statement does not assert that he was not examined by a general practitioner on or shortly after his transfer to the Centre. Further, he points out that the Claimant gave no oral evidence of any kind on this topic. He submits that the Claimant has not proved that such an examination did not take place. Ms Sjovoll takes a different approach. She submits that it is clear that no medical examination was undertaken by a general practitioner on 14 August because there is no record of such an examination. If such an examination had taken place, she submits, it is very likely that the doctor would have completed the appropriate record and, as I have identified, the record has not been completed (Trial Bundle pages 611 to 613). She relies upon the fact that the nurse who carried out a medical assessment did complete the relevant part of the record in support of her submission.
- In some circumstances, I accept, it would be proper for a court to draw an inference that no medical examination has taken place when no written record of such an examination exists. However I have decided that it is not appropriate to draw that inference in this case. The plain fact is that this point first surfaced as an issue on the first morning of the trial. If the point was to have any credibility I would have expected a sworn statement from the Claimant detailing, as best he could remember, what had happened when he was transferred from prison to Harmondsworth on 14 August 2011. Yet his witness statement for trial is completely silent about what happened. Further, no permission was sought to submit a supplementary statement and no permission was sought to ask supplementary questions about this issue when the Claimant was examined in chief. In short, the Claimant has adduced no direct evidence that he was not examined by a general practitioner. I am not persuaded that in these circumstances it would be appropriate to draw an inference that no such examination took place simply from the absence of a written record of examination.
- I am fortified in that conclusion because a very full written record was made of the nursing assessment which took place on the day of transfer. In large measure the written record expected of the general practitioner would have been a duplication of what had been written by the nurse. It is often in circumstances such as these that record keeping lapses. I have reached the conclusion that the Claimant has failed to establish that no medical assessment was undertaken by a general practitioner on the day he was transferred to Harmondsworth. If I am wrong about that, however, I am firmly of the view that it is most unlikely that the examination would have elicited from the Claimant any information which was different from that which was provided to and recorded by Nurse Nayamande.
- In the light of my conclusions upon the decision making-making process and related matters I turn to consider the substance of the Claimant's case.
Breach of the Defendant's Policy
- In her closing written submissions Ms Sjovoll makes it clear that her primary case is that the Defendant was in breach of her policy as it related to the detention of persons who had been tortured. She reminds me, too, that the authorities show that it is necessary for the Defendant to consider whether her policies apply to a proposed detainee and/or a detainee in the sense that the Defendant must take reasonable steps before and during detention to inform herself about the relevant history so as to be able to make an informed decision about whether a policy is applicable see R(Das) v SSHD [2014] EWCA Civ 45 and, in particular, the judgement of Beatson LJ at paragraph 66. If the Defendant is in breach of her duty to apply her published policy or she fails to take reasonable steps to ascertain whether her policy is applicable and detention is authorised and/or maintained the tort of false imprisonment is proved. These principles are not in issue.
- The Defendant's policy in relation to detention is to be found in Chapter 55 of the current "Enforcement Instructions and Guidance" issued by the Defendant. Chapter 55.10 is headed "Persons Considered Unsuitable for Detention" and the relevant parts read as follows:-
"Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons.
In criminal casework cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
..............
Those where there is independent evidence that they have been tortured."
- The Detention Centre Rules 2001 contain provisions relating to the healthcare of detained persons. They apply to detention centres but not to prisons. Under Rule 33 it is mandatory for a detention centre to have a medical practitioner who is a general practitioner. Rule 34.1 provides that every detained person shall be given a physical and mental examination "by the medical practitioner" within 24 hours of his admission to the centre. Rule 35 provides as follows:-
"(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously effected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions and the detained person shall be placed under special observation for as long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs 1,2 or 3 to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervisional care."
In R(EO and Others) v- Secretary of State for the Home Department [2013] EWHC 1236 (Admin) Burnett J, as he then was, considered in detail the legal effect of a failure on the part of the Defendant to comply with Rule 34 of the Detention Centre Rules (see paragraph 49 to 53 of his judgment). He held that if a detainee is not medically examined within 24 hours of his arrival at a detention centre his detention thereafter will be unlawful unless there is some good reason for the failure to examine see paragraph 53. However, in view of my conclusion that the Claimant has not proved that he was not examined by a general practitioner on 14 August 2011 this authority needs no further analysis.
