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||Neutral Citation Number:  EWHC 2821 (Admin)
||Case No: CO/3354/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE LEWIS
Declan O'Dempsey, Navid Pourghazi (instructed by Bar Pro Bono Unit) for the Claimant
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
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
THE HONOURABLE MR JUSTICE LEWIS :
- This is the determination of a claim for damages for false imprisonment arising out of the imposition of what has been referred to as a curfew, namely a requirement that the claimant be present for a certain number of hours each day at specified premises (the place where he was required to reside), between 3 February 2014 and 14 July 2016. The requirement had been imposed by the defendant following the claimant's release from an immigration detention centre. The requirement was imposed pursuant to paragraph 2(5) of Schedule 3 to the Immigration Act 1971 ("the Act"). The Court of Appeal in R (Gedi) v Secretary of State for the Home Department  4 W.L.R. 93 held that that statutory power did not authorise the imposition of such a requirement and that such a condition could only be attached as a condition of the grant of bail. The defendant accepts that the imposition of the requirement, or curfew, in the present case was unlawful.
- The claimant seeks damages for false imprisonment. An earlier hearing determined that, subject to any appeal to the Court of Appeal, the requirement to spend eight hours a day in a particular place, that requirement being reinforced by the threat of criminal sanctions and electronic monitoring, amounted to a detention for the purposes of the tort of false imprisonment: see R (Jollah) v Secretary of State for the Home Department  EWHC 330 (Admin.) at paragraph 51.
- The claimant contends that he should be awarded compensatory damages in the sum of £30,000, together with a further £5,000 as aggravated damages. The defendant initially contended that only nominal damages should be awarded as the claimant could, and would, have been subjected to the curfew by another legal route had it been appreciated at the time that paragraph 2(5) of Schedule 3 to the Act did not authorise the imposition of a curfew. The defendant initially contended that she would have requested the First-tier Tribunal to grant bail on condition that the claimant comply with a curfew and the Tribunal would have done so. The defendant further contends that, in any event, this is not a case where aggravated damages would be appropriate.
- This claim is brought by way of judicial review but the parties accept that it is appropriate to deal with the claim in these proceedings rather than transfer the matter to the Queen's Bench Division to be dealt with in accordance with Part 7 of the Civil Procedure Rules. The hearing was set down for three days. There was disclosure of the contemporaneous documentation. At the hearing, I had two witness statements from the claimant and he was cross-examined during the hearing. I initially had witness statements from Mr Jonathan Devereux and Ms Danielle Heeley on behalf of the defendant. Counsel who appeared on behalf of the claimant confirmed that he was not seeking permission to cross-examine either witness. On 12 October 2017, that is, on the second day of the hearing, the defendant applied for permission to adduce evidence in the form of a witness statement by a Kenneth Welsh dated 8 September 2017. That statement had been made in another case listed to be heard at the same time as this one. The statement had not, however, been served on the claimant or his representatives in this case. I refused permission to allow that statement to be adduced given the lateness of the application to adduce the evidence and the unfairness that it would cause to the claimant as he and his advisers had not had the opportunity to consider it. Save for the oral evidence given by the claimant which is a matter for the court to evaluate, both parties were content that the facts necessary for the resolution of this claim were agreed (save in minor respects) or appeared from the contemporaneous documentation provided prior to the hearing. On that basis, the trial proceeded.
- At 3.40 p.m. on the third day of the hearing, counsel for the claimant informed the court that the claimant had in fact brought proceedings in the county court seeking damages for false imprisonment arising out of the detention of the claimant and, further, that the defendant had conceded as long ago as 29 March 2017 that the detention was unlawful. That matter had not been referred to before by either the claimant or the defendant and, clearly, was a matter potentially relevant to the determination of this claim. I set out the chronology below. The parties were allowed to put in further evidence to explain why neither of them had informed the court of these matters. In the event, the defendant also sought permission to amend her amended grounds of defence and to abandon the contention that the claimant was only entitled to nominal, not substantial, damages. I deal with these matters below.
THE FACTUAL BACKGROUND
- The material facts as they appear from the evidence given are as follows. On about 6 January 2003, the Claimant arrived in the United Kingdom. He claimed asylum as Thierno Ibrahima Jollah and claimed he was a national of Liberia. He was initially granted exceptional leave to remain but, following an appeal, the claimant was granted asylum on 29 August 2003.
- On 23 May 2006, the claimant was convicted at Cambridge Crown Court of threatening to harm a witness, juror or person assisting in the investigation of an offence, and of common assault. He was sentenced to 15 months' imprisonment. On 4 September 2006, he was convicted of a further offence of assault occasioning actual bodily harm and sentenced to 6 months' imprisonment.
- On 26 April 2007, the claimant was served with notice of a decision to make a deportation order. He appealed. On 4 May 2007, he was detained under powers conferred by the Act. On 3 January 2008, the claimant was granted bail on condition that he report to a particular place at specified times. The claimant's appeals against the decision to make a deportation order were dismissed and, by 30 June 2008, he had exhausted all his rights of appeal. On 3 July 2008, he failed to report to the Midland Enforcement Unit as required by the conditions of his bail. On 29 August 2008, he was arrested as an absconder and detained. A deportation order was served on him on 4 September 2008. It subsequently transpired (after the hearing) that there may have been legal difficulties in connection with that order, that it may have been revoked, and that it may be that, because of the fact that the claimant had been granted asylum earlier, the order may not have been one that could have been made. None of those matters were dealt with in evidence or argument at the hearing and this judgment expresses no views on those matters.
