Case Comment: Shepherd Masimba Kambadzi (previously SK (Zimbabwe)) v SSHD  UKSC 23
10 Friday Jun 2011
The handing down of the decision in Kambadzi (previously SK Zimbabwe) relatively shortly after Lumba is welcomed not least given that the Lumba judgment seemed to have caused some confusion amongst lawyers acting for the Secretary of State as to its ratio and led to some novel arguments being asserted as to the correct test for false imprisonment.
However, there can now be no room for doubt as to the relevant key principles in any such claim. Effectively the judgment in Kambadzi underlines that which Lumba established, namely that:
1. The Secretary of State is obliged to follow policy absent good reason not to do so (Kambadzi per Lord Hope at §36; Lord Kerr at §85). Breaches of policy which directly bear upon detention vitiate authority for detention and sound in false imprisonment without more (even where the breach is procedural).
2.The test is material public law error (Lumba per Lord Dyson at §68; Kambadzi per Lord Hope at §§41-42; Lady Hale at §69, Lord Kerr at §88), not abuse of power in so far as that latter phrase denotes a more stringent test (per Lord Walker at §193 in Lumba; contrast Lord Hope at §§170, 175 in Lumba and §41 in Kambadzi).
3. Causation goes to damages, not to liability (Kambadzi per Lord Hope at §54; Lady Hale at §§73-74; Lord Kerr at §88).
Kambadzi concerned a national of Zimbabwe who was detained pending the making of a deportation order. He was detained for a period of 27 months until released on bail by the AIT. He brought proceedings by way of judicial review whilst still detained seeking a mandatory order for release and a declaration that he was unlawfully detained and damages. By the date of the hearing before Munby J the appellant had only had 10 detention review, out of a total of 27 to which he was entitled. Of these, only six were conducted by officials of the required seniority and two of these were disavowed by the Secretary of State as flawed by material errors of fact. The Secretary of State acknowledged that reviews should have been carried out and accepted that the failures could not be extenuated by the appellant’s own bad character or his previous conduct. Munby J held that the appellant was unlawfully detained for the periods specified by reason of the Secretary of State’s failure to carry out the reviews required by rule 9(1) of the Detention Centre Rules 2001 and the policy contained in the Operations Enforcement Manual. His judgement was overturned on appeal by the Court of Appeal.
The decision is of fundamental importance to the rule of law pertaining to breaches of the executive’s published policy. It gives rise to a number of significant points beyond the key principles cited above.
First, it provides a clear re-statement of the principle that the liberty of the subject can be interfered with only upon grounds that the court will uphold as lawful; that the power to detain must be exercised reasonably and in a manner which is not arbitrary (per Lord Hope at §§49-50).
Secondly, the effect of the decision is such that the Secretary of State will not be permitted to breach published policy with impunity in cases where it cannot be established that an individual would have been released in any event but for the breach of policy. The view of the minority in both Kambadzi and Lumba, had it prevailed as the majority view, would have signalled a dismal note for the application and enforcement of fundamental principles of the rule of law in England and Wales. It would have been a distinctly retrograde step and one with potentially wider implications than simply the area of false imprisonment.
Thirdly, as Lord Hope states at §55 the question of damages will be directly linked to the established facts of each case. In Lumba the appellants were entitled to no more than nominal damages but Lord Hope stresses that this cannot be assumed to be so in every case and he in particular emphasises that he would not foreclose the possibility that the appellant in Kambadzi would be entitled to more than a nominal award. This bearing in mind that appellants in cases involving detention pending deportation will come to the courts with a track record of criminality. But as Lady Hale noted at §61 (citing Lord Steyn in R (Roberts) v Parole Board) even the most wicked of men are entitled to justice and she doubted that the appellant was the most wicked of men.
Fourthly, whilst it is established that breaches of published policy which directly bear upon detention give rise to claims of false imprisonment sounding in damages, the position of failures to adhere to the Detention Centre Rules 2001 is less clear. Lord Hope at §16 referred to the 2001 Rules as being concerned with the regulation and management of detention centres and not with the way the discretion to detain is exercised and approved the Court of Appeal’s finding with regard to rule 9(1) of the 2001 Rules (see also §51). Both he and Lady Hale (at §70) cited D v Home Office  1 WLR 1003 apparently with approval which required a causation test as regards breaches of the 2001 Rules. However, whilst many of the 2001 Rules may not impact on the discretion to detain, certain rules e.g. rules 34 and 35 relating to the provision of medical examinations/reports arguably do have a close connection with a decision to detain. The position therefore on this may need clarification in due course.
Fifthly, although the case itself concerns false imprisonment and unlawful detention, its findings with respect to the effect of breaches of policy is likely to have wider implications in other areas of public law. The fundamental principle of adherence to published policy is surely apt to be considered beyond the confines of those who are subject to executive detention albeit that the very nature of such an act in depriving an individual of their liberty gives rise to particular scrutiny of executive power.