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Cite as: [2010] 2 WLR 1054, [2010] 1 QB 732, [2010] QB 732, [2009] EWCA Civ 1312

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		Neutral Citation Number: [2009] EWCA Civ 1312
		Case No: B2/2008/2915

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HIS HONOUR JUDGE SHAUN SPENCER QC
8LS51546

Royal Courts of Justice
Strand, London, WC2A 2LL

04/12/2009

B e f o r e :

THE MASTER OF THE ROLLS
LADY JUSTICE SMITH
and
LORD JUSTICE SULLIVAN
____________________

Between:

	The Prison Officers Association	Appellant
	- and -
	Mr Mohammed Nazim Iqbal	Respondent

____________________

Michael Beloff QC & David Rivers (instructed by Thompsons Solicitors) for the Appellant
Phillippa Kaufmann & Alex Gask (instructed by Messrs Harrison Bundey) for the Respondent
Hearing date: 19 October 2009
____________________

HTML VERSION OF JUDGMENT
____________________

The Master of the Rolls:

This appeal raises a question which, at any rate in my view, is not altogether easy to resolve. Does a claim for false imprisonment lie against prison officers who take unlawful strike action, if that action results in a prisoner, who would otherwise have been permitted by the prison governor to leave his cell for the purpose of working, exercise and health care, being confined to his cell? His Honour Judge Spencer QC concluded that the answer was yes, and it is against that decision that the Prison Officers Association ("the POA") appeals. There is an additional question raised by way of cross-appeal, namely whether the Judge was right to award the claimant only nominal damages.

The factual and procedural background

The claimant, Mr Mohammed Iqbal, who was born in May 1979, was sentenced to 15 years imprisonment by the Leeds Crown Court in June 2003. In August 2007 he was a Category C prisoner occupying a cell with another prisoner on A Wing at HMP Wealstun ("the Prison") and had been for some seven months. His normal weekday routine, at least on a Wednesday, was as follows. His cell would be unlocked at 7.45am, at which time he would be provided with his breakfast; at 8.00, he would be permitted to leave his cell, to carry out cleaning work on A Wing, until about 11.15, when he would be allowed to enjoy half an hour's exercise in a caged yard (or to seek any medical advice or attention that he required); at 11.45am, he would collect his lunch and return to his cell, in which he would be locked; at 5.45pm, he would be let out to collect a hot meal, after eating which he would go to the gym and then ring his mother; he would return to his cell at 7.45pm, when he would be locked in for the night.

Following a deterioration in the relationship with the Prison Service over pay, the POA decided on 28 August 2007 to call a national strike from 7.00am the following day. This decision was taken by the POA, knowing that the strike would be in breach of contract, and on the basis that the short period between the decision and its implementation, coupled with the absence of any warning, would ensure that the strike could start before any injunction restraining it could be obtained. The POA representative at the Prison, Mr Mottershead, only heard of the proposed strike about thirty minutes before it was due to start. He informed the prison officers of the strike as they arrived for work. As a result, hardly any of the prison officers employed at the Prison reported for duty that day.

Mr Mottershead told the governor in charge of security, Mr Young, and the "Number One Governor", Ms Rice ("the Governor"), about the strike when they arrived at the Prison on 29 August at around 7.30 and 8.30 respectively. The Governor decided that, as a result of the strike, the prisoners should remain in their cells throughout the day. At about 9.30am, she issued a "Governor's Order" ("the Order") addressed to the prisoners and referring to the "Strike Action". The Order stated that prisoners would have to remain in their cells, but would receive meals, and should not use the bells in their cells save if there was a real emergency. It appears that the claimant did not receive a copy of this Order, possibly because there were no prison officers at work on A Wing.

Around midday, the Deputy Governor, Mr Dyer, told Mr Mottershead that the officers should go back to work, but this order was not complied with. Shortly thereafter the Prison Department obtained an injunction from the High Court requiring the officers to return to work. Mr Dyer handed a copy of the injunction to Mr Mottershead at about 2.30pm. The officers employed at the Prison initially refused to obey the injunction, but they ultimately returned to work the following day.

As a result of the strike, the claimant's normal Wednesday routine was broken. His cell was not opened till 11.30am, when a drug worker came to give him a cheese sandwich, and allowed him out of his cell for less than a minute to fill his thermos flask with hot water. For the rest of the day, he remained locked in his cell, where he was provided with a scratch meal at 3.30pm. The following day, his normal routine was re-established.

The claimant's case before the Judge was that, on 29 August 2007, his daily Wednesday routine at the Prison, which was established under the authority of the Governor, and which involved him enjoying time out of his cell between 8.45 and 11.45am and 5.45 and 7.45pm, was interrupted in that he was locked in his cell all day owing to the wrongful refusal of the members of the POA to work at the Prison, as a result of the POA calling an unlawful strike, and that this amounted to false imprisonment by the prison officers for which the POA was responsible. Judge Spencer QC accepted that argument and granted a declaration that the claimant had been falsely imprisoned for some six hours on 29 August 2007. The Judge then went on to assess damages at £5, partly because the claimant's description of the distress he suffered was "something of an exaggeration" and partly because the declaration the Judge was prepared to make went "a long way to provide the claimant with just satisfaction".

The POA appeals against the finding of liability for false imprisonment and the claimant cross-appeals against the quantum of damages he has been awarded.

False imprisonment: preliminary remarks

A person held in prison pursuant to a sentence of imprisonment imposed by a court is lawfully in prison by virtue of the provisions of sections 12 and 13 of the Prison Act 1952. Section 12(1) provides that a person "sentenced to imprisonment … may be lawfully confined in any prison." Section 13(1) states that "[e]very prisoner shall be deemed to be in the legal custody of the governor of the prison." It is thus common ground that the claimant can have no claim against the Governor arising out of his confinement in his cell during 29 August 2007.

It is also common ground that, if any individual prison officers, or indeed any group of officers, employed at the Prison, are liable to the claimant for false imprisonment as a result of their not having worked on that day because of the strike which had been called, then the POA is similarly liable to the claimant.

The claimant's case against the POA was accepted by the Judge in these terms: "If as a result of their own decision, prison officers acting under the direction of the [POA] do not unlock a cell at a time when the cell by the routine is to be unlocked, then obviously the prisoners remain confined and the cause of the confinement is the strike action, not the decision of the Governor, and a strike action is certainly not something that takes place under the Governor's authority."

As I have mentioned, there is no doubt but that, throughout 29 August 2007, the claimant was lawfully confined in the Prison and in the legal custody of the Governor. Thus, if the Governor had, of her own free will, ordered that he be confined to his cell throughout that day, he would have had no claim that he had been wrongfully so confined. His complaint that he was wrongly so confined is made against the prison officers, on the basis that it was their strike, their breach of contract, which resulted in his being confined in his cell.

Mr Beloff QC, for the POA, points out that the prison officers took no positive steps to shut the claimant in his cell, or even to force him to stay in his cell: they merely did not report for duty at the Prison on 29 August 2007, as a result of which the Governor decided that the claimant had to be confined to his cell. In those circumstances, the case advanced to support the contention that there was no liability to the claimant for false imprisonment had a number of strands of argument, namely:

(a) The prison officers cannot be liable for false imprisonment which occurred simply as a result of their inaction;

(b) The claimant's incarceration in his cell was only the indirect result of the unlawful strike;

(d) So long as he was lawfully in the prison, the claimant had no right to be let out of his cell.

There are, I think, dangers in treating each of these arguments as entirely distinct from each other. While one must be careful of conflating different points, one must be equally assiduous to avoid over-compartmentalising the issues. I shall begin, however, by considering each argument, and then try to synthesise their implications.

