England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE COLLINS: The Applicant in this case Michelle Carol Evans, who is some 22 years old, was sentenced on 12th January 1996 to a total of two years' imprisonment at Cardiff Crown Court. For an offence of robbery she received two years' imprisonment; for two offences of burglary she received nine months' imprisonment concurrent, and for assault occasioning actual bodily harm she received three months' imprisonment concurrent. She had been arrested for burglary in May 1995 and had spent two days in police custody before being bailed. She was rearrested in June and held for a period of 60 days, when again she was bailed.

2. She was then rearrested at the end of October 1995 and was held until her appearance at the Crown Court, a total of 73 days.

3. As a result of a number of decisions of the Divisional Court commencing with the case of R v Governor of Blundeston Prison ex parte Gaffney [1982] 1 WLR 696, the relevant statutory provisions contained in section 67(1) of the Criminal Justice Act 1967 required that consideration should be given to the predominant sentence and the time spent on remand in relation to that, and that that should effectively be the only time spent in custody before trial which should count towards the ultimate sentence.

4. The upshot was, that in the circumstances of Miss Evans' case, the 62 days which she had served in custody in connection with the burglary offences were not to be counted as time served against the two year sentence, because the two years, the predominant sentence, was imposed on the robbery charge. The only period that counted towards that were the 73 days she had spent on remand in relation to it.

5. Accordingly, her release date was calculated to be 18th November 1996, which included an additional 19 days awarded on disciplinary grounds as a result of her various misbehaviours while she was in custody. That was undoubtedly the manner of calculation which was appropriate having regard to the decisions of the Divisional Court commencing with the case of Gaffney.

6. If it was appropriate to take into account the 60 days spent on remand in relation to the burglary charges, together with the two days when she was initially arrested, then, of course, the release date should have been some 62 days before 18th November. In fact, the appropriate date would have been 17th September 1996.

7. As may be recalled, in early September 1996 following a decision by the prison service that in the case of prisoners sentenced to consecutive sentences, account should be taken of the aggregate of amounts spent on remand in relation to each of those sentences. The Divisional Court in ex parte Naughton decided that the construction of section 67 (as amended) in the case of consecutive sentences, should not follow the approach that had resulted in the decision in Gaffney. I put it that way because it is right to say that in Naughton the Court did not purport to overrule Gaffney. It was able to reach its decision on a different approach but in the course of giving judgment in ex parte Naughton , Lord Justice Simon Brown expressed doubt about the decision in Gaffney and the reasoning which had led to the conclusion in that and the cases following it.

8. In those circumstances, these proceedings for habeas corpus were instituted on 6th September 1996. They were heard, together with proceedings instituted by another Applicant called Reid, on 29th October 1996 before a Divisional Court consisting of Lord Bingham, Chief Justice, Lord Justice Rose and Mr Justice Blofeld. The habeas corpus application was adjourned and judicial review proceedings were instituted. It was the judicial review proceedings which were eventually determined by the Divisional Court, but whether or not they were habeas corpus or judicial review makes no difference to the effect.

9. I am concerned with a claim for damages by the Applicant, which was part of her application for judicial review. It resulted in a judgment in her favour which was given on 15th November, some three days before her release date. So we are concerned with a period served of 59 days beyond that which she should have served upon the true construction of section 67. The decision of the Divisional Court is reported in (1997) 2 WLR 236. What was decided was that the Gaffney approach was indeed wrong and that the extra 62 days ought to have been taken into account.

10. It is to be noted that the Lord Chief Justice, giving the judgment of the Court, said this about the previous decisions, particularly the decision in Gaffney (p.251G):-

11. This Applicant is one in respect of whom the practice has produced injustice, because she has served a period of 59 days more than she ought to have served had the provisions of section 67 been properly construed. Indeed, in Gaffney itself, the Court recognised that its construction of section 67 was capable of producing injustice and, had in that case produced such an injustice (see per Lord Land CJ at p698c).

12. The question before me is whether that injustice can result in the award of damages to the Applicant because, as I have said, I am concerned with the claim for damages which was included in the application for judicial review.

13. It is common ground that a claim for damages, although properly included in a judicial review application, can only succeed if a private law claim can be established. The only basis for an award of damages in a case such as this is the tort of false imprisonment. What is therefore asserted by the Applicant is that she has been falsely imprisoned by the prison governor, albeit he has not acted in any way maliciously or wrongly in any moral sense, and that that imprisonment was not lawful; there is no lawful justification for it and, accordingly, her claim is established, it being now established that she was not lawfully detained throughout that period of 59 days.

