Administrative law – Torts – Deportation – Detention

Abdillaahi Muuse (respondent) v Secretary of State for the Home Department (appellant): CA (Civ Div) (Sir Andrew Morritt (chancellor), Lord Justice Thomas, Sir Scott Baker): 27 April 2010

The appellant secretary of state appealed against a decision ([2009] EWHC 1886 (QB)) that the unlawful detention of the respondent (M), while awaiting deportation, had arisen from a misfeasance in public office and against an award of exemplary damages.

M, who originated from Somalia, had been granted asylum in the Netherlands and had acquired a Dutch passport. He came to the UK with his wife and family and settled. M was subsequently made the subject of a restraining order and was later charged with common assault and two breaches of the order. He was released on bail on the condition he surrendered his passport. Following his trial he was sentenced to a term of imprisonment but due to the time previously spent in custody his immediate release was ordered. However, he was detained pending consideration of deportation on the mistaken basis he was a Somalian national. During his detention M repeatedly insisted that he was Dutch and that his Dutch ID card and passport were held by prison officials or by police; however, he was held in detention for approximately four months. M issued proceedings for damages and the secretary of state conceded that M had been unlawfully detained. The secretary of state contended that: (1) the judge had been wrong to find misfeasance in public office as the judge had failed to find that officials acting on his behalf were recklessly indifferent to the legality of their actions; (2) an award of exemplary damages should not have been made as an award in respect of the oppressive, arbitrary or unconstitutional conduct of government officials should only be made where the conduct was outrageous and disclosed malice; (3) in any event, the award of exemplary damages was too high.

Held: (1) The judge had not expressly found that the officials ­acting on behalf of the secretary of state were recklessly indifferent to the legality of their actions. He had ­considered the officials’ state of mind as regards the consequences to M but not their state of mind in respect of legality. The judge concluded that there had been a wholesale disregard of the precautions that ought to have been taken to ­protect M’s interests, but at no point did the judge address the question of knowledge or reckless indifference to legality. There was evidence on which the judge could have reached a conclusion that the officials had acted with reckless indifference. However, as the judge made no express finding, such a finding could not be made by implication as it was not a finding that could be inferred as inevitable from the primary findings made by the judge.

(2) The requirement of oppressive, arbitrary or unconstitutional conduct did not need to be qualified by further looking for malice, fraud, insolence, cruelty or similar specific conduct, Rookes v Barnard (No2) [1966] 1 QB 176 QBD, AB v South West Water Services Ltd [1993] QB 507 CA (Civ Div) and Kuddus v Chief Constable of Leicestershire [2001] UKHL 29, [2002] 2 AC 122 applied. The unlawful imprisonment of M was not merely unconstitutional but was an arbitrary exercise of executive power which was outrageous. It called for an award of exemplary damages by way of punishment, to deter and to vindicate the strength of the law. There had been no parliamentary or other enquiry into M’s case and no minister or senior official had been held accountable. The only way the misconduct had been exposed was by the court action.

(3) The judge had carefully approached the question of quantum and the award was correct, Thompson v Commissioner of Police for the Metropolis [1998] QB 498 CA (Civ Div) considered.

Appeal allowed in part.

Tom Poole (instructed by Treasury Solicitor) for the appellant; Stephen Knafler QC, Abdurahman Jafar (instructed by Pickup & Scott) for the respondent.