United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/251

Regina v. Deputy Governor of Parkhurst Prison and others
(Respondents) ex parte Hague (A.P.) (Appellant)

JUDGMENT

Die Mercurii 24° Julii 1991

Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Deputy Governor of Parkhurst
Prison and others ex parte Hague (A.P.), That the Committee
had heard Counsel as well on Tuesday the 4th as on Wednesday
the 5th, Thursday the 6th, Monday the 10th, Tuesday the 11th
and Wednesday the 12th days of June last, upon the Petition
and Appeal of Christopher Hague currently detained at Her
Majesty's Prison Long Lartin, praying that the matter of the
Order set forth in the Schedule thereto, namely an Order of
Her Majesty's Court of Appeal of the 25th day of May 1990,
might be reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied
or altered or that the Petitioner might have such other relief
in the premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet; as upon the case of the Deputy
Governor of Parkhurst Prison lodged in answer to the said
Appeal; and due consideration had this day of what was offered
on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty's Court of
Appeal of the 25th day of May 1990 complained of in the said
Appeal be, and the same is hereby, Affirmed and that the said
Petition and Appeal be, and the same is hereby, dismissed this
House: And it is further Ordered, That the costs of the
Appellant be taxed in accordance with the Legal Aid Act 1988.

Cler: Parliamentor:

Judgment: 24.7.91

HOUSE OF LORDS

REGINA
v.

DEPUTY GOVERNOR OF PARKHURST PRISON AND OTHERS

(RESPONDENTS)

ex parte

HAGUE (A.P.)
(APPELLANT)

WELDON
(RESPONDENT)

v.

SECRETARY OF STATE FOR THE HOME DEPARTMENT

(APPELLANT)

CONJOINED APPEALS

Lord Bridge of Harwich
Lord Ackner
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Lowry




LORD BRIDGE OF HARWICH

My Lords,

There are two appeals before the House. I shall refer to
them as the case of Hague and the case of Weldon respectively.
They raise important questions with respect to the rights of
convicted prisoners.

Introduction

The decisions of the Court of Appeal in Reg. v. Board of
Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425 and
of this House in Leech v. Deputy Governor of Parkhurst Prison
[1988] AC 533 established that the courts have jurisdiction to
entertain applications for judicial review of disciplinary awards
made by boards of visitors and by prison governors respectively
under the Prison Rules 1964. In both cases it had been contended,
in effect on behalf of the Home Office, that jurisdiction should be
declined on the ground that any interference by the courts in the
management of prisons would be subversive of prison discipline. In
Leech's case, as I record at p. 566B-C, Mr. Laws had urged that,
if jurisdiction were accepted in relation to awards by prison



governors, this would "make it impossible to resist an invasion by
what he called 'the tentacles of the law' of many other
departments of prison administration." In deciding the appeal your
Lordships faced that prospect without undue alarm and I believe
that the circumstances of the case of Hague now before the House
show that it was right to do so. In the case of Hague both courts
below held that they had jurisdiction to entertain an application
for judicial review which questioned the legality of Hague's
segregation under rule 43 of the Prison Rules 1964 and the Court
of Appeal declared that the procedure followed pursuant to the
terms of a Home Office circular issued in 1974 was not warranted
by the terms of the rule and was accordingly unlawful. In your
Lordships' House the Secretary of State, acting by Mr. Laws, has
chosen, very sensibly if I may say so, not to pursue any challenge
either to the assumption of jurisdiction or to its exercise by the
declarations granted. Instead the Home Office have issued a new
circular prescribing a new procedure to be followed in future in
the relevant circumstances which conforms to the requirements of
rule 43 as construed by the Court of Appeal. I believe this
confirms the view that the availability of judicial review as a
means of questioning the legality of action purportedly taken in
pursuance of the prison rules is a beneficial and necessary
jurisdiction which cannot properly be circumscribed by
considerations of policy or expediency in relation to prison
administration. Those considerations only come into play when the
court has to consider, as a matter of discretion, how the
jurisdiction should be exercised. But the issues which it is
necessary to resolve in the present appeals relate neither to the
scope of the courts' public law jurisdiction in judicial review nor
to the exercise of discretion in that jurisdiction. The appeals
raise the wholly different question whether a convicted prisoner
who, in the course of serving his sentence, has been treated in a
way which the rules do not permit has in any and what
circumstances a cause of action in private law sounding in
damages against the prison governor or the Home Office on the
ground either of a breach of statutory duty or of the tort of false
imprisonment.

Hague

I turn to recount, so far as necessary, the circumstances in
each case giving rise to the litigation and the course of the
litigation in the courts below. In July 1988 Hague was at
Parkhurst Prison serving a sentence of 15 years' imprisonment. In
circumstances which it is unnecessary for present purposes to
relate he was thought by the Deputy Governor then in charge of
the prison to be a trouble maker and on 8 July 1988 was ordered
by the Deputy Governor to be transferred to Wormwood Scrubs and
to be held there for 28 days in segregation from other prisoners.
The order made by the Deputy Governor was formally confirmed
by the Regional Director of Prisons on behalf of the Secretary of
State. The order was given, confirmed and carried into effect in
purported pursuance of rule 43 of the Prison Rules 1964 and in
reliance on the terms of the Home Office circular to which I have
earlier referred. Rule 43 provides as follows:

"Removal from association

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"(1) Where it appears desirable, for the maintenance of
good order or discipline or in his own interests, that a
prisoner should not associate with other prisoners, either
generally or for particular purposes, the governor may
arrange for the prisoner's removal from association
accordingly.

2. A prisoner shall not be removed under this rule for a
   period of more than 24 hours without the authority of a
   member of the board of visitors, or of the Secretary of
   State. An authority given under this paragraph shall be for
   a period not exceeding one month, but may be renewed
   from month to month. . . .

3. The governor may arrange at his discretion for such a
   prisoner as aforesaid to resume association with other
   prisoners, and shall do so if in any case the medical officer
   so advises on medical grounds."

The effect of the action taken in purported pursuance of the rule
was that, for a period of 28 days, Hague was denied the benefit
of association with other prisoners and various other privileges
enjoyed by long-term prisoners who are subject to the normal
prison regime. The regime of a prisoner segregated under rule 43
is not, we are told, significantly different from that of a prisoner
held in cellular confinement pursuant to a disciplinary award of
the governor or the board of visitors under rule 51 or 52
respectively. Hague challenged the legality of his segregation by
an application for judicial review claiming relief in various forms
including damages for false imprisonment. The application was
dismissed by the Divisional Court (Ralph Gibson L.J. and Nolan J.)
but allowed in part by the Court of Appeal (Sir Nicolas Browne-
Wilkinson V.-C., Taylor and Nicholls L.JJ.) [1990] 3 W.L.R. 1210.
They held that the governor of one prison had no power under rule
43 to order the segregation of a prisoner after his transfer to
another prison. That power could only be exercised by the
governor of the receiving prison. They held further that the
authority of a member of the board of visitors or of the Secretary
of State under rule 43(2) for the continued segregation of the
prisoner beyond the period of 24 hours could lawfully be given only
in the exercise of an unfettered discretion both as to whether it
should be given and if so for how long, whereas the Home Office
circular had approved the grant by the Regional Director of
Prisons on behalf of the Secretary of State of authority confirming
a governor's order to detain the prisoner for a period of 28 days
as a matter of routine. The Court of Appeal gave effect to these
conclusions by making appropriate declarations, but refused in their
discretion to grant orders of certiorari to quash the relevant
orders made by the Deputy Governor of Parkhurst Prison and the
Regional Director of Prisons on behalf of the Secretary of State.
It will not now be necessary to consider any issue relating to this
refusal. It was conceded by Mr. Laws in the course of argument
that, since it has been declared that the procedure which led to
Hague's segregation was not lawful under rule 43, neither the
circumstance that the relevant orders were made in reliance on
the Home Office circular nor the fact that they had not been
formally quashed by certiorari could afford any defence to Hague's
claim for damages if such a claim were otherwise sustainable.
The Court of Appeal held that in the circumstances an action for



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damages for false imprisonment did not lie. They granted the
parties leave to appeal and to cross-appeal, but, as already
indicated, no cross-appeal is presented by the Secretary of State.