No liability for a pure omission

In Smith v Littlewoods Organisation Ltd [1987] 1 AC 241, 271, Lord Goff of Chieveley said that "the common law does not impose liability for what are called pure omissions". Specifically in relation to the tort of false imprisonment, it seems to me that this proposition derives support from Herd v Weardale Steel, Coal and Coke Co [1913] 3 KB 771, affirmed [1915] AC 67. In that case, the Court of Appeal, by a majority (Buckley and Hamilton LJJ), reversed Pickford J's upholding of a false imprisonment claim by an employee of a coal-mining company, whose complaint was based on his employers' refusal to comply with his request to take him to the surface, after he had wrongfully refused to do work, until more than two hours after his request had been made.

Buckley LJ first considered the contention that the employee had a claim in contract, which he rejected on the basis that, while there was an implied term that the employee would be brought to the surface, it had not been breached, as the plaintiff had been brought to the surface by the end of his shift - see at [1913] 3 KB 771, 785-6. He then turned to the claim in false imprisonment, and, at [1913] 3 KB 771, 787, said this:

"What kept [the plaintiff] from getting to the surface was not any act which the defendants did, but the fact that he was at the bottom of a deep shaft, and there was no means of getting out other than the particular means which belonged to his employers and over which the plaintiff had contractual rights and which at that moment were not in operation."

At [1913] 3 KB 771, 789, Buckley LJ considered what the position would have been if there had been an hour's delay in conveying an employee to the surface at the end of his shift, merely on the grounds of the employer's convenience. He said that, in such a case, in his opinion, the employee "would be entitled to damages for breach of contract", and then asked "would there be any false imprisonment?" He answered that question: "In my opinion, there would not. The master has not imprisoned the man. He has not enabled him to get out as the under the contract he ought to have done, but he has done no act compelling him to remain there." A little later, he added "to my mind [the employers] did not imprison [the employee] because they did not keep him [in the mine]; they only abstained from giving him facilities for getting away."

Hamilton LJ said this at [1913] 3 KB 771, 792:

"I say nothing as to how the case would have stood if force had been threatened to the plaintiff … . The fact is that he remained at the bottom of the shaft simply because the power was not turned on at the top of the shaft to raise the cage. Could that be held to have been an imprisonment?"

He then answered that question in the negative. On the following page, he said that the employers' refusal "to put the engine into operation and wind the cage, though it might possibly be a breach of contract, cannot in itself constitute the tort of false imprisonment."

In dismissing the plaintiff's appeal, the House of Lords seems largely to have relied on the proposition that the existence of a contractual relationship between the parties, including an implied obligation on the defendants to take the plaintiff up to the surface at the end of his shift, left no room for a claim in tort – see [1915] AC 67, 73 and 76. However, there were observations which seem to me to be consistent with the notion that no claim for false imprisonment can be based on a defendant's refusal to act, as opposed to his positive act. At [1915] AC 67, 71, Viscount Haldane LC said that "[i]f a man chooses to go [to] the bottom of a mine, from which by the nature of physical circumstances he cannot escape, it does not follow … that he can compel the owner to bring him up out of it." He then explained that, depending on the circumstances, "[t]he owner may or may not be under a duty … on broad grounds the neglect of which may involve him in a criminal charge or a civil liability." However, he thought it unnecessary to discuss those aspects, "because they have … nothing to do with false imprisonment." At [1915] AC 67, 77-78, Lord Moulton rejected the notion that the law of tort meant that the defendants "were bound to work this apparatus, … which was under their control, at the bidding of a man not entitled by any contractual relation with them to demand it, and, if they did not do so, they were guilty of an actionable wrong."

It might be said that the plaintiff went down the mine voluntarily in that case, whereas in this case the claimant was originally placed in his cell against his will. But it is hard to see how that can affect the point of principle, at least unless there is no statutory, or other special, duty owed by the prison officers to the claimant. Anyway, once the plaintiff in Herd [1913] 3 KB 771 had entered into his contract of employment, his going down the mine was, at least in a sense, not voluntary, as he was contractually obliged to do it. Indeed, in some ways, the unsuccessful plaintiff's case in Herd [1913] 3 KB 771 was stronger than the claimant's case here: he was free to leave the mine at any time, but merely lacked the means to do so, whereas the claimant was not free to leave his cell unless the Governor decided he could do so.

It seems to me that the reasoning in Herd [1913] 3 KB 771 supports the first proposition advanced by Mr Beloff, which is also reflected in Street on Torts (12^th edition), p 250, where there is this "A false imprisonment will normally result from some positive act" (emphasis added). I would put the point in these terms. At least as a general principle, defendants are not to be held liable in tort for the results of their inaction, in the absence of a specific duty to act, a duty which would normally arise out of the particular relationship between the claimant and the defendant. Such a hard and fast distinction between action and inaction may seem arbitrary to some people, but it is not unprincipled, and, while it may lead to apparent injustice in particular cases, it does help to ensure a degree of clarity and certainty in the law. However, a general rule such as that propounded by Lord Goff in Smith [1987] 1 AC 241, 271, and applied by the majority of the Court of Appeal in Herd [1913] 3 KB 771, can often, perhaps inevitably, be said to beg the question at issue when it is relied on in a particular case.

Accordingly, the question which arises here is whether the going on strike constituted a "pure" omission on the part of the prison officers. It might be said that it was a positive wrong because they were under duty to comply with the Governor's directions, and therefore their failure to let the claimant out of his cell on 29 August 2007 was wrongful. The problem with that argument, as I see it, is that the duty concerned was owed by the officers to the Governor or to their employer, not to the prisoners. In effect, the argument effectively amounts to saying that a prison officer owes to the prisoners in the prison in which he works, a duty in tort to comply with the terms of his employment contract, or a duty not to withdraw his labour. That cannot be right, and I note that such a contention was abandoned as effectively unarguable even at an interlocutory hearing, with the apparent approval of the Court of Appeal, in Toumia v Evans The Times 1 April 1999; Court of Appeal (Civil Division) Transcript No 374 of 1999 – see at paras 9 and 33.

It is true that it does not even seem to have been argued that the prison governor who miscalculated the release dates in R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19 could contend that he had been guilty of no more than pure omission when he failed, in good faith, to release prisoners on their statutory release dates. In that connection, Winfield and Jolowicz on Tort (17^th edition), pp 105-6, state that "a gaoler who refuses to open the cell door at the end of a prisoner's sentence is liable for false imprisonment". However, the implication from sections 12 and 13 of the 1952 Act is that a prisoner is no longer lawfully in the custody of a prison governor once his term of imprisonment expires: ergo he has a right, as against the prison governor, to be released, and it would therefore be unlawful for the governor not to release him. Once his term of imprisonment has expired a prisoner has an absolute right to leave prison, whereas on 29 August 2007 the claimant had no right to leave the Prison, and he had no even arguable right to leave his cell save if permitted by the Governor.

The strike was not the direct cause of the claimant's imprisonment

The Judge said in the passage I have quoted from his judgment that the "cause" of the claimant's confinement throughout the 29 August was the strike, and so it was in the sense that it foreseeably resulted in his confinement. However, the mere fact that an action or statement by the defendant results in the claimant being imprisoned wrongly cannot of itself always render the defendant liable to the claimant. As Lord Hoffmann said in Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 3 WLR 167, para 54, the "distinction between causing something and merely providing the occasion for someone else to cause something is one with which we are very familiar in the law of torts." More specifically, Street (op cit), p 250, states that "False imprisonment must result from a direct act of the defendant which deprives the claimant of his liberty." Thus, it is well established that, at least in the context of an arrest of a claimant by a constable following a complaint by a defendant, the defendant "ought not to be held responsible in trespass [to the claimant], unless he directly and immediately causes the imprisonment"- per Pollock CB in Grinham v Willey (1859) 4 H & N 496, 499.

That observation (together with others) was cited by Sir Thomas Bingham MR in a discussion in Davidson v Chief Constable for North Wales [1994] 2 All ER 597, 601j-604g, at the end of which he reached this conclusion:

"Accordingly, as it would seem to me, the question which arose for … decision… was whether there was information properly to be considered by the jury as to whether what [the defendant] did went beyond laying information before police officers for them to take such action as they thought fit, and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting [the plaintiffs]."