- The claimant was released from detention on 2 July 2009. On 24 July 2012, he was remanded in custody on being accused of a further criminal offence. On 15 April 2013, he was convicted of an offence of child cruelty and sentenced to one year's imprisonment. He was due for release from prison on 16 April 2013 (as he had already spent time in custody) and was then detained in an immigration detention centre pursuant to powers conferred by the Act.
- At about that time, the defendant was undertaking investigations into the claimant's links with the United Kingdom and seeking to confirm his identity. It transpired that the claimant may in fact be a national of Guinea, not Liberia as he claims, and his true identity may be Thierno Ibrahima Diallo. On 18 July 2013, a person saying he was the claimant's father attended the British Embassy in, it seems, Guinea, and confirmed that the claimant was a Guinean national and confirmed his true identity. On 10 August 2013, the claimant was interviewed by immigration officers and was informed that the defendant intended to return him to Guinea.
- The claimant applied to the First-tier Tribunal (Immigration and Asylum Chamber) for bail. The defendant opposed the grant of bail. The reasons for opposition contained in a document referred to as a bail summary said that:
"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 of recognisance has been offered. It is therefore disproportionate for the risk of him absconding.
Mr Diallo has no outstanding application 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 to remain 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 of release.
Mr Diallo has used deception in a way that leads us to believe that he may continue to deceive if released. He has used 8 alias names and two dates of birth.
Mr Diallo has demonstrated a breach of United Kingdom Laws in the past having received 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 has received 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 parental responsibility 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 of release. 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."
- The reasons for opposing bail concluded by saying said that "it is considered that there are substantial grounds for believing that the applicant (whether subject to conditions or not), would fail to surrender to custody".
- In the bail summary, the defendant sought the attachment of conditions if bail were granted. These included conditions that the claimant live and sleep at a specified address, report regularly to a specified address, and comply with any restrictions set by electronic tagging. It was said that these restrictions were sought to secure the claimant's attendance at any future interview and to reduce to a minimum any potential delay in notifying the relevant authorities should the claimant breach bail.
- On 29 October 2013, the claimant was granted bail by the First-tier Tribunal and there is a copy of the order included in the claimant's bundle. That provides that the primary conditions of bail were:
"1. The applicant 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 be varied at any time during their currency by application or at the Tribunal's own motion."
- The order provides that the secondary conditions of bail were that:
"1. The applicant shall live and sleep at the address above
2. Bail is granted subject to
i) the applicant 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 the applicant is to be released on condition he complies with the above requirements."
- On 30 October 2013, the claimant reported to the relevant immigration officer in accordance with the conditions of bail. The bail conditions imposed by the First-tier Tribunal would then cease on surrender, unless the immigration officer decided to continue the grant of bail on those (or different) conditions: see the decision of the Court of Appeal in R (AR (Pakistan)) v Secretary of State for the Home Department  1 W.L.R. 255 at para. 27.
- In the present case, the defendant decided not to detain the claimant, and did not seek to continue the grant of bail but instead purported to impose restrictions pursuant to paragraph 2 of Schedule 3 to the Act. A notice in the following terms was served on the claimant on 30 October 2013:
"NOTICE OF RESTRICTION
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.
The Secretary 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 must report 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 then report 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
[a street name]
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 the Secretary 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 without reasonable 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 electronic monitoring company was not able to place the electronic tag on the claimant until 3 February 2014. From that date onwards, the claimant was subject to a curfew. On or about 8 March 2014, another document entitled notice of restriction was served in similar terms to the earlier one. That, too, required the claimant to be present at a specified address between 23.00 and 07.00 each day. The full terms of the document are set out in paragraph 12 of the previous judgment in this case.
- The reasoning behind the approach taken by the defendant in such cases is explained in the witness statement of Kenneth Welsh dated 15 September 2015, made on behalf of the defendant in the Gedi case and exhibited to the witness statement of Jonathan Devereux in the present case. In essence, he explained that, prior to the legal challenge in Gedi, the defendant considered that the imposition of a curfew was a condition of residence which was directly associated with, and intrinsically linked to, the requirement that the applicant for bail comply with arrangements for electronic tagging (which could be required by section 36 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 ("the 2004 Act")). Consequently, at that stage, the defendant when seeking the imposition of conditions if bail were granted sought a condition requiring compliance with arrangements for electronic tagging but did not routinely request the imposition of a curfew.
The Impact of the Curfew on the Claimant and the Requests to Vary
- The curfew was in place between 3 February 2014 and 14 July 2016, that is a total of 891 days. The curfew required the claimant to be at the place that he was required to reside between 23.00 and 07.00 hours each night. On 31 days in June and July 2014, the curfew was varied so that, on 20 occasions, the curfew ran from 01.00 to 07.00 and on 11 occasions from 03.00 to 07.00 to enable the claimant to attend prayers in connection with Ramadan without being in breach of the restriction that had been imposed.
- The claimant was absent from the specified premises for the entirety of the curfew period for 37 of the 891 days. Approximately 29 days of absence were the result of the fact that he attended family court proceedings in Coventry in connection with care proceedings for his daughter and step-daughter. On 108 occasions, the claimant was absent for part of the time when the curfew was in place. In 51 of these cases, these absences lasted less than 1 hour, usually only a few minutes. They occurred in part because the claimant was late back to the premises after taking part in prayers for Ramadan in 2015 and 2016 and in part because of the time taken in returning from Coventry. The defendant contends that there were 40, not 37 days of full absence, and 111 not 108 partial absence. The claimant gave evidence on these matters and was not cross-examined and I accept his evidence on the figures. In any event, the absences are largely agreed and the differences involve such a small number of days that it would not affect the amount of damages in this case.
