![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin) (09 November 2017) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2017/2821.html Cite as: [2017] EWHC 2821 (Admin) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
![]() ![]() |
||
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r
e :
____________________
The Queen (on the ![]() ![]() Ibrahima ![]() | Claimant |
|
- and - |
||
![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
Defendant |
____________________
Robin
Tam Q.C., Mathew Gullick and Emily Wilsdon (instructed by The Government Legal
Department)
for the Defendant
Hearing dates: 11, 12 and 13 October 2017
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
THE HONOURABLE MR JUSTICE LEWIS :
INTRODUCTION
THE FACTUAL BACKGROUND
"Mr Diallo has been convicted of serious criminal offences and whilst it is appreciated that he has been punished for this offence, it has been decided that his presence in the United Kingdom is not conducive to the public good and that he be deported.
No sum ofrecognisance
has been offered. It is therefore disproportionate for the
risk
of him absconding.
Mr Diallo has no outstandingapplication
or appeals that may have provided him with an incentive to
remain
in contact if
released.
![]()
Mr Diallo has no known close ties in the United Kingdom that may have provided him with an incentive toremain
in one place if
released
at this stage.
Mr Diallo has not provided us with any sureties and it is unclear how or what mechanism will be used to ensure that he complies with any terms of bail.
Mr Diallo is the subject of a deportation order and as such would have little incentive to comply with any conditions ofrelease.
![]()
Mr Diallo has used deception in a way that leads us to believe that he may continue to deceive ifreleased.
He has used 8 alias names and two dates of birth.
Mr Diallo has demonstrated a breach of United Kingdom Laws in the past havingreceived
a term of imprisonment for threatening to harm a witness, occasioning actual bodily harm and a breach of bail conditions. In addition he has been convicted of assault on police, failing to surrender to custody at appointed time and battery. This disregard for the United Kingdom's Laws suggest that little
reliance
maybe placed on the
applicant
complying with any conditions of
release.
![]()
Mr Diallo hasreceived
many adjudications for displaying aggressive, abusive and threatening behaviour towards both staff and inmates at the detention centre. In addition he
refuses
to obey instructions. This behaviour suggests that little
reliance
might be placed on the
applicant
complying with any conditions of
release.
![]()
Mr Diallo claims to have a daughter in the United Kingdom but has failed to provide any documentary evidence to confirm that he is the father. It is noted that this child is currently in the care of social services. Peterborough City Council had shared parentalresponsibility
for the child until August 2006 and from December 2007 they had full parental
responsibility.
The child currently
resides
with the adoptive family although an Adoption Order has not yet been sought. The local Authority has informed that Mr Jalloh and his partner have been made fully aware of this decision. It is also noted that there is no direct contact between him or his partner and the child. However contact can be made indirectly once a year through a dedicated Authority Post Box System, both currently and after any adoption process is finalised. Mr Jalloh has previously claimed to have sought access to see the child, however Peterborough City Council have confirmed that they have no
record
of any such
application
being made.
Mr Diallo has failed to comply with conditions ofrelease.
He failed to
report
to Midland Enforcement Unit since 3 July 2008 and was
recorded
as an absconder. On 29 August 2008 he was arrested and detained as a Criminal Casework Directorate absconder."
"1. Theapplicant
is to appear before an Immigration Officer at: Northumbria House, Norfolk Street, North Shields NE20 1LN within 48 hours of being
released.
2. The terms of bail may bevaried
at any time during their currency by
application
or at the Tribunal's own motion."
"1. Theapplicant
shall live and sleep at the address above
2. Bail is granted subject to
i) theapplicant
co-operating with the arrangements for electronic monitoring (tagging) as set out in s. 36 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and
ii) the UK Border Agency arranging electronic monitoring within two working days of the grant of bail. If electronic monitoring is not effected within two working days then theapplicant
is to be
released
on condition he complies with the above
requirements."
"NOTICE OFRESTRICTION
To: Thierno Ibrahima Thierno Ibrahima Diallo Guinea 15 December 1988
You are liable to be detained under paragraph 2 of Schedule 3 to the Immigration Act 1971/Section 36 of the UK Borders Act 2007.
TheSecretary
of
State
has decided that you should not continue to be detained at this time but, under paragraph 2(5) of Schedule 3 to the 1971 Act/Section 36(5) of the 2007 Act, she now imposes the following
restrictions
on you:
1. You mustreport
in person to the immigration officer in charge of North Shields
Reporting
Centre at:
Northumbria House Norfolk Street North Shields NE30 1LN
2. You must thenreport
in person to the immigration officer in charge of the North Shields
Reporting
Centre on Monday 4 November 2013 and Wednesday 6 November 2013 and Friday 8 November 2013 between 10.00 and 16.00 hours and then weekly every Monday, Wednesday and Friday thereafter or on such other days in each week as the officer to whom you made your last weekly
reports
may allow.
3. You must live at: address
Flat 4,
[a street name]
Sunderland
[a postcode]
4. YOU ARE TO BE MONITORED ELECTRONICALLY BY MEANS OF TAGGING/TRACKING
5. You must be present at the address shown above for induction on Saturday 2 November 2013 between the hours of 10 am to 6 pm, when an officer from G4S will call at your address to install the Electronic Monitoring equipment and explain how the system operates.
6. Following induction you must be present at the address shown above between the hours of 23.00 hours to 07.00 am every day, and every day thereafter, between the hours of 23.00 hours to 07.00 am.
7. You may not enter employment, paid or unpaid, or engage in any business or profession.
You should note that:
i) You must not change the address at which you live without the agreement of theSecretary
of
State.