Sir Thomas then said that what the defendant, a store detective, had done in that case did not go "beyond the giving of information" to the constable who arrested the plaintiff, namely that she, a store detective, had, as she believed, seen the plaintiff shop-lifting. Sir Thomas continued: "Certainly there was no express request [to effect an arrest]. Certainly there was no encouragement. Certainly there was no discussion [between the defendant store detective and the arresting constable] of any kind as to what action the police officers should take." Accordingly, it was held, the first instance judge was "entirely correct to withdraw [the plaintiff's claim against the defendant for false imprisonment] from the jury" – [1994] 2 All ER 507, 605b. Staughton LJ said much the same at 605f-j, ending with the statement that "all she [sc. the defendant store detective] did was give information."

In the present case, the prison officers simply withdrew their labour, which did not directly lead to the claimant being confined in his cell on 29 August 2007: that resulted from the Governor's decision. The strike may have caused, indeed foreseeably caused, the Governor to decide not to let the claimant out of his cell on 29 August, but that is a different thing. Of course, it must have been apparent to the officers that it was likely, indeed probably inevitable, that, as a result of the strike, prisoners would enjoy less freedom of movement within the confines of the Prison than if there had been no strike. However, it is equally true that it must have appeared likely, indeed almost inevitable, to the defendant store detective in Davidson [1994] 2 All ER 597 that, once she laid credible information before a police constable that she had just seen the plaintiff shoplifting, the constable would arrest the plaintiff. Indeed, it was no doubt her intention and wish that the plaintiff be arrested, whereas there is no suggestion of a wish or intention on the part of the officers in the present case that the prisoners in the Prison, let alone the claimant specifically, be confined to their cells as a result of the strike.

The POA could not be liable as the Governor is not liable

As already mentioned, it is common ground that the claimant had no right, as against the Governor, to be let out of his cell. That must be right in the light of the decision of the House of Lords in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, where Lord Bridge of Harwich said that, in the light of sections 12 and 13 of the 1952 Act, a prisoner serving his sentence had no claim for false imprisonment against a prison governor or "officers acting with [his] authority … and in good faith, but in circumstances where the particular form of restraint is not sanctioned by the prison rules" – [1992] 1 AC 58, 162F. In this case, the Governor had custody of the prisoners (and, at least with effect from 9.30 am, she actually authorised the specific imprisonment complained of by the claimant by issuing the Order, confining all prisoners at the Prison to their cells). Accordingly, as the person in whose custody the claimant was placed was not falsely imprisoning him, it is said that the officers whose strike caused him to remain in his cell cannot be liable either.

However, as explained by Lord Bridge in Hague [1992] 1 AC 58, 162C, "[a]n action for false imprisonment is an action in personam", and "[t]he tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it." Accordingly, Ms Kaufmann argued for the claimant, although the Governor's liability for the tort, if it might otherwise arise, is dispelled by the 1952 Act, that does not mean that the prison officers, if otherwise independently liable for the tort, can parasitically rely on the Governor's exoneration. She therefore contended that, in order to avoid liability for the tort, they must justify their actions (or inactions) which led to the imprisonment. If they had been acting under the instructions of the Governor, it would, of course, be entirely different, as they could justify any actions on the basis that they were, in effect, her servants or agents, and could therefore indirectly rely on the 1952 Act.

A similar point was touched on in the reasoning of this Court in Davidson [1994] 2 All ER 597. If the prison officers in the present case could rely on any defence raised by the primary imprisoner, the Governor, then there is a strong case for saying that the defendant store detective in Davidson would have been able to rely on the fact that the arresting police constable had a statutory defence to an action for false imprisonment (as explained at [1994] 2 All ER 597, 600j-601b and 605c-f). If the store detective had been liable, this would therefore have given rise to what Sir Thomas Bingham MR described, at [1994] 2 All ER 597, 601a, as "a somewhat anomalous situation" because "the defendant would be liable for an act of persons who were not themselves liable in respect of what they had done". However, that anomaly was not, I think, the basis upon which the claim against the store detective in Davidson [1994] 2 All ER 597 was dismissed: indeed, it may well be inherent in the reasoning of the court that, had the store detective directed, or even requested, the constable to arrest the plaintiff, she could have been liable for false imprisonment, even though the constable was not so liable. On the other hand, in Davidson [1994] 2 All ER 597, the wishes of the primary imprisoner (the constable) and the defendant (the store detective) coincided, whereas, in this case, it can be said that they did not do so, as the Governor gave the Order only because her hand was forced by the prison officers going on strike.

Further, there is some support from Hague [1992] 1 AC 58, 164D-E for the proposition that prison officers can be liable for a prisoner's false imprisonment even though the prison governor was exonerated by the 1952 Act. Lord Bridge said "that a prison officer who acts in bad faith by deliberately subjecting a prisoner to a restraint which he knows he has no authority to impose may render himself personally liable to an action for false imprisonment as well as committing the tort of misfeasance in public office. Lacking the authority of the governor, he also lacks the protection of section 12(1)".

The claimant had no right to be let out of his cell

In a sense, the argument that the claimant had no right to be let out of his cell is another way of putting the point I have just been discussing. As against the Governor, the claimant had no such right. That is clear from the provisions of sections 12 and 13 of the 1952 Act, as considered in Hague [1992] 1 AC 58. However, if (as was the case) the Governor wished him to be released from his cell on 29 August 2007, then, as a claim for false imprisonment is in personam, it seems to me that he has a strong case for saying that he does have a claim for false imprisonment against any other person who prevented him from leaving his cell, unless that person could show that he was acting lawfully, or had any other defence.

The POA also has an argument based on a passage in the judgment of Nicholls LJ in the Court of Appeal in Hague [1992] 1 AC 58, 122, where he seems to have considered that a prisoner's complaint about a decision to place him in solitary confinement would not qualify as a basis for a false imprisonment claim, as it was not "a decision depriving the prisoner of his liberty of movement which, in any event, he has already lost". And this was, he said, the position, even in relation to a "restriction imposed on the prisoner against leaving his cell". I doubt that that assists the POA. Despite the source of the observation, it was obiter, and must be read in the light of the subsequent opinions in the House of Lords in the same case (although at [1992] 1 AC 58, 163C, Lord Bridge referred to the fact that solitary confinement did not involve "the deprivation of his liberty"). More importantly, Nicholls LJ's observations were made in the context of a decision by the Governor, not an action (or inaction) by a third party.

Conclusions on the issue of liability for false imprisonment

While readily acknowledging the force of the argument to the contrary, which is powerfully advanced by Sullivan LJ, I am of the view that the Judge was wrong to hold that any prison officers, and hence the POA, were liable for the tort of false imprisonment in this case. I rest my reasoning primarily on the arguments that (a) the mere failure of the prison officers to work at the Prison, while it may have been a breach of their employment contracts, involved no positive action on their part, and (b) that failure was not the direct cause of the claimant being confined to his cell throughout 29 August 2007. The fact that there was what might be characterised as a generalised state of inaction, in the form of a withdrawal of labour, on the part of the prison officers, directed at no prisoner, is a thread which connects these two points.

It may be that there could be circumstances in which a failure to act could give rise to a claim for false imprisonment, but I suspect that those circumstances would, at least normally, be such that there would be a breach of an independent duty to the claimant, i.e. a duty arising under contract (as explained by Buckley LJ in Herd [1913] 3 KB 771, 785-6) or pursuant to a different tort (as alluded to by Viscount Haldane LC in Herd [1915] AC 67, 71). However, even if a defendant's failure to act can of itself exceptionally give rise to a claim for false imprisonment, I am of the view that it did not do so in the present case. Additionally, the case law makes it clear that a defendant can only be liable for false imprisonment if he is directly responsible for the imprisonment, and, in my opinion, the strike by the officers at the Prison cannot fairly be characterised as a direct cause of the claimant's confinement in his cell throughout 29 August.