14. The tort of false imprisonment is defined as complete deprivation of liberty for any time, however short, without lawful cause. There is no question but that there was a complete deprivation of liberty over the relevant period, and there is no question that that imprisonment was deliberately imposed by the governor of the prison. The only question is whether there was a lawful cause for that imprisonment.

15. Mr Weatherby accepts, as of course he is bound to, that any imprisonment resulting from an order of the Court cannot be impugned. He says, and again correctly, that this case does not involve an imprisonment by order of the Court. What it involves is an imprisonment by the governor following what he believed to be the law but, in so doing, the governor made a mistake of law.

16. True it is that his mistake was based upon his understanding of what the law was laid down by the various decisions of the Divisional Court but, submits

17. Mr Weatherby, the governor is not entitled to rely upon that as exonerating him, because a mistake of law is no defence to the tort of false imprisonment.

18. Mr Weatherby draws my attention in that regard to observations of Lord Justice Simon Brown in a case to which I will have to return Percy v Hall (1996) 4 AER 523. The passage in question is at page 539E, where Lord Justice Simon Brown said:

19. Mr Weatherby says that that principle applies here. It does not matter how the mistake of law arose. It does not matter that the mistake of law arose because of reliance upon a decision of the court, provided that the court did not order the governor to imprison. There is then an unlawful imprisonment for which there is no lawful cause and therefore damages ought to be awarded.

20. Mr Richards submits, essentially, that the governor acted in accordance with the law as it was then laid down by the court. How, in those circumstances, can it properly be said that he did not have a lawful cause for doing what he did? Indeed, if he had not done what he did, he would have been in breach of his obligations, because he would have released a prisoner from a sentence contrary to the law as declared by a competent court.

21. It seems to me, one has to determine what is meant in these circumstances by a mistake of law. The question is whether one should look from the point of view of the governor on 18th September, when the period of imprisonment which is now established not to have been correct was commenced, or does one look at it from the point of view on 15th November when the divisional court delivered its judgment? The statute of course has not changed. Section 67 has at all times remained as it was so far as this particular aspect is concerned. What has changed is the Court's view of the true effect of the statute. Of course, the statute is the law, but if there is a question as to the precise meaning and effect of a statutory provision, then the Court will decide what is the true meaning. The Court's decision as to the true meaning and the effect of the statute is then the law. It remains the law which has to be applied and obeyed unless and until another court, having competent jurisdiction whether in the form of an appeal or otherwise, decides differently.

22. As it seems to me, in the circumstances of this case, the law on 18th September 1996 was as the divisional court had decided following the Gaffney approach. The law was then that this Applicant should serve until 18th November 1996. Accordingly, looked at purely from the point of view of the governor, he did not make any mistake of law. He applied the law.

23. He could do nothing else. The mistake of law that has since been identified was a mistake made by the court, but no action can be brought against the court. It would, in my judgment, be no extension of the principle of law as it now exists, namely that no action can be brought against a responsible official such as a prison governor who is obeying a court order to do something, to say that no action should be brought against him for complying with the law as laid down by a competent court. I do not regard that as any departure from the principle of the existing law.

24. It seems to me, that that approach is supported by the Court of Appeal in Percy v Hall [1996] 4 All ER 523. That case involved claims by two plaintiffs who were waging a campaign, because they were denied access to various defence establishments over the country and more particularly, they had waged a campaign against the validity of byelaws made under the Military Lands Act 1892 which purported to control access by members of the public to these various establishments. They had succeeded in persuading a divisional court in Bugg and Percy v DPP (1993) 2 AER 815, that the byelaws were invalid.

25. Following that, they sued a large number of different Ministry of Defence police constables seeking damages for false imprisonment and wrongful arrest. They also claimed against the Attorney General for alleged breach of statutory duty in making defective byelaws. That latter claim need not concern me for the purpose of these proceedings.

26. The Court of Appeal in that civil action decided that the byelaws were not invalid and refused to apply Bugg and Percy v D.P.P. , but went on to consider the position on the assumption that the byelaws where void for uncertainty. It decided that that would not have deprived the constables of the defence of lawful justification to allegations of false imprisonment, provided they could show they had acted in the reasonable belief that the plaintiffs were committing a byelaw offence.

