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Supreme Court awards foreign criminals £1 each for false imprisonment

23 March 2011

The Supreme Court today awarded two foreign national criminals £1 each for false imprisonment, following their detention pending deportation under an “unpublished policy”.

The court heard that the published policy between April 2006 and September 2008 was that there was a presumption in favour of release, while in fact a quite different unpublished policy was operating, described as a “blanket ban” on release.

The two men involved were Walumba Lumba, a Congolese citizen convicted of wounding with intent, and Kadian Mighty, a Jamaican citizen convicted of a number of offences, including possession of a Class A drug with intent to supply.

Following his release from prison, Lumba was detained pending deportation. He left the UK voluntarily last month. Mighty was released on bail in 2008.

Giving the leading judgment in R (on the applications of Lumba and Mighty) v Home Secretary [2011] UKSC 12, Lord Dyson said the former home secretary adopted the unpublished policy in 2006 after it emerged that over 1,000 foreign national prisoners had been released from prison before the question of their deportation was considered.

“What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision maker before a decision is made,” Lord Dyson said.

He said that “at first sight it might seem counter-intuitive” to hold that false imprisonment was committed by the unlawful exercise of a power to detain where it was “certain” that the claimant would have been detained if the power had been exercised lawfully.

“But the ingredients of the tort are clear,” Lord Dyson said. “There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised.

“Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised.

“If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed.”

Lord Dyson ruled that, because of the “unlawful policies” in force between 2006 and 2008, Lumba and Mighty were unlawfully detained and falsely imprisoned.

However, he said that neither men were entitled to the exemplary damages they claimed and were only entitled to nominal damages because, if the home secretary had “acted lawfully and applied her published policy”, it was “inevitable” that both men would have been detained.

Lord Dyson referred back to the High Court the separate question of whether Lumba’s detention was unlawful in any event under the Hardial Singh principles.

Lords Hope, Walker, Collins and Kerr agreed with Lord Dyson, for their own reasons, as did Lady Hale. Lord Phillips dissented, along with Lords Brown and Rodger.

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