As to the POA's points based on the fact that the claimant was in the lawful custody of the Governor and had no right to be let out of his cell, I prefer to express no concluded view on them, although I am inclined to think that they would probably not exonerate the POA from liability to the claimant if the other two arguments were not available. However, it is right to add that, even if they would not be sufficient on their own to persuade me to allow this appeal, those other points serve to support the conclusion I have reached, at least insofar as they concentrate one's mind on the fact that the instant false imprisonment claim is being made by someone lawfully confined in prison.

It seems to me that there must be a powerful argument for saying that, if prison officers positively locked up a prisoner in a cell, when the governor had given the officers clear instructions to let him enjoy recreational activity within the prison, then, particularly if the officers have acted in bad faith, they should be liable for false imprisonment. Indeed, that would be very similar to the situation canvassed by Lord Bridge in Hague [1992] 1 AC 58, 164D-E. However, in such a case, the two arguments upon which I would allow this appeal would not be open to the prison officer. Even in such a case, however, Lord Bridge said that by taking such action "the prison officer … may render himself personally liable to an action for false imprisonment" (emphasis added). It is worth noting that, in what is admittedly an obiter passage, even where a prison officer, acting in bad faith, takes a positive act of restraining a specific prisoner in an unauthorised way, Lord Bridge was not prepared to commit himself to the view that the prisoner would have a claim for false imprisonment.

The prison officers' strike in the present case was not, I think, put into effect in bad faith, within the meaning of that rather slippery expression as I understand it to have been used by Lord Bridge (as described by Lord Steyn in a passage cited in para 41 below, namely, that the officers did "not have an honest belief that [their] act [was] lawful"). More significantly, as already mentioned, unlike the example mentioned by Lord Bridge, there was no positive action in this case, and no question of any act by the officers which directly caused the claimant to be confined in his cell.

I also consider that the reasoning in Hague [1992] 1 AC 58 suggests that there may well be a practical reason for reaching the conclusion that there was no false imprisonment in the present case. The practical implications of the unsuccessful appellant prisoner's case in Hague were taken into account by Lord Bridge at [1992] 1 AC 58, 162G-163F, where consideration was given to "the realities of prison life". If the claim in the instant case succeeded, it would appear to follow that a delay by a prison officer in letting a prisoner out of his cell at the precise time mandated by the governor's regime, even if not caused by the officer's bad faith, could result in a claim for false imprisonment. Provided that the prison officer's delay was not involuntary, it seems to me that a claim would lie, if the claimant succeeds in this case. Indeed, on that assumption, depending on the terms of the prison officers' employment contracts, it is rather hard to see how prison officers would not be liable for false imprisonment if they went on lawful strike.

The rights of prisoners should certainly be acknowledged: indeed according and respecting rights are one of the hallmarks of a civilised society. Further, it can fairly be said that every moment out of his cell is valuable to a prisoner. However, I think that the court should be reluctant to reach a conclusion whose implications could lead to many small private law damages claims arising from what may often be little more than poor time-keeping by prison officers, and whose outcome may often turn on issues such as whether an officer in an undermanned prison could better have organised his working day to ensure that a prisoner was let out of his cell at precisely the time stipulated by the governor.

It better accords both with principle and with practicality to limit claims by prisoners who are left locked in their cells by the inaction of prison officers to cases where the relevant prison officers are guilty of misfeasance in public office, a tort specifically mentioned by Lord Bridge in Hague [1992] 1 AC 58, 164D. That tort was described by Lord Steyn in Three Rivers District Council v The Governor and Company of the Bank of England (No 3) [2000] UKHL 33 , [2003] 2 AC 1, 191E, where he said it had two forms:

"First, there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and the act will probably injure the [claimant]. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful".

In that connection, in Karagozlu v Commissioner of the Police of the Metropolis [2007] 1 WLR 1881, para 50, this court, after referring to its earlier decision in Toumia The Times 1 April 1999, para 55, concluded that "there was no reason why [a prison officer] should not be liable for misfeasance" if he "deliberately and 'dishonestly' refuses to carry out his duties such that the governor decides not to give a direct order to unlock the cells … perhaps in order to avoid turmoil in the prison". It therefore seems to me that the tort of misfeasance in public office plays an important part in this field. On the one hand, it ensures that a prisoner who remains in his cell due to the unjustified inaction of a prison officer is not without a remedy in an appropriate case; on the other hand, it ensures a degree of practicality in that a prison officer is only liable in such a case if his inaction is "deliberate and 'dishonest'".

It is also worth mentioning that, in reaching the conclusion that the claimant had a claim for false imprisonment against the POA, Judge Spencer QC relied on the reasoning in Toumia The Times 1 April 1999. But all that the court decided in that case was that the prisoner's claims in false imprisonment and misfeasance should not be struck out. It must, I think, have been part of the ratio that it was arguable that the claim in false imprisonment would not automatically fail even though based on the prison officer's inaction, rather than action. However, it is only authority for the proposition that the point was not fit to be decided at an interlocutory stage. It is also worth noting that in para 55, the very paragraph cited in Karagozlu [2007] 1 WLR 1881, para 50, the court held that "while the officer [who "refuses deliberately and 'dishonestly' to carry out his duties"] may not be liable for false imprisonment, he may be liable for misfeasance" (emphasis added). It is fair to say that all that may have been meant by the words emphasised was "even if it is subsequently decided that he is not liable for false imprisonment".

Damages

The question of damages is, in the light of this conclusion, moot, but it is right briefly to deal with the issue, as it also may be of some significance.

As explained, the Judge awarded the claimant nominal damages of £5, essentially because he had exaggerated the hurt to his feelings and because the declaration that he had been falsely imprisoned provided him with substantial "just satisfaction".

In agreement with Ms Kaufmann, I consider that the sum awarded was (or would have been) indefensibly low, and that the reasoning does not justify it. The claimant suffered real damage in being confined to a small cell throughout the day, rather than having the relative freedom of A Wing, while carrying out cleaning work, for three hours, getting some exercise for half an hour, working out for an hour or so, and telephoning his mother. That would have been a genuine and significant loss of freedom, albeit within the confines of the Prison. There is no suggestion that he was unaware of his incarceration because he was asleep, or that he was perfectly content to be confined to his cell for the day. On the contrary.

The fact that the claimant exaggerated his distress self-evidently does not mean that his damages should be nominal, if they would otherwise be substantial. Further, just satisfaction has no part to play in the common law when it comes to assessing damages (save, conceivably, in relation to exemplary damages and the like): it is a concept invoked by the European Court of Human Rights, where it has an important part to play, and it may also be applicable to some cases where Constitutional rights have been infringed.

Given that the claimant plainly suffered some real loss as a result of being confined to his cell on 29 August 2007, what is the proper approach to damages? In Thompson v Commissioner of Police of the Metropolis [1997] 2 All ER 762, the Court of Appeal gave some guidance where the police had wrongfully confined someone in a cell, but, in that case, as Ms Kaufmann realistically accepted, the plaintiffs were not already in prison, and they were deprived of their freedom, whereas in this case the claimant was already in his cell, and the liberty of which he can claim to have been deprived is pretty limited. Accordingly, the Judge was, in my opinion, correct to find the guidance in that case of no real assistance.

In summary, the claimant suffered real loss in not being able to enjoy his customary limited freedom for some six hours, but this was at a time when he was lawfully being confined within the Prison, in the cell where he had been for seven months, he was deprived only of limited freedom of movement within the Prison, and this deprivation did not cause him much distress. In my judgment, an award of nominal damages is unjustifiable as the claimant suffered real loss, a relatively modest award of £120, which represents £20 an hour, would have been a fair sum to award him by way of damages, particularly bearing in mind that the Judge clearly would have thought it right to adopt a relatively low figure within what might be described as the permissible band.

