Shoplifter wins case over 'disproportionate detention'

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The Independent Online

A shoplifter with "a bad criminal record for offences of theft" has won the right to damages against the Home Secretary under human rights laws.

"MXL", a Jamaican mother of two young children, who cannot be named for legal reasons, became involved in "a serious case of wholesale organised crime" and is fighting Government moves to deport her.

But, it was revealed today, a High Court judge has ruled that her detention pending removal became "disproportionate" after a failure to take proper account of the needs of her children to be with her.

Mr Justice Blake, sitting in London, said MXL was entitled to "an appropriate award of damages" against the Home Secretary which should be assessed by another court, if not agreed.

The judge described how MXL entered the UK as a visitor in December 2001.

In 2003 she was granted indefinite leave to remain after marrying a British citizen and settled in east London.

Mr Justice Blake said: "The claimant has a bad criminal record for offences of theft."

Her first recorded shoplifting conviction came within three months of her arrival in the UK, in February 2002, and she received a community punishment order for 40 hours.

In the next six years, she was convicted of 19 theft offences committed on six separate occasions.

She was punished with fines, community punishment orders, a community rehabilitation order and suspended prison sentences.

In February 2009, after a guilty plea, she was jailed for two years for the more serious offence of conspiracy to steal clothes from a store.

The trial judge described the case as "wholesale organised crime involving special arrangements with teams of operatives".

The methodology of the thefts "was wholesale in the sense that whole lines of clothing were taken from shelves or hangers, bundled into bin liners and into the boots of cars in such numbers that on at least one occasion the boot of the car could not be closed."

MXL served her sentence at prisons in the London area and was due to be released on licence in April last year, but she was then held in immigration detention after being told the Home Secretary was considering deporting her.

On April 23, 2009 she was transferred to Yarl's Wood immigration detention centre near Bedford, and the following month a deportation order was served.

MXL's initial appeal against deportation failed, but last October a High Court judge ordered that it must be reconsidered.

However, she remained in custody until December 21, when she was granted bail after launching her damages claim for "excessive" detention.

Allowing her claim, Mr Justice Blake ruled that she was held unlawfully from November 23, 2009 - the date of the first review of her detention after the October decision to reconsider her deportation.

Mr Justice Blake said there was a failure to take account of an official policy in immigration cases to restrict the power to detain "in low or medium-risk cases of criminality and where the detention affected the welfare of minor dependent children".

If that policy had been applied, it was probable that an application for bail with conditions to restrict the possibility of reoffending would not have been opposed, said the judge.

The failure to take account of the policy violated the European Convention on Human Rights.

There was "compelling" judicial advice, and from local social services responsible for MXL's children, now aged seven and three, that their best interests were for them to be with their mother.

The judge said: "I conclude that continued detention was disproportionate and not necessary in a democratic society."

The risk of MXL absconding, and the risk of her committing further offences of theft on release after her first experience of custody, "were not unusually high".

Detention should not have been continued "to the prejudice of the family links with the children that it was intended should be restored and maintained".

David Wood, head of criminality and detention for the UK Border Agency, said later: "We are disappointed with the judgment in this case and are seeking permission to appeal."