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

Administrative detention is a striking exception to the ordinary rule that imprisonment is lawful only under a court sentence. The power must be exercised with scrupulous attention to its lawful scope, so that nobody is detained longer than the law permits. A public authority’s failure to recognise unlawful detention may constitute a serious dereliction of duty, even without deliberate wrongdoing. Indemnity costs may be ordered where the conduct was unreasonable to a high degree. Later efforts to repair the omission do not necessarily make adequate amends.

The claimant appealed against the refusal by Mr Neil Garnham QC, sitting as a Deputy High Court Judge in the Administrative Court, to grant a mandatory order for his release from administrative detention. Late disclosure showed that the lower court and tribunal had been given false information about the claimant’s reliability on bail. Following an adjournment, the Secretary of State accepted that the detention had been unlawful since at latest 4 November 2009. The remaining judicial review claim, including damages, was to continue below. The issues before the Court of Appeal were therefore the consequential order and whether the appellant should receive indemnity costs.

1. The appeal raised no remaining issue concerning release after the Secretary of State accepted that the claimant had been unlawfully imprisoned since at latest 4 November 2009. An agreed order therefore set aside the part of the Deputy High Court Judge’s order refusing release and reversed his costs order. The remaining judicial review claim, including the claim for damages, remained for trial below.

2. Administrative detention is a striking exception to the rule that imprisonment is lawful only in execution of a sentence imposed by a court of law. The principle of habeas corpus requires scrupulous attention to the proper ambit and due exercise of the detention power. No person should be detained for a day longer than is lawful.

3. The Home Office had failed to appreciate that it was detaining the claimant illegally until his lawyers extracted the documents establishing the position. Although the failure was not shown to be deliberate, it was a very serious dereliction of duty and fell deplorably short of the common law’s rigorous standard.

4. Applying the approach in Kiam v MGN Ltd [2002] EWCA Civ 66, the court asked whether the Home Office’s conduct during the proceedings was unreasonable to a high degree. It concluded that the threshold for indemnity costs was met. The conscientious work of the Home Office’s lawyers in repairing the omissions did not make adequate amends. The appellant was accordingly awarded the costs of the appeal on an indemnity basis.

• Court of Appeal (Civil Division). Following the Secretary of State’s concession that the detention had been unlawful since at latest 4 November 2009, the court set aside the refusal of release, reversed the lower court’s costs order, and ordered indemnity costs for the appeal.
• High Court of Justice, Queen’s Bench Division, Administrative Court. Mr Neil Garnham QC, sitting as a Deputy High Court Judge, refused a mandatory order for release but granted permission for the remaining judicial review claim.