- Miss Sjovoll submits that as of June 2011 there was sufficient evidence available to the Defendant to the effect that the Claimant had been a victim of torture to make it necessary for the Defendant to take reasonable steps to ascertain whether the Claimant fell within the published policy and that had the Defendant taken those reasonable steps she would have reached the conclusion that there was independent evidence that the Claimant had been the victim of torture. If she had then gone on to consider whether any very exceptional circumstances existed to justify detention she would have concluded that no such circumstances existed. I turn to examine those submissions.
- On 22 June when authority was given for the Claimant's detention under section 36 of the 2007 Act two documents existed in which reference was made to the Claimant being ill-treated in Sierra Leone before be came to the UK. They were the document known as a SEF Form which had been completed by the Claimant on 2 December 2000 during the course of an application he made for an asylum after arriving in the UK in 1997 and the record of interview which took place on 7 February 2011 (as to which see paragraph 11 above). Very shortly after the decision had been taken to detain the Claimant his solicitors (Turpin) submitted the Claimant's witness statement of 14 April 2011.
- I should also record that by June 2011 the Defendant held a number of documents submitted by the Claimant or his solicitors in which no mention had been made of the allegation that the Claimant was subject to ill-treatment in Sierra Leone. On 11 September 2009 the Claimant submitted an account, personally, in which he stated that he had fled Sierra Leone due to heavy fighting and that his parents had been killed after his arrival in the UK (see Trial Bundle pages 878 to 879). On 30 June 2010 the Claimant submitted a questionnaire in which he made no mention of ill-treatment in Sierra Leone. During interviews in September 2010 the Claimant made no mention of ill-treatment at the hands of rebels.
- There is no direct evidence, one way or the other, which shows whether some or all of these documents were considered by the person who took the decision to detain the Claimant. That said, I have reached the conclusion that none of the documents were considered by the decision maker. There is no reference at all to the Claimant's history in Sierra Leone in the documents which were generated by the decision maker (see paragraphs 21 and 22 above) and notwithstanding that the decision maker clearly knew that the Claimant had made an applications for asylum there is no reason to suppose he had read the documents generated by the applications or assessed their significance in relation to the Defendant's policy in relation to torture victims.
- Despite this finding, I have reached the conclusion that there was no failure on the part of the Defendant, in advance of the decision to detain, to take reasonable steps to ascertain whether there was independent evidence that he had been tortured in Sierra Leone. These are my reasons for reaching that conclusion. As I have set out already, there came a point in time in 2011 when the Claimant and his solicitors knew that the Defendant was contemplating detaining the Claimant pursuant to the 2007 Act pending deportation to Sierra Leone. Neither the Claimant himself nor his solicitors made any representation of any kind which would have alerted the Defendant to the possibility that the Claimant had been a victim of torture and should not be detained. In my judgment, the taking of reasonable steps to ascertain whether a policy is applicable to a particular detainee does not extend to requiring a decision-maker to undertake a search to ensure that all files held upon a particular detainee are before him and all parts of those files scrutinised with a view to ascertaining whether any of the Defendant's policies are relevant to the case. The decision-maker is entitled to proceed on the basis that a detained person (especially one who is represented) will make sufficient representations when he is told of his imminent detention to draw attention to those features of his case which are relevant to the decision and which might need particular scrutiny. That is so, particularly, in my judgment when the decision-maker knows that the person to be detained has been serving a substantial term of imprisonment apparently without any serious effect. I have reached the conclusion that there was no failure on the part of the Defendant prior to making the decision to detain to take reasonable steps to ascertain whether her published policy in relation to the victims of torture was applicable in the case of the Claimant.