Weldon

Weldon was in May 1984 in Leeds Prison serving a sentence
of four years' imprisonment. In 1987 he issued proceedings in the
Leeds County Court claiming damages against the Home Office for
assault and battery and for false imprisonment. The relevant
paragraph of the particulars of claim reads as follows:

"2. On or about 9 May 1984, the Plaintiff was falsely
imprisoned and unlawfully assaulted and battered by certain
prison officers.

PARTICULARS

(i) Shortly after 5.30 pm on the said date, three prison
officers burst into the Plaintiff's cell and without
good cause dragged him onto the landing, where they
were joined by three further prison officers;

(ii) the Plaintiff was then dragged down the stairs
(despite his request to walk) and placed in a cell in
the punishment block;

(iii) shortly afterwards, the Plaintiff was removed to a
strip cell where his clothes were taken from him. He
remained there till the following morning. During
this time the Plaintiff was further assaulted by the
same prison officers;

(iv) the Plaintiff will allege that the unlawful treatment
hereinbefore described converted pro tem a lawful
detention into a false imprisonment."

The Home Office applied to strike out so much of the pleading as
alleges false imprisonment. The application was dismissed by the
registrar and appeals by the Home Office were successively
dismissed by the assistant recorder Mr. D.R. Wood, and by the
Court of Appeal (Fox, Parker and Ralph Gibson L.JJ.) [1990] 3
W.L.R. 465. The Home Office now appeals by leave of the Court
of Appeal.

Breach of statutory duty

It was not open to counsel for Hague in any court below
your Lordships' House to advance a claim to damages for breach
of statutory duty because of the decision of the Court of Appeal
in Becker v. Home Office [1972] 2 Q.B. 407, where one of the
grounds on which it was held that the plaintiff failed was that a
breach of the prison rules does not, per se, give rise to a cause of
action. But Mr. Sedley has now put the claim for damages in the
case of Hague on this alternative basis in the forefront of his
argument and I think it logical to consider it first.

On this part of the case Mr. Sedley has constructed an
elaborate argument resting on a premise which he describes as



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"the groundrule" for ascertaining whether a plaintiff has a cause of
action for breach of statutory duty. It ail depends, he submits, on
whether he belongs to a class which the statutory provision was
intended to protect and has suffered a detriment in consequence of
a breach of the duty of a kind from which the provision was
intended to protect him. If so, then in the absence of any other
specific provision in the statute, such as a criminal penalty, to
enforce performance of the statutory duty, it necessarily follows,
Mr. Sedley submits, that the law affords a remedy in damages for
its breach. Hence the question of statutory construction is not
the broad question whether an intention to give a cause of action
can be inferred from the provision in question read in their
context, but the narrower question whether the provision is
intended to protect the interests of a class of which the plaintiff
is a member. This then leads on to the conclusion that certain
provisions of the Prison Rules 1964, which were intended to
protect the interests of prisoners, and in particular rule 43(2)
which was intended to protect prisoners from unlawful segregation,
must give rise to a cause of action in favour of any prisoner who
suffers a detriment from a breach of the duty imposed.

I believe the fallacy in this argument is that it relies on
authorities relating to statutory duties imposed for no other
purpose than to protect various classes of person from the risk of
personal injury to which they are exposed and seeks to apply
certain dicta in those authorities to a totally different statutory
context. Thus Groves v. Wimborne (Lord) [1898] 2 QB 402 was
concerned with the question whether a breach of the duty to fence
dangerous machinery imposed by section 5(4) of the Factory and
Workshop Act 1878 gave a cause of action to a workman thereby
injured notwithstanding the criminal sanctions also imposed by the
statute for breach of the duty. It was in this context that
Vaughan Williams L.J. said, at pp.415-416:

". . . it cannot be doubted that, where a statute provides
for the performance by certain persons of a particular duty,
and some one belonging to a class of persons for whose
benefit and protection the statute imposes the duty is
injured by failure to perform it, prima facie, and, if there
be nothing to the contrary, an action by the person so
injured will lie against the person who has so failed to
perform the duty."

Again, it was in reference to a provision in the Pedestrian
Crossing Places (Traffic) Regulations 1941 designed to protect
pedestrians from injury by motor vehicles that Lord Wright said in
London Passenger Transport Board v. Upson [1949] A.C. 155, 168:

"... a claim for damages for breach of a statutory duty
intended to protect a person in the position of the
particular plaintiff is a specific common law right which is
not to be confused in essence with a claim for negligence.
The statutory right has its origin in the statute, but the
particular remedy of an action for damages is given by the
common law in order to make effective, for the benefit of
the injured plaintiff, his right to the performance by the
defendant of the defendant's statutory duty."

- 5 -

In Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No.2) [1982] A.C. 173,
185, Lord Diplock describing exceptions to the "general rule" that
"where an Act creates an obligation, and enforces the performance
in a specified manner . . . that performance cannot be enforced in
any other manner" said:




"The first is where upon the true construction of the Act it
is apparent that the obligation or prohibition was imposed
for the benefit or protection of a particular class of
individuals, as in the case of the Factories Acts and similar
legislation. As Lord Kinnear put it in Butler (or Black) v.
Fife Coal Co. Ltd. [1912] AC 149, 165, in the case of such
a statute:

'There is no reasonable ground for maintaining that a
proceeding by way of penalty is the only remedy
allowed by the statute . . . We are to consider the
scope and purpose of the statute and in particular for
whose benefit it is intended. Now the object of the
present statute is plain. It was intended to compel
mine owners to make due provision for the safety of
the men working in their mines, and the persons for
whose benefit all these rules are to be enforced are
the persons exposed to danger. But when a duty of
this kind is imposed for the benefit of particular
persons there arises at common law a correlative
right in those persons who may be injured by its
contravention."'

Mr. Sedley relied on all these passages and in particular on
the references in the passages cited from Lord Wright and Lord
Kinnear to the common law as the source of the plaintiff's rights.
But the context in each case makes clear that the role of the
common law is simply to make effective the benefit which the
legislature intends to confer on the particular plaintiff of
protection from danger of a particular kind, in each of the cases
cited the danger of personal injury. I do not think one escapes by
this route from the fundamental question: "Did the legislature
intend to confer on the plaintiff a cause of action for breach of
statutory duty?" by transposing it into the question: "Did the
legislature intend to confer on the plaintiff protection from
damage of a kind for which, if the protection is not effectively
provided, the common law will afford a monetary remedy?" When
asked in relation to enactments of the kind to which the
authorities relied upon refer the two questions are really one and
the same. When asked in relation to enactments of such a very
different kind as the prison rules, the second form of the
question neither avoids nor illuminates the problem of answering
the first.