- On 11 June 2014, the claimant wrote to the Home Office asking if they would vary his tag time to enable him to attend prayers for Ramadan and that was agreed to. In June 2015, solicitors for the claimant wrote to the Home Office on a number of occasions asking for a change in curfew times for 30 days to enable the claimant to attend prayers during Ramadan. On 6 July 2015, the Home Office declined to grant the variation as the claimant had failed to comply with the curfew. In relation to the absences to attend the family court proceedings in Coventry, solicitors for the claimant notified the Home Office that the claimant had to be absent in order to attend court proceedings on each occasion. The Home Office did not agree to lift the curfew on any of those occasions, and, on occasions, appears not to have replied to the request.
- The claimant gave oral evidence about the effect on him of the curfew. He explained that he did not want to return to detention or be fined. He was worried when he had come back late to his home or when he was absent during the curfew about what the Home Office would do and it played on his mind for weeks. He said in his witness statement that he could not work or study as a result of the deportation decision and he was already severely restricted in what he could do. He says that as a result of the curfew he suffered deeper depression. The implication is that he was already depressed as a result of his immigration position before the imposition of the curfew although the curfew added to that depression. In oral evidence, the claimant referred once to being depressed and taking medication. The claimant did not adduce any medical evidence before or during the hearing. After the hearing, he adduced evidence indicating that he had suffered depression, and possibly other mental health conditions but at dates before, or after, the period in issue in this claim. I am satisfied, having considered all the written and oral evidence that, on the balance of probabilities, the curfew added, but only to a very limited degree, to the depression he was already suffering as a result of his immigration position. He said he took steps to ensure that he did comply with the curfew but felt he should attend his mosque for religious observance and attend the family court proceedings but was worried that he would be detained or fined. He did not attend certain community gatherings or parties because he was worried that he would be late back. I accept that evidence. I find as a fact that the claimant did, broadly, seek to comply with the curfew. He did curtail his social activities (attendance at community gatherings and parties in particular) to a limited extent.
- In his second witness statement, the claimant suggested that social services had used the fact that he was subject to a curfew as a means of preventing the claimant having contact with his children and it is implied that they might have resisted attempts to let him have contact. In fact, that matter was explored in cross-examination and I am satisfied that that was not the case. The plan was, as appears in fact from the family court order of 11 February 2014, for an assessment to be carried out on the claimant's sister, who lived in Italy, to see if she could look after the children. The assessment was carried out and his sister was assessed as suitable but for other reasons, which it is not necessary to elaborate upon in this judgment, but which were unconnected with the fact that the claimant was subject to a curfew, that proved not to be possible. Similarly, as the claimant fairly accepted, when dealing with contact between him and the children, the question of how he would manage whilst on curfew was raised in the proceedings but by the end of the hearing the curfew was forgotten and, as the claimant said, there was a bigger picture and other matters took over. I do not accept, therefore, that the fact that the claimant was subject to a curfew had any material influence on the question of the placement of, or contact with, the children.
- On 1 April 2014, the claimant's solicitors requested that the Home Office remove his tag as they contended that he had proven that he could comply with reporting restrictions and was unlikely to abscond. That request was declined as the Home Office official considered that the claimant did not meet the criteria for removal of the electronic monitoring equipment.
- On 20 February 2015 the claimant's solicitors wrote to the Home Office stating that the claimant was taking steps to find employment (as he had been granted permission to work in the United Kingdom) and asked if they would review his method of reporting and consider removing the electronic tag. On 22 September 2015 the claimant's solicitors wrote to the Home Office saying that the claimant "had now had the electronic tag for about 2 years and therefore he would like to review his method of reporting". There are no letters in response in the evidence before the court. The documents disclosed by the defendant include the case record. The request of 20 February 2015 is recorded but no response is recorded. There is a note in the case record dated 26 October 2015 stating that there had been a request for the tag to be removed but that the request had been refused as the claimant had breached his curfew requirement 52 times and failed to report as required 6 times since January 2015. The record states that a letter had been sent to the representatives (which I take to mean the claimant's legal representatives who made the request on 22 September 2015) by recorded delivery.
The Gedi Litigation
- In about June or July 2015, a Somalian national, Mr Gedi, challenged the lawfulness of a curfew imposed on him by way of a restriction issued pursuant to paragraph 2(5) of Schedule 3 to the Act.
- On 24 July 2015, Mr Devereux, an assistant director of criminal case work in the immigration enforcement directorate of the Home Office, issued an instruction to case workers dealing with cases where a foreign national offender applied to the Home Office or the First-tier Tribunal for bail and a case worker requested the imposition of an electronic monitoring condition if bail were granted. The instruction was to the effect that the case worker should also request a condition requiring the bailed person to be present at a specified address for certain hours each day if the foreign national offender had committed one of a list of specified offences or in other appropriate cases. The instruction also noted that case workers should specify the periods that a foreign national offender was required to be present at the residential address. Case workers were told that, when requesting such a condition, they should use the table in the instruction. That provided for a 10 hour curfew if the offender had committed one of 8 of the most serious criminal offences, or a curfew of 2 periods of 2 hours each (e.g. 14.00 to 16.00 and 22.00 to 00.00) if the offender had committed one of the offences set out in a list of other serious offences. That instruction only applied when a foreign national offender applied for bail. It did not apply to those, such as the claimant, who had already been released from detention.
- Permission was granted to Mr Gedi to bring his claim in August 2015. On 9 October 2015, Edis J. handed down judgment in R (Gedi) v Secretary of State for the Home Department  EWHC 2786 (Admin). He held that a curfew, that is a requirement that a person be at an identified location for specified hours each day, could be imposed either as a condition of the grant of bail under paragraph 22 of Schedule 2 to the Act or as a restriction on residence within the meaning of paragraph 2(5) of Schedule 3 to the Act. It was not a condition authorised by section 36 of the 2004 Act as that provided for a requirement to co-operate with electronic monitoring (that is to facilitate the functioning of equipment) which was intended to show whether the individual was at a particular address. The section did not permit the defendant to require that the individual be at that address during specified hours.
