Muuse v Secretary of State for the Home Department

Misfeasance in public office based on untargeted abuse requires subjective knowledge of, or reckless indifference to, both the illegality of the act and the probability of injury. Gross negligence or incompetence cannot substitute for the required state of mind.

Exemplary damages may nevertheless be awarded for tortious government conduct amounting to an outrageous and arbitrary misuse of executive power. Malice, fraud, insolence or cruelty is not an additional requirement. The award must be needed to punish, deter and vindicate the law after compensatory and aggravated damages have been considered.

A Dutch national was detained for over four months after completing his criminal sentence, although the Home Office and Prison Service held documents showing his nationality and he was not liable to deportation to Somalia. Officials failed to follow detention safeguards, ignored his protests, procured a deportation order on erroneous information and delayed his release after his nationality was confirmed.

The Deputy High Court judge held that the detention amounted to false imprisonment and misfeasance in public office. He awarded £25,000 compensatory damages, £7,500 aggravated damages and £27,500 exemplary damages: [2009] EWHC 1886 (QB). The Home Secretary appealed against the finding of misfeasance and the award of exemplary damages, but not against liability for unlawful detention or the compensatory and aggravated awards.

1. Appeal allowed in part. Thomas LJ held that the finding of misfeasance in public office could not stand. Sir Scott Baker and the Chancellor agreed with his conclusions and reasons.

2. The untargeted form of misfeasance required proof that the responsible public officers acted with knowledge of, or subjective reckless indifference to, both the illegality of their conduct and the probability of injury. The trial judge expressly found reckless indifference to the consequences for the detainee, but made no express finding about the officials’ state of mind concerning legality. Such a finding was not inevitable. Manifest incompetence or gross negligence remained a possible explanation for their conduct and could not satisfy the tort’s bad-faith requirement.

3. The exemplary damages award did not depend upon proof of misfeasance. Exemplary damages may be awarded where tortious conduct by government servants constitutes a gross misuse of power that is outrageous, oppressive or arbitrary. There was no additional requirement to identify malice, fraud, insolence, cruelty or similar specific conduct.

4. The threshold was met. Officials disobeyed the order for release, ignored conclusive nationality documents in their possession, failed to investigate whether detention was necessary, omitted prescribed notices and reasons, curtailed appeal rights, pursued deportation on false information and continued detention after its lack of justification was known. The absence of competent supervision also enabled a Minister to make an unlawful deportation order on a wholly deficient submission.

5. The award was necessary to punish the outrageous exercise of arbitrary executive power, deter recurrence and vindicate the strength of the law. The judge had applied the proper guidance, avoided duplication with aggravated damages and exercised restraint. An award of £27,500 was below the inflation-adjusted midpoint of the relevant range and was not excessive.

6. Accordingly, the appeal against the misfeasance finding was allowed. The appeals against the making and amount of the exemplary damages award were dismissed.

1. Court of Appeal (Civil Division): By [2010] EWCA Civ 453, unanimously allowed the appeal against the finding of misfeasance in public office but dismissed the appeal against the award of £27,500 exemplary damages.
2. High Court, Queen’s Bench Division: A Deputy Judge held that the admitted unlawful detention also amounted to misfeasance in public office and awarded compensatory, aggravated and exemplary damages: [2009] EWHC 1886 (QB).