The fuller citation of authority on this point in the speech
of my noble and learned friend, Lord Jauncey of Tullichettle,
which I gratefully adopt and need not repeat, amply supports the
conclusion that, like any other question of statutory construction,
the question whether an enactment gives rise to a cause of action
for breach of statutory duty is a question of ascertaining the
intention of the legislature.

- 6 -

The Prison Rules 1964 are made under section 47 of the
Prison Act 1952 which provides by subsection (1):

"The Secretary of State may make rules for the regulation
and management of prisons, remand centres, detention
centres and Borstal institutions respectively, and for the
classification, treatment, employment, discipline and control
of persons required to be detained therein."

Mr. Laws submits that the critical question of legislative intent
must be determined at the stage of considering the ambit of this
rule-making power and that Parliament cannot have intended to
enable the Secretary of State to make rules which would confer a
right of action on prisoners for any breach . I see the attraction
of this submission but I am unable to accept it. The power
conferred is very wide, particularly in relation to the "treatment"
of persons detained in prison. If the Secretary of State were to
make rules, for example in relation to the employment of prisoners
in prison workshops, of a kind which were clearly designed for no
other purpose than to safeguard prisoners from hazards likely to
cause personal injury, I am of the opinion, on the one hand, that
those rules would properly be construed as giving a cause of action
to prisoners injured in consequence of a breach and, on the other
hand, that such rules could not be condemned as ultra vires
section 47.

In Arbon v. Anderson [1943] K.B 252 the question at issue
was whether a cause of action arose from a breach of the Prison
Rules 1933 made under the Prison Act 1898. Goddard L.J. said,
at p. 254:

"The real question which falls to be determined is whether
it is intended by the statute to confer an individual right. I
am clearly of opinion that neither the Prison Act 1898, nor
the rules were intended to confer any such right."

In Becker v. Home Office [1972] 2 Q.B. 407 both Lord Denning
M.R. and Edmund Davies L.J. expressed their conclusion that a
breach of the Prison Rules 1964 creates no civil liability in equally
general terms. Mr. Sedley submits that such a general approach is
erroneous and that each provision in the rules must be considered
separately. Whilst I do not accept this criticism of the earlier
authorities, I do accept that we may properly be invited in asking
the question whether the breach of a particular provision of the
rules gives rise to a cause of action to examine that provision in
its context. Adopting that course, I can find nothing in rule 43 or
in any context that is relevant to the construction of rule 43
which would support the conclusion that it was intended to confer
a right of action on an individual prisoner. The purpose of the
rule, apart from the case of prisoners who need to be segregated
in their own interests, is to give an obviously necessary power to
segregate prisoners who are liable for any reason to disturb the
orderly conduct of the prison generally. The rule is a purely
preventive measure. The power is to be exercised only in
accordance with the procedure prescribed by sub-rule (2). But
where the power has been exercised in good faith, albeit that the
procedure followed in authorising its exercise was not in
conformity with rule 43(2), it is inconceivable that the legislature
intended to confer a cause of action on the segregated prisoner.

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False imprisonment

The Court of Appeal in the case of Weldon approached the
question whether a prisoner serving his sentence cart ever sustain a
claim for false imprisonment, as they were invited to do by Mr.
Laws, as a single question which must admit of the same answer
irrespective of the identity of the defendant. Ralph Gibson L.J.,
delivering the leading judgment, with which both Fox and Parker
L.JJ. agreed, said, at p. 474:

"There is no reason apparent to me why the nature of the
tort, evolved by the common law for the protection of
personal liberty, should be held to be such as to deny its
availability to a convicted prisoner, whose residual liberty
should, in my judgment, be protected so far as the law can
properly achieve unless statute requires otherwise. If,
however, as Mr. Laws submitted, the tort of false
imprisonment was not available to a convicted prisoner
against a prison officer, I accept his submission that it
could not, for the same reasons, be available to a convicted
prisoner against a fellow prisoner."

Ralph Gibson L.J. had also delivered the judgment of the
Divisional Court in the case of Hague in which he expressed the
view that the segregation of a prisoner would not constitute the
tort of false imprisonment if the order for segregation, although
not lawfully authorised under rule 43, was given in good faith.
Giving the judgment in the case of Weldon he found it unneccesary
to express a final conclusion on this point since, if want of good
faith were a necessary ingredient of the tort, he held that it was
sufficiently alleged in the pleading against the officers concerned.
The pleading, he held, also alleged circumstances capable of
amounting to "intolerable conditions of detention" such as would
sustain a claim of false imprisonment on the authority of the
decision of the Court of Appeal in Middleweek v. the Chief
Constable of Merseyside (Note) [1990] 3 W.L.R. 481. It was on
these grounds that the Court of Appeal declined to strike out the
pleading of false imprisonment in the case of Weldon. Parker
L.J., in adding his own reasons to his agreement with those given
by Ralph Gibson L.J., was clearly much concerned with the
problem of the rights of prisoners as against fellow prisoners or
prison officers acting in bad faith. He said, at p. 480:

"Although the plaintiff may, in the end, fail to establish the
facts, we must proceed for the moment on the basis that he
was kept locked up naked overnight in a cell known as a
strip cell. It is said that as he was lawfully detained in the
prison this cannot amount to false imprisonment. If this be
right it must, I think, follow that he could have had no
claim for false imprisonment if his detention naked in that
cell had continued for weeks. It would also seem to me to
follow that if he had been locked up in a similar condition,
not by prison officers, but by fellow inmates, he would have
no such claim. It would follow, too, that, if a convicted
criminal were confined in a prison in which he and his
fellows were permitted, within the confines of a perimeter
fence enclosing some acres of ground, to lead normal lives,
he would have no such claim if he were locked up, with or
without clothes, in a shed in some remote part of the



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grounds, whether by fellow inmates or prison officers. To
hold that such treatment could not amount to false
imprisonment offends, in my judgment, against common
sense."

In so far as the Court of Appeal's reasoning in these
judgments proceeds from the premise urged upon them by Mr.
Laws that a prisoner's "right to liberty" is either totally abrogated
or partially retained in the form of a "residual liberty," I think,
with all respect, that it is erroneous. To ask at the outset
whether a convicted prisoner enjoys in law a "residual liberty," as
if the extent of any citizen's right to liberty were a species of
right in rem or a matter of status, is to ask the wrong question.
An action for false imprisonment is an action in personam. The
tort of false imprisonment has two ingredients: the fact of
imprisonment and the absence of lawful authority to justify it. In
Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 L.T. 44
Atkin L.J. said, at p. 54 that "any restraint within defined bounds
which is a restraint in fact may be an imprisonment". Thus if A
imposes on B a restraint within defined bounds and is sued by B
for false imprisonment, the action will succeed or fail according to
whether or not A can justify the restraint imposed on B as lawful.
A child may be lawfully restrained within defined bounds by his
parents or by the schoolmaster to whom the parents have
delegated their authority. But if precisely the same restraint is
imposed by a stranger without authority, it will be unlawful and
will constitute the tort of false imprisonment.