If you wish to change your address you should contact the
Home
Office at the address shown below. If the change of address is agreed you will be notified and a new
restriction
order will be served.
If withoutreasonable
excuse you fail to comply with any of these
restrictions
you will be liable on conviction to a fine not exceeding the maximum on level 5 of the standard scale (currently £5000) or imprisonment for up to 6 months or both."
The Impact of the Curfew on the Claimant and the Requests
to
Vary
The Gedi Litigation
The Lifting of the Curfew
"You are liable to be detained under paragraph 2 of Schedule 3 to the Immigration Act 1971.
TheSecretary
of
State
has decided that you should not continue to be detained at this time but, under paragraph 2(5) of Schedule 3 to the 1971 Act, they now impose the following
restrictions
on you:
You mustreport
in person every Monday to the Immigration Officer in charge of the
Home
Office
Reporting
Centre at:
MiddlesbroughReporting
Centre
[a street name]
Middlesbrough
[a postcode]
You must live at:
[a street name]
Gateshead
Tyne and Wear
[a postcode]
Under section 36 of the Immigration and Asylum (Treatment of Claimants etc) Act 2004 theSecretary
of
State
has decided you are to be monitored electronically by means of tagging.
Under paragraph 22(2) of Schedule 2 of the Immigration Act 1971 theSecretary
of
State
has decided that a curfew will be applied to you in addition to the
restrictions
laid out above:
You must be present at the address shown above between the hours of 23:00 and 07:00 every day until further notice."
The Course of This Litigation
The New Evidence
"Client advised that he is in the process of a private law claim for detention whilst still arefugee.
That is with [another firm] and
remains
ongoing. Client did not want to provide information and advised that it is irrelevant. Advised that we may be able to link cases if we know what it is about. Client advised that he does not want to merge the two issues and would
rather
keep them distinct and separate."
THE LEGAL FRAMEWORK
The Statutory Provisions
"A person who is not a British citizen is liable to deportation from the United Kingdom if –
(a) theSecretary
of
State
deems his deportation to be conducive to the public good…."
"(4A) Paragraphs 22 to 25 of Schedule 2 to this Act apply inrelation
to a person detained under sub-paragraph (1), (2) or (3) as they apply in
relation
to a person detained under paragraph 16 of that Schedule."
"(1) The following namely—
(a) a person detained under paragraph 16(1) above pending examination;
(aa) a person detained under paragraph 16(1A) above pending completion of his examination or a decision on whether to cancel his leave to enter; and
(b) a person detained under paragraph 16(2) above pending the giving of directions,
may bereleased
on bail in accordance with this paragraph.
"(1A) An immigration officer not below therank
of chief immigration officer or the First-tier Tribunal may
release
a person so detained on his entering into a
recognizance
or, in Scotland, bail bond conditioned for his appearance before an immigration officer at a time and place named in the
recognizance
or bail bond or at such other time and place as may in the meantime be notified to him in writing by an immigration officer
"(1B) sub-paragraph (1)(a) above shall not apply unless seven days have elapsed since the date of the person's arrival in the United Kingdom.
"(2) The conditions of arecognizance
or bail bond taken under this paragraph may include conditions appearing to the immigration officer or the First-tier Tribunal to be likely to
result
in the appearance of the person bailed at the
required
time and place; and any
recognizance
shall be with or without sureties as the officer or the First-tier Tribunal may determine."
False Imprisonment
THE ISSUES
(1) What is the appropriate test for determining whether only nominal damages should be awarded?;
(2) Applying that test, should nominal damages only be awarded?;
(3) If compensatory damages should be awarded, in what amount?; and
(4) Whether aggravated damages should be awarded and, if so, in what amount?
THE FIRST ISSUE – THE TEST FOR DETERMINING WHETHER NOMINAL
OR COMPENSATORY DAMAGES ARE PAYABLE
"The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position that he would have been in had the tort not been committed. Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position , he will not normally be entitled to anything more than nominal damages. The identity of theroute
by which this same
result
might have been achieved is unlikely to be significant."
"the principle dictates that the court, in assessing damages for the tort of false imprisonment, will seek to put the claimant in the position he would have been in had the tort not been committed. To do that, the court must ask what would have happened in fact if the tort had not been committed."
THE SECOND ISSUE – SHOULD ONLY NOMINAL DAMAGES BE
AWARDED?
THE THIRD ISSUE – THE ASSESSMENT OF COMPENSATORY DAMAGES
"8 There is now guidance in the cases as to appropriate levels of awards for false imprisonment. There are three general principles which should be born in mind: 1) the assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant: see the leading case of Thompsonv
Commissioner of Police [1988] QB 498 at 515A and also the discussion at page 1060 in
R
![]()
v
Governor of Brockhill Prison ex parte Evans [1999] QB 1043; 2) Damages should not be assessed mechanistically as by fixing a
rigid
figure to be awarded for each day of incarceration: see Thompson at 516A. A global approach should be taken: see Evans 1060 E; 3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a
reducing
scale. This is for two
reasons:
(i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and (ii) because the initial shock of being detained will generally attract a higher
rate
of compensation than the detention's continuance: Thompson 515 E-F."
THE FOURTH ISSUE – THE QUESTION OF AGGRAVATED DAMAGES
"Such damages can be awarded where there are aggravating features about the case which wouldresult
in the plaintiff not
receiving
sufficient compensation for the injury suffered if the award were
restricted
to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those
responsible
for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in
relation
to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and trial are conducted."
CONCLUSION