- According to Mr Devereux, he and others dealing with the matter in the Home Office thought, wrongly, that the decision applied only to those who were still on bail on conditions fixed by the First-tier Tribunal. It was not appreciated that the High Court ruling applied to those who had been granted bail by the First-tier Tribunal and had then surrendered to the immigration officer (in accordance with the bail conditions and thereby bringing the First-tier Tribunal bail to an end) and who were subject to curfews purportedly imposed pursuant to paragraph 2(5) of the Act. On 2 December 2015, an instruction was sent out that persons who were on bail granted by the First-tier Tribunal have their case reviewed. The instruction was amended in a minor regard later that month.
- On 17 May 2016, the Court of Appeal held that the power to impose a restriction as to residence under paragraph 2(5) of Schedule 3 to the Act did not authorise the imposition of a curfew. As the curfew in that case has been imposed pursuant to the exercise of that power (and not as a condition of the grant of bail under paragraph 22 of Schedule 2 to the Act) the curfew was unlawfully imposed.
- Mr Devereux confirms that he and others considered, again wrongly, that the decision of the Court of Appeal was limited to those who were currently on bail granted by the First-tier Tribunal. He did not consider at that time that there was a need to review those, like the claimant, who had been released by the defendant on restrictions imposed pursuant to paragraph 2(5) of Schedule 3 to the Act.
The Lifting of the Curfew
- On 27 May 2016, the claimant's solicitors sent a pre-action protocol letter challenging the lawfulness of the curfew and referring to the decision of the Court of Appeal in Gedi. On 16 June 2016, a case worker at the Home Office replied stating that the curfew had been imposed as a condition of bail by an immigration judge. That is, as is now accepted by the defendant, wrong. The curfew requirement was not imposed as a condition of bail nor was it imposed by an immigration judge. It was imposed by a case worker at the Home Office by way of a notice of a restriction imposed under paragraph 2(5) of Schedule 3 to the Act. As is now accepted by the defendant, that restriction was unlawful as that paragraph did not authorise the imposition of such a restriction. No explanation for this error in claiming that the curfew had been imposed as a condition of bail has been provided.
- A claim for judicial review was issued on 27 June 2016 and permission was granted on 5 July 2016. The defendant then sought to deal with the position by sending a letter and document dated 13 July 2016. The letter stated that the document clarified the conditions of curfew. The document stated that:
"You are liable to be detained under paragraph 2 of Schedule 3 to the Immigration Act 1971.
The Secretary 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 must report in person every Monday to the Immigration Officer in charge of the Home Office Reporting Centre at:
Middlesbrough Reporting Centre
[a street name]
You must live at:
[a street name]
Tyne and Wear
Under section 36 of the Immigration and Asylum (Treatment of Claimants etc) Act 2004 the Secretary 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 the Secretary 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."
- On 14 July 2016, Collins J. granted an order that the curfew imposed on the claimant be lifted until final determination of the claim or further order. It is now accepted by the defendant that there was no statutory power simply to attach a curfew condition to a notice of restriction and referring to paragraph 22 of schedule 2 to the Act. Such a condition would have to be imposed (if it could be imposed lawfully at all) by way of the attachment of a condition to a grant of bail. The claimant had not been granted bail at that stage. The defendant accepts that at paragraph 4.5 of her amended ground of defence where she says that as "she did not grant bail to the claimant on 13 July 2016, she accepts that she had no power to impose a curfew on him".
The Course of This Litigation
- As indicated, the claim for judicial review was issued on 27 June 2016. The hearing before Collins J. took place on 14 July 2016. A directions hearing was held on 24 January 2017 and it was ordered that two matters be determined. A hearing took place on 14 February 2017 and I handed down judgment on 24 February 2017. In the event one of those two issues, namely whether the court should grant a declaration that the claimant was detained between certain periods, could not be determined as the parties were not in a position to identify the relevant facts. The second issue, namely whether the restrictions resulting from the imposition of a curfew amounted to imprisonment for the purpose of false imprisonment was determined. I commented that the procedure adopted was not satisfactory and that it would have been preferable if there had been a trial when all the relevant facts could be established and all the relevant issues of law determined: see paragraphs 5 and 55 of the earlier judgment in Jollah  EWHC 330 (Admin).
- On 17 March 2017, amended grounds of claim, settled by leading and junior counsel instructed on behalf of the claimant, were filed. The amended grounds set out the facts, including the fact that the claimant was detained under immigration powers pending deportation but was released on bail on 29 October 2013. The claimant withdrew the claim for damages for misfeasance in a public office and withdrew the claim for exemplary damages for false imprisonment. The claimant continued to claim damages, including aggravated damages, for false imprisonment. On 18 May 2017, the claimant made his second witness statement in these proceedings.
- Amended grounds of defence, settled by leading and junior counsel on behalf of the defendant, were filed on 25 April 2017. That document set out the facts in detail. It recorded the fact that the claimant had been detained in an immigration detention centre on 16 April 2013 and was released from detention and granted bail on 29 October 2013. Ms Heeley made a witness statement dated 19 May 2017 setting out the facts and stating that the claimant had been placed in immigration detention between 16 April 2013 until his release on bail on 29 October 2013.
- On 14 June 2017, a hearing of the claim was scheduled. The claimant attended but counsel had not been instructed and solicitors, although it seems still on the record, did not attend. The claimant represented himself and explained that he did not wish to settle the claim but wished to pursue it. The case was adjourned to enable the claimant to have time to seek other counsel, willing to act pro bono, or to prepare the case himself. The hearing was listed for a date in August 2017 but that was adjourned for reasons connected with another case listed to be heard at the same time as this case, and with the agreement of the claimant.