I shall leave aside initially questions arising from the
situation where a convicted prisoner serving a sentence is
restrained by a member of the prison staff acting in bad faith, by
a fellow prisoner or any other third party, or in circumstances
where it can be said that the conditions of his detention are
intolerable. I shall address first what I believe to be the primary
and fundamental issue, viz. whether any restraint within defined
bounds imposed upon a convicted prisoner whilst serving his
sentence by the prison governor or by officers acting with the
authority of the prison governor and in good faith, but in
circumstances where the particular form of restraint is not
sanctioned by the prison rules, amounts for that reason to the tort
of false imprisonment.

The starting point is section 12(1) of the Prison Act 1952
which provides:

"A prisoner, whether sentenced to imprisonment or
committed to prison on remand pending trial or otherwise,
may be lawfully confined in any prison."

This provides 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. Can
the prisoner then complain that his legal rights are infringed by a
restraint which confines him at any particular time within a
particular part of the prison? It seems to me that the reality of
prison life demands a negative answer to this question. Certainly
in the ordinary closed prison the ordinary prisoner will at any time
of day or night be in a particular part of the prison, not because



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that is where he chooses to be, but because that is where the
prison regime requires him to be. He will be in his cell, in the
part of the prison where he is required to work, in the exercise
yard, eating meals, attending education classes or enjoying
whatever recreation is permitted, all in the appointed place and at
the appointed time and all in accordance with a more or less Figid
regime to which he must conform. Thus the concept of the
prisoner's "residual liberty" as a species of freedom of movement
within the prison enjoyed as a legal right which the prison
authorities cannot lawfully restrain seems to me quite illusory.
The prisoner is at all times lawfully restrained within closely
defined bounds and if he is kept in a segregated cell, at a time
when, if the rules had not been misapplied, he would be in the
company of other prisoners in the workshop, at the dinner table or
elsewhere, this is not the deprivation of his liberty of movement,
which is the essence of the tort of false imprisonment, it is the
substitution of one form of restraint for another.

Mr. Harris seeks to surmount these difficulties by submitting
that whenever there is a breach of the rules which is sufficiently
"fundamental" this converts an otherwise lawful imprisonment into
an unlawful imprisonment. This, as I understand it, is quite a
different concept from that of an infringement of residual liberty.
The submission is that any breach of the rules which is sufficiently
far reaching in its effect on the prisoner, for example the failure
to supply him with clothing "adequate for warmth and health"
pursuant to rule 20(2), undermines the legality of his imprisonment.
Logically this would lead to the conclusion that the prisoner who
has not been supplied with proper clothing would be entitled to
walk out of the prison, but Mr. Harris understandably disclaims any
such extravagant proposition. It follows that the authority given
by section 12(1) for lawful confinement of the prisoner cannot
possibly be read as subject to any implied term with respect to
compliance with the prison rules and this is fatal to any
submission which seeks to make the lawfulness of the imprisonment
depend in any sense on such compliance.

In my opinion, to hold a prisoner entitled to damages for
false imprisonment on the ground that he has been subject to a
restraint upon his movement which was not in accordance with the
Prison Rules 1964 would be, in effect, to confer on him under a
different legal label a cause of action for breach of statutory duty
under the Rules. Having reached the conclusion that it was not
the intention of the Rules to confer such a right, I am satisfied
that the right cannot properly be asserted in the alternative guise
of a claim to damages for false imprisonment.

Mr. Sedley and Mr. Harris both rely on a number of 19th
century decisions. These are considered in the judgment of Taylor
L.J. in the case of Hague [1990] 3 W.L.R. 1210, 1263-1264, and in
the speech of my noble and learned friend, Lord Jauncey of
Tullichettle. I agree with their reasons for reaching the conclusion
that these cases are no longer relevant in view of the broad scope
of section 12(1) of the Act of 1952.

I turn next to the question posed by the example given in
the judgment of Parker L.J. in the case of Weldon [1990] 3 W.L.R.
465, 480, of a prisoner locked in a shed by fellow prisoners. I
think the short answer to this question is given by Taylor L.J. who
said in the case of Hague [1990] 3 W.L.R. 1210, 1267G:

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"In such a situation action for false imprisonment would
surely lie (for what it was worth), since the fellow prisoners
would have no defence under section 12 of the Prison Act
1952."

The prisoner locked in the shed is certainly restrained within
defined bounds and it is nihil ad rem that if he were not locked in
the shed, he would be locked in his cell or restrained in
accordance with the prison regime in some other part of the
prison. The restraint in the shed is unlawful because the fellow
prisoners acted without the authority of the governor and it is
only the governor, who has the legal custody of the prisoner, and
persons acting with the authority of the governor who can rely on
the provisions of section 12(1).

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). But if the officer deliberately acts outside the
scope of his authority, he cannot render the governor or the Home
Office vicariously liable for his tortious conduct. This no doubt
explains why Mr. Harris did not seek to sustain the decision of the
Court of Appeal in his favour on the ground that the plaintiff's
pleading should be read as involving an allegation of bad faith.

There remains the question whether an otherwise lawful
imprisonment may be rendered unlawful by reason only of the
conditions of detention. In Reg. v. Commissioner of the Police of
the Metropolis, Ex parte Nahar (unreported) 27 May 1983, two
applicants for habeas corpus who had been remanded in custody
were held pursuant to the provisions of section 6 of the
Imprisonment (Temporary Provisions) Act 1980 in cells below the
Camberwell Green Magistrates Court which were designed only to
enable persons to be held in custody for a few hours at a time
and which were obviously deficient in many respects for the
purpose of accommodating prisoners for longer periods. They
sought their release on the ground that the conditions of their
detention rendered it unlawful. The applications were rejected,
but Stephen Brown J. said in the course of his judgment: "There
must be some minimum standard to render detention lawful. . ."

McCullough J. said:

"Despite the temporary nature of the detention there
contemplated, there must be implied into section 6 of the
Act of 1980 some term which relates to the conditions
under which a prisoner may lawfully be detained. I say so
because it is possible to conceive of hypothetical
circumstances in which the conditions of detention were
such as would make that detention unlawful. I do not
propose to offer any formulation of that term. Were it
broken in any particular case I would reject emphatically
the suggestion that the matter would not be one for the
exercise of the court's jurisdiction to grant the writ of
habeas corpus."

- 11 -

These observations were considered by the Court of Appeal
in Middleweek v. Chief Constable of Merseyside (Note) [1990] 3
W.L.R. 481. The plaintiff had been awarded damages for false
imprisonment by the jury on the basis that his otherwise lawful
detention at a police station had been rendered unlawful because it
was unreasonable in the circumstances to keep him in a police
cell. The defendant successfully appealed, but Ackner L.J.,
delivering the judgment of the court, said at p. 487:

"We agree with the views expressed by the Divisional Court
that it must be possible to conceive of hypothetical cases in
which the conditions of detention are so intolerable as to
render the detention unlawful and thereby provide a remedy
to the prisoner in damages for false imprisonment. A
person lawfully detained in a prison cell would, in our
judgment, cease to be so lawfully detained if the conditions
in that cell were such as to be seriously prejudicial to his
health if he continued to occupy it, e.g., because it became
and remained seriously flooded, or contained a fractured gas
pipe allowing gas to escape into the cell. We do not
therefore accept as an absolute proposition that if detention
is initially lawful, it can never become unlawful by reason
of changes in the conditions of imprisonment."