Conclusion

For these reasons, I would allow this appeal on the ground that the claimant was not falsely imprisoned in his cell at the Prison on 29 August 2007, but, if he had been, I would have held that he was entitled to £120 damages.

Lady Justice Smith:

I have read the draft judgments of the Master of the Rolls and Sullivan LJ. I agree with the Master of the Rolls that the appeal should be allowed. I am grateful for his exposition of the facts.

I must first address the reasoning of HH Judge Spencer QC and say why I respectfully consider it to be open to criticism. In paragraph 20 of his judgment, the judge summarised the facts of the case and expressed the view that, where prison officers decided of their own volition to strike and not to unlock a prisoner's cell at a time when the cell would usually be unlocked pursuant to the normal routine, then the prisoner would be confined and the cause of the confinement would be the strike action and not the governor's authority. Then at paragraph 21 he said:

"That there can be false imprisonment in such circumstances appears clearly from a Court of Appeal decision in Toumia v Evans."

(That case was reported as Toumia v Evans (Secretary General of the Prison Officers Association) [1999] 1 PLR 153 and The Times 1 April 1999.) The judge then described the facts of that case, which were similar to those of the present case. The claimant alleged false imprisonment following his confinement to his cell during a morning. The prison officers had failed to carry out their usual duties. They had attended a meeting to discuss a grievance about working practices. They decided not to cooperate after the meeting but, when, in mid-morning, they were given a direct order to return to work, they obeyed it. The governor decided that, in the interests of safety, the prisoners must be kept in their cells until 2pm in case there was to be any further disruption of normal work. The deputy district judge struck the case out holding that the prisoner was properly confined in his cell and his continued confinement was approved by the governor. An appeal to a Circuit Judge failed and the matter came to this Court. The Court of Appeal held that it was at least arguable that a prison officer who deliberately locks a prisoner in his cell contrary to the orders of the governor will be guilty of the tort of false imprisonment. The court recognised that it might be different where the officer's action was negative in the sense that it was a refusal to obey the governor's order to unlock the cell but held that that was arguable as well. It also held that it was arguable that there was no difference of substance between a prison officer refusing a direct order and a more general refusal to carry out normal duties which included unlocking the prisoners. So it was also arguable that it would be false imprisonment if a prison officer, acting without the authority of the governor, failed or refused to unlock the cells in accordance with normal routine. The appeal was allowed and the claim was allowed to proceed to trial.

Judge Spencer recognised that the appeal in Toumia was only from a decision to strike out the claim and recorded the fact that the case had never gone to trial. There had never been a substantive decision on the points in issue. Yet it appears to me that Judge Spencer treated Toumia as authority for the proposition that a failure to open a cell in accordance with normal procedure without the authority of the governor was, as a matter of law, the tort of false imprisonment. I say that because, after his citation from Toumia, the only argument which the judge dealt with was whether this case was different from the facts postulated in Toumia because, in the present case, the governor had not ordered the officers to return to work; instead she had given an order that the prisoners should be kept in their cells. Judge Spencer rejected that argument on the basis that the Governor had only given that order because her hand had been forced by the striking prison officers; it had not been her choice to keep the prisoners confined. Therefore, he said, the cause of the confinement was the prison officers' strike action. The claim succeeded.

It seems to me that the judge's reasoning was flawed in that he went directly from the decision in Toumia (that the propositions contended for were arguable) to the conclusion that a refusal to unlock the cells in accordance with normal duties as expected by the governor did, as a matter of law, amount to the tort of false imprisonment. He may have been right but Toumia was not authority for that conclusion. It follows that, in my view, it is for this court to decide whether the facts of this case amount to the tort of false imprisonment.

The arguments advanced

Mr Michael Beloff QC, for the appellant POA, advanced a number of arguments in support of his contention that a deliberate refusal to attend work, which resulted in the claimant being kept locked in his cell and in the governor giving an order that his confinement in his cell should continue throughout the day, could not amount to the tort of false imprisonment. In summary, he submitted first that there was no positive act by the prison officers such as is required by the tort of false imprisonment; save in special circumstances, an omission to act is not enough. Second, he submitted that the act resulting in the confinement had to be an intentional act and that there must be an intention to deprive the claimant of his liberty. Such an intention was not present here. Third, he submitted that the confinement had to be the direct and immediate result of the act; a causal connection was not enough. Here he accepted that there was a causal connection between the decision to strike and the respondent's confinement but submitted that the confinement was not the direct and immediate result of the strike.

Ms Kaufmann for the respondent submitted that, even if the judge's reasoning from Toumia had been flawed, his conclusions were correct.

Discussion

I will consider these submissions in turn but it is convenient first to cite Lord Goff's definition of false imprisonment from Collins v Willcock [1984] 1 WLR 1172 at page 1177 as 'the unlawful imposition of constraint upon another's freedom of movement from a particular place'. It is common ground that the constraint must be complete: see Bird v Jones [1845] 7 QB 742. The claimant must be entitled to his freedom of movement and the defendant must have no lawful authority to impose the constraint.

Mr Beloff reminded the court of the historic development of the tort of false imprisonment. It derives from the old writ of trespass which provided a remedy for unlawful interference with the person, goods or land. All forms of trespass were actionable without proof of damage.

Is a positive act necessary or is an omission to act enough?

Mr Beloff submitted that a positive act was necessary and that, save in exceptional cases, there could be no liability for a pure omission. In support of that proposition he relied on Herd v Weardale Steel Coal and Coke Co [1913] 3 KB 771 affirmed by the House of Lords at [1915] AC 67, from which the Master of the Rolls has cited extensively. I shall not repeat those citations but say only that I agree with the Master of the Rolls (see his paragraph 21) that that case is authority for the proposition that a defendant is not to be held liable for the tort of false imprisonment as the result of a failure or refusal to release the claimant from confinement in the absence of a specific duty to do so.

How and when such a specific duty may arise is well illustrated by the case of R v Governor of Brockhill Prison, ex parte Evans (No 2) [2001] 2 AC 19 where it was held that it was false imprisonment to fail to release a prisoner at the end of his sentence. In that case the prison governor had made a mistake as to a prisoner's release date; there was no longer any lawful justification for the prisoner's confinement in prison. The prisoner had the legal right to be released and the governor was under a clear and obvious legal duty, owed directly to the prisoner, to release him on the due date.

It seems to me that the general rule that an omission or refusal to release the claimant from confinement will not amount to false imprisonment should not be overridden save in circumstances where the claimant has a legal right to be released and the defendant is under a positive obligation to release the claimant.

What is the position of a prisoner while lawfully detained in a prison? What is his legal entitlement and what are the positive obligations of the prison officers? The question of the residual liberty of a prisoner lawfully detained within a prison has been discussed in R v Deputy Governor of Parkhurst Prison and others ex parte Hague [1992] 1 AC 146. In that case, the deputy governor of the prison transferred Hague to a segregation unit under rule 43(1) of the Prison Rules 1964. He was denied association and various other privileges. He complained that this action was unlawful and, after exhausting his internal remedies, he sought judicial review of the governor's decision, claiming declarations and damages for false imprisonment. In the House of Lords, it was held first that a breach of the Prison Rules could not found a private law claim for damages. Second, it was held that sections 12 and 13 of the Prison Act 1952 provided lawful authority for the restraint of prisoners within the defined bounds of the prison by the governor or by any prison officer acting under the governor's authority. Section 12(1) of the Prison Act 1952 provides that a prisoner whether sentenced to imprisonment or on remand may be lawfully detained in any prison. Section 13(1) provides that 'Every prisoner shall be deemed to be in the custody of the prison governor'. It followed that, during the currency of a prison sentence, a prisoner cannot maintain an action for false imprisonment against the governor even if he is deprived of any limited degree of freedom which he usually enjoys under the prison regime. His detention anywhere within the prison is lawful.