- A three day hearing of this case, together with that other case, was listed for 11, 12 and 13 October 2017. The claimant was represented by counsel acting pro bono and the court is grateful for the assistance that they, and counsel for the defendant, were able to provide.
The New Evidence
- On the afternoon of the third day of the hearing, as the claimant's counsel was about to begin his reply, he informed the court that the claimant had told him that the claimant had brought proceedings for false imprisonment in relation to the period of detention between 16 April 2013 and 29 October 2013 and ending with the grant of bail by the First-tier Tribunal. I was further informed that the defendant had conceded that the detention was unlawful. Those facts had not been mentioned by the claimant, or by the defendant, in any of the pleadings, or in any of the witness statements filed in evidence at that stage. The claimant had not mentioned those facts when he gave oral evidence. Counsel for the claimant and the defendant had not mentioned those facts in their written or oral submissions. I accept that counsel for the claimant were simply unaware of those facts until the claimant mentioned them to his counsel on the third day of the hearing. Counsel for the defendants also told me that counsel for the defendants were unaware of these facts. The facts were potentially highly relevant to the question, amongst others, of whether the claimant would have been placed on a curfew. The case was adjourned to enable the claimant and the defendant's officials and advisers to explain by witness statement precisely what they knew and when and why they had not informed the court of these facts, and for the parties to make submissions on the effect of the new information on these proceedings. Both parties subsequently sought an extension of time for filing their witness statements.
- From the evidence provided, it is clear that the claimant instructed solicitors (not those instructed in the judicial review claim) and they sent a letter on 30 March 2016 referring to a proposed claim for damages for false imprisonment arising out of the detention between 16 April 2013 and 29 October 2013. It was said that the claimant could not be deported because he had been granted refugee status and that status had not been revoked, and also that there was no realistic prospect in any event of his being removed within a reasonable period. The claimant's solicitors in the judicial review wrote to the defendant's legal advisers on 3 January 2017, referring to the claim arising out of the detention, noting that the defendant had not mentioned the problem surrounding deportation in their summary grounds, and indicating that it could be relevant to the determination of damages in this claim. The defendant's solicitors (acting in the detention claim) admitted by letter dated 29 March 2017 that the detention was unlawful. Particulars of claim were received by the defendant on 11 May 2017 and a defence filed on 30 June 2017. The claimant also disclosed the existence of the claim for damages arising out the unlawful detention during the course of a hearing before the First-tier Tribunal on 14 March 2017 (and that fact is referred to in the decision of the Tribunal promulgated on 24 March 2017).
- The claimant therefore knew that he was claiming that the detention between 16 April 2013 and 29 October 2013 was unlawful, and that that might be relevant to the damages claim. The claimant knew that when he filed amended grounds of claim on 17 March 217, made a witness statement on 18 May 2017, represented himself in court on 14 June 2017 and when he gave evidence during the hearing on 11 October 2017. He did not mention those facts until the third day of the hearing on 13 October 2017.
- In his third witness statement, the claimant says that on 21 February 2017 he had told his lawyers acting in his judicial review claim that he was bringing a claim for unlawful detention and was using other solicitors in that claim. He has exhibited a partial record of that conversation made by the solicitor in which it is recorded that:
"Client advised that he is in the process of a private law claim for detention whilst still a refugee. 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 claimant says that he believed that the county court claim relating to detention was not relevant to the judicial review proceedings about the curfew. He says it was only on the evening of 12 October 2017, when he was reflecting on what had been said during the second day of the hearing, that he realised that the court should be told about the position in relation to detention and he told his barristers about it for the first time on the third day of the hearing. They, quite properly, informed the court of those facts. I find it surprising that the claimant did not refer to these facts in his amended grounds of claim, his witness statement of 18 May 2017 or in his oral evidence to this court.
- The Home Office official dealing with the private law claim for damages arising from the detention knew about the judicial review claim. She sought advice from both the solicitor dealing with the judicial review claim and the solicitor dealing with the private law claim. The higher executive officer who approved the summary grounds of defence (which did not refer to the claim for damages alleging that the detention was unlawful) also knew of the private law claim at the time that she approved the summary grounds of defence in the judicial review claim. In her witness statement she says that she "thought that the private law claim was entirely separate from the judicial review claim".
- The solicitor with conduct of the judicial review claim for the defendant was told about the private law claim in December 2016. He received the letter of 3 January 2017 linking the problems over deportation with the claim for damages and he received a request under CPR Part 18 for further information about the basis upon which the curfew condition was imposed as the claimant could not be subject to deportation when he had refugee status. When the amended grounds were received, on what was that lawyer's last day in that department, he says that he assumed that there was no problem over the deportation. There is no evidence about what information, if any, he gave to the lawyer who took over the conduct of the litigation in March 2017. That lawyer says he "was not consciously aware of the existence of the Claimant's private claim before 13 October 2017" and when it was mentioned in court on that day it came as a surprise. He does not think he would or should have known of it earlier. It is difficult to assess that claim. I do not know what the lawyer read, and, in particular, I do not know whether he had read the letter of 3 January 2017 from the claimant's solicitor (he did, intermittently have conduct of the case in January and February 2017 when the other lawyer was absent). I do not know what was in the handover notes.
