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This appeal is due to be heard on 10-11 February 2010 by a five judge bench (Lords Hope and Rodger, Lady Hale and Lords Brown and Kerr).  It will be a landmark decision in the area of unlawful detention and will resolve fundamental issues of importance in the area.  It concerns judicial oversight of executive deprivation of liberty, and the relationship between unlawful detention, the tort of false imprisonment, and the right to compensation under Article 5(5) of the European Convention on Human Rights.  The case details are here.

The central question in the appeal is whether a failure by the executive to conduct regular reviews of the exercise of a discretionary power of indefinite detention, where such reviews are required by published policy and subordinate legislation, renders continued detention unlawful so as to give rise to a claim for damages in false imprisonment.

The Appellant was detained for over 22 months purportedly under the authority of the Secretary of State pursuant to powers conferred by the Immigration Act 1971 (“the 1971 Act”). For 19 of those months and in clear breach of published policy and subordinate legislation, the Secretary of State failed properly to review the Appellant’s continued detention.  Munby J giving judgment at first instance ([2008] EWHC 98 (Admin)), held that as a result the Appellant had been unlawfully detained for 19 of those months.    At the conclusion of his judgment, Munby J expressed himself in strong terms

“In … this judgment I have had to express a whole catalogue of concerns about the way in which the Secretary of State’s officials have dealt with SK’s case. As I have said in paragraph [51], the picture which emerges is deeply disturbing, indeed profoundly shocking. These are matters going to the liberty of the subject. They are matters of the first importance. This makes the serial shortcomings of the Home Office all the more concerning. I trust that no judge will ever again be faced with such a state of affairs” [137].

The Court of Appeal (Laws, Keene, Longmore LJJ [2008] EWCA Civ 1204) overturned Munby J’s declaration, concluding that the requirement in the published policy and Rules to conduct proper reviews of continued detention was not a “condition precedent” to the continued authorisation and legality of such detention under the statute. The only condition precedents were provided by the statute and the so-called Hardial Singh principles, even though the Secretary of State had a duty to comply with the Rules and policy at common law.

In this appeal the Appellant contends that the “review” of detention required by published policy and the Detention Centre Rules is the “authority” upon which the continued legality of his detention depended.  As the policy and rules were not followed the detention was unlawful.  In the alternative, it is argued that breach of “public law” constraints upon the discretionary exercise of the power to detain  breach renders the detention decision a nullity so that continued detention become unlawful.   The fact that (as found by the judge), if the reviews had been carried out the appellant would still have been detained is, he argues, irrelevant.  The Appellant also argues that his detention was unlawful under Article 5 because it was arbitrary –  as it was not in accordance with the published policy.   These are fundamental constitutional issues raising some central questions of public law.

The Case Details indicate that the NGO, Bail for Immigration Detainees (BID) has intervened in the appeal.   We understand that it is represented by Michael Fordham QC and Laura Dubinsky, instructed by Allen and Overy, all acting pro bono.   BID has not yet made its case available but it seems likely that it will, in substance, support the Appellant’s contentions on the appeal.

The judgment will have direct bearing on the increasing number of unlawful detention claims before the courts, especially with respect to those detained under powers in the Immigration Act 1971.