PP v The Home Office & Anor

A private-law false-imprisonment claim is not automatically abusive merely because it requires challenge to an anterior public-law decision. Under the CPR, the court must assess all the circumstances, including delay, whether the protections of judicial review have been flouted, and whether the proceedings can be conducted justly. A public-law error relevant to detention may affect the lawfulness of imprisonment, but that principle does not remove the separate abuse-of-process inquiry. A limitation issue should not be summarily determined where continuing breach or equitable extension of time remains reasonably arguable. Expert evidence on trafficking may be admissible in principle, but an expert must assist with matters outside the court’s ordinary function and must not decide the ultimate legal issue.

The claimant alleged that the defendants failed to investigate whether she was a victim of trafficking, contrary to article 4 of the ECHR, and that later detention was unlawful because it followed allegedly erroneous trafficking decisions. The defendants sought preliminary orders concerning abuse of process, limitation and expert evidence.

The court considered whether the claimant could challenge an anterior trafficking decision within a false-imprisonment claim rather than by judicial review, whether the article 4 claim was bound to fail under the Human Rights Act 1998 limitation period, and whether she should rely on Professor Piotrowicz’s report.

1. The false-imprisonment claim was not struck out as an abuse of process. The claimant did not challenge the detention decisions themselves, but alleged that the 27 June 2014 conclusive-grounds decision was an unlawful anterior decision without which detention would not have occurred. Lumba established that detention requires a lawfully exercised power and that a material public-law breach relevant to detention may vitiate it. It did not decide the abuse-of-process question or overrule Shingara.

2. The procedural-exclusivity rule had to be applied flexibly under the CPR. The question was whether, in all the circumstances, including delay, the safeguards of CPR Part 54 had been flouted so that the proceedings could not be conducted justly. The case was not an example of deliberately waiting for detention in order to mount a stale challenge, and the decision had no wider ramifications. The claim therefore remained arguable.

3. The article 4 claim was not struck out on limitation grounds. Whether the alleged investigative breach was continuing, and whether time should be extended equitably under section 7(5) of the Human Rights Act 1998, required assessment of delay, culpability, legal advice, mental health and prejudice. The claim had a real prospect of succeeding on either continuing breach or extension, so the issue was for the trial judge.

4. Permission to rely on Professor Piotrowicz’s report was refused. Expert evidence could in principle assist on the standard reasonably expected of frontline officers. This report, however, offered conclusions on the ultimate issue whether the indicators should have triggered referral and investigation. It supplied no necessary assistance and usurped the court’s function under CPR 35.1.

The abuse and limitation applications were refused. Permission to rely on the report was refused. Consequential matters were reserved.

First-instance determination of three preliminary issues. No prior appellate decision is stated in the judgment.