PB, R (on the application of) v Secretary of State for the Home Department

Damages for unlawful detention are assessed by reference to comparable awards and the need for proportionality with damages in personal injury cases. Guidelines from wrongful arrest cases provide a starting point, but must not be applied mechanically or by mathematical extrapolation. Longer periods of detention require tapering. Aggravated damages may be awarded where the circumstances of the detention or the conduct of the defence aggravate the injury, but exemplary damages require conduct warranting punishment rather than compensation.

The claimant had previously succeeded in establishing that her detention was unlawful. The court had found that proper application of the detention rules would probably have resulted in her release by 16 December 2006. The parties were unable to agree the compensation due for approximately six months of unlawful detention following a short period of lawful custody.

The claimant sought between £95,000 and £100,000. The Secretary of State offered £18,000. The issue was the appropriate award of basic, aggravated and exemplary damages.

1. Basic damages. The appropriate starting point was Thompson and Hsu v Commissioner of Police of the Metropolis [1997] 2 All ER 72. Its figures for wrongful arrest and imprisonment were guidelines for identifying an appropriate bracket, not a tariff. They had to be applied flexibly and without a mechanistic formula.
2. R v Governor of Brockhill Prison ex parte Evans (No.2) [1998] 1 WLR 103 (CA), although affirmed by the House of Lords, provided less assistance because it concerned unlawful custody following a lawful custodial sentence. The circumstances here were more appropriately assimilated to wrongful arrest and detention, as explained in R(E) v Secretary of State for the Home Department [2006] EWHC 2500.
3. The assessment required a figure consistent with comparable awards, adjusted for inflation and the different circumstances, and proportionate to awards for non-pecuniary loss in personal injury litigation. The longer period of detention did not justify simple pro-rating because awards must taper over time. The appropriate basic award was £32,000.
4. Two aggravating features justified an uplift. The defendant failed to apply rules and policies designed to protect possible torture victims, creating a real risk of additional mistreatment. The defendant also maintained an unjustified defence which, through a lack of reasonable diligence, prolonged the unlawful detention. These features were not deliberate or in bad faith. A reasonable aggregate uplift was £6,000.
5. Exemplary damages were refused. The claimant was adequately compensated by the basic and aggravated awards, and the defendant’s conduct was not deliberate or oppressive so as to require punishment. The total award was therefore £38,000.

The judgment itself determined the outstanding assessment of compensation following the court’s earlier judgment in the same claim, reported at [2008] EWHC 364 (Admin). No appellate history is stated.