I sympathise entirely with the view that the person lawfully
held in custody who is subjected to intolerable conditions ought not
to be left without a remedy against his custodian, but the
proposition that the conditions of detention may render the
detention itself unlawful raises formidable difficulties. If the
proposition be sound, the corollary must be that when the
conditions of detention deteriorate to the point of intolerability,
the detainee is entitled immediately to go free. It is impossible, I
think, to define with any precision what would amount to
intolerable conditions for this purpose. McCullough J.

understandably and perhaps wisely abstained from any attempt at
definition in Ex parte Nahar. The examples given by Ackner L.J.
of a flooded or gas-filled cell are so extreme that they do not,
with respect, offer much guidance as to where the line should be
drawn. The law is certainly left in a very unsatisfactory state if
the legality or otherwise of detaining a person who in law is and
remains liable to detention depends on such an imprecise criterion
and may vary from time to time as the conditions of his detention
change.

The logical solution to the problem, I believe, is that if the
conditions of an otherwise lawful detention are truly intolerable,
the law ought to be capable of providing a remedy directly related
to those conditions without characterising the fact of the detention
itself as unlawful. I see no real difficulty in saying that the law
can provide such a remedy. Whenever one person is lawfully in
the custody of another, the custodian owes a duty of care to the
detainee. If the custodian negligently allows, or a fortiori, if he
deliberately causes, the detainee to suffer in any way in his health
he will be in breach of that duty. But short of anything that
could properly be described as a physical injury or an impairment
of health, if a person lawfully detained is kept in conditions which
cause him for the time being physical pain or a degree of
discomfort which can properly be described as intolerable, I believe
that could and should be treated as a breach of the custodian's



- 12 -

duty of care for which the law should award damages. For this
purpose it is quite unnecessary to attempt any definition of the
criterion of intolerability. It would be a question of fact and
degree in any case which came before the court to determine
whether the conditions to which a detainee had been subjected
were such as to warrant an award of damages, for the discomfort
he had suffered. In principle I believe it is acceptable for the law
to provide a remedy on this basis, but that the remedy suggested
in the cases of Nahar and Middleweek is not. In practice the
problem is perhaps not very likely to arise.

Conclusion

For the reasons I have given I conclude that a claim for
damages either for breach of statutory duty or for false
imprisonment is not sustainable in either of the cases before the
House. I would accordingly dismiss the appeal in the case of
Hague. In the case of Weldon I would allow the appeal and order
that in paragraph 2 of the particulars of claim the words "falsely
imprisoned and" and sub-paragraph (iv) of the particulars given
thereunder be struck out.

LORD ACKNER

My Lords,

A person lawfully held in custody who is subjected to
intolerable conditions, must, of course, have a remedy against his
custodian. This clearly can include the following:

1. an action in tort against a prison authority for damages for
   negligence where, for example, the intolerable conditions
   cause him to suffer injury to his health;

2. where the facts fit, an action in tort for damages for
   assault;

(c) where malice can be established, an action for misfeasance
in the exercise of a public office; and

(d) the termination of such conditions by judicial review.

I accept, however, for the reasons stated by my noble and
learned friends, Lord Bridge of Harwich and Lord Jauncey of
Tullichettle that an otherwise lawful imprisonment is not rendered
unlawful by reason only of the conditions of detention, thereby
providing a prisoner with a potential action for the tort of false
imprisonment. Accordingly my dictum in the judgment of the
Court of Appeal in the Middleweek case was erroneous.

I am not however prepared to accept that as a matter of
general principle a person who is lawfully deprived of part only of
his liberty, cannot sue in tort for false imprisonment, if unlawfully
deprived of the residue or balance of that liberty. While a
prisoner has no residual liberty vis a vis the governor, I would not
accept that he had no remedy against a fellow prisoner who locked
him in some confined space. I agree with the observations of
Taylor L.J. in Weldon when he said at p. 1267:

- 13 -

"In such a situation an action for false imprisonment would
surely lie (for what it was worth), since the fellow prisoner
would have no defence under section 12 of the Prison Act
1952."

I agree, that for the reasons stated in the speech of my
noble and learned friend, Lord Bridge of Harwich that no claim for
damages is sustainable either for breach of statutory duty or for
false imprisonment in the case of either prisoner and I, too, would
therefore dismiss the appeal in Hague and allow the appeal in
Weldon.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

These two appeals arise out of actions by convicted
prisoners in respect of incidents during their confinement. In
Hague the prisoner sought judicial review of a decision of the
Deputy Governor of Parkhurst Prison to segregate him and
thereafter to transfer him to Wormwood Scrubs for continued
segregation. He claimed certain declarations as well as damages
for false imprisonment. The Divisional Court dismissed the
application but on appeal the Court of Appeal held, inter alia (1)
that he was entitled to a declaration that his continued
segregation in Wormwood Scrubs on the authority of the Deputy
Governor of Parkhurst was unlawful, (2) that a breach of the
Prison Rules 1964 could not found a private law claim for damages
by a prisoner, and (3) that a convicted prisoner could only succeed
in an action of false imprisonment in respect of his detention in
prison if he was kept in intolerable conditions which, so far as
Hague was concerned, was not the case. In Weldon the prisoner
claimed damages for false imprisonment in respect of his
confinement over night in a strip cell in the prison in which he
was serving a sentence. The Court of Appeal dismissed an appeal
against a refusal to strike out the claim on the grounds that the
facts disclosed an arguable case of false imprisonment either on
the ground that he had been unlawfully deprived of his residual
liberty or that he had been kept in intolerable conditions. Hague
appealed on the grounds (1) that a breach of the Prison Rules 1964
sounded in damages, and (2) that the reasons given by the Court
of Appeal in Weldon for refusing to strike out the claim were
sound. The Home Office appealed in Weldon on the ground that a
convicted prisoner serving a sentence could not maintain an action
of damages for false imprisonment against the prison authorities.
There was no challenge to the declaration granted to Hague by the
Court of Appeal. In these circumstances I propose to address
myself to the issues of a breach of statutory duty and the tort of
false imprisonment at common law.

My Lords, I am able to give this brief summary of the
background to these appeals because of the detailed account
contained in the speech of my noble and learned friend Lord
Bridge of Harwich which I gratefully adopt.

Breach of Statutory Duty

-14-

Mr. Sedley for Hague submitted that there had been a
breach of the prison rules which sounded in damages. In a
carefully reasoned argument to which I hope that I do justice in
paraphrasing he argued that a breach of statutory duty
unaccompanied by a statutory remedy or penalty affords a right of
action to a person injured thereby where the plaintiff belongs to a
class which the statutory provision was intended to protect, and
the breach has caused the plaintiff damage of a kind against which
the provision was intended to protect him. In support of this
proposition he relied on Groves v. Wimborne (Lord) [1898] 2 Q.B.
402 and Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398.
Where such a situation existed, as it did in the present case, no
question of legislative intent arose. Mr. Sedley invited your
Lordships to overrule Arbon v. Anderson [1943] K.B. 252 and
Becker v. Home Office [1972] 2 Q.B. 407, in both of which cases
it had been held that a breach of the prison rules did not give
rise to an action of damages.

Mr. Laws on the other hand maintained that the first
question to be considered was what rights, if any, Parliament
intended to confer in passing the statute and that matters such as
availability of other remedies merely assisted the resolution of
that question and were not in themselves decisive. He also relied
on Groves v. Wimborne (Lord) and Cutler v. Wandsworth Stadium
Ltd. Mr. Laws argued that the Secretary of State had no power
under section 47 of the Prison Act 1952 to make rules which
conferred private rights on individuals.

