SS, R (on the application of) v Secretary of State for the Home Department & Anor [2015] EWCA Civ 652 (26 June 2015)

Neutral Citation Number: [2015] EWCA Civ 652 Case No: C4/2014/0512 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT His Honour Judge Anthony Thornton Q. C. [2014] EWHC 50 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL 26 June 2015 B e f o r e : LORD JUSTICE MOORE-BICK (Vice-President of the Court of Appeal, Civil Division) LORD JUSTICE ELIAS and LORD JUSTICE McCOMBE ____________________ Between: THE QUEEN (on the application of SS by his litigation friend the Official Solicitor) Claimant/ Respondent - and - SECRETARY of STATE for the HOME DEPARTMENT Defendant/Appellant NESTOR PRIMECARE SERVICES LTD Intervener ____________________ Miss Julie Anderson (instructed by the Government Legal Department) for the appellant Mr. Richard Drabble Q. C. and Mr. Graham Denholm (instructed by Deighton Pierce Glynn) for the respondent ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Lord Justice Moore-Bick : This appeal arises out of proceedings in the Administrative Court by which the respondent sought to challenge the lawfulness of his detention for immigration purposes and to recover damages for false imprisonment. On 3 rd December 2011 the respondent was detained as an overstayer. He subsequently made a claim for asylum which was initially handled under the Detained Fast Track procedure. By a claim issued in the Administrative Court on 15 th March 2012 he sought to challenge his detention by the appellant on the following grounds: (a) that the appellant had failed to apply the policy set out in Chapter 55.10 of the Enforcement Instructions and Guidance in relation to the detention of the mentally ill; (b) that the use of the Detained Fast Track to consider his asylum claim was unlawful; (c) that in detaining him the appellant was in breach of the Hardial Singh principles; (d) that the appellant had failed to provide him with adequate healthcare; (e) that his detention involved a breach of his rights under Articles 3 and 8 of the European Convention on Human Rights ("the Convention"); (f) that the clinicians responsible for his healthcare failed to conduct any or any adequate medical examination of him under Rule 34 of the Detention Centre Rules 2001 and failed to make a report under Rule 35 of those Rules. A judge of the First-tier Tribunal subsequently removed the respondent's claim from the Detained Fast Track system and on 23 rd March 2012 he was released from detention. However, he continued the proceedings against the appellant seeking declaratory relief and damages for false imprisonment. On 16 th April 2013, the matter came on for hearing before His Honour Judge Anthony Thornton Q. C. sitting as a Deputy Judge of the Administrative Court. As there was insufficient time for the parties to complete their submissions within the single day allocated to the case, they were allowed to file additional evidence and further submissions in writing after the hearing. Judgment was delivered on 28 th January 2014. It ran to over 196 pages and contained 431 paragraphs. The judge made a large number of findings on a wide range of matters that fell outside the pleaded grounds and the parties' submissions. He concluded that the entire period of the respondent's detention had been unlawful and amounted to a breach of his rights under Articles 3 and 8 of the Convention. He granted a declaration to that effect and gave judgment for damages to be assessed. On 18 th February 2014 the appellant filed a notice of appeal seeking to have the judgment set aside. It is unnecessary for present purposes to set out the many grounds of appeal in detail; suffice it to say that on 20 th October 2014 Underhill L. J. granted permission to appeal on all of them. In the spring of 2015, the hearing of the appeal being imminent, the parties entered into discussions about the best way of disposing of the appeal. As a result, on 13 th May 2015 the respondent's solicitors sent the appellant's solicitors an open letter acknowledging that the judge had erred in some important respects and that his decision could not stand. They accepted that the matter would have to be remitted to the High Court for a re-hearing and suggested that in order to save costs the parties should invite the court to approve a consent order setting aside the order below and remitting the matter to the Administrative Court for re-hearing. In the light of the respondent's concessions the appellant is content for the matter to be disposed of without a hearing, if the court considers that appropriate, but has asked the court to clarify the effect of such an order. In the rather unusual circumstances of this case we agree that it would be appropriate to do so. The respondent has asked us to remit the matter to the Queen's Bench Division with a direction that it continue as a Part 7 claim. The respondent accepts that in reaching his decision the judge erred in the following respects: (a) Matters not argued In paragraphs 281-289 of his judgment the judge dealt at length with Code C of the Police and Criminal Evidence Act 1984 and Chapter 38 of the appellant's Enforcement Instructions and