- Counsel for the defendant, in detailed written submissions, reminds me that the defendant has not waived privilege in relation to documents relating to this matter. Counsel submits that I should not draw any adverse inferences because of what is submitted to be "an unfortunate but understandable lack of recognition" of the link between the claim for damages for false imprisonment arising out of the detention and the claim for damages arising out of the curfew imposed on release. I do not draw any adverse inferences from the failure by the defendant (or the claimant for that matter) to mention the fact that there was an issue about the lawfulness of the deportation order or the lawfulness of the detention, or the fact that the defendant had conceded that the detention was unlawful in other legal proceedings. I simply note that it is surprising, to say the least, that no one in the Home Office, or the Government Legal Department, saw the need to mention the problems that had been raised about the deportation order, or the lawfulness of the detention, or the decision to concede that the detention was unlawful (whether or not they fully appreciated the potential relevance of those facts to the judicial review claim). It is surprising that the detailed grounds of defence and at least one of the witness statements sets out a large amount of detail about the facts of this case (including the making of the deportation order and the fact of the detention) but do not refer to these matters.
- Nonetheless, the responsibility of this court is to determine the claim for false imprisonment. It must do that by identifying the relevant principles of law, and applying them to the evidence that is before the court.
THE LEGAL FRAMEWORK
The Statutory Provisions
- Section 3(5) of the Act provides, so far as material that:
"A person who is not a British citizen is liable to deportation from the United Kingdom if –
(a) the Secretary of State deems his deportation to be conducive to the public good…."
- Section 5(1) of the Act then provides a power to make a deportation order and section 5(5) applies schedule 3 to the Act to the detention or control of persons in connection with deportation. Paragraphs 2(2) and (3) of Schedule 3 to the Act provides power to detain a person who has been notified of a decision to make a deportation order or where a deportation order is in force. Paragraph 2(4A) of Schedule 3 to the Act (which was inserted by section 54 of the Immigration and Asylum Act 1999) provides that:
"(4A) Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation 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."
- Paragraph 22(1) to (2) of Schedule 2 to the Act provides as follows:
"(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 be released on bail in accordance with this paragraph.
"(1A) An immigration officer not below the rank 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 a recognizance 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."
- As indicated, schedule 3 to the Act provided power for the defendant to "impose restrictions on residence" but that does not extend to the imposition of a curfew. That may only be imposed as a condition of bail: see in particular, paragraph 38 of the judgment of the Court of Appeal in R (Gedi) v Secretary of State for the Home Department  4 W.L.R. 93.
- So far as can be discerned from the papers in these proceedings, the decision to make a deportation order, and the deportation order initially made in respect of the claimant, were made pursuant to section 5 of the Act.
- For completeness, I note that section 32 of the UK Borders Act 2007 ("the 2007 Act") provides for deportation of foreign nationals who are convicted of an offence for which they are sentenced to 12 months' imprisonment, subject to certain exceptions. Section 36 of the 2007 Act provides for the foreign national offender to be detained pending consideration of whether an exception to deportation applies, or when a deportation order is made. Provisions applicable to a person who is subject to a deportation order, including the provisions of paragraph 22 of Schedule 2 to the Act applied: see section 36(4) of the 2007 Act and paragraph 2(3) of Schedule 3 to the Act. It transpired in evidence provided after the hearing that the claimant's refugee status has, it seems, been revoked and a decision has been taken to deport the claimant in accordance with the 2007 Act because of the offence of child cruelty committed in 2012. That decision was taken it seems in September 2016 and after the time that is material to this claim.
- At common law, false imprisonment is a tort, that is, it is a civil wrong giving rise to a claim for damages. The tort "has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it" (per Lord Bridge of Harwich in R v Deputy Governor of Parkhurst Prison ex p. Hague  AC 58 at 162CD and see R (Lumba) v Secretary of State for the Home Department  AC 245 at paragraph 65.
- Edis J. has already determined that the imposition of a restriction comprising a requirement that a person be present at a specified address for certain hours each day, where failure to comply without reasonable excuse amounted to a criminal offence, constituted the element of imprisonment for the purpose of the tort of false imprisonment: see R (Gedi) v Secretary of State for the Home Department  EWHC 2768 (Admin). There was no appeal against this finding and the Court of Appeal in Gedi did not go beyond the findings of Edis J. although it noted that it would not want it to be thought that the decision of the Court of Appeal was authority for the proposition the maintenance of a curfew constituted detention for the purposes of false imprisonment.
- In my earlier judgment in this case, I held that it would not be appropriate for me as a High Court judge to depart from the ruling of Edis J. as it could not be said that that ruling was wrong nor was any powerful reason advanced as to why this court should depart from that earlier ruling. I reached that conclusion for, essentially, two reasons. First, as a matter of principle, the ruling that the imposition of a requirement that a person be present at a particular place for a specified number of hours per day, that requirement being backed up by criminal sanctions and reinforced by electronic monitoring and reminders of the relevant provisions of the criminal law and the need to comply, amounted to detention for the purposes of false imprisonment was understandable and not obviously wrong. Secondly, the characterisation by the defendant of the requirement as an instruction backed by warning of possible prosecution was not apt to describe the situation in the present case. For those reasons, and subject to any decision of the Court of Appeal, I proceed on the basis that the restriction imposed on the claimant requiring him to be present at a specified address for eight hours a day, that restriction being reinforced by criminal sanctions and electronic monitoring does amount to detention for the purposes of the tort of false imprisonment: see paragraphs 47 to 48 and 51 of the judgment in R (Jollah) v Secretary of State for the Home Department  EWHC 330 (Admin).
- For completeness, I note two typographical errors in paragraph 48 of that earlier judgment in this case. In line 6 it is "failure" to comply without reasonable excuse which is a criminal offence. The word "failure" is omitted from the text. The words "did not amount to imprisonment" are also missing from the end of the fifth sentence in that paragraph.