27. Strictly, as Mr Weatherby submits, that part of the judgment of the Court of Appeal is perhaps obiter, but it was reached following full argument on the point and even if, not strictly binding, it is of the very greatest persuasive authority.

28. Lord Justice Simon Brown gave the leading judgment which dealt with this aspect. He referred to the submission, which he accepted, that:

29. Invalidity was therefore generally regarded as having retrospective not prospective effect, if one translates that into the circumstances of this case.

30. It is again accepted that if a court decides that a particular construction of a statute is a correct one, then that construction is to be taken to have been the one applicable from the time that that statute was enacted. So it is with the common law. If a particular view of the common law is decided to have been erroneous by a subsequent court decision, then the common law is deemed always to have been as the subsequent court decides - that is of course notwithstanding that there has been a prior court decision to the contrary effect which was overruled.

31. Accordingly, the principle is the same, namely that the true construction is deemed to have always been the correct construction, and so one has an analogy with the approach that the invalidity of a byelaw is of retrospective not prospective effect.

32. That does not provide the complete answer. The argument to the contrary put forward by Mr Howell for the Respondents in Percy v Hall relied essentially on two points. First, he relied upon the decision of the House of Lords in Wills v Bowley (1983) 1 AC 57 which was concerned with a constable's power of arrest under the Town Police Clauses Act 1847 section 28. The House there construed the power, indeed the duty of a constable, to take into custody any person who, in his view, committed any particular offence to mean that the constable is protected, if he reasonably believed on reasonable grounds that an offence was being committed by the person within his view. Otherwise, as Lord Bridge pointed out in that case, the hazards of effecting an arrest were really greatly increased. What was said was that the constables should be protected on that principle if they arrested in reasonable belief that the byelaws in question were valid.

33. Mr Weatherby correctly submits, that that particular consideration would not be applicable in this case, because the governor would not be concerned and should not be concerned, as would the constables, about the problems of being assaulted when making arrests and not having any protection or problems of being sued for wrongful arrest.

34. The second argument is, as it seems to me, of more force in connection with this case. That was an argument based upon the decision of the House of Lords in Hoffmann-La Roche v Secretary of State for Trade and Industry (1975) AC 295.

35. The principle that Mr Howell in Percy v Hall sought to derive from Hoffmann-La Roche was that to act in conformity with the law, as then believed to be the law, was not to render oneself liable to any claim in damages if the law was subsequently decided to be different.

36. I read on from the passage I have already cited at page 539E. Lord Justice Simon Brown says:

37. The analogy to this case is apparent enough. Here at the date of the commencement of the extra time, 18th September 1996, there was, as I have already said, no mistake of law on the part of the governor. The law was as the court had construed the statutory provisions contained in section 67 of the 1967 Act. Had the governor not decided that the Applicant should serve the extra time, he would have been involved in a clear breach of his duty.

38. The argument put forward by Mr Howell was accepted by Lord Justice Simon Brown. Having said that, he did not find it an entirely easy question to answer. He concluded, and I cite from page 541G that Mr Howell's arguments were to be preferred. He went on:

39. Accepting as I do that that case was concerned with the principle of protecting constables in the execution of their duty, and that that does not directly apply here, it does support the principle that the Court decision must be followed as being the law. It is accepted as I have said, that had the court ordered that the Applicant should be detained for a particular period, even though that court order was wrong, the governor would have had no option but to obey it, and there would have been no redress available to anyone who was adversely affected by it.

40. It seems to me that the position here is not far from that. It is not on all fours, of course, because there is no direct court order, but there is what amounts to much the same thing, namely a court declaration as to how the governor should approach his task of determining the length of the sentence to be served following the imposition of two years' imprisonment overall by the Crown Court. The governor was bound to calculate the correct term to be served in accordance with the provisions of section 67 as construed by the court, because that was then the law. He did just that, and it seems to me, that it would be quite wrong for him, in those circumstances, to be liable in tort on the basis that he had no lawful justification for doing what he did.

41. Indeed, the contrary is surely the case, namely that he would have had no lawful justification for doing anything else.

42. The judgment of Lord Justice Simon Brown was agreed with by Lord Justice Peter Gibson, and on the issue which is relevant here, he merely contented himself with saying that he was in entire agreement with Lord Justice Simon Brown. Lord Justice Schiemann also agreed, but he added some observations in relation to the relevant point.