In order to consider these arguments it is necessary to
examine the relevant authorities. Groves v. Wimborne (Lord) arose
out of a breach of a duty imposed by the Factory and Workshop
Act 1878 to fence dangerous machinery. At the beginning of his
judgment on p. 406 A.L. Smith L.J. referred to the Act of 1878 as
"A public Act passed in favour of the workers in factories and
workshops to compel their employers to do certain things for their
protection and benefit". In dealing with the question whether the
cause of action which was prima facie given by the relevant
section had been taken away by certain provisions as to payment
of fines, he said, at pp. 407-408:

"In dealing with the question whether this was the intention
of the Legislature it is material ... to consider for whose
benefit the Act was passed, whether it was passed in the
interests of the public at large or in those of a particular
class of persons. The Act now in question, as I have said,
was clearly passed in favour of workers employed in
factories and workshops, and to compel their employers to
perform certain statutory duties for their protection and
benefit."

Later, at p. 408, after consideration of further matters, he said
that he had been led to the conclusion:

"That it cannot have been the intention of the Legislature
that the provision which imposes upon the employer a fine
as a punishment for neglect of his statutory duty should
take away the prima facie right of the workman to be fully
compensated for injury occasioned to him by that neglect."

- 15 -

Rigby L.J. at p. 414 said:

"The plaintiff is one of those persons, the possibility of
injury to whom through neglect to fence ''machinery the
section contemplates. That being so, the only question
seems to be whether the provisions of the Act with regard
to the imposition of fines for neglect of the duty created
by the section reasonably lead to the conclusion that the
Legislature intended that such fines should be the only
remedy for breach of that duty. I think that, when those
provisions are examined, it is impossible to arrive at that
conclusion."

Vaughan Williams L.J. at p. 416 said:

"In such a case as this one must, as Lord Cairns said in
Atkinson v. Newcastle Water Works Co. (1877) 2 Ex.D. 441,
look at the general scope of the Act and the nature of the
statutory duty; and in addition one must look at the nature
of the injuries likely to arise from a breach of that duty,
the amount of the penalty imposed for a breach of it, and
the kind of person upon whom it is imposed, before one can
come to a proper conclusion as to whether the legislature
intended the statutory remedy to be the only remedy for
breach of the statutory duty."

All the members of the Court of Appeal were clearly of the
view that the intention of the legislature had to be looked at in
determining whether breach of a statutory duty gave rise to an
action in tort.

In Cutler v. Wandsworth Stadium Ltd. Lord Simonds at p.
407, after referring to the question whether where a statutory
obligation is placed on A, B who conceives himself to be damnified
by A's breach of it has a right of action against him, stated:

"I do not propose to try to formulate any rules by reference
to which such a question can infallibly be answered. The
only rule which in all circumstances is valid is that the
answer must depend upon a consideration of the whole Act
and the circumstances, including the pre-existing law in
which it was enacted. But that there are indications which
point with more or less force to the one answer or the
other is clear from authorities which, even where they do
not bind, will have great weight with the House. For
instance, if a statutory duty is prescribed but no remedy by
way of penalty or otherwise for its breach is imposed, it
can be assumed that a right of civil action accrues to the
person who is damnified by the breach. For if it were not
so, the statute would be but a pious aspiration."

Lord Simonds later referred with approval to a passage from the
speech of Lord Kinnear in Butler (or Black) v. Fife Coal Co. Ltd.
[1912] AC 149, 165, which included the following sentences:

"We are to consider the scope and purpose of the statute
and in particular for whose benefit it is intended. Now the
object of the present statute is plain. It was intended to
compel mine owners to make due provision for the safety of



- 16 -

the men working in the mines, and the persons for whose
benefit all these rules are to be enforced are the persons
exposed to the danger."

Once again the intention of the legislature is treated as a
matter of importance. In Lonrho Ltd v. Shell Petroleum Co. Ltd.
(No. 2) [1982] A.C. 173 Lord Diplock at p. 185 referred to the
general rule that where an Act creates an obligation, and enforces
the performance in a specified manner the performance cannot be
enforced in any other manner, and then set out one or two
exceptions to the rule . . .

"The first is where upon the true construction of the Act it
is apparent that the obligation or prohibition was imposed
for the benefit or protection of a particular class of
individuals, as in the case of the Factories Acts and similar
legislation."

This exception was referred to by Lord Bridge of Harwich in P. v.
Liverpool Daily Post and Echo Newspapers Plc. [1991] 2 W.L.R.
513 at p. 523H in the following terms:

"But in order to fall within the principle which Lord Diplock
had in contemplation it must, in my opinion, appear upon
the true construction of the legislation in question that the
intention was to confer on members of the protected class a
cause of action sounding in damages occasioned by the
breach."

Finally, in Calveley v. Chief Constable of the Merseyside
Police [1989] A.C. 1228 Lord Bridge of Harwich, in the context of
a submission that breach of one of the Police (Discipline)
Regulations 1977 gave a right to damages, said at p. 1237D:

"That the duty is imposed for the benefit of the police
officer subject to investigation is plain. It seems to me
equally plain that the legislature cannot have contemplated
that the object of the duty was to protect the officer from
any injury of a kind attracting compensation and cannot,
therefore have been intended to give him a right to
damages for breach of the duty".

My Lords, I take from these authorities that it must always
be a matter for consideration whether the legislature intended that
private law rights of action should be conferred upon individuals in
respect of breaches of the relevant statutory provision. The fact
that a particular provision was intended to protect certain
individuals is not of itself sufficient to confer private law rights
of action upon them, something more is required to show that the
legislature intended such conferment.

The Prison Act 1952 is designed to deal with the
administration of prisons and the management and control of
prisoners. It covers such wide-ranging matters as Central
Administration, Prison Officers, Confinement and Treatment of
Prisoners, Release of Prisoners on Licence, Provision and
Maintenance of Prisons and Offences. Its objects are far removed
from those of legislation such as the Factories and Coal Mines
Acts whose prime concern is to protect the health and safety of



- 17 -

persons who work therein. Section 47 empowers the Secretary of
State to make rules in relation to many of the matters with which
the Act is concerned and is in the following terms, inter alia . . .




"(1) The Secretary of State may make rules for the
regulation and management of prisons, remand centres,
detention centres and Borstal institutions respectively, and
for the classification, treatment, employment, discipline and
control of persons required to be detained therein."

I find nothing in any of the other sections of the Act to suggest
that Parliament intended thereby to confer on prisoners a cause of
action sounding in damages in respect of a breach of those
provisions. To give the Secretary of State power in section 47 to
confer private law rights on prisoners would therefore be to allow
him to extend the general scope of the Act by rules. This could,
of course, be done by some such provision as is found in section
76(2) of the Factories Act 1961 whereby the Minister is
specifically empowered to make regulations which "impose duties
on owners, employed persons and other persons . . .". However, in
the absence of such a specific provision I conclude that it was not
intended that the Secretary of State should be able to extend the
scope of the Act by creating private rights by way of rules, from
which it follows that had he done so he would have been acting
ultra vires. That is sufficient for disposal of this part of the
appeal but in deference to the able arguments addressed to your
Lordships I turn to consider the effect of the rules upon the
assumption that the Secretary of State did have power thereby to
confer private law rights upon prisoners.