That was the extent of the ratio decidendi of the case. However, there was some discussion, necessarily obiter, about the circumstances (not pertaining in that case) in which a prisoner might be able to sustain an action for false imprisonment for the loss of any residual liberty within the overall confines of the prison. In the course of his speech at page 164B–D, Lord Bridge of Harwich accepted that, if fellow prisoners were to lock the claimant in a shed in the prison grounds, the claimant could sustain an action for false imprisonment. The confinement in the shed would be unlawful because the fellow prisoners had acted without the authority of the governor and only the governor and persons acting with his authority could rely on section 12(1). Lord Bridge then continued:

"This consideration also leads to the conclusion that a prison officer who acts in bad faith by deliberately subjecting a prisoner to a restraint which he knows he has no authority to impose may render himself personally liable to an action for false imprisonment as well as committing the tort of misfeasance in public office. Lacking the authority of the governor, he also lacks the protection of section 12(1)."

Lord Ackner was prepared to accept that a prisoner who was locked in a confined space by fellow prisoner would have a right of action in false imprisonment against that fellow prisoner although not against the governor. He said nothing about prison officers acting without the authority of the governor. At page 176G, Lord Jauncey of Tullichettle observed that it was beyond doubt that a prisoner had the right to sue for damages for torts committed against him in prison and gave as an example an assault by a prison officer. As to false imprisonment by the loss of residual liberty, at page 178E, he agreed that a prisoner could sustain an action against a fellow prisoner who locked him in some confined space. Lord Goff and Lord Lowry said nothing about these obiter matters.

Although these observations were, as I have said, obiter, they come from the highest authority and I am prepared to accept them as correct statements of the law. Thus, for what it is worth, a prisoner could maintain an action for false imprisonment against a fellow prisoner who locks him up in a confined part of the prison. I note that when discussing the position of a prison officer, Lord Bridge expressed the view only that a prison officer 'who acts in bad faith by deliberately subjecting a prisoner to a restraint which he knows he has no authority to impose may render himself personally liable to an action for false imprisonment' (my emphasis). He did not commit himself to a positive statement and it is noteworthy that Lord Ackner and Lord Jauncey did not mention prison officers at all. However, even if one gave full effect to Lord Bridge's tentative statement, it does not help with the present problem of whether a refusal to release a prisoner would be sufficient to amount to the tort of false imprisonment. All three of their Lordships couched their observations in terms of positive acts of 'locking up'.

I am prepared to accept that a prison officer who is acting without the authority of the governor is in no better a position than a fellow prisoner. Take the position of a fellow prisoner (the defendant) who has himself been released from his cell under the normal regime and who hears the claimant calling to him to let him of his cell - he having not been let out as usual and the key being available. The defendant ignores the claimant's request. Is the defendant guilty of false imprisonment? In my view, obviously not. Even assuming that the claimant has a right to be let out of his cell under the normal regime, the defendant is not under any duty to release him and the failure to do so is a mere omission.

Would the prison officer who refused to release the claimant be guilty of false imprisonment? He would be if it could be said that the claimant had a right to be released and that the prison officer had a positive duty (as opposed to a power) to release him.

I do not think that a prisoner has a right to be released from his cell at any particular time, even though he is usually released at particular times under the normal regime. The prisoner certainly has no right to be released from his cell as against the governor. I can see no reason why he should be able to claim that he has such a right as against any particular prison officer or even as against the prison officer who would normally unlock his door on any particular morning. Nor do I think that a prison officer owes to each prisoner personally a duty to follow the normal regime. A prison officer is under a contractual duty to the employer to attend for work. He has a duty to the employer to carry out his usual duties which would include unlocking the prisoners from their cells. A refusal to comply with those duties will be a breach of contract and a disciplinary offence. However, I do not consider that it necessarily follows that a prison officer is under a duty to prisoners to unlock them in accordance with the normal regime.

It follows that I consider that there is much force in Mr Beloff's first submission that, save in particular circumstances, the tort of false imprisonment is not committed by omission or by refusal to act. Those particular circumstances were satisfied in the Brockhill Prison case where there was a right to be released and a duty to release. I do not think it would be right to extend those particular circumstances to cases where the right and the duty were anything other than clear.

What is the intent necessary?

Mr Beloff submitted that the false imprisonment required an intentional act and an intention to confine. He alleged that, on the facts of the present case, there was no intention to imprison or confine. Foresight that confinement would probably happen was not enough.

It is well established that all forms of trespass require an intentional act. An act of negligence will not suffice: see Letang v Cooper [1965] 1 QB 232. In Wilson v Pringle [1987] 1 QB 237 Croom-Johnson LJ said at page 249:

"It is the act and not the injury which must be intentional. An intention to injure is not essential to an action for trespass to the person. It is the mere trespass by itself which is the offence."

That was a case of battery where the act of striking the claimant must be intentional. There is no need to prove an intention to cause harm. However, it seems to me that it could be said that false imprisonment is different from battery. In battery, the tort is complete without any harm being caused; the mere deliberate touching is enough. So it would be immaterial whether the harm were intentional or not. However, with false imprisonment, the loss of liberty is the essence of the tort and, in my view, the claimant must show not merely an intentional act or omission (to the extent that an omission will suffice - see above) but also an intention to deprive the claimant of his liberty. I can illustrate the point as follows. If a security guard in an office block locks the door to the claimant's room believing that the claimant has gone home for the night and not realising that he is in fact still inside the room, he has committed a deliberate act. However, he did not intend to confine the claimant. He may well be guilty of negligence because he did not check whether the room was empty but he would not be guilty of the intentional tort of false imprisonment.

How far must the claimant go in proving intent? Does he need to show the defendant positively wished to imprison him or is it sufficient if he shows that the defendant foresaw that imprisonment would be the consequence of his action? Is recklessness as to the consequence sufficient? In my view, mere foresight of the likely consequences would not be sufficient. However, in the criminal law, a reckless disregard of the consequences is taken as sufficient to satisfy the requirement of intention. I think that a similar standard should be applied in the tort of false imprisonment. So I would hold that, if the defendant realises that the likely consequence of his act or omission will be that the claimant is imprisoned and carries on with that act (or omission - see above) regardless of that likely consequence, that will amount to false imprisonment, provided of course that the other requirements are satisfied.

In the present case, I do not think it could be said that the prison officers actually wished that the prisoners should be confined to their cells all day. However, it is clear that they foresaw that that was likely to happen and they went ahead with their strike action regardless. I would hold that the act (or omission - see above) did carry the requisite degree of intention.

Direct and immediate cause

Mr Beloff submitted that, in false imprisonment as with all forms of trespass, the interference with the relevant interest had to be direct and immediate: see Grinham v Willey (1858) 4 H&N 496 where Pollock B said at 499:

"A person ought not to be held responsible in trespass, unless he directly and immediately causes the imprisonment."

Mr Beloff's submission was that the respondent had been unable to show that the prison officers' decision to strike had been the direct and immediate cause of his confinement.

The context of Grinham (and other more recent cases to similar effect) was that the plaintiff had been arrested and taken into custody, wrongfully as it turned out. The defendant's role had been to make a complaint about the plaintiff's conduct to a police officer, who then effected the arrest. The police officer could not be sued for false imprisonment because he had statutory immunity from suit. It was held that the defendant was not liable; all he had done was to make a report to the police. The distinction was drawn in Grinham and also in more recent cases such as Davidson v Chief Constable of North Wales and Another [1994] 2 All ER 587 between, on the one hand, a defendant who makes a complaint or report to a police officer, leaving the latter to make up his mind whether to make an arrest and, on the other, the defendant who actually instigates the arrest, instructing or authorising the police officer to act. In the former case, the defendant would not be liable for wrongful arrest and false imprisonment; in the latter, he would be.

