Yarl’s Wood Immigration Ltd and others v Bedfordshire Police Authority [2008] EWHC 2207 (Comm), [2008] All ER (D) 18 (Oct)
Queen’s Bench Division, Commercial Court, Beatson J, 30 Sep 2008
Parliament did not intent to include a person, or entity, with public law duties for order within a building or buildings containing detained persons within the scope of the Riot (Damages) Act 1886 (RA 1886). Operators of immigration centres under contracts with the Home Offi ce may not therefore make a claim under RA 1886.
Ian Gatt QC of Herbert Smith LLP for the claimants. James Watson QC, John Beggs and Simon Cridland (instructed by Weightmans) for the defendant.
The claimants operated the Yarl’s Wood immigration detention centre under a contract with the Home Office. The first claimant sub-contracted the operation and maintenance of the detention centre to the second claimant. Both claimants had specific public law responsibilities in respect of order and security within the detention centre.
In August 2001, the second claimant and the defendant police authority entered into a joint protocol agreement (JPA) for the detention centre. The parties had in mind that a purpose of the JPA was to provide a basis for an agreement in the event that the defendant police authority provided “special services” under s 25 of the Police Act 1966, should they be needed.
In February 2002 a riot began at the centre and substantial damage was caused by a resultant fire. The claimants issued a claim under RA 1886 against the defendant in respect of damage to, or destruction of, property in the centre caused by those detained in it during the riot. Their case was based on RA 1886 being designed to be a no-fault compensation system for riot damage. The scheme of RA 1886 indicated that an objection could not be taken to a claim being made on the ground that the claimants had statutory and contractual responsibilities for ensuring good order within the detention centre, and could have some responsibility for the losses.
The defendant’s case was that RA 1886 did not create a no-fault compensation scheme but imposed a duty on those responsible for law and order. Preliminary issues arose including: (i) whether or not either claimant had been acting as a public authority exercising coercive powers of the state in carrying out its public function; (ii) whether or not the detention centre was outside the effective scope of police control by reason of the fact that the second claimant and/or the first claimant were the sole, or alternatively, the primary, body entrusted by the state with the responsibility for maintaining security and good order; and (iii) whether the claims in the action were outside the scope and/or intention of RA 1886.
Mr Justice Beatson:
His lordship considered, Dwyer (J W) Ltd v Metropolitan Police District Receiver [1967] 2 All ER 1051, R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 1 All ER 195 and Bedfordshire Police Authority v Constable [2008] All ER (D) 302 (Jun). He concluded that the claimants were acting as public authorities exercising coercive powers of the state in carrying out their public function in having responsibility for operating and maintaining the detention centre. The state gave the claimants responsibility for maintaining security and order within the detention centre. The sub-contracting of the operation of the centre by the first claimant to the second did not relieve the first of its responsibilities. The fact that the second claimant was a sub-contractor did not preclude it from acquiring those responsibilities. Sub-contracting was contemplated by the relevant legislation. The arrangements for the operation of the detention centre meant that it was being operated on behalf of the home secretary.
Public authority power
The fact that the claimants were acting as public authorities exercising coercive powers of the state in carrying out its public function in respect of the centre did not per se put them outside the scope of RA 1886. However, the fact that they were entities with public law powers and duties for order within the detention centre meant that, in respect of loss suffered from riot damage caused by detainees within the centre, they were not qualifying persons within RA 1886.
RA 1886 and its predecessors imposed a statutory duty to compensate on those responsible for law and order in a given area. The intention behind the legislation was that local property owners should be entitled to obtain compensation from the body with responsibility for protecting them from the risk of riot. It was not to enable a public authority with a particular responsibility for order within a defined area to seek compensation from another public authority with a broadly equivalent, but not identical, responsibility for order in that area.
The specific responsibility given by the state to the claimants for order and security within the detention centre pursuant to statute and rules could be described as “primary” when compared with the responsibility of the police force.
Despite this, the police force remained under its fundamental duty to maintain order within its area, including within the detention centre, and retained its powers, including its powers of entry, to do so. Accordingly, the detention centre was not outside the effective scope of police control by reason of the claimants’ public law responsibilities.
However, the claimants’ specific public law responsibilities in respect of order and security had an impact on the discretion the police force had in deciding how to exercise its duty to maintain order within the centre.
His lordship ruled that the claim fell outside the scope of RA 1886 because the claimants’ loss was suffered as a result of riot damage caused by detainees within the centre for which they had public law responsibility for order and security. The basis of RA 1886 was a duty on the relevant police authority and the purpose of RA 1886 was to make provision for claims against the public authority with responsibility for order.