43. He said, and this is at 544 F:

44. The issue here is, as I have said, the error of a court. It may well have happened, indeed I have no doubt it has happened, that defendants have been convicted of offences and have been imprisoned and a later decision of the court has decided that the conduct for which they were imprisoned was no offence at all. It has never, as far as I am aware, been suggested that any such person has a claim for damages for false imprisonment because the conviction was based upon a mistake of law. True it is that in such a case it can be said that the imprisonment resulted directly from a decision of the court, in the sense that the court ordered it but that seems to me, certainly so far as the unfortunate victims are concerned, to be a distinction without a difference.

45. In those circumstances, someone may find himself unlawfully imprisoned, in the sense, that as the law is later declared he did not commit any crime. Nonetheless, he is not entitled to any redress. Again, that is part and parcel of the policy which rightly or wrongly applies, namely that there can be no redress in respect of a wrong decision of a court of law; that is to say, no redress beyond that which is supplied in respect of miscarriages of justice where there is a provision which enables, in certain circumstances, ex gratia payments to be sought and made. In some cases, of course, which do not fall directly within those provisions, ex gratia payments can also be made.

46. It seems to me that for the reasons I have given, the governor did have lawful justification or lawful cause for the imprisonment and was not guilty of the tort of false imprisonment. That being so, there is no basis for any claim for damages in the circumstances of this case and, accordingly, the Applicant's claim must fail.

47. This is, as both counsel have indicated, a decision which has no precedent. It may well be that my decision will be taken further. In those circumstances, both counsel have asked me to consider the issue of quantum and to indicate what sum I would have awarded if I had decided that there was a cause of action.

48. There is singularly little guidance to be obtained from such authorities as there are on the correct amount to be awarded for false imprisonment in circumstances such as this, where the imprisonment involves an additional period of custody following a period of lawful imprisonment. Most of the cases that reach any reports are cases where the whole imprisonment was unlawful. Many of them, of course, arise from alleged unlawful arrest leading to incarceration, and some are cases where a court has sentenced someone to imprisonment, but it transpires that that imprisonment was unlawful: For whatever reason, as I say, the whole of the imprisonment is normally in issue.

49. Furthermore, many cases of false imprisonment are tried by a jury and so many of the awards are jury awards. Accordingly, it is not possible to place any great reliance upon them as providing a guide to a case such as this.

50. Mr Weatherby has submitted that there are essentially two elements to an award of damages for false imprisonment. The first element involves compensation for the loss of liberty, and the second element, the damage to reputation, humiliation, shock, injury to feelings and so on, resulting from the loss of liberty. It is, of course, possible to break it up even further but, broadly speaking, I would accept that those two parts of an award exist.

51. Mr Weatherby further submits that deprivation of liberty is itself a very serious matter. It is a fundamental right, and its removal is a matter which can never sound in nominal damages. Damages must always be substantial no matter what are the circumstances of the loss of liberty. Again, that is a submission which, generally speaking, I am prepared to accept. The question is what is meant by "substantial." One has to bear in mind the circumstances of each individual case. It seems to me that I have now to adopt the approach and apply the guidance, insofar as I can, of the Court of Appeal in the recent decision in Thompson v Commissioner of Police of the Metropolis [1997] 2 AER 762. That decision concerned two cases in which juries had awarded what the police viewed as excessive damages for unlawful arrest or false imprisonment. The awards included exemplary damages.

52. The court took the opportunity to set out guidelines and indicated the sort of figures that were appropriate as starting points. The relevant guidelines are set out on page 774 starting just below letter F. The guidelines are set out in numbered paragraphs, I read (4). The Master of the Rolls says:

53. Mr Weatherby has drawn my attention to an unreported decision of the Court of Appeal Lunt v Liverpool City Justices decided on 5th March 1991.

54. That was an appeal from a Master's assessment of damages for wrongful imprisonment. The imprisonment in question had been for a period of 42 days, following the plaintiff being allegedly in default of payment of rates. The Master had awarded some £13,500 and the Court of Appeal increased that award to £25,000. The Court considered some of the previous cases and, in the course of argument, counsel for the Appellant had submitted that the Master's award was out of "proportion with other approved awards" and resulted in an hourly rate for the plaintiff of about £13.50 per hour. That presumably, is 42 days of imprisonment multiplied by 24 and divided into £13,500. I have not done the arithmetic, but I assume that is roughly what results.

