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Session 1999-2000
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Judgments - Regina v. Governor of Her Majesty's Prison Brockhill Ex Parte Evans


Lord Slynn of Hadley Lord Browne-Wilkinson Lord Steyn Lord Hope of Craighead Lord Hobhouse of Woodborough









ON 27 JULY 2000


My Lords,

    This appeal raised an important question on which the judges in the courts below were divided. Many issues have been ventilated in argument before your Lordships and many cases cited: in the event it seems to me that the principles to be followed have been clearly established and the matter can be dealt with shortly since on the view I have reached on the first point other difficult questions do not arise.

    On 12 January 1996 the respondent was sentenced inter alia to two years in prison. Because of the period she had spent in prison before trial she was entitled to a reduction in the actual period to be served pursuant to section 67 of the Criminal Justice Act 1967. It was for the governor of the prison where she was detained, not the sentencing judge, to work out the reduction and hence her release date. She was entitled to release on the date properly calculated and any detention after that date was unlawful unless some justification can be found.

    The governor calculated the release date in accordance with earlier decisions of the Divisional Court in other cases which the Home Office and the governor thought that they were bound to follow. Reg. v. Governor of Blundeston Prison, Ex parte Gaffney [1986] 1 W.L.R..696 : Reg. v. Secretary of State for the Home Office, Ex parte Read (1987) 9 Cr.App.R. (S)206 :Reg. v. Governor of Styal Prison, Ex parte Mooney [1996] 1 Cr. App. Rep.(S) 74 and Reg. v. Secretary of State for the Home Department, Ex parte Woodward & Wilson [24 June 1996] (unreported). Accordingly the governor said that her release date was to be 18 November 1996. The respondent contended that the governor, and therefore the Divisional Court in the earlier cases, were wrong and that her release date should be 17 September 1996. On 6 September she applied for a writ of habeas corpus to procure her release and on 16 October she sought leave for judicial review of the decision fixing her release date together with damages for false imprisonment. On 15 November 1996 the Divisional Court held that her release date properly calculated was 17 September 1996 and ordered that she be released immediately: [1997] Q.B. 443. On 10 June 1997 Collins J. dismissed her application for damages for false imprisonment: the Court of Appeal by a majority allowed her appeal on liability and increased the judge's assessment of damages from £2,000 to £5,000: [1999] Q.B. 1043.

    It is accepted that false imprisonment is a tort of strict liability equally clearly deprivation of liberty may be shown to be lawful or justified. It may be so for example where it is pursuant to an order of a court or pursuant to the exercise of statutory powers. Here the court order did not specify the release date and the sentence of two years imprisonment had to be read subject to the governor's duty to calculate the release date. The governor cannot therefore rely on the court's sentence alone. He has to rely on compliance with the statutory provisions. He thought that he was complying with those provisions because what he did was in compliance with what the law was thought to be. The Divisional Court has since held that that is not the law; the statutory provisions have never had the meaning he thought they had.

    Is it a defence to a claim for false imprisonment that he complied with the law as the court then said it was? The Solicitor-General has adduced forceful arguments to the effect that the governor had no choice. He was bound to obey the law as expounded by the court not just once but several times. Not to do so would be to ignore the separation of powers between the judiciary and the executive.

    Whatever the answer the governor cannot be criticised for what he did and I do not consider that the doubt raised in Reg. v. Secretary of State for the Home Department, Ex parte Naughton [1997] [1 W.L.R..118] as to the correctness of the earlier decisions meant that he was obliged to depart from those decisions.

    If the claim is looked at from the governor's point of view liability seems unreasonable; what more could he have done? If looked at from the respondent's point of view she was, it is accepted, kept in prison unlawfully for 59 days and she should be compensated. Which is to prevail?

    Despite sympathy for the governor's position it seems to me that the result is clear. She never was lawfully detained after 17 September 1996. She was merely thought to be lawfully detained. That is not a sufficient justification for the tort of false imprisonment even if based on rulings of the court. Although in form it is the governor, it is in reality the State which must compensate her for her unlawful detention.

