Case Comment: WL (Congo) & KM (Jamaica)  UKSC 12
08 Friday Apr 2011
The long awaited judgment of the nine member panel in the case previously referred to as WL (Congo) and KM (Jamaica) (see case preview) was handed down on 23 March 2011. In short the majority held that a breach of public law which bears on and is relevant to the decision to detain is sufficient to give rise a cause of action in false imprisonment (per Lord Dyson at §68 with whom Lords Hope, Walker, Collins, Kerr and Lady Hale agreed). As such it represents a landmark victory in upholding a rule of fundamental constitutional importance pertaining to breaches of policy relevant to executive detention. However, less positively the victory on liability preceded a loss on damages for the appellants with the majority holding that damages for such unlawful detention will be nominal unless an individual can show that they would not have been detained but for the breach. Both were awarded nominal damages of £1.
The case referred to a period between April 2006 and 9 September 2008, during which the Secretary of State published, and purported to adhere to, a policy relating to immigration detention pending deportation that included a presumption favouring the release of foreign national prisoners prior to removal. However the Secretary of State admitted that during this period the Home Office in fact applied an unpublished policy that effectively reversed the presumption stated in the published document.
The appellants in this case were foreign nationals both of whom were detained under powers in the Immigration Act 1971 pending deportation. WL was a citizen of the Democratic Republic of Congo who was convicted of a number of offences in the UK including assault occasioning actual bodily harm and inflicting grievous bodily harm. He was due to be released from his criminal sentence in June 2006, but was not and has now been detained under immigration powers for almost 4 ½ years. KM was a citizen of Jamaica who was convicted of 14 offences including robbery, possession of a class A drug with intent to supply and offences of attempting to escape from detention and occasioning actual bodily harm. He was detained under immigration powers for almost six months in 2006 and almost a year in 2007-8.
Liability for unlawful detention
As regards liability, whilst some of the majority expressed the test in slightly different wording to Lord Dyson at §68 (see e.g. Lady Hale at §207 and Lord Kerr at §248) they also approved his formulation. Lord Walker’s comment to effect that he would prefer a test of abuse of power (see §193) was not to suggest a different test and he did not disagree with Lord Dyson’s test. Similarly Lord Hope’s comment at §170 to effect that he did not see a problem with a test of abuse of power was not an expression of a different approach. Unfortunately, there appears in the immediate aftermath of the judgment to be disagreement among practitioners depending on whether they represent the state or an individual as to the precise test. For this reason, it is anticipated that the forthcoming judgment in SK (Zimbabwe) v SSHD (see case preview) will provide clarification by way of confirmation as to the ratio of Lumba as well as further discussion of the nature of breaches which may render detention unlawful.
As regards damages, the outcome was not favourable to the appellants. Lord Dyson’s reasoning on this is cursory and he argued that were it inevitable that they would have been detained, they have suffered no loss or damage as a result of the unlawful exercise of power and therefore should receive no more than nominal damages (see §95). The majority agreed with him. However, a minority of three (Lords Hope, Walker and Lady Hale) held that the breach of appellants’ fundamental rights should not be marked by an award only of nominal damages, although they reached no agreement on what the figure should be: see Walker at §195 suggesting an award of £1,000 each; Lord Hope at §180 suggesting something substantially less; and Lady Hale §217 suggesting £500. It is suggested that the minority’s approach is to be preferred acknowledging on the one hand that the state should not be able to breach policy without it sounding in damages, but at the same time not awarding substantial damages in a case where causation cannot be shown.
The case is equally important for its findings on a number of other aspects of the law relating to unlawful detention. First, as regards the assessment of the Hardial Singh principles, the majority rejected the Secretary of State’s argument that time taken to resolve legal challenges brought by an individual against deportation should generally be left out of account in considering whether a reasonable period of detention has elapsed (see Lord Dyson at §121).
Secondly, and very significantly for a large number of cases, the majority held that the refusal of voluntary return should not be regarded as a trump card enabling the Secretary of State to continue to detain until deportation can be effected. If an individual has issued proceedings challenging his deportation, then the refusal to accept voluntary return is irrelevant (§127). Where there are no outstanding challenges, its relevance must be limited (§128).
Thirdly, the court considered the issue of exemplary damages in the context of operation of an unpublished policy. On this Lord Dyson was not prepared to interfere with the judgment of the court below on the basis that it was not plainly wrong (§166). He also made the point that it was unsatisfactory and unfair to award such damages where the relevant state officials and Ministers had not been heard nor their assertions tested in evidence. That of course would not preclude an individual from claiming such damages in another case from the outset and Lord Dyson recognised that ultimately it was a matter of judgment.
Fourthly, there was a side debate about whether the summary of the Hardial Singh principles in R (I) v SSHD  EWCA Civ 888 by Dyson LJ (as he then was) was accurate. This summary which has long been assumed to accurately reflect the principles was the subject of considerable debate and disagreement between at least two of their Lordships and ultimately resolved in favour of R (I).
By way of conclusion, the case represents a landmark victory on a point of utmost significance to the rule of law. The outcome, however, was by no means certain given the reasoning of the three members who dissented (Lords Phillips, Roger and Brown) arguing that it was necessary to show causation, i.e. that the individual would have been detained in any event, for the cause of action to arise. Had the minority view prevailed, it would have been a dismal day for justice with the depressing result that the state could wilfully ignore published policy on detention with impunity.