55. At page 13 of the transcript Lord Justice Bingham, who gave the only reasoned judgment, said:

56. He then went on to say, having regard to all the circumstances, the figure he thought correct was £25,000.

57. This case, of course, is very different from either Thompson or Lunt, because there is here no element of damage to reputation, of humiliation, of shock or of injury to feelings. This Applicant had been properly sentenced to a term of two years' imprisonment for serious criminal offending. I am told that she had a record of offending, although I am not told the extent of it nor whether this was the first time that she had been sentenced to imprisonment, but I know that she was remanded in custody for a period back in 1995.

58. Accordingly, she was not someone in respect of whom the damages for the loss of liberty should be increased to reflect any additional factors such as I have mentioned. She would, no doubt, have been informed that her earliest date of release was 31st October, as it was before she incurred 19 extra days through misbehaviour. She was therefore anticipating at all times, until September 1996, that she was going to have to serve a sentence which expired in November 1996. It was not until the decision in the Naughton case in early September, that she was advised that there was a prospect that she might be able to be released earlier than that. In reality, therefore, she had suffered nothing beyond the mere loss of liberty. When I say "mere loss", I do not in any way seek to diminish the seriousness of loss of liberty, but only to indicate that that is, in my view, the extent of the damage to her in the circumstances of this case.

59. Questions have been raised as to whether the amount awarded should be less if the sentence was longer and whether the impact of an extra amount on a shorter sentence should be greater. It seems to me, that the effect of that would be marginal because it could well be said that in a case of a long sentence, the prospect of release becomes the more desirable the closer it comes. In any event, this Applicant had been in custody since the end of October 1995 and therefore had spent a substantial time awaiting her release.

60. It seems to me that it is not possible to approach these cases on the basis of 'X' pounds per hour or even 'X' pounds per day or per month. However, the approach of the Court of Appeal in Thompson, if one looks at the figures, does give some sort of guidance upon the appropriate amount. One has to remove the element which is referred to by Lord Woolf for the initial amount, that is to say that that initial depravation of liberty should sound in higher damages. The approach suggested is a reducing amount as time goes by, a progressively reducing scale. Obviously, it cannot be reduced to nothing: it must be an amount that is appropriate for the deprivation of liberty. The longer a person is deprived of liberty, the more damages he or she will be entitled to. One realises from Lord Woolf's guidance that the daily amount after a number of days is likely to be relatively small.

61. I do not propose to set a daily amount. I do not think, for the reasons I have given, that that is the appropriate way of approaching these matters. It seems to me, that I have to consider what, for this deprivation of liberty in the circumstances that have been described, would be an appropriate sum to award. It has to be more than nominal; equally, as it seems to me, it should not be a large sum, certainly not approaching the sort of amounts that were considered appropriate by the Court of Appeal in Lunt.

62. Doing the best I can, having regard to all the circumstances, for the period which amounts approximately to two months, I take the view that a figure of £2,000 would have been the appropriate amount were I to have found in favour of the Applicant on liability. As it is, this claim must be dismissed.

63. MR RICHARDS: My Lord, the Applicant is legally aided, all I would ask is for an order not to be enforced without leave of the court.

64. MR JUSTICE COLLINS: You cannot resist that Mr Weatherby, can you?

65. MR WEATHERBY: I cannot. Can I ask for legal aid taxation?

66. MR JUSTICE COLLINS: Mr Weatherby, I do not know whether you need leave to appeal because this is an adjunct to judicial review, but in case you do, and if you want it, you had better ask for it.

67. MR WEATHERBY: If I need it, I do ask for leave to appeal.

68. I had rather taken the view I did not need leave.

69. MR JUSTICE COLLINS: I am not sure, to be honest, whether you do or you do not, I do not know if Mr Richards can help?

70. MR RICHARDS: My immediate reaction is that it is needed, but I would not oppose it.

71. MR JUSTICE COLLINS: In case it is needed I think I ought to consider whether I should give it. Mr Richards does not opposed my granting it. I think it would be right to do so because, obviously, this is an important point and the fact that I have had in the end no doubt about the decision does not cause me - I am sure the court in Gaffney had no doubt about its decision.

72. MR JUSTICE COLLINS: You can have leave to appeal if you need it, thank you.