Can I claim damages for unlawful detention?
The UK prison system has approximately 87,000 inmates and in July 2020 the Government announced plans to build another four prisons with an additional 13,360 places. The detention population, already set to exceed 100,000 people, is further boosted by approximately 24,500 – 32,000 immigration detainees.
Prisoners
All prisoners have been convicted by UK courts in accordance with the well-established legal process. Leaving aside the inevitable, although infrequent, miscarriages of justice, the courts will decide the length of time an individual is expected to serve and HM Prison and Probation will calculate the date of release. This can be affected by the prisoner’s individual disciplinary record in custody: they could be given additional days as punishment for serious breaches of prison discipline. More serious offences could be followed by new charges, prosecution and convictions which are likely to postpone the release date to a more distant point in the future.
The relevant dates including the custodial and licence periods are calculated in accordance with the Ministry of Justice policies and, although not immune to errors, can be challenged and quickly amended which, in most cases, gives the prisoners assurance and certainty that they will be released at the end of their term.
Immigration detainees
Immigration detainees have less certainty. The basic principles can be found in R (Singh) v Governor of Durham Prison [1983] EWHC 1 (QB) also repeated in Walumba Lumba [2011] UKSC 12:
(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 will not be able to effect deportation within a 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.
Unlike prison sentences, immigration detention is often both excessive and unjustified and as such, arbitrary and unlawful. Migrants are often detained not because they have committed an offence, but simply because the government of the day is determined to exercise tight immigration control.
In certain circumstances the court may be flexible and allow time for the immigration authorities to make arrangements for removal/deportation in fact-specific circumstances, which could be as much as five weeks, but this grace period must not be taken for granted and is always open to challenge. Immigration detention must not be seen as inevitable or routine and must be justified in each case to the civil standard of proof (balance of probabilities). The burden of proof always rests with the Home Office and the Secretary of State must provide the lawful reasons for detention, particularly when the removal of the migrant in question is not imminent.
Wrongful arrest and false imprisonment
In cases involving unlawful arrest and deprivation of liberty action can be brought when the correct test has been met, namely that a person has been deprived of liberty for any time, however short, without lawful cause. The cause of action inevitably involves police and a range of situations such as stop and search, cases of mistaken identity, incidents where the police resorted to use of force and many others. Whilst those bringing claims will only have to prove that they have been deprived of liberty and detained, the police has to provide justification for their actions. This puts a significant burden on the police as the custody must be regarded as unlawful unless there are good reasons that can justify it. The deprivation of liberty does not have to be physical as a mere assertion of authority may be sufficient. There is no minimum period of detention for a claim to succeed although the length of detention has a bearing on the level of compensation.
False imprisonment is actionable in itself and the detained person does not need to show that they have suffered any damage. However, before deciding to bring a claim, it is necessary to consider whether the arresting officer believed that the arrest was necessary to allow a prompt and effective investigation and, if so, whether any such belief was objectively reasonable in the light of what they knew. Even if arrest and detention is deemed lawful initially it may subsequently become unlawful because of its duration or failure of the police to comply with the law and procedures.
Limitation period
Under the Human Rights Act 1998 a private law claim should be brought within 12 months but, if this deadline has been missed, the liability of the Home Office can be claimed within six years from the end of the relevant period of detention.
Can those who have been deported seek damages for excessive detention?
Yes, they can. The claimant does not have to be present in the UK to issue proceedings but in certain claims, where the defendant was the Home Office or police and they had the right to detain, it would result in only nominal damages.
A claim of false imprisonment is compensated in the same way as other claims such as to put the claimant in the position they would have been in had the incident not been committed. However, the court could take a view that the person seeking damages, had the incident not been committed, would in fact have been in exactly the same position and therefore entitled to just a symbolic amount of compensation. This would apply to the situations where it can be shown that they would have been lawfully detained if the correct procedures had been followed.
However, many people in detention, particularly migrants are likely to have been detained longer than necessary and at the time when their removal was not imminent, sometimes not even likely. The immigration authorities will often struggle to prove that they acted expeditiously and diligently and that the time spent in detention was necessary for the purpose of deportation.
So, how much is my claim worth?
In Thompson v. Commissioner of Police for the Metropolis [1998] QB 498 the court took into account the circumstances of arrest and detention, initial shock caused to the person without previous convictions and other aggravating factors. An award of £220,000 was made, of which £20,000 were compensatory, including aggravated damages, and £200,000 exemplary damages. The damages were for wrongful arrest, false imprisonment and assault. The court gave specific guidance to the effect that in a “straightforward case of wrongful arrest and imprisonment” the starting point was likely to be about £500 for the first hour of loss of liberty and a claimant wrongly detained for 24 hours should for that alone normally be entitled to an award of about £3,000.
In some older authorities such as Governor of Her Majesty’s Prison Brockhill Ex Parte Evans, the court granted £5,000 damages to the claimant for a period of 59 days. This puts the value of a day in detention to about £84 per calendar day. This is contrasted by the decision in Kingshott v Ministry of Justice [2009] EWHC 3666 (QB) where the claimant received £7,500 for 10 days of unlawful detention.
In MK (Algeria) v. SSHD [2010] the court gave the following guidance:
1) the assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant
2) Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration
3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons:
(i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and
(ii) because the initial shock of being detained will generally attract a higher rate of compensation than the detention’s continuance.
In Abdillaahi Muuse v Secretary of State for the Home Department [2009] the court awarded £25,000 of basic damages, £2,500 aggravated damages and £22,500 exemplary damages because of the exceptionally bad conduct of the defendant.
In Abdulrahman Mohammed v The Home Office [2017] the claimant received £78,500 for 445 days’ detention (for three separate periods).
The court in the case R(Belfken) v. Secretary of State for the Home Department [2017] EWHC 1834 (Admin) awarded £40,000 for 295 days’ unlawful detention following an 18-month prison sentence.
The assessment of each case will depend on a number of factors, particularly if it can be shown that the actions of the police or Home Office have been oppressive, arbitrary or unconstitutional. The above summary does not take into account other factors such as unlawful use of force and the injuries, both physical and psychological, this may have caused. Any scars, long term conditions and disabilities arising from arrest, detention and use of force are likely to increase the liability of the defendants.