Mr Beloff submitted that the rationale for the distinction was that, although in the Grinham type of case, the defendant's actions had been a cause of the arrest (in that there was a causal link between his report and the arrest) his actions were not the direct and immediate cause of the imprisonment. The direct and immediate cause of the arrest was the constable's decision. If the defendant had ordered or authorised the police officer to act, his actions would have been the direct cause of the arrest and confinement. So, submitted Mr Beloff, although in the present case there was a causal link between the prison officers' decision to strike and the detention of the claimant in his cell, that did not mean that the decision to strike was the direct and immediate cause of the detention. The causal link was not sufficiently direct and immediate. Another cause had intervened, namely the Governor's decision to keep all the prisoners in their cells. It mattered not that her decision had been made because the officers had gone on strike, any more than it mattered that the police officer in Grinham had acted only because of the report he had received from the defendant.

I accept that submission and analysis. It seems to me that Grinham and Davidson support the proposition that, in the tort of false imprisonment, there must be a direct and immediate causal link between the act (or omission – see above) and the imprisonment. The kind of causal link which will often suffice in the tort of negligence will not necessarily suffice for false imprisonment. In my view, in Grinham and Davidson, there was a causal link between the defendant's report and the plaintiff's loss of liberty but the police officer's decision rendered the link insufficiently direct and immediate.

In the present case, there was a causal link between the prison officers' decision to go on strike and the prisoners' confinement in their cells. I bear in mind that, from 7.45am (when the cell doors were usually unlocked) until at least 8.30am (when the Governor arrived and tacitly approved the continued confinement) or possibly until 9.30am when the Governor made her order, there was no intervention in the direct chain of causation. I am prepared to accept that, absent the Governor's approval or order, the decision to strike was the direct and immediate cause of the confinement. But from 9.30am at the latest, it seems to me that the Governor's order so reduced the directness of the causal link that it could no longer be said that the strike was the direct and immediate cause of the confinement. In my view, it matters not that the Governor was reluctant to make that order. It matters not that she was under pressure. It was her order and it was lawful. I reserve my opinion as to what the position would have been if the Governor had been put under actual duress so that it could be said that the decision was not hers. But the decision and the order plainly were hers and, from 9.30am, it could not be said that the decision to strike was the direct and immediate cause of the confinement.

Summary

In summary, it appears to me that, although the act required for false imprisonment does not have to be that of physically depriving the claimant of his freedom, it must be an intentional or at least reckless (see above) positive act or, in limited circumstances omission (see above) and it must be the direct and immediate cause of the loss of liberty.

I apply those requirements to the facts of the present case. I would hold that, during the whole period in question, there was no false imprisonment because the refusal to work and the consequent failure to unlock the claimant's cell door was an omission rather than a positive act. The omission was not sufficient to support the requirement of the tort because the claimant has not shown that he had a legal right to be released or that the prison officers had a duty to him to release him: see paragraphs 68/9 above.

For the period after 9.30am at the latest (possibly 8.30), I would hold that the claim fails for the additional reason that, after that time, the direct and immediate cause of the confinement was the Governor's order and not the prison officers' decision to strike. I would therefore allow the appeal and dismiss the claim.

The cross-appeal

In view of the decision to allow the appeal, the cross appeal is academic. However, it is right that I should express my view. I agree with the Master of the Rolls and Sullivan LJ that the judge below erred in awarding the claimant only nominal damages. The tort is actionable without proof of damage. It follows in my view that the circumstances in which nominal damages would be appropriate are rare almost to vanishing point. I can see that, if the claimant had been asleep throughout his confinement and therefore unaware of it, nominal damages would have been appropriate, assuming as I do for present purposes that the tort could actually be committed in such circumstances. It seems to me that for false imprisonment there should always be an award of damages based on normal compensatory principles. The sum of £5 could not suffice for this respondent's loss of liberty, assuming it to have been unlawful.

I would endorse all the Master of the Rolls has said on the question of damages and would agree that the appropriate sum would have been £120.

Lord Justice Sullivan:

I have read the draft judgments of the Master of the Rolls and Smith LJ. While I acknowledge the force of their arguments, I am not persuaded that the Judge was wrong to hold that the POA was liable for false imprisonment on the facts of this case. I will briefly set out the reasons why I would have dismissed the Appellant's appeal, allowed the Respondent's cross-appeal, and increased the amount of damages awarded to the Respondent to £120.

Mr Beloff accepted the proposition that, even if lawfully within a prison by order of a Court, a prisoner enjoys the liberty not to be further restrained by unauthorised action whether by fellow inmates or prison officers. During the course of his submissions Mr Beloff made it clear that he did not dissociate the POA from the conduct of the individual prison officers who refused to work on 29^th August 2007.

Since the prison officers' conduct was not authorised by the governor, what is the Appellant's answer to the Respondent's claim? At the heart of the Appellant's case was the submission that "restraint …. involves a positive act, and not merely a refusal or failure to unlock a cell in which the prisoner is lawfully confined". Before considering this submission, I will consider whether the proposition – that even though he was lawfully in prison, the Respondent was entitled not to be further restrained by unauthorised action by prison officers - is correct.

I have no doubt that this is the correct starting point for the following reasons. In Hague Lord Bridge, having referred to the two ingredients of the tort of false imprisonment - "the fact of imprisonment and the absence of lawful authority to justify it." (p.162C) - said that section 12(1) of the Prison Act 1952 provided:

"lawful authority for the restraint of the prisoner within the defined bounds of the prison by the governor of the prison, who has the legal custody of the prisoner under section 13, or by any prison officer acting with the governor's authority." (p.162H)

A prison officer who deliberately restrains a prisoner without the governor's authority has no more justification for his conduct than any other person, such as another prisoner acting without the governor's authority:

"This consideration [that it is only the governor who can rely on section 12 of the Prison Act 1952] also leads to the conclusion that a prison officer who acts in bad faith by deliberately subjecting a prisoner to a restraint which he knows he has no authority to impose may render himself personally liable to an action for false imprisonment as well as committing the tort of misfeasance in public office. Lacking the authority of the governor, he also lacks the protection of section 12(1)." (p.164D)

Lord Jauncey agreed that a prisoner had no "residual liberty vis-à-vis the governor" (p.176G), and that section 12(1) of the 1952 Act provided:

"a complete answer to any claim of false imprisonment against the governor or anyone acting on his authority." (p.178D)

While he referred to the acts of fellow prisoners, Lord Jauncey made it clear that the governor's immunity conferred by section 12(1) did not extend to those who acted without the governor's authority:

"While a prisoner has no residual liberty vis-à-vis the governor, it does not necessarily follow that vis-à-vis fellow prisoners he does not have such measure of liberty as is permitted to him by the prison regime. Furthermore section 12 would provide no defence to a fellow prisoner." (p.178E)

The prison regime in any particular prison will be the regime that has been established by the governor. Prison officers implementing that regime will be acting with the governor's authority.

Lord Ackner's speech in Hague was to a similar effect: while a prisoner had no residual liberty vis-à-vis the governor, he had a remedy if unlawfully deprived of liberty by a person (Lord Ackner gave the example of a fellow prisoner) other than the governor (pp.166H-167A). Lord Goff and Lord Lowry agreed with the speeches of Lord Bridge and Lord Jauncey.

Against this background, I turn to the Appellant's core submission: that restraint involves a positive act – locking a prisoner in a cell without the governor's authority – and "merely" refusing or failing to unlock a cell in which a prisoner has been lawfully confined does not amount to an unlawful restraint.

I readily accept Mr Beloff's submission that some positive act is implicit in the concept of restraint, and that a distinction can and should be drawn between a positive act and what he described as a "mere omission". A stranger encountering a prisoner who is locked in a cage and unable to reach the key, who ignores the prisoner's pleas to be released, will not be liable for false imprisonment even if he could easily have reached the key and opened the cage for the prisoner.