- On 23 June 2011 Turpin wrote to the Defendant enclosing the witness statement made by the Claimant on 14 April 2014. The statement was provided as part of the evidence submitted by the Claimant in respect of his claim to asylum. Nonetheless, as I have set out in paragraph 23 above, the witness statement provided information about alleged ill-treatment of the Claimant when he was in Sierra Leone. Looked at in isolation, it may very well be that the receipt of this witness statement should have triggered an investigation by the Defendant about whether the detention of the Claimant would be in breach of her policy.
- However, on the same date that Turin sent the witness statement, the Defendant faxed a letter to Turpin. Turpin was informed that the Defendant intended to detain the Claimant "beyond his custodial release date". On the same day the Defendant wrote to the Claimant, personally, explaining that the Defendant intended to detain him under the 2007 Act and providing him with detailed reasons why that decision had been made see paragraph 24 above. There followed the letter date 27 June 2011 from Turpin which I have summarised at paragraph 25 above. It seems to me that the letters sent by the Defendant to the Claimant and his solicitor on 23 June 2011 provided a golden opportunity to protest about detention on the grounds that the same would infringe the Defendant's published policy about victims of torture yet no protest was made. Yet, as I have described, not one word was raised about the alleged previous history of torture. In these circumstances I am not prepared to find that the Defendant failed to take reasonable steps to ascertain whether her published policy on torture was applicable to the Claimant notwithstanding the receipt of a witness statement in which the Claimant was alleging that he had been ill treated when in Sierra Leone. I have reached the conclusion that the Defendant did not fail to take reasonable steps to ascertain whether her published policy relating to the detention of victims of torture was applicable either before the decision to detain was made or during any period of time between 30 June 2011 and 14 August 2011.
- I turn to the period between 14 August 2011 and 14 December 2011 - the date when the deportation order made by the Defendant was served upon the Claimant. In my judgment there was no failure by the Defendant to comply with her published policy during this period. Upon transfer to Harmondsworth IRC the Detention Centre Rules 2001 became applicable. However, as I have found, the Claimant cannot establish that he was not examined by a general practitioner within 24 hours of his admission and accordingly he has failed to prove that the Defendant did not comply with Rule 34 of the Rules. Further, nothing occurred on 14 August or between 14 August 2011 and 14 December 2011 which could conceivably have triggered the need for a report under Rule 35. Rather, and very importantly, there is clear and unchallenged evidence that on 14 August 2011 the Claimant told Nurse Nyamande that he had not made a torture claim. Self-evidently in those circumstances the nurse took the view that there was no need for a report under Rule 35. On the basis of the information provided by the Claimant himself to the nurse, in my view, there was no obligation upon the Defendant to investigate or consider further whether her policy relating to the victims of torture was applicable. In addition during the whole of the period within which I am now dealing no representations were made of any kind to suggest that the policy was applicable. In these circumstances there was no failure to take reasonable steps to ascertain whether the policy relating to the victims of torture was applicable and, in my judgment, no breach of that policy.
- On 13 December 2011 the Defendant issued a decision notice which made the Claimant the subject of a deportation order the notice was served on the Claimant on 14 December. In that decision the Defendant concludes that the Claimant's account of his ill-treatment in Sierra Leone as given in his asylum interview of 7 February "may have been true". As from that date or a date shortly thereafter, at the latest, submits Miss Sjovoll, the Defendant was in breach of her policy. She had accepted in terms that the Claimant "may have been held for a short period by rebels in Sierra Leone and subjected to ill-treatment before escape". So far as I can see from the documentation before me there appears to have been no attempt by the Defendant to consider how the conclusion about the credibility of the Claimant's account of ill-treatment in Sierra Leone impacted upon the lawfulness of his detention. There is no document produced by the Defendant which demonstrates that the conclusion contained in the decision notice was considered in relation to whether detention should be maintained. In my judgment that was a failure to take a reasonable step to assess whether the Defendant's policy relating to the detention of victims of torture was applicable. That would justify a finding that the Defendant had falsely imprisoned the Claimant as from 14 December 2011 or a date shortly thereafter but for the argument raised by Mr Fortt relating to the decision in R(Francis) v SSHD [2015] 1WLR 567. As it seems to me, I am precluded from finding that the breach of policy constituted false imprisonment in this case by reason of this decision.