    The judgment of the Divisional Court in this case follows the traditional route of declaring not only what was the meaning of the section at the date of the judgment but what was always the correct meaning of the section. The court did not seek to limit the effect of its judgment to the future. I consider that there may be situations in which it would be desirable, and in no way unjust, that the effect of judicial rulings should be prospective or limited to certain claimants. The European Court of Justice, though cautiously and infrequently, has restricted the effect of its ruling to the particular claimant in the case before it and to those who had begun proceedings before the date of its judgment. Those who had not sought to challenge the legality of acts perhaps done years before could only rely on the ruling prospectively. Such a course avoided unscrambling transactions perhaps long since over and doing injustice to defendants.

    But even if such a course is open to English courts there could in my view be no justification for limiting the effect of the judgment in this case to the future. The respondent's case has established the principle and she is entitled to compensation for false imprisonment; there could it seems in any event be no compensation for the period after the Divisional Court's decision since she was released immediately.

    I would dismiss the appeal on these grounds. It is, therefore, not relevant or necessary to consider what would have been the position under article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms if the imprisonment though unlawful could be said in answer to a claim in tort to have been justified.


My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Steyn and Lord Hope of Craighead. Subject to certain reservations mentioned below, for the reasons which they give I would dismiss the appeal.

    My reservations are these. I believe the case can be satisfactorily decided on the grounds that false imprisonment is a tort of strict liability, the consequences of which cannot be escaped even by showing that the defendant acted in accordance with the view of the law which at the time was accepted by the courts as being correct. I express no view on the merits of introducing a doctrine of prospective overruling. Nor do I think that this case is necessarily decisive of the different questions which arise where a defendant has acted in accordance with statutory provisions which are subsequently held to be ultra vires and void. In my judgment those points will be better dealt with when it is necessary to do so.


My Lords,

    The respondent was kept in prison for 59 days longer than she should have been. The Governor was blameless. He relied on a Home Office explanation of the legal position of prisoners in the position of the appellant. The Home Office was also blameless. The Home Office view of the position was founded on a clear line of Divisional court decisions, starting with Reg. v. Governor of Blundeston Prison, Ex parte Gaffney [1982] W.L.R. 696. But the courts had erred. On the respondent's application for judicial review the Divisional court overruled the earlier decisions: Reg. v. Brockhill Prison, Ex parte Evans [1997] Q.B. 443. It was held that the respondent was unlawfully detained. The governor immediately released the respondent. The respondent pursued claim for false imprisonment against the Governor. Collins J. dismissed the claim but in the event that he was wrong, assessed damages at £2,000. By a majority the Court of Appeal allowed the appeal of the respondent, and increased the assessment to £5,000: [1999] Q.B. 1043. The majority (Lord Woolf, M.R. and Judge L.J.) took the view that a defendant may be liable for false imprisonment of a plaintiff in circumstances where the defendant acts in good faith on a view of the law which appears to be settled by precedent but which subsequently turns out to have been wrong.

    The primary question is whether in the circumstances the governor is liable to compensate the respondent for false imprisonment. The point is a novel one. There is no English authority which directly addresses the precise question before the House. The law knows no tort special to prisons and prisoners. The question has to be resolved within the contours of the general principles governing the tort of false imprisonment.

    It is common ground that the tort of false imprisonment involves the infliction of bodily restraint which is not expressly or impliedly authorised by the law. The plaintiff does not have to prove fault on the part of the defendant. It is a tort of strict liability. These propositions are also common ground. There the agreement ends. The parties invoke competing principles of law. The Solicitor-General argued that the question whether the governor had authority to detain the respondent for an extra 59 days must be determined on the basis law as it then stood. He said that the governor was obliged to obey the law. Consequently, he submitted, that his conduct was authorised by law and he did not commit the tort of false imprisonment. And he said that the principled arguments underpinning his case are reinforced by the injustice of holding the governor liable in tort.

    Counsel for the respondent took as his starting point that the tort of false imprisonment is one of strict liability. He submitted that once the respondent's imprisonment for the 59 days was held to be unlawful that is determinative of the issue. Relying on the declaratory theory of judicial decisions - that the law has always been as it is now expounded - he said that legal principle ruled out any defence by the Governor of having relied on the earlier and incorrect view of the law. He said these principles are reinforced by the injustice of leaving the victim of a substantial period of unlawful imprisonment without a remedy.

    My Lords, the principles of law invoked by the two sides pull in opposite directions. I am advisedly speaking of principles as opposed to rules. As Dworking, Taking Rights Seriously, (1977), pp. 24-26 observed, rules have an "all or nothing" quality: they are either determinative or irrelevant. On the other hand, principles are general norms which may be in competition: the dimension and weight of principles need to be considered. In a sense therefore principles have a function not widely different from the role of analogies in the law: MacCormick, Legal Reasoning and Legal Theory, (1995), pp. 231-232. It is a matter of judgment how the weight of the competing principles in the present case should be assessed. Similarly, both sides assert that the justice of the case - to the wrongly detained woman and to the governor doing his job in accordance with law - favour their particular interpretation. Again, one must consider the comparative potency of these claims to the just solution of the case.

    On balance I think the arguments of the respondent outweigh those of the Solicitor-General. In Eshugbayi Eleko v. Officer Administering the Government of Nigeria [1931] A.C. 662, a habeas corpus case, Lord Atkin observed, at p. 670, that "no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice." Recently, with the approval of other members of the House, I cited Lord Atkin's observation in the Eleko case: Boddington v. British Transport Police [1999] 2 A.C. 143, 173F. It represents the traditional common law view. It points to a decision in the present case that the respondent is entitled to recover compensation of the ground of false imprisonment where the executive can no longer support the lawfulness of the detention.

    It is also instructive that on remarkably similar facts the New South Wales Court of Appeal in Colwell (1988) 13 N.S.W.L.R. 714 came to the same conclusion as the Court of Appeal in the present case. In Colwell a prisoner claimed damages on the ground that his entitlement to remissions had been calculated to his detriment in accordance with a decision which had subsequently been overruled. The claim failed at first instance. The New South Wales Court of Appeal held that the Commission could be liable for unlawful imprisonment in spite of the fact that those responsible for the detention acted in good faith in accordance with the law as they understood it: see also Fordham, False Imprisonment in Good Faith, Tort Law Review, March 2000, 53. This decision provides support for the view of the majority in the present case from an important common law jurisdiction.

    Finally, article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) provides as follows:

    "1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

    (a) the lawful detention of a person after conviction by a competent court; . . .

    5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

    In my view these provisions rule out the defence that the Governor acted in accordance with the law as it was understood at the time. Article 5 reinforces the view which I have accepted.

    There was an interesting debate about the merits and elements of introducing a system of prospective overruling. For my part I am satisfied that such a power, if created, could not be appropriately used in order to relieve the Crown of an obligation to pay damages to the respondent in the present case. It is therefore not necessary to consider whether the House should alter the existing practice to allow for prospective overruling. Without shutting the door on the possibility of such a development by a decision or practice statement of the House, I would say that it is best considered in the context of a case or cases where the employment of such a power would serve the ends of justice.

    Finally, the appellant challenged the Court of Appeal's decision to increase the damages to £5,000. The period of unlawful detention was substantial. This decision was well within the power of the Court of Appeal and I have no reason to doubt the appropriateness of the substituted award.

    My Lords, I would uphold the decision and reasoning of the majority in the Court of Appeal. I would dismiss the appeal.


My Lords,

    The respondent was sentenced at Cardiff Crown Court on 12 January 1996 to two years' imprisonment. She had been convicted of one robbery, two burglaries and an assault occasioning actual bodily harm, for each of which she received sentences of imprisonment. These were all concurrent sentences, so the period of imprisonment which she was being required to serve was to be measured by the length of the longest sentence which was a sentence of two years' imprisonment for the robbery. She had spent various periods in custody following her arrest for each of these offences before she was sentenced. So an issue arose between her and the Governor of Brockhill Prison as to her conditional release date. On 6 September 1996 she applied for a writ of habeas corpus against the governor on the ground that she was entitled to an earlier conditional release date than that which the governor had fixed following the Home Office Instructions to Governors. On 16 October 1996 she sought leave to apply for judicial review of his decision calculating her release date. Among the reliefs which she sought was that of damages for false imprisonment for the period which she spent in custody after 17 September 1996, which she maintained was her conditional release date as correctly calculated.

    On 15 November 1996 the Divisional Court granted declarations that the respondent was entitled to her release on 17 September 1996 and that she was entitled to be released forthwith: Reg. v. Governor of Brockhill Prison, Ex parte Evans [1997] Q.B. 443. Her application for judicial review on the question of damages was adjourned for consideration at a later date. On 10 June 1997 Collins J. dismissed the application for damages for false imprisonment. He assessed the value of her claim in the sum of £2,000. On 19 June 1999 the Court of Appeal (Lord Woolf M.R., and Judge L.J., Roch L.J. dissenting on the issue of liability) allowed her appeal, held that she was entitled to damages and increased the award to £5,000: [1999] Q.B. 1043. Both issues, as to liability and as to the amount of damages, are now before your Lordships in this appeal.


    As I observed in Reg. v. Secretary of State for the Home Department, Ex parte A. [2000] 2 W.L.R. 293, 294G-H, Part III of the Criminal Justice Act 1967 introduced a number of important reforms of the law relating to the treatment of offenders. In that case we were concerned, as we are here, with the rules which section 67 of that Act, as amended by section 49(2) of the Police and Criminal Evidence Act 1984 and by section 130 of the Criminal Justice Act 1988, has laid down to enable account to be taken of periods spent by the offender in custody while awaiting trial or sentence for the offence. The broad principle to which it seeks to give effect is that periods spent in custody before trial or sentence which are attributable only to the offence for which the offender is being sentenced are to be taken into account in calculating the length of the period which the offender must spend in custody after he has been sentenced.

    The system which has been laid down for England and Wales for giving effect to this principle provides for an automatic discount from the length of the sentence imposed by the court measured by the length of the relevant period as defined by section 67(1) of the Act of 1967. The discount is applied by the governor of the institution which is responsible for detaining the person during his sentence. The governor has to be supplied with the information which is needed to make the computation, and he has to inform himself as to the legal requirements with which he must comply when making his computation.

    This system is in sharp contrast to that which is available to the judge in the exercise of his discretion at the time when he imposes sentence. The decision in Reg. v. Fairhurst (1986) 8 Cr. App. R. (S.) 346 enables the judge to make an allowance when deciding upon the length of a custodial sentence to be served by the offender for time spent by him on remand under a regime which is comparable to a remand in custody: e.g. Reg. v. Towers (1987) 9 Cr. App. R. (S.) 333; Reg. v. Lodde (C.A.), The Times, 8 March 2000. It is also to be contrasted with the system which operates in Scotland under section 210 of the Criminal Procedure (Scotland) Act 1995 which requires the court, when passing a sentence of imprisonment or detention on a person for an offence, in determining the period of imprisonment or detention to have regard to any period of time spent in custody by the person on remand while awaiting trial or sentence. Under that system the matter is left to the discretion of the judge when he is determining the length of the custodial sentence. It is not the responsibility of the governor. Under the system laid down by section 67(1) of the Act of 1967 there is no room for the exercise of a discretion by the governor, or for the application by him of value judgments as to the extent to which the person's liberty was restricted during the periods which he is required to take into account. He is required to apply a set of rules, and the offender is entitled to insist that these rules are applied correctly in accordance with the requirements of the statute. It follows, as night follows day, that the continued detention of the offender beyond the date when he is entitled to his release upon a correct application of the rules is unlawful.

    This system has the merit of ensuring that each offender is dealt with strictly in accordance with rules which have been prescribed by law. But it is not without its difficulties. These are due mainly to complexities within the remand system which have not been dealt with by the rules with sufficient clarity. The courts have not found it easy to resolve these difficulties.

    In Reg. v. Secretary of State for the Home Department, Ex parte A. [2000] 2 W.L.R. 293 the question which had to be resolved by your Lordships was whether time spent on remand in non-secure local authority accommodation had to be deducted from a sentence of detention in a young offender institution. The decision of the Court of Appeal (Criminal Division) in Reg. v. Collins (1994) 16 Cr. App. R. (S.) 156, which Collins J. had felt obliged to follow at first instance, was overruled. The result of the decision in A.'s case was to uphold the calculation of the length of the discount which had been arrived at by the governor. In the present case your Lordships are concerned with the effect of the decision of the Divisional Court (Lord Bingham of Cornhill C.J., Rose L.J. and Blofield J.) in the earlier proceedings relating to the respondent's application: Reg. v. Governor of Brockhill Prison, Ex parte Evans [1997] Q.B. 443. The Divisional Court held that a series of decisions about the method to be adopted for calculating the date of release of a short term prisoner where the prisoner had been on remand before being sentenced to periods of imprisonment to be served concurrently, commencing with Reg. v. Governor of Blundeston Prison, Ex parte Gaffney [1982] 1 W.L.R. 696, were erroneous and the court declined to follow them. The soundness of those earlier decisions had already been doubted in Reg. v. Secretary of State for the Home Department, Ex parte Naughton [1997] 1 W.L.R. 118. The result of the Divisional Court's decision was that the respondent spent a period of 59 days more in custody than she would have done if the provisions of section 67(1) of the Act of 1967 had been construed correctly when the discount to be applied by the governor was being calculated.

    The first question which now arises is whether the respondent is entitled to damages for the period of 59 days during which she was detained unlawfully in custody. The Solicitor-General conceded, as I think he was bound to do, that her detention was unlawful. But he submitted that the governor was justified in detaining her because he had calculated the discount according to the law as then understood. His calculation was in accordance with the existing authorities. It was only shown to have been unlawful when those authorities were disapproved by the Divisional Court in the present case: Reg. v. Governor of Brockhill Prison, Ex parte Evans [1997] Q.B. 443. He maintained that in these circumstances he was entitled to rely on the defence of justification in answer to the respondent's claim for damages. The second question is whether your Lordships should reconsider the Court of Appeal's assessment of damages.

Justification for the false imprisonment

    The tort of false imprisonment is a tort of strict liability. But the strict theory of civil liability is not inconsistent with the fact that in certain circumstances the harm complained of may have been inflicted justifiably. This is because it is of the essence of the tort of false imprisonment that the imprisonment is without lawful justification. As Sir William. Holdsworth, A History of English Law, 2nd ed., (1937) vol. VIII, p. 446 puts it:

    "A defendant could escape from liability if he could prove that his act was, in the circumstances, permitted by law, either in the public interest, or in the necessary defence of his person or rights of property."

    Various phrases are used in the textbooks to describe this qualification. Clerk & Lindsell on Torts, 17th ed., (1995), para. 12-17 refer to "complete deprivation of liberty . . . without lawful cause." Winfield & Jolowicz on Tort, 15th ed., (1998) refer to "bodily restraint which is not expressly or impliedly authorised by the law." Fleming, The Law of Torts, 9th ed., (1998), p.33 defines the tort as "intentionally and without lawful justification subjecting another to a total restraint of movement." The Solicitor-General accepted that the question whether there was a lawful justification for the imprisonment had to be determined at the time of the imprisonment. He accepted that as a general rule it was false imprisonment for a person to be detained after his term of imprisonment had expired: Mee v. Cruickshank (1902) 20 Cox 210; Halsbury, Laws of England, 4th ed., (reissue 1990), vol. 11, para. 492; Archbold 2000, para.19-331. But he submitted that the question whether the imprisonment was justified was a separate question from the question whether the imprisonment was lawful. He made it clear that his argument assumed, according to the concession which I have already mentioned, that the continued imprisonment of the respondent after 17 September 1996 was unlawful. What he sought to do was to show that, as the detention was thought at the time to be lawful as the calculation of the conditional release date had been made according to the existing state of the authorities, there was a justification for that imprisonment.