- In the present case, therefore, the two ingredients of the tort have been established: imprisonment and the absence of lawful authority. The question then is what compensation is payable to the claimant. The claimant contends that he should be awarded £30,000 by way of compensatory damages and £5,000 by way of aggravated damages. The defendant initially contended that the claimant would have been subjected to the curfew in any event and had not suffered any loss and so should be awarded nominal damages only. Alternatively, she contends that the sum claimed by way of compensatory damages is too high given the facts of this case and that no award of aggravated damages should be made.
- Against that background, and having regard to the pleadings, the written arguments and oral submissions of counsel for both parties, the issues that initially arose for decision in this case could be characterised as follows:
(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
- Mr O'Dempsey, with Mr Pourghazi, for the claimant submit that the proper approach is that set out in Parker v Chief Constable of Essex Police  EWHC 2140 (QB) and R (Lumba) v Secretary of State for the Home Department  2 A.C. 245. Applying those authorities, the claimant submits that the question is what would have happened if the tort (here the curfew imposed pursuant to an unlawfully invoked power) had not happened. Mr O'Dempsey submitted that it was for the defendant to show that it was inevitable that the tort would not have taken place and that the claimant would, lawfully, have been subjected to a curfew.
- In my judgment, the position is as follows. First, as Vos L.J., as he then was, observed at paragraph 20 of his judgment in Bostridge v Oxleas NHS Trust  EWCA Civ 79:
"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 the route by which this same result might have been achieved is unlikely to be significant."
- Secondly, the question is whether the defendant can demonstrate that the claimant would have been subjected to the detention (here the unlawful curfew) not merely whether the claimant could have been subjected to such a curfew. The burden is on the defendant to show that the claimant would have been detained (here subjected to the curfew). That involves, in essence, two questions. The defendant must establish that there is a power which, used lawfully, permitted the detention (here, the imposition of the curfew). The defendant must show that the power would, not could, have been used and that the claimant would have been detained (here, subjected to the curfew).
- It is not necessary for the defendant to show that it is inevitable that the claimant would have been subjected to the detention. It is sufficient if, on a balance of probabilities, the defendant can show that the claimant would have been detained, that is, that it is more likely than not that the claimant would have been detained. I reach that conclusion for the following reasons. The issue here is a question of the assessment of damages in civil law. The burden of proof on such questions is the usual one in civil cases, namely, the balance of probabilities, that is, is it more likely than not that the relevant event had occurred (or would have occurred). It is correct that Lord Dyson JSC said at paragraph 169 of his judgment in Lumba that if the defendant had acted lawfully and applied the relevant published policy "it is inevitable that the appellants would have been detained" so that they had suffered no loss and should only be awarded nominal damages. That language, however, reflects the fact that detention in that case was inevitable and, therefore, the defendant had shown on a balance of probabilities that the appellants in those cases would have been detained. The language was not intended to substitute a different, and higher test, than "would on a balance of probabilities have been detained".
- Thirdly, as Vos L.J. observed at paragraph 23 of his judgment in Bostridge:
"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
- Initially the defendant sought to resist the payment of substantial damages and said that nominal damages only should be awarded. That was the stance maintained by the defendant up to and throughout the three days of the hearing in October 2017. The defendant contended that if she had realised that she could not impose a curfew requirement on the claimant under paragraph 2(5) of Schedule 3 to the Act, then she would have requested the First-tier Tribunal to impose a curfew as a condition of bail, if they were minded to release the claimant from detention, and, on the balance of probabilities, the First-tier Tribunal would have done so.
- In the event, written submissions made on behalf of the defendant dated 31 October 2017, recognise that a more fundamental legal problem has arisen. The defendant has admitted in the county court proceedings that the detention of the claimant between 16 April 2013 and the 29 October 2013 was unlawful. The defendant recognises that it could be argued that, if the detention was unlawful, then there would be no power to impose a curfew as a matter of law as the power to grant bail, and hence to attach conditions to the grant of bail, only arises if there is a lawful detention. That would be consistent the decision of the Court of Appeal in B (Algeria) v Secretary of State for the Home Department (No. 2)  QB 789 (on appeal to the Supreme Court) and R (Lupepe) v Secretary of State for the Home Department  EWHC 2690 (Admin). In other words, the defendant would have failed to establish that a curfew could be imposed as a matter of law.
- Against that background, the defendant applies, in effect to amend her detailed grounds of defence, and to withdraw the argument that nominal damages only should be awarded. In other words, the defendant no longer wishes to argue in this case that the claimant should only be awarded nominal damages on the basis that (1) the claimant could as a matter of law have been subjected to a curfew as a condition of bail and (2) if the defendant had realised that she had no power to impose restrictions under paragraph 2(5) of Schedule 3 to the Act, then she would have requested the First-tier Tribunal to impose a curfew as a condition of bail if they decided to release the claimant and they would have done so. The defendant no longer wishes to argue in this case, therefore, that the claimant could as a matter of law have been subjected to a curfew in October 2013.
- In my judgment, the defendant should be granted permission to re-amend her amended detailed grounds of defence, and should be permitted to abandon her argument that the claimant would only have been granted nominal damages in the present case. Even if there were the possibility that the defendant could show some legal basis for the detention between 16 April 2013 and 29 October 2013 (and the defendant has not sought to do so in this case), the fact of the matter is that there is no evidence before this court as to whether the defendant would have detained him. The defendant has never sought to advance a case, or call evidence, before this court that the claimant would have been detained between April and October 2013 in any event. The defendant does not seek to amend her detailed grounds to argue that and does not seek to adduce further evidence. The inevitability is that the defendant would not, therefore, on the evidence before this court, have been able to discharge the burden of showing that, on a balance of probabilities, the claimant would have been detained and so could have been released on bail on condition that he complied with a curfew. In those circumstances, the position now adopted by the defendant is a sensible, realistic one.