- In Francis the claimant, a foreign national, was convicted of a criminal offence, sentenced to a term of imprisonment and recommended for deportation by the Crown Court.. When he became entitled to release on licence he was detained under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 pending the making of a deportation order in pursuance of the Court's recommendation. When a deportation order was served his detention continued pursuant to paragraph 2(3) of schedule 3 to the 1971 Act. In judicial review proceedings he alleged that he had been detained unlawfully.
- The Court of Appeal concluded that paragraph 2(1) of Schedule 3 to the 1971 Act imposed a statutory obligation to detain a person recommended by a court for deportation pending the making of a deportation order against him, subject to a discretion in the Secretary of State to order his release pending further consideration of his case. The court further concluded that paragraph 2(3) of Schedule 3 had the effect that, following the making of a deportation order in respect of a person already detained under paragraph 2(1), that person's detention was to continue on the same basis and, therefore, the detention of a person such as Mr Francis who had been detained under paragraph 2(1) continued under paragraph 2(3) to be pursuant to statutory authority. Accordingly, the court held that for so long as such authority lasted, an action for false imprisonment would not lie.
- The decision in Francis is concerned with the phraseology of Schedule 3 of the 1971 Act. Paragraph 2(1) of Schedule 3 is in the following terms:-
"(1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall
.be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case
. "
Paragraph 3 provides:-
"(3) Where a deportation order is in force against any person he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph 1
.above when the order is made, shall continue to be detained unless
.the Secretary of State directs otherwise)."
- In this case I have to interpret and apply the relevant provisions of the 2007 Act. Section 32 provides:-
"(1) In this section "foreign criminal" means a person
(a) who is not a British citizen,
(b). who is convicted in the United Kingdom of an offence, and
(c). to whom condition (1) or (2) applies.
(2) Condition (1) is that the person is sentenced to a period of imprisonment of at least 12 months.
(3)
.
(4) .......
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6)
(7)
."
Section 33 provides exceptions which, if applicable, prevent section 32(5) from applying. Section 36 provides:-
"(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State
(a) while the Secretary of State considers whether section 32(5) applies and
(b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.
(2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of schedule 3 to the Immigration Act (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.
(3)
..
(4)
.
(5)
."
Self evidently the statutory language in paragraph 2 of schedule 3 to the 1971 Act is somewhat different to the statutory language in section 36 of the 2007 Act. Paragraph 2(1) of Schedule 3 obliges the Secretary of State to detain a person while she considers whether to make a deportation order whereas section 36(1) of the 2007 Act confers a discretion upon her as to whether a person should be detained pending her determination of the applicability of Section 32(5). However section 36(2) compels the Secretary of State to exercise the power of detention "unless in the circumstances the Secretary of State thinks it inappropriate". In my judgment there is no material distinction of substance between that wording and the wording of paragraph 2(3) of Schedule 3 to the 1971 Act to the effect that Secretary of State shall continue to detain the person unless "the Secretary of State directs otherwise".
- That being so, in my judgment, the reasoning which compelled the decision in Francis is equally applicable to the statutory language deployed in the 2007 Act see paragraphs 11 to 18 of the judgment of Moore-Bick LJ and the short judgment of Christopher Clarke LJ. It would be very surprising, indeed, if Parliament had used the word "shall" in both paragraph 3 of Schedule 3 to the 1971 Act and section 36(2) of the 2007 Act yet intended that the word should have a different effect in each provision.
- Accordingly, I have reached the conclusion that the Secretary of State was obliged to detain the Claimant once the deportation order was made by virtue of the language of section 36(2) of the 2007 Act and that this statutory warrant prevents the Claimant making a claim for false imprisonment for the reasons articulated in Francis since it subsisted until the Claimant was granted bail on 6 September 2012.
- I should stress that this claim has never been pursued on the basis that there came a point in time when the Defendant should have taken a decision to release the Claimant from detention because she thought it "inappropriate" to continue his detention following the making of the deportation order and that his detention thereafter became unlawful. That is not the Claimant's pleaded case.
