Unlawful Detention

Raphael Jesurum

Barrister

Lamb Building

This seminar will cover

Segregation - R (TM (Kenya)) v SSHD [2019] EWCA Civ 784.

Not strictly speaking an unlawful detention case – because further confinement of those already detained is not considered a further imprisonment ( R v Deputy Governor of Parkhurst Prison, ex p. Hague [1992] AC 58) – but a judicial review and Article 8 case.

Detention of British citizens - Home Office v TR [2019] EWHC 49 (QB).

Liability for unlawful detention is strict – but s.3(8) of the Immigration Act 1971 gives some protection to the Secretary of State from liability for the detention of British citizens – by placing the burden of proving citizenship on the person asserting it.

The Secretary of State detained TR and her child JA.

R (Diop) – Quantum &Three-walled cells.

The Claimant succeed at the trial of liability, due to the Defendant’s failure to provide a bail address.

Guidance on Pleadings

Suggested directions on how to set out pleadings are given in R (Anam) v SSHD [2012] EWHC 1770 (Admin), 27/06/2012, per Walker J at §§121-122.

Quantum

Accurate assessment of quantum is crucial from the very beginning of litigation for three areas of case management:

i. costs;

ii. deciding where to issue;

iii. Part 36 Offers.

Quantum

Heads of damages in unlawful detention cases:

i. Nominal damages – where detention would still have occurred under other powers;

ii. Basic damages – general damages awarded to compensate for the period of unlawful detention (including injury to feelings);

iii. Personal injury – for example exacerbation of psychiatric illness due to detention;

iv. Special damages – quantifiable financial loss, e.g. loss of earnings, N.B. this must be particularised with the pleadings or will not be awarded;

v. Aggravated damages – where the state has behaved especially badly;

vi. Exemplary damages – damages awarded to express public disapproval of oppressive or arbitrary state behaviour. There should be a public interest in the award;

vii. Just satisfaction - for breach of the Human Rights Act 1998.