False imprisonment and damages

A recent Supreme Court ruling provides a reminder of the importance of causation in damages claims for false imprisonment. Eirwen Pierrot explains its relevance to mental health law and the Court of Protection.

The recent Supreme Court decision inR (on the application of O) v Secretary of State for the Home Department [2016] UKSC 19 may not have obvious relevance to local government lawyers, but serves as a useful reminder of the importance of causation for all those bringing or facing claims for damages for false imprisonment. It therefore makes interesting reading for those practising in mental health law and the Court of Protection.

The claim was brought by O, a 38-year-old Nigerian woman who, following her arrival in the UK in 2003 had claimed asylum. Her asylum claim and her claim for discretionary leave to remain was refused and her appeal was dismissed. She was then charged with an offence of child cruelty, but absconded on bail. She was later convicted of another offence and was sentenced to 12 months’ imprisonment and made the subject of a recommendation for deportation.

After her release from prison, O was detained by the Secretary of State pending the making of a deportation order and, after the order was made, pending deportation. She was detained pending deportation for some three years, during which time she suffered from serious mental ill-health and attempted suicide.

O challenged the lawfulness of her detention between 22 July 2010 and 6 July 2011 and sought damages for false imprisonment and breach of Article 5 in respect of this period.

The Court of Appeal had concluded that during this period, the Secretary of State had failed to apply her published policy in relation to immigration detention, which states that “those suffering from serious mental illness which cannot be satisfactorily managed within detention” should only be considered suitable for detention in “very exceptional circumstances”. In the Supreme Court the Secretary of State accepted that finding. The Secretary of State had failed to apply that policy as she had simply failed to properly address O’s mental ill health during reviews of her detention, in particular she failed to properly consider an expert report by Dr Agnew-Davies which concluded that O was suffering from PTSD.

The question in the Supreme Court, however, was “were [the Secretary of State] to have applied her policy correctly, how would the Home Secretary have reacted to the report of Dr Agnew-Davies?” Addressing that question, the Supreme Court concluded that:

“the proper application of the Home Secretary’s policy to her case in the light of the report of Dr Agnew-Davies would not have led to her immediate release in March 2011…Indeed, even if, which is doubtful and which indeed the Court of Appeal expressly rejected, the appropriate conclusion would or might have been that O’s illness could not be satisfactorily managed in detention, the Home Secretary, in considering whether there were very exceptional circumstances which nevertheless justified her continued detention, would have had to consider the risks of her absconsion and (possible also) re-offending…[E]ven on the dubious assumption that proper application of her policy should in due course have led the Home Secretary to direct O’s release, it is unrealistic to consider that the conditions necessary for her release would have been in place prior to 6 July 2011.”

Consequently, the Supreme Court reasoned that although O’s detention may have been unlawful owing to the Secretary of State’s failure to apply her own policy, because the lawful application of the policy would have resulted in the same outcome O was “at most” entitled to damages in the sum of £1.

This case follows not long after the decision of the Court of Appeal in Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79. Mr Bostridge had been detained under an invalid CTO for some 442 days, but in circumstances where he would anyway have been lawfully detained had the defendant NHS Trust been aware of the unlawfulness. The Court of Appeal agreed with the judge at first instance that damages should be in the nominal sum of £1, making it clear that where the appellant is said to have sustained no actual loss because he would in fact have been lawfully detained for the same period of time, “no substantial damages are necessary to put the appellant in the position that he would have been in, had the tort relied upon not been committed.” Dealing swiftly with the question of damages under the Human Rights Act for breach of Article 5, the Court of Appeal reached the same conclusion, stating that it would be hard to see how anything more than nominal damages could be justified whether as compensatory damages for false imprisonment or to afford “just satisfaction” under the Human Rights Act.

Both decisions will no doubt be welcomed by public authorities, and particularly those dealing with deprivation of liberty claims following the Supreme Court decision in Cheshire West. It now seems clear that in circumstances where there has been a procedural failing resulting in a technical unlawful deprivation of liberty/unlawful false imprisonment, provided that it can be proven that had appropriate measures been taken there would have been no difference in outcome, nothing more than nominal damages will follow.

Eirwen Pierrot is a barrister at Field Court Chambers.