Lumba v Secretary of State for the Home Department [2011] UKSC 12

Foreign national prisoners were detained pending deportation under an unpublished policy inconsistent with the Secretary of State's published policy. The Supreme Court held this constituted false imprisonment, but since lawful detention would have been inevitable under the published policy, only nominal damages were awarded.

Facts

The appellants, Walumba Lumba (a citizen of the Democratic Republic of Congo) and Kadian Mighty (a citizen of Jamaica), were foreign national prisoners who had been convicted of criminal offences in the United Kingdom. Following their sentences, the Secretary of State decided to deport them under section 3(5)(a) of the Immigration Act 1971. Both were detained pending deportation pursuant to Schedule 3 of the 1971 Act.

Between April 2006 and September 2008, the Secretary of State operated an unpublished policy described internally as a ‘near blanket ban’ on the release of foreign national prisoners, which was materially different from and inconsistent with the published policy that contained a presumption in favour of release. The unpublished policy was applied to both appellants when decisions were made regarding their detention.

Issues

Principal Issues

1. Were the detention policies applied to the appellants unlawful because they were blanket policies, inconsistent with published policies, unpublished, or contained a presumption in favour of detention?

2. If unlawful policies were applied, was the detention of the appellants unlawful in consequence?

3. If detention was unlawful, were the appellants entitled to more than nominal damages?

4. Was Mr Lumba entitled to damages on grounds of breach of the Hardial Singh principles?

5. Were the appellants entitled to exemplary damages?

Judgment

Unlawfulness of the Policy

The Supreme Court held that the unpublished policies were unlawful on multiple grounds. Lord Dyson, delivering the leading judgment, found that the policy effectively operated as a blanket policy that admitted of no genuine exceptions based on individual circumstances. The policy was also unlawful because it was inconsistent with the published policy and because it was not published when it should have been.

Lord Dyson held that there is a public law requirement for policies affecting detention to be published so that individuals can make informed representations. The rule of law requires transparent statements by the executive of the circumstances in which broad statutory criteria will be exercised.

False Imprisonment

The majority held that the application of the unlawful policy rendered the detention of the appellants unlawful, constituting false imprisonment. Lord Dyson rejected the ‘causation test’ applied by the Court of Appeal, which would have held that detention was lawful if the appellants would inevitably have been detained under the published policy.

Lord Dyson stated that the ingredients of false imprisonment are clear: the claimant must prove detention, and the defendant must prove lawful justification. Where a public authority exercises a power to detain unlawfully due to a material public law error, it cannot justify the detention by showing that a lawful decision to detain could and would have been made.

Damages

Despite finding false imprisonment, the majority held that only nominal damages were appropriate. Since it was inevitable that the appellants would have been detained had the lawful published policy been applied, they had suffered no compensable loss. Lord Dyson rejected claims for vindicatory damages, holding that there was no justification for creating such a category in English tort law.

Hardial Singh Principles

The court affirmed the Hardial Singh principles governing detention pending deportation: the Secretary of State must intend to deport and can only detain for that purpose; detention may only be for a reasonable period; if it becomes apparent deportation cannot occur within a reasonable period, detention should cease; and the Secretary of State must act with reasonable diligence to effect removal.

Mr Lumba’s claim based on breach of these principles was remitted to the High Court for reconsideration.

Exemplary Damages

The court declined to award exemplary damages, holding that while the conduct of officials was regrettable, it did not meet the high threshold of being sufficiently outrageous to justify such an award.

Dissenting Judgments

Lord Phillips and Lord Brown (with Lord Rodger agreeing) dissented on the issue of false imprisonment. Lord Brown argued that a public law breach in the exercise of a detention power does not invariably result in false imprisonment. He considered it absurd to hold detention both rightful (because inevitable under lawful policy) and wrongful (because unlawfully decided) simultaneously.

Implications

This case establishes important principles regarding executive detention and public law. It confirms that policies affecting detention must be published and consistently applied. A material public law error in the decision to detain will render the detention unlawful, even if the same decision would have been reached lawfully. However, the causation question remains relevant to damages: where detention would inevitably have occurred under lawful processes, only nominal damages will be awarded. The decision reinforces the constitutional importance of the right to liberty while recognising practical limits on compensation where no actual loss resulted from the unlawful conduct.

Verdict: Appeals allowed. The Secretary of State was liable to both appellants in the tort of false imprisonment because she applied an unpublished policy inconsistent with her published policy. However, only nominal damages were awarded since the appellants would inevitably have been detained under the lawful published policy. Mr Lumba's claim for damages for breach of the Hardial Singh principles was remitted to the High Court for reconsideration. Neither appellant was entitled to exemplary damages.

Source: Lumba v Secretary of State for the Home Department [2011] UKSC 12