- In those circumstances, it is not necessary, nor appropriate, for this court to seek to address the original argument as to what would have happened if the tort had not been committed, i.e. would the defendant have requested the imposition of a curfew as a condition of bail and would the First-tier Tribunal have granted it? Those issues no longer arise for determination in this case.
THE THIRD ISSUE – THE ASSESSMENT OF COMPENSATORY DAMAGES
- The question then is what amount of damages does the law require be awarded in this case? The principles governing the assessment of such damages are conveniently set out in paragraph 8 of the judgment of Laws L.J. in MK (Algeria) v Secretary of State for the Home Department  EWCA Civ 980 in the following terms:
"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 Thompson v Commissioner of Police  QB 498 at 515A and also the discussion at page 1060 in R v Governor of Brockhill Prison ex parte Evans  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 false imprisonment in the present case consisted of the imposition of a curfew requiring the claimant to spend the hours of 23.00 to 07.00 each day at his residential address. That curfew was in place between 3 February 2014 and 14 July 2016. It is right to note that on 37 days the claimant was not in fact present at that address. On 854 days he was present during those hours at the address (albeit that on a number of occasions he was absent, often for a few minutes only, on certain days).
- In assessing the appropriate level of damages, it is right to bear in mind first that the claimant was required to be present at his own residential address. This was not a case where he was detained in a prison or an immigration detention centre. Secondly, it is right to bear in mind that for large parts of each day – 7 a.m. to 11 p.m. – he was not subject to any restraint and was free to do as he wished. Thirdly, there is no question here of there being an initial shock at the fact of detention of the sort referred to in Thompson v Metropolitan Police Commissioner  QB 498 or in MK (Algeria) v Secretary of State for the Home Department. The context in which this detention occurred was that the claimant had been detained first in prison and then in an immigration detention centre. He was granted bail on 29 October 2013 subject to a requirement that he live at a particular place, and comply with electronic monitoring and report to an immigration officer. He did so and was told that he was required to be present at his residential address for certain times each day once electronic monitoring equipment was installed (which it was, ultimately, on 3 February 2014).
- It is important next to assess the actual effect of the restriction on the claimant. It did not in fact prevent him carrying out his religious observance. In June and July 2014, the curfew was varied to enable him to carry out his religious observances. The curfew was not varied in 2015 or 2016 but, in fact, the claimant did carry out his religious observance (albeit that meant that he did not comply with the curfew that was said to be in force). The curfew did not in fact prevent him attending the family court proceedings (albeit that meant that he did not comply with the curfew that was in force). On the claimant's own evidence, the fact that he was subject to a curfew did not in fact affect the outcome of the family court proceedings.
- On the evidence, the effect of the curfew imposed on the claimant was this. First, it restricted his activities to a degree as there were community gatherings and parties that he would have liked to attend but could not because of the curfew. Secondly, he was worried about the effect of coming back late to his home or being absent during the curfew. He was worried about what the Home Office would do as he did not want to return to detention or be fined and the prospect of this played on his mind for weeks after an absence. Third, the curfew contributed, albeit to a very limited degree, to the depression he was already suffering. The curfew continued for a period of about 2½ years. That is a significant period of time. In all the circumstances, the appropriate amount of compensatory damages that the law requires to be paid is a sum of £4,000.
THE FOURTH ISSUE – THE QUESTION OF AGGRAVATED DAMAGES
- The approach to the question of aggravated damages is set out at page 516B of Thompson v Commissioner of Police Metropolis  QB 498 in the following terms:
"Such damages can be awarded where there are aggravating features about the case which would result 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."
- There are no aggravating features in the present case which render the amount of compensatory damages insufficient. This was not a case, for example, where the claimant was taken from his home in front of family or friends. Rather, this was a case where, on release from detention, he surrendered to bail and was required to be present at his home during night time hours. The defendant erroneously assumed that she had power to impose a restriction but the High Court also erroneously shared the view that she had power to do so under paragraph 2(5) of Schedule 3 to the Act. That error was not corrected until the judgment of the Court of Appeal in Gedi which was handed down on 17 May 2016. True it was that officials in the Home Office misunderstood the significance of that decision and believed, erroneously on the evidence before this court in this case, that the decision did not apply to those already released from detention and subject to restrictions. When they did realise that, they sought, erroneously, to rectify matters by stating that the curfew was imposed pursuant to paragraph 22 of Schedule 2 to the Act, apparently not realising that a curfew could only be imposed as a condition of bail and the claimant was not subject to bail in the present case. It is also true that, when the claimant's solicitors challenged the curfew, an official in the Home Office said, erroneously, that the curfew was imposed as a condition of bail granted by an immigration judge and no explanation of that error has been offered. That situation was brought to an end by the order of Collins J. on 14 July 2016. On all the evidence in this case, those errors do not amount to kind of conduct which it is appropriate to reflect by an award of damages. Furthermore, and significantly, there are no aggravating features present such as would suggest that the amount of compensatory damages payable in this case is insufficient. Rather, the amount of damages fully compensates the claimant for the effect upon him of the unlawful imposition of the curfew. In those circumstances, the claim for aggravated damages fails.
- In the circumstances, the curfew did amount to a detention for the purposes of the tort of false imprisonment. The defendant no longer seeks to argue that the claimant would have been subjected to a curfew and so would not have suffered any injury even if the defendant had not acted unlawfully. In those circumstances, the law requires the payment of compensation for the injury suffered as the result of the imposition of the unlawful curfew. That amounts, in the present case, to £4,000. This is not a case where aggravated damages should be awarded.
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