However, I am not persuaded that on the particular facts of the present case the striking prison officers' conduct can sensibly be described as a "mere omission", rather than a positive act. The Respondent's account of the regime in HMP Wealstun, as set out in paragraphs 5 and 6 of the judgment below, was not challenged by the Appellant. The Respondent was lawfully in his cell at 7.45 a.m. on 29^th August 2007 because the previous evening he had been returned to his cell by prison officers and locked up by them for the night at 19.45 hrs. The prison officers who had locked the Respondent in his cell for the night had not done so on some whim of their own, they had done so with the authority of the governor because they were acting in accordance with her standing instructions in implementing the regime for the prison which she had laid down.

Just as the governor did not have to give specific orders to those individual prison officers that they should lock the Respondent in his cell at 19.45 hrs on 28^th August 2007, so the governor did not need to give specific orders to their colleagues to unlock the Respondent and release him from his cell at 7.45 hrs on the following morning. It was not for the individual prison officers arriving on the early and ordinary day shifts on 29^th August 2007 to decide for themselves when might be the appropriate time to release the prisoners on A wing from their cells. Those prison officers knew, without the need for any further specific instruction, that the governor required the prisoners in A wing to be released at about 7.45 a.m. in accordance with the prison regime that she had laid down.

The position of the prison officers arriving for work on 29^th August 2007 was very different from that of the stranger who happens to come across a person who has been imprisoned by another party. As prison officers an important part of their job was to unlock, in accordance with the prison regime established by the governor, those prisoners who had been locked into the cells by their fellow prison officers the previous evening. In these circumstances, a refusal to implement the regime established by the governor is not to be equated with a "mere failure" to act. A deliberate refusal to obey a direct order from a prison governor to release a particular prisoner from his cell is not simply an omission, it is fairly described as an act: an act of defiance or disobedience. In practical terms, it is difficult to see why a distinction should be drawn between the liability in tort of prison officer A who deliberately disobeys a governor's instruction and locks a prisoner into a cell having been told not to do so; and prison officer B who deliberately disobeys a governor's instruction and refuses to unlock that prisoner from the cell having been told to do so. Both are fairly described as acting in defiance of, and not with, the authority of the governor.

Before HH Judge Shaun Spencer QC some reliance appears to have been placed by the Appellant on the fact that it was not until around noon on 29^th August 2007 that the deputy governor told the striking prison officers who were gathered outside the prison to return to work (para.16 judgment). In my judgment, the timing of that express instruction is of no consequence. The morning of 29^th August was no different from any other: the prison officers did not have to be told that the prison regime required them to unlock the prisoners' cells in A wing at 7.45 a.m. They were well aware of the prison regime that the governor required them to implement. Nor can it make any difference that rather than enter the prison and then refuse to implement the regime, the prison officers refused to enter the prison at all. The collective nature of the striking officers' refusal to carry out the regime is relevant. A collective, and therefore organised and deliberate, refusal by a group of prison officers to follow a governor's order to unlock prisoners, whether that order is a specific order or a standing order to implement the prison regime, is fairly described as an act, and not as a "mere failure" to act. I should add in this connection that Mr Beloff confirmed that it was no part of the Appellant's case that the prison officers' conduct was given some form of immunity because they were engaged in strike action.

The deliberate character of the prison officers' conduct in the present case is sufficient to distinguish it from other, very different, circumstances which were referred to by Mr Beloff during the course of his submissions. If prison officers were prevented from getting to work by snowdrifts, accident, illness or some other emergency or misfortune beyond their control, there would be a failure to act. Similarly, failure to release a prisoner from his cell due to inadvertence, or mistake would be just that: a failure to act, not a concerted act of disobedience.

The Appellant's submission that the governor could have chosen to unlock the Respondent at any stage if she had wished to do so was rightly described by the judge as "too sophistical". The members of the POA were employed at the prison precisely because it was recognised that it would not be safe to unlock the prisoners without the appropriate complement of disciplinary officers being on duty. While it is true that the governor, or one of the limited number of non-striking staff assisting her, was physically able to turn the key to the Respondent's cell door, she was, in reality, prevented from doing so because she was unable safely to unlock the cells.

This outcome – that the Respondent (and the other prisoners in A wing) could not safely be released from their cells was not a fortuitous consequence of the strike. As the disciplinary staff "on the ground" within the prison, the striking prison officers would have known in detail the number of officers required, and where and when they would be required, for the safe locking or unlocking of cells. Given the prison officers' knowledge of the prison regime, and the fact that their strike was deliberately timed so as to start without any warning just before the prisoners were due to be released from their cells in the morning, it is an inescapable inference that the strike achieved its intended result: the prisoners, including the Respondent, had to remain in their cells because it would have been unsafe, in the absence of the appropriate complement of disciplinary officers, to release them. As the judge observed during the course of submissions before him:

"There would be no point in having a strike otherwise. If a strike does not demonstrate the value of the services then what sort of strike is it?"

In Davidson v Chief Constable of North Wales [1994] 2 All ER 597 police officers arrested a (wrongly) suspected shoplifter on information received from a store detective. The Court of Appeal upheld the trial judge's decision to withdraw from the jury the suspect's claim against the store detective's employers for false imprisonment. The store detective (Mrs Yates) had merely provided information to the constables, who had then lawfully exercised their own judgment under section 24(6) of the Police and Criminal Evidence Act 1984. Sir Thomas Bingham MR (as he then was) said at p.604:

"Accordingly, as it would seem to me, the question which arose for the decision of the learned judge in this case was whether there was information properly to be considered by the jury as to whether what Mrs Yates did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting these defendants. He decided that there was no evidence which went beyond the giving of information. Certainly there was no express request. Certainly there was no encouragement. Certainly there was no discussion of any kind as to what action the police officers should take."

Staughton LJ said at p.605:

"In those circumstances, like Sir Thomas Bingham MR, I would refer to the passage in the judgment of Barry J in Pike and Waldrum & Peninsular & Oriental Steam Navigation Company [1952] 1 Lloyd's Rep 4231 at 454:
'The authorities cited to me, to which I need not refer in
detail, establish quite clearly to my mind that the person who
requests a police officer to take some other person into
custody may be liable to an action for false imprisonment;
not so if he merely gives information upon which the
constable decides to make an arrest.' "

In the present case, there can be no doubt that the striking prison officers procured the governor's response to the strike, which was, so far as it left the prisoners locked in their cells, entirely predictable by anyone familiar with the prison regime and the manning levels necessary to implement it. The terms of the Governor's Order are set out in para.18 of the judgment. It understandably sought to reassure the prisoners that they would be fed, that the normal regime would be resumed as soon as possible, and sought their co-operation in the meantime. Unlike the constables in Davidson, who were free to, and did, exercise their own judgment, the governor was deliberately left by the Appellant with no practical choice (so far as unlocking was concerned) but to respond to the strike as she did.

Mr Beloff submitted that upholding the judge's decision would have significant implications for the Appellant. I accept that this is likely to be the case, but I would endorse the judge's approach: "that the chips will have to lie where they fall". If an industrial dispute between an employer and its employees results in strike action those who suffer are very often third parties: customers and/or members of the public. It is in the nature of a prison officer's employment that the third parties who will suffer if he goes on strike action will be those who have been imprisoned, and that the manner in which they will probably suffer will be the loss of such measure of liberty as is permitted to them by the governor under the prison regime. In my judgement, insofar as there is a conflict between the prisoners' right not to be deprived of that liberty by persons, including prison officers, acting otherwise than in accordance with the prison governor's authority, and the right of prison officers (absent any statutory prohibition) to strike, the former right must take precedence over the latter. While the right to strike is important, the right not to be falsely imprisoned is of fundamental importance.

For the reasons given in the judgments of the Master of the Rolls and Smith LJ I would have increased the award of damages to the Respondent to £120.