The appellant Hague relies on a breach of rule 43 which is
in the following terms:

"Removal and association

1. Where it appears desirable, for the maintenance of
   good order or discipline or in his own interests, that
   a prisoner should not associate with other prisoners,
   either generally or for particular purposes, the
   governor may arrange for the prisoner's removal from
   association accordingly.

2. A prisoner shall not be removed under this Rule for a
   period of more than 3 days without the authority of a
   member of the board of visitors or of the Secretary
   of State. An authority given under this paragraph
   shall be for a period not exceeding one month, but
   may be renewed from month to month except that, in
   the case of a person aged less than 21 years who is
   detained in prison, such an authority shall be for a
   period not exceeding 14 days, but may be renewed
   from time to time for a like period.

3. The governor may arrange at his discretion for such a
   prisoner as aforesaid to resume association with other
   prisoners, and shall do so if in any case the medical
   officer so advises on medical grounds."

This rule should be read in the context of rule 2(1) which provides:



- 18 -

"Maintenance of order and discipline

"2. (1) Order and discipline shall be maintained with
firmness, but with no more restriction than is
required for safe custody and well ordered community
life."

Mr. Sedley argued that the limitation in rule 43(2) on the
time during which a prisoner may be removed from association was
imposed for the benefit of prisoners in whom there arose a
correlative private law right if they were injured by a breach. My
Lords, I cannot accept this proposition. The rules are wide-ranging
in their scope covering a mass of matters relevant to the
administration and good government of a prison. Many of these do
not directly relate to prisoners and I do not consider that those
which do were ever intended to confer private law rights in the
event of a breach. The rules are regulatory in character, they
provide a framework within which the prison regime operates but
they are not intended to protect prisoners against loss, injury and
damage nor to give them a right of action in respect thereof. I
would only add that if a prisoner suffered in health as a result of
segregation contrary to the rules he would in all probability have a
right of action in negligence against the prison authorities. If, as
in the case of Hague, he suffered no damage to health then a
breach of the rules would not result in loss or injury of the kind
which normally flows from a breach of statutory duty and which
the statute is designed to prevent (see Lord Bridge of Harwich in
P. v. Liverpool Daily Post and Echo Newspapers Plc. [1991] 2
W.L.R. 513 at p. 524 A-B).

In Arbon v. Anderson [1943] K.B. 252 Goddard L.J., sitting
as an additional judge of the King's Bench Division, said at p. 254:

"With regard to the prison rules, it would be enough to say
that there were no breaches, but, in case a higher court
should take a different view, I should say that, in my
opinion, neither do these rules confer rights on prisoners
which can be enforced by action. They are made under the
Prison Act 1898, section 2, for the 'government of prisons' .
. . The real question which falls to be determined is
whether it is intended by the statute to confer an individual
right. I am clearly of opinion that neither the Prison Act
1898 nor the rules were intended to confer any such right."

In Becker v. Home Office [1972] 2 Q.B. 407, in which Arbon v.
Anderson does not appear to have been cited, the plaintiff sought
to claim damages in respect of an alleged breach of the prison
rules. Lord Denning M.R. said at p. 418H:

"The prison rules are regulatory directions only. Even if
they are not observed, they do not give rise to a cause of
action. So I hold that in point of law Mrs. Becker cannot
claim."

Edmund Davies L.J. said at p. 420C:

"... I hold (as Lord Denning M.R. has done) that a breach
of these prison rules does not, per se, create any civil
liability at the suit of a party who claims to have been
damnified thereby."

- 19 -

For the reasons which I have already given I have no doubt
that the dicta which I have just quoted from these two cases
correctly state the law as do the observations 'of Taylor and
Nicholls L.JJ. in Hague [1990] 3 W.L.R. 1210 at 1263c and 1270H
respectively.

Finally, I should emphasise that the conclusion which I have
reached on this part of the appeal does not leave a prisoner
without a remedy if the rules are broken to his detriment. He
may complain to the governor or board of visitors under rule 8(1)
and in the event of a complaint to the latter a report may be
made to the Secretary of State under section 6(3) of the Act. He
may also challenge any administrative decision of the Secretary of
State or the governor which he considers to contravene the
provisions of the Act or the rules by judicial review proceedings.
In the case of a continuing wrong done to him a prisoner could
expect that a hearing in judicial review proceedings could be
obtained with little delay. These public law remedies are
additional to any private law remedies which would be available to
him such as damages for misfeasance in public office, assault or
negligence.

False imprisonment

Are there any circumstances in which a convicted prisoner
committed to a prison in terms of section 12 of the Prison Act
1952 can sue the prison authorities for damages for false
imprisonment? The divisional court in Weldon answered this
question in the affirmative and referred to two possible situations,
namely:

(1) Where the prisoner has been deprived of his residual liberty
without reasonable cause and in bad faith, and (2) where the
prisoner has been subjected to intolerable conditions of detention.
The Court of Appeal in Hague considered whether the conditions
under which he was imprisoned were intolerable but concluded that
they were not. The relevant circumstances in Weldon were that,
according to his averments, he was dragged out of his cell,
dragged downstairs, placed in a cell in the punishment block, later
removed to a strip cell where his clothes were taken from him
and wherein he remained until the following morning. In Hague
his continued segregation after transfer to Wormwood Scrubs
contravened the provisions of the Prison Rules 1964 and was
unlawful. It was said that the conditions in which Weldon was
kept in the strip cell were, prima facie, intolerable, but no such
submission was made on behalf of Hague.

False imprisonment is defined in Clerk and Lindsell on
Torts, 16th ed., (1989) pp. 972-973, para. 17-15 as "complete
deprivation of liberty for any time, however short, without lawful
cause". The work then quotes the "Termes de la Ley":

"Imprisonment is no other thing but the restraint of a man's
liberty, whether it be in the open field, or in the stocks, or
in the cage in the streets or in a man's own house, as well
as in the common gaols; and in all the places the party so
restrained is said to be a prisoner so long as he hath not
his liberty freely to go at all times to all places whither he
will without bail or mainprise or otherwise."

- 20 -

The latter definition of imprisonment was cited with approval by
Duke and Atkin L.JJ. in Meering v. Grahame-White Aviation Co.
Ltd. (1919) 122 L.T. 44 at pp. 51' and 53. The reference to
liberty to go "at all times to all places" must, of course, be read
in the context of the normal restrictions imposed by general law
or contract on the ability of individuals to go where and when
they please.

Residual liberty

In the Court of Appeal in Weldon Ralph Gibson L.J. [1990] 3
W.L.R. 465, 473H, after referring in some detail to the Prison
Rules 1964, said:

" It is apparent, in my judgment, from consideration of

those rules that the legislative intention is that a prisoner
should, subject to any lawful order given to him and to any
rules laid down in the prison, enjoy such liberty - his
residual liberty - within prison as is left to him."

In reaching the conclusion that the Prison Rules 1964 left a
prisoner with some residual liberty Ralph Gibson L.J. had regard to
a passage in the speech of Lord Wilberforce in Raymond v. Honey
[1983] 1 AC 1 at p. 10G where he said:

"Secondly, under English law, a convicted prisoner, in spite
of his imprisonment, retains all civil rights which are not
taken away expressly or by necessary implication".