Guidance (' Role of the custody officer ') and their effect on the lawfulness of the respondent's detention. His analysis of these provisions materially informed his consideration of the lawfulness of S's detention between 3 rd and 5th December 2011. However, neither the appellant nor the respondent had contended that either of those documents had any bearing on the issues in the case or had sought to rely on them in any way. If the appellant had been aware that the judge might consider them to be relevant, she would have made submissions on them which might have affected the judge's conclusions. The respondent accepts, therefore that in this respect there was significant procedural unfairness affecting the judge's decision. (b) Approach to the challenge based on the appellant's policy The first ground on which the respondent challenged his detention was that the appellant had failed to apply her policy on the detention of the mentally ill. On 9 th May 2012, shortly after the respondent's grounds had been drafted, this court gave judgment in LE (Jamaica) v SSHD [2012] EWCA Civ 597 , in which Richards L. J. indicated that the court should adopt a Wednesbury approach to a challenge of this nature. The respondent relied on that statement of principle and, in the absence of any countervailing guidance of equal authority, the parties accept that the judge should have applied it. They also accept, however, that it is not clear from the judgment what approach the judge actually took to that question. He did not refer to the relevant guidance in LE (Jamaica) and he does not appear to have directed himself in terms similar to those indicated by Richards L. J. The parties therefore accept that one way or another the judge was in error, either in failing to apply the correct test or in failing to explain clearly what test he did apply. (c) Art.3 of the Convention The judge based this part of his decision on what had been said by David Elvin Q. C., sitting as a judge of the High Court, in R(S) v SSHD [2011] EWHC 2120 (Admin) . In paragraph 417 of his judgment he made various findings of fact highly critical of those who were responsible for the respondent's care and treatment, but in doing so he failed to explain why the relevant legal test was satisfied. Moreover, the respondent accepts that none of the findings in paragraph 417 are capable as they stand of justifying the conclusion that there was a breach of the respondent's rights under Art. 3 of the Convention. (d) Breach of the rules of natural justice In the course of his judgment the judge found that certain officials or clinicians whose accounts were relied upon by the appellant had wilfully breached the appellant's published policy or had conducted themselves in a manner which was grossly negligent. He did so without having heard them give evidence and therefore without having given them an opportunity to deal with the allegations against them. The parties accept that in doing so he failed to observe the basic principles of natural justice and that his findings cannot stand. We agree with the parties that in view of these deficiencies in the judgment the judge's decision cannot stand; it will have to be set aside and the matter re-tried. As a result, none of his findings of fact nor any of his conclusions of law will be of any significance, either to the future conduct of this case or indeed to that of any other. At the re-trial the parties will be free to advance whatever arguments of fact or law they think appropriate, subject to the usual constraints of the CPR. We reach this decision with some regret, because a considerable amount of time and money has been spent on these proceedings, but we accept that there is no practical alternative. We then have to consider what form of procedure is most likely to lead to a fair and efficient disposal of the issues. Once the respondent had been released from detention all that survived of these proceedings was a claim for damages for false imprisonment. In our view a case which gives rise to disputed questions of fact (particularly one in which the personal integrity of clinicians and officials is questioned) is not well suited to trial in the Administrative Court, in which disputes usually turns on questions of law and are tried on documents alone. This case and others like it should in our view be transferred to the Queen's Bench Division or the county court, as appropriate, for trial as a Part 7 claim, so that the issues of fact can be properly identified through statements of case and witnesses called in the usual way to deal with them. On this question we endorse the comments of Dingemans J. in paragraphs 30-33 of his judgment in Swaran v Secretary of State for the Home Department [2014] EWHC 1062 (Admin) . Having received submissions in writing from the parties, we are satisfied that the proper course to take in this case is to remit the matter to the Queen's Bench Division and we have given preliminary directions to that effect. However, the parties would do well to explore the possibility of resolving this dispute through mediation before much more time and money is spent pursuing the litigation. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII