|Judgments - Regina v. Governor of Her Majesty's Prison Brockhill Ex Parte Evans
My Lords, I would be inclined to reject this argument on the ground that the defence of justification lacks a secure foundation on the facts. The judgment in Reg. v. Secretary of State for the Home Department, Ex parte Naughton  1 W.L.R. 118, in which doubt was cast on the existing state of the authorities, was given on 4 September 1996. Two days later, on 6 September 1996, the respondent applied for habeas corpus on the ground that she was entitled to be released on 17 September 1996 and that her proposed release date of 18 November 1996, calculated according to the existing Home Office guidelines, was unlawful. On 15 November 1996 the Divisional Court granted her application and made a declaration that her detention was unlawful as from 17 September 1996. I do not think that the situation which arose in this case can be compared with those where the defence of justification is advanced on the ground that the alleged tortfeasor was acting within the four corners of a warrant issued which had been issued to him by the court. The order for imprisonment which was made by the Crown Court in this case recorded simply that on 12 January 1996 "it was ordered that the defendant be sentenced to two years imprisonment." This was a sufficient authority to the governor to accept the respondent upon her arrival at the prison for which he was responsible as a person who had been lawfully committed to his custody. But it did not give him any instructions about her conditional release date. Under the system laid down by section 67 of the Criminal Justice Act 1967 as amended it was for the governor, not the sentencing judge, to calculate the length of the period of discount. Furthermore the soundness of the existing guidelines had already been put in doubt by the observations in Naughton's case by 6 September 1996 when, prior to the date which she maintained was her release date, the respondent applied to the court for habeas corpus and for judicial review of the decision which had been made by the governor. From the moment when her application was served on him the governor was on notice that he was at risk of it being held that his calculation was erroneous.
But the issue was presented by the Solicitor-General as being primarily one of principle. According to his argument the justification for the detention for the purposes of the tort of false imprisonment had to be determined according to the state of the law at the time of the detention. This argument was developed by analogy with a series of cases where a person had been detained in obedience to the order of a court which was ex facie lawful at the time when it was made or for breach of a byelaw which was only subsequently found to have been unlawful. My immediate impression was that there was quite a strong case for saying that the decisions reached in these cases could be applied to the position of the governor when he was fulfilling his functions under section 67(1) of the Act. It is his responsibility under the statute to calculate the length of the period of discount in each case where the sentence of imprisonment is subject to a discount, and he must carry out that calculation as required by law. But it seemed to me that he could reasonably say that the justification for what he did lay in the fact that he was following the guidance afforded by decisions of the court in similar cases as to how the calculation should be carried out.
The Solicitor-General developed his argument along these lines. He said that the defence of justification was available to the governor because he was the addressee of a valid order of the Crown Court for the respondent's imprisonment and he had been instructed by the decisions of the court in similar cases as to how the conditional release date should be calculated. This argument was presented in a variety of ways. There was the justification point: the governor's method of calculation was based on what at the time was generally understood to be a clear line of authority. There was the obedience point: the governor had to construe the order of the court which imposed the sentence of imprisonment according to the law at the time when he required to act upon it. He had to do, in obedience to that order, what the court through its decisions had told him to do. There was the constitutional point: it was unseemly for the governor, as a member of the executive, to do otherwise than comply with the law as laid down by the court. The executive's relationship with the courts did not depend on coercion. It depended on the executive's respect for the principle that an order of a court had to be obeyed until it was set aside. And there was the byelaw point: the position of the governor was analogous to that of a constable enforcing a byelaw which he had reasonable grounds to think was being breached but was later held to be ultra vires.
The justification, obedience and constitutional points all depended on the Solicitor-General's basic proposition that the governor was complying with an order made by the court at all times during the period of the respondent's detention in custody until the Divisional Court issued its judgment as to the correct method of calculating her release date. He relied on Olliet v. Bessey (1682) T. Jones' Rep. 214, Greaves v. Keene (1879) 4 Ex.D. 73 and Henderson v. Preston (1888) 21 Q.B.D. 362, and on Olutu v. Home Office  1 W.L.R. 328. The first three cases support the proposition that a gaoler is entitled to detain a person in reliance upon a court order until the order is set aside. Olutu v. Home Office was concerned with a person's right to be released on bail on the order of the court after the expiry of the custody time limit. It was held that, as an order of the court was required for the person's release on bail, the governor was neither entitled nor bound to release the person until a court order had been made. For his byelaw point the Solicitor-General relied on Percy v. Hall  Q.B. 924 which concerned the arrest and detention of the plaintiffs by constables on many occasions for breach of various byelaws. The constables were acting in pursuance of powers conferred on them by those byelaws which were in law presumed to be valid and which needed to be enforced in the public interest. Addressing the argument that, assuming the byelaws to have been invalid the constables were nevertheless entitled to rely on the defence of justification, the Court of Appeal held that the defence was available to the constables if they could show that they were acting in the reasonable belief that the plaintiffs were committing an offence under the byelaws for whose assumed invalidity they were not responsible.
On further reflection I have reached the view that neither of these lines of authority can be applied by analogy to the position of the governor. The order which was issued by the Crown Court did no more that set out the date when the sentence of imprisonment was imposed and the length of that sentence. It did not identify the respondent's conditional release date. This was because the calculation of a prisoner's release date is a matter which has been committed by the statute to the governor. His obligation is to release the prisoner on a date which he has calculated in the manner laid down by the statute. It is for him to make the calculation, so the responsibility for any error in the calculation lies with him and not with the court which imposed the sentence of imprisonment. In practice he will no doubt rely on the relevant Home Office guidelines, and such guidance as is available from decisions of the courts in similar cases will no doubt be taken into account in the course of their preparation by the Home Office. But relying upon guidance of that kind is not the same thing as complying with the terms of a court order. It is no answer to a claim based on a tort of strict liability to say that the governor took reasonable care or that he acted in good faith when he made the calculation. Nor can he say, as in the case of the constables who were seeking to enforce the byelaws in the reasonable belief that a byelaw offence was being committed, that he had a lawful justification for doing what he did. His position would have been different if he had been able to show that he was acting throughout within the four corners of an order which had been made by the court for the respondent's detention. The justification for the continued detention would then have been that he was doing what the court had ordered him to do. As it is, the court order when construed in the light of the provisions of the statute left it to the governor to calculate the release date according to the statute laid down. The justification had to be found in the terms of the statute.
I respectfully agree with Judge L.J.'s observation in the Court of Appeal  Q.B. 1043, 1078E-F, that for the governor to escape liability for any extended period of detention on the basis that he was acting honestly or on reasonable grounds analogous to those which apply to arresting police officers would reduce the protection currently provided by the tort of false imprisonment. I can see no justification for limiting the application of the tort in this way. The authorities are at one in treating it as a tort of strict liability. That strikes the right balance between the liberty of the subject and the public interest in the detection and punishment of crime. The defence of justification must be based upon a rigorous application of the principle that the liberty of the subject can be interfered with only upon grounds which a court will uphold as lawful. The Solicitor-General was unable to demonstrate that the respondent's detention was authorised or permitted by law after the date which was held by the Divisional Court to be her release date. I would hold that she is entitled to damages.
Among the orders which were made by the Divisional Court on 15 November 1996 was an order that the respondent was entitled to release on 17 September 1996. There was some discussion of the question whether that order should be understood as having determined the matter prospectively only or whether it should be held to have retrospective effect according to the declaratory theory of law-making.
It is difficult to see how the Divisional Court's order could be understood as having any other meaning than that it was stating retrospectively what the respondent's rights were as at 17 September 1996. Nevertheless the Solicitor-General suggested that some thought should be given to this issue in view of the importance which it might have following the coming into force of the Human Rights Act 1998. He said that there was a possibility that it might be appropriate for the technique of prospective overruling to be adopted in a limited number of cases, such as where a consistent line of authority was developed pointing one way and then reversed. But he recognised that there was a risk that the courts might be seen to be departing from the judicial function if they were to indulge in the practice of laying down the law only for the future. He said that there were other ways of addressing the problems caused by retrospective effect, such as limitation and the defence of justification on which he had based his principal argument.
Your Lordships also had the advantage of careful and well researched submissions on these points which were admirably presented by Mr Rabinowicz as amicus curiae. His assistance was sought in the light of the observations in the Court of Appeal by Lord Woolf M.R.  Q.B. 1043, 1059F-G, that this case revealed the need for an examination of our present approach to the retrospectivity of judicial decisions, and that the imminence of the arrival within our domestic law of the Convention gave added urgency to that need.
My Lords, I am in sympathy with the view that the issue of retrospectivity is likely to assume an added importance when the Human Rights Act 1998 is brought into force. I am aware of at least one case in Scotland where incompatibility with the Convention was raised as a devolution issue under the Scotland Act 1998 as to which it will be a matter of great importance to establish whether the court's decision that there was an incompatibility must be given effect to retrospectively: Starrs v. Ruxton, 2000 S.L.T. 42. Similar problems are bound to occur sooner or later throughout the United Kingdom after the coming into force of the Human Rights Act 1998. As for the suggestion that a decision might be given effect to prospectively only, it is worth noting that there is an important difference between the situation where a decision is to take effect from the date of its pronouncement and that where the court wishes to suspend the effect of its decision until some date in the future. It is commonly understood that decisions which indicate an alteration in the court's practice or which are designed to lay down guidelines for the assistance of judges operate prospectively as from the date of their pronouncement. But that is not the kind of issue with which we are dealing in this case. A statutory power to remove or limit the retrospective effect of decisions as to whether legislation is within the legislative competence of the Scottish Parliament and to suspend their effect to allow the defect to be corrected has been given to courts and tribunals by section 102 of the Scotland Act 1998. Similar powers are to be found in section 110 of the Government of Wales Act 1998, in section 81 of the Northern Ireland Act 1998 and, in regard to decisions within the powers of the court on constitutional matters, in section 172 of the Constitution of the Republic of South Africa. No such power is currently recognised by the common law: see Reg. v. National Insurance Commissioner, Ex parte Hudson  A.C. 944, per Lord Diplock at p. 1015F-H and Lord Simon of Glaisdale at p. 1026B-1027A; Launchbury v. Morgans  A.C. 127, per Lord Wilberforce at p. 137D-E. The working assumption is that where previous authorities are overruled decisions to that effect operate retrospectively.
Mr Rabinowicz submitted that an inflexible application of the declaratory theory could give rise to unfairness and injustice, that it might work against the principle of certainty which was regarded by English law as a valuable principle and that, while there were good reasons to be cautious, there might be some benefits to be gained by recognising that the appellate courts had power in very exceptional cases to avoid the application of an invariable rule of retrospectivity. But I think that this is not an appropriate case for detailed consideration of these arguments. I do not see how it can be sensibly argued that section 67(1) meant one thing at the time when the governor made his calculation and another when its meaning was determined authoritatively by the Divisional Court. As I have said, it is difficult to see how the court's order could be understood as having any application to the respondent's case other than that it was to be applied to her retrospectively. If ever there was a case where the declaratory theory should be applied it must surely be one where the liberty of the subject is in issue - as it plainly is where the point relates to the entitlement of the subject to be released from custody.
Mention was made of the differences of opinion which were expressed in your Lordships' House in Kleinwort Benson Ltd. v. Lincoln City Council  2 A.C. 349 as to the application of the declaratory theory in the context of a claim for restitution where money had been paid under a mistake: contrast Lord Browne-Wilkinson at pp.357G-362H and Lord Lloyd at pp. 390F and 393B-394A for the view that the fact that a decision was overruled did not mean that the law as stated in the overruled case should not be considered as the law at the time of the payment, with the contrary view as expressed by Lord Goff of Chieveley at pp. 377D-381G and by myself at pp. 410E-411E. I doubt whether much is to be gained from an analysis of those differences of view in the present context. As I tried to make clear in my own speech, the critical issue where a claim is made for money paid under a mistake on the ground of unjust enrichment is one of fact - would the payer have made the payment if he had known the true state of the law or the facts at the time of the payment? The function of mistake in this context is to show that the benefit which was received when the payment was made was an unintended benefit. The principles which underlie the law of unjust enrichment enable this matter to be examined retrospectively. The declaratory theory is consistent with those principles. That is not to say that it may not be appropriate in another context to depart from this theory. But an examination of that matter is best left over until another day.
The Solicitor-General submitted that his argument on justification was consistent with the provisions of article 5 of the European Convention on Human Rights and Fundamental Freedoms. As I would reject his argument that the defence of justification is available in this case on common law grounds, I would also hold that the respondent does not need to rely on her additional argument that the appellant's position is contrary to article 5. But I should like to deal with this issue briefly, if only because the application to the facts of this case of the tort of false imprisonment has raised a novel point of some difficulty. It is of interest to see whether the provisions of article 5 of the E.C.H.R. support the conclusion which I would favour as to the present state of our domestic law.
The relevant provisions of article 5 are as follows:
The jurisprudence of the European Court of Human Rights indicates that there are various aspects to article 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under article 5(1). It will thus give rise to an enforceable right to compensation under article 5(5), the provisions of which are not discretionary but mandatory. The second question is whether, assuming that the detention is lawful under domestic law, it nevertheless complies with the general requirements of the Convention. These are based upon the principle that any restriction on human rights and fundamental freedoms must be prescribed by law: see articles 8 to 11 of the Convention. They include the requirements that the domestic law must be sufficiently accessible to the individual and that it must be sufficiently precise to enable the individual to foresee the consequences of the restriction: Sunday Times v. United Kingdom (1979-80) 2 E.H.R.R. 245; Zamir v. United Kingdom (1985) 40 D.R. 42, paras. 90-91. The third question is whether, again assuming that the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate: Engel v. Netherlands  1 E.H.R.R. 647, para. 58; Tsirlis and Kouloumpas v. Greece  25 E.H.R.R. 198, para. 56.
In the present case the governor's decision not to release the respondent until the date which he had calculated as being her release date under the current Home Office guidelines cannot be said to have been arbitrary. The requirement to calculate the release date was laid down in the statute, and until that date was reached the court's order provided him with a lawful basis for the respondent's continued detention in custody. The clarity of the statutory provisions which fall to be taken into account when calculating the release date was criticised in Reg. v. Secretary of State for the Home Department, Ex parte Naughton  1 W.L.R. 118. I think that there is much force in Simon Brown L.J.'s observation in that case at p. 127F that the language of section 67 of the Criminal Justice Act 1967 could not be described as unambiguous with regard to the treatment of concurrent sentence cases. But the Act of 1998 is not yet in force, and no argument was developed to the effect that the extra period which the respondent spent in custody was unlawful in Convention terms because it was attributable to this lack of clarity. The crucial point is whether the respondent's detention after 17 September 1996 which was held by the Divisional Court to be unlawful was nevertheless to be regarded as lawful under domestic law for the purposes of the Convention. If it was, paragraph (a) of article 5(1) would apply. If it was not, it would follow that there was a contravention of article 5(1), with the inevitable result that that there was enforceable right to compensation under article 5(5).
The Solicitor-General submitted that the touchstone of lawful detention so far as article 5(1) was concerned was that it was carried out according to law and pursuant to a court order. He said that there was a legal basis under domestic law for a prisoner's detention by the governor when a court had ordered the detention, even though the court's order was later shown to have been made in error: Olliet v. Bessey (1682) T. Jones' Rep. 214: Greaves v. Keene (1879) 4 Ex.D. 73: Henderson v. Preston (1881) 21 Q.B.D. 362. It had been recognised by the Strasbourg Court in Benham v. United Kingdom  22 E.H.R.R. 293 that the mere fact that the order was set aside on appeal did not in itself affect the lawfulness of the detention; see also Tsirlis and Kouloumpas v. Greece  25 E.H.R.R. 647, para. 58. In the present case the order for the respondent's detention was addressed to the governor who was bound to act upon it, and he had been instructed by decisions of the court following Reg. v. Governor of Blundeston Prison, Ex parte Gaffney  1 W.L.R. 696 as to how he should perform the calculation in order to identify the release date. The instructions which these decisions gave to him provided the requisite causal link between the order for the respondent's imprisonment and her continued detention by the governor. The fact that those decisions were later shown to be wrong did not affect the lawfulness of the detention for the purposes of the Convention.
For the reasons which I gave when I was dealing with the issue of justification I am not persuaded that these arguments would support the submission that the continued detention of the respondent after 17 September 1996 was lawful within the meaning of article 5(1) of the Convention. As I have said, it is sufficient to show that there was a contravention of that article to demonstrate that the detention was unlawful under domestic law. The question whether detention is or is not lawful under domestic law for the purposes of the Convention is a matter which the jurisprudence of the Strasbourg Court has left for decision by the domestic courts. The Divisional Court held that the respondent was entitled to release on 17 September 1996. It must follow that under domestic law her continued detention after that date was unlawful. This would indicate that there was a contravention of article 5(1). The consequence of the Divisional Court's order under domestic law is that the governor is liable to the respondent for damages under the tort of false imprisonment. The conclusion that the respondent has an enforceable claim for damages is consistent with article 5(5) of the Convention.
Collins J. was confronted by the fact that there was almost no authority to which he could turn for guidance as to the right amount to award as damages in a case of this kind. He said that he would have awarded the sum of £2,000 as general damages. There was no claim for special damages, and the respondent accepted that this was not a case for aggravated or exemplary damages. The Court of Appeal increased his figure to £5,000. The Solicitor-General submitted that they should not have interfered with the decision of the judge at first instance. For the respondent Mr. Emmerson said that the figure which had been fixed by Collins J. was out of line with awards which had been made by the Strasbourg Court as compensation for contraventions of article 5 of the Convention. But he accepted that the question in this case related to the position in domestic law.
It is clear from the reasons which Lord Woolf M.R. has given  Q.B. 1043, 1060F-G, that the decision of the Court of Appeal to increase the amount of the award can be explained in part by the fact that the sum fixed by Collins J. resulted in an amount per day which, when spread over the 59 extra days of imprisonment, was less than the daily figure which had been contended for by the governor. But these reasons indicate that the Court of Appeal were also taking the opportunity to provide guidance, in an area where guidance was almost entirely lacking, as to approach which should be taken in the making of such awards, as to some of the factors to be taken into account in the assessment and as to the general level of award which should be made in similar cases. I consider that in each of these respects they were performing a legitimate function. I do not think that their decision as to the appropriate sum to be awarded is one with which your Lordships should interfere.
For the reasons which I have given I too would dismiss the appeal.
LORD HOBHOUSE OF WOODBOROUGH
This is a claim for damages in the tort of false imprisonment. On 12 January 1996, Miss Evans, the respondent to this appeal, was sentenced to serve various periods of imprisonment for a number of offences of which she had earlier been convicted. The sentences were to be served concurrently, the longest being for 2 years. She had been held in custody for various periods in respect of some of the offences before her conviction and between conviction and sentence. On the same day as she was sentenced, an officer of the Crown Court at Cardiff signed an "Order for Imprisonment" which simply stated: "On 12/1/96 it was ordered that the defendant be sentenced to two years imprisonment." It was this document which accompanied her that day to HM Remand Centre Pucklechurch and formed the documentary authority for her retention in custody thereafter. She was subsequently moved to HM Prison Brockhill and it was there that she was held at the times material to this appeal; the Governor is the other party to these proceedings and the formal appellant in your Lordships' House. He was at all material times acting on the instructions of the Home Office and is represented on this appeal by the Solicitor-General.