- Accordingly, I have reached the conclusion that Claimant has failed to prove that the Defendant committed the tort of false imprisonment against him by failing to apply and/or consider the application of her published policy relating to persons who have been tortured.
- Further, I have also reached the very firm conclusion that even if the Defendant did fail to take reasonable steps to ascertain whether her policy relating to the detention of persons who had been tortured applied to the Claimant both before the decision was made to detain him and throughout his period of detention and even if there was a breach of Rule 34 of the Detention Centre Rules, had the Defendant taken such steps as were reasonable to ascertain the applicability of her policy and had there been a medical examination by a general practitioner under Rule 34 the conclusion would have been, unequivocally, that the policy did not apply and the Claimant would have been detained for the reasons articulated in all the documents generated by the Defendant over the period of detention.
- I say that first because the policy applies only when there is "independent evidence" that the person in question detainee has been tortured. I readily accept that this phrase does not require proof of torture on balance of probability. However, it does entail there being in existence some evidence independent of the Claimant himself which supports the assertion that he has been tortured. On any view, there was no independent evidence available at any material time which supported the particular account put forward by the Claimant in his asylum interview on 7 February 2011. There was, of course, information available to the Defendant about conditions in Sierra Leone during the relevant period. It does not seem to me, however, that such non-specific information as is referred to in the decision of 13 December 2011 can readily be described as independent evidence supporting the Claimant's contention that he was tortured when one considers the context in which the Defendant's policy is intended to operate. In my judgment the phrase "independent evidence" will usually consist of material which supports, at least in general terms, the account of torture put forward by the Claimant.
- That said, the crucial issue in this case, as it seems to me, is whether the Defendant could have concluded, reasonably, that the Claimant had been tortured at all once reasonable steps (including a medical examination under Rule 34) had been undertaken to assess that issue. In his written closing submissions Mr Fortt argues, very convincingly, that such are the discrepancies in the Claimant's account of his ill-treatment contained within the documents which were available to the Defendant that no reasonable decision-maker would have concluded that the Claimant had been a victim of torture. Over a period of many years the Claimant's account of what occurred in Sierra Leone has changed on a number of occasions and to a material degree. In December 2000 in the context of his claim for asylum his account was that he had been badly beaten and left for dead in 1993. In 2009, the Claimant's account was that his parents had been killed after his arrival in the UK. In this account he made no mention of being ill-treated. In an account in June 2010 the Claimant asserted that his parents had been killed while he was in Sierra Leone but he made no mention of being ill-treated himself. On 24 September 2010 the Claimant was interviewed for the purpose of his claim for asylum. He made no mention of being ill-treated himself but asserted his parents had been killed in his presence. This was alleged to have occurred in 1997. In that interview he expressly denied ever having been detained in Sierra Leone. The account on 7 February 2011 is set out at paragraph 11 above. The exchange between the Claimant and the person asking the questions towards the end of the questioning process becomes much more significant set against the earlier inconsistencies and omissions. In his witness statement made no more than about two months later the Claimant was again asserting that his ill-treatment had occurred in 1993. (The words in italics are emphasised by me to highlight inconsistencies). In my judgment any reasonable decision-maker faced with these inconsistencies would not have accepted that the Claimant had been the victim of torture. Such a view would have been reinforced by the nursing record made on 14 August 2011 and by the total lack of any representations to the effect that the Claimant's detention could not be justified because of his history of torture. To repeat I am very firmly of the view that had reasonable steps been taken to ascertain whether the Defendant's published policy on torture applied to the Claimant the conclusion would have been that it did not because the probability was that he had not been tortured. Such a conclusion would mean that even if false imprisonment was established for any period on the basis of breach of policy the Claimant would be entitled to nominal damages only. Given the length of this judgment already it is unnecessary to consider in any detail the additional issue whether the Defendant would have concluded that the Claimant had been tortured yet "very exceptional circumstances" existed to justify detention. I doubt whether that finding was reasonably open to the Defendant but I express no concluded view upon it given my conclusions thus far.
- In her written submissions in closing Miss Sjovoll candidly accepted that her claim based upon an alleged breach of policy was the principal claim advanced in this case. However she did not formally abandon her claim based upon a breach of the Hardial Singh principles and so I consider this part of the claim in summary form.
Did the Defendant Breach the Hardial Singh Principles?
- There is no evidence to suggest that the Defendant did not intend to deport the Claimant. The Defendant never accepted that the Claimant was a British national as he alleged from time to time. The Defendant always treated him as a foreign criminal within the 2007 Act and reasonably concluded on the available evidence that he was most likely a citizen of Sierra Leone.
- I am satisfied, too, that the Defendant acted with reasonable diligence and expedition in her attempts to remove the Claimant. Inevitably there was a need for proper investigation of the Claimant's nationality. Miss Sjovoll made no real attempt to persuade me that the Defendant's dealings with the Sierra Leone embassy could have been expedited or conducted in a manner which was significantly different.
- Was the period of detention reasonable in all the circumstances? Undoubtedly it was a long period of detention 434 days. Nonetheless I am not satisfied that the period of detention was other than reasonable in all the circumstances. A proper and fair reading of the detention reviews shows that proper consideration was given to the circumstances prevailing at the time of each review and a reasoned justification was put forward for continuing detention. The main point made by Miss Sjovoll in her written closing submissions as to why the period was unreasonable relates to her assertion that there was independent evidence that the Claimant had been tortured. Finding, as I do, that there was no such evidence in this case, a major plank in her argument is removed.
Other Issues
- In her closing submissions Miss Sjovoll advanced no arguments to the effect that the Claimant can succeed under Article 5 of the European Convention on Human Rights independently of the points with which I have dealt in detail. It is not necessary, in the circumstances, to deal with Article 5 at all.
- As I have said had I found that the Claimant had proved the tort of false imprisonment I would, unhesitatingly, have concluded that he was entitled to nominal damages only. In my judgment there can be no doubt that a reasonable decision-maker assessing all the relevant information available up to and including 6 September 2012 would have concluded that there was no credible evidence that the Claimant had been the victim of torture. That is my assessment even if the medical report of Dr Anderson was never produced to the Defendant prior to 6 September 2012. If her report was produced at any time before detention ceased it would have cast further doubt upon the credibility of the Claimant's account.
- I should not leave this case without expressing my own view as to the Claimant's credibility as a witness. I have made proper allowance for (a) any language difficulties which arise in this case (b) the strain necessarily imposed upon a Claimant being subjected to searching cross-examination and (c) the psychiatric assessments of the Claimant which have been undertaken in this case. However when due allowance is given to all those factors I have reached the clear conclusion that the Claimant's account of his experiences in Sierra Leone is shot through with so many significant inconsistencies over such a long period of time that no reliance can be placed upon his evidence about these matters. In summary I do not believe that the Claimant told me the truth about what occurred in Sierra Leone particularly as it relates to his own alleged ill-treatment. In a sense, my own assessment of his credibility may be irrelevant. My primary task in relation to factual matters has been to assess the Defendant's decision making processes and to assess what conclusions would have been reached had the Defendant taken account of all the information which was in her possession. However, it would not be right to leave this case without recording that the Claimant's attempts to explain the inconsistencies to which I have referred in this judgement led me to believe that his evidence was wholly unreliable. He offered no credible explanation for the many twists and turns highlighted above and I am afraid I simply do not accept that the inconsistencies themselves add support to the notion that the Claimant has been adversely affected by his ill-treatment in Sierra Leone and support, too, the suggestion that detention had a major impact on the Claimant's psychiatric well-being.
- I am invited to strike out the claim on the basis that it is fraudulent. I decline to take that step because (a) it is unnecessary and (b) it would be inappropriate to do so without hearing detailed submissions from Ms Sjovoll on the issue. That would be a waste of costs in view of my findings.
- My conclusion is that the claim must be dismissed. Had the Claimant proved false imprisonment I would have awarded him nominal damages. No useful purpose would be served by assessing quantum on a hypothetical basis.