These observations were made in the context of a case
concerning a prisoner's right of access to the Courts. They are
highly relevant to the protection of such rights as a prisoner
retains but they do not assist in determining what those rights are.
In seeking to support the decision of the Court of Appeal Mr.
Harris for Weldon referred to four 19th century authorities which,
he maintained, supported the proposition that a convicted prisoner
could be falsely imprisoned. In Osborne v. Angle (1835) 2 Scott
500, a prisoner in the Fleet Prison was, on being subsequently
charged with dealing with a forged bill of exchange, conveyed to
the strong room. He obtained a rule calling upon the warden to
show cause why he should not be restored to the proper and
ordinary custody of the prison. The rule was discharged upon the
ground that the warden was well justified in what he had done,
although it appears from the judgments of Tindal C.J. and Gaselee
J. that the court would have interfered if improper and unnecessry
restraint had been imposed. It was argued, by Mr. Harris, that
the apparent willingness of the court to have interfered in
appropriate conditions supported the proposition which he was
advancing. I do not think that it did. If the court had interfered
it would have been to affirm the rule by making an order such as
today would be made in judicial review proceedings but not by
awarding damages for false imprisonment. In Yorke v. Chapman
(1839) 10 Ad. & E. 207, a prisoner committed to the Queen's
Bench Prison for debt was confined by the marshal in terms of a
rule of court in a strong room for disorderly behaviour. He had a
statutory right to petition the court on the ground of abuse by the
prison authorities and in respect of that complaint the court had
power to award recompense and costs. However, he chose instead



- 21 -

to bring an action of assault and false imprisonment against the
marshal. The Attorney-General sought a rule absolute to stay the
action on the ground, inter alia, that there was no charge of
excess but Lord Denman C.J. held that the plaintiff's statutory
remedy did not remove his right to bring an action for redress. I
do not think that this case assists Mr. Harris because there was no
attempt to strike out the action based on false imprisonment and
indeed the Attorney-General appears to have accepted that a
charge of "excess" would have been actionable. Furthermore, the
existence of allegations of assault, if proved, would have entitled
the plaintiff to a remedy at common law irrespective of any
remedy for false imprisonment.

The two remaining 19th century cases were Cobbett v. Grey
(1850) 4 Exch. 729 and Osborne v. Milman (1886) 17 QBD 514, in
both of which prisoners complained that they were falsely
imprisoned in a part of a prison in which they could not lawfully
be confined. In Arbon v. Anderson [1943] K.B. 252, Goddard L.J.
at p. 254 analysed these two cases and concluded that both related
to the nature of the imprisonment rather than to the conditions
thereof. In Hague [1990] 3 W.L.R. 1210, 1263F-1264H, Taylor L.J.
again analysed the two cases and concluded that both depended
upon the strict classification of prisoners at the time and the
statutory requirements as to where they should be confined
dependent upon their classification. I entirely agree with his
careful analysis of these two cases and do not feel that I can
usefully add anything thereto. I would merely emphasise, as
Taylor L.J. did, that the Secretary of State's power under section
12(1) of the Prison Act 1952 to confine a prisoner "in any prison"
demonstrates how different is the position today to that which
prevailed in the 19th century. I do not therefore consider that
these four cases support the proposition that a prisoner committed
to prison in terms of section 12 can, nevertheless, be falsely
imprisoned.

I turn to more recent authority. In Williams v. Home
Office (No. 2) [1981] 1 All E.R. 1211, Tudor-Evans J. at p. 1241
said:

"In my judgment, the sentence of the court and the
provisions of section 12(1) always afford a defence to an
action of false imprisonment. The sentence justifies the
fact of imprisonment and the subsection justifies the
confinement of a prisoner in any prison. How then can it
be unjustifiable and unlawful to confine him there? I
accept the submission . . . that the sentence of the court
and the provisions of section 12(1) provide a defence to this
action, subject to the arguments based on the Bill of Rights
and natural justice . . . The next question is whether the
lawfulness of the detention can be affected by the
conditions of the detention. I do not think so. The
question of the conditions of imprisonment is a matter for
the Secretary of State. The check or safeguard against
unacceptable conditions . . . lies in the prisoner's rights
under the rules to complain to the governor or the
Secretary of State."

In Reg. v. Board of Visitors of Gartree Prison, Ex parte
Sears, 14 March 1985, The Times, 20 March 1985, a prisoner



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sought damages in respect of cellular confinement and loss of
privilege. Mann J. said:

"If a person is imprisoned in al place where he is lawfully so
imprisoned, then it does not seem to me that a variation in
conditions of confinement can constitute the tort of false
imprisonment at common law."

These two cases were referred to by Ackner L.J. in Middleweek v.
Chief Constable of Merseyside (Note) [1990] 3 W.L.R. 481 with
apparent approval although this was later qualified to the extent
of propounding the proposition that lawful detention could become
unlawful when the conditions became intolerable. To this
proposition I shall return later.

It is perhaps instructive to examine once more the
circumstances which in each of the two cases were said to
constitute false imprisonment. In Weldon it was said that his
removal to and confinement in a strip cell constituted the tort.
In Hague the Court of Appeal held that his continued segregation
in the prison to which he was transferred on the orders of the
Governor of the transferring provision was unlawful and in breach
of rule 43. This unlawful segregation, it was argued, amounted to
false imprisonment. No complaints were made about his presence
in the second prison and no complaint about segregation could have
been made had the Governor of that prison independently ordered
and obtained leave for it. Thus in each case what was said to
constitute false imprisonment was not the confinement in the
particular prison but rather the treatment therein, or, as Goddard
L.J. put it in Arbon v. Anderson the conditions and not the nature
of the imprisonment. The alteration in the conditions infringed
the residual liberty possessed by the two men and thus constituted
false imprisonment.

This proposition presupposes that a prisoner lawfully confined
in prison has, vis a vis the Governor, residual liberty which can be
protected by private law remedies. That a prisoner has a right to
sue in respect of torts committed against him in prison is beyond
doubt (Raymond v. Honey (supra)). If he is assaulted by a prison
officer he may sue for damages, and if he is negligently cared for
whereby he sustains injury to his health he may likewise sue. But
does he have such residual liberty, vis a vis the Governor, as
amounts to a right protectable in law? I do not consider that he
does.

He is lawfully committed to a prison and while there is
subject to the Prison Act 1952 and the Prison Rules 1964. His
whole life is regulated by the regime. He has no freedom to do
what he wants, when he wants. His liberty to do anything is
governed by the prison regime. Placing Weldon in a strip cell and
segregating Hague altered the conditions under which they were
detained but did not deprive them of any liberty which they had
not already lost when initially confined.

Intolerable conditions

In the Court of Appeal in Weldon Ralph Gibson L.J. at p.
479E concluded that the plaintiff's allegation included "an assertion
of fact capable of constituting such 'intolerable conditions of



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detention' as to render the detention unlawful within the principle
stated by Ackner L.J. in the Middleweek case". In that case,
Middleweek v. Chief Constable of Merseyside (Note) [1990] 3
W.L.R. 481, Ackner L.J. after referring to an unreported decision
of the Divisional Court in Reg. v. Commissioners of Police of the
Metropolis, Ex parte Nahar (unreported) 14 March 1985, said at p.
487:

"We agree with the views expressed by the Divisional Court
that it must be possible to conceive of hypothetical cases in
which the conditions of detention are so intolerable as to
render the detention unlawful and thereby provide a remedy
to the prisoner in damages for false imprisonment. A
person lawfully detained in a prison cell would, in our
judgment, cease to be so lawfully detained if the conditions
in that cell were such as to be seriously prejudicial to his
health if he continued to occupy it, e.g., because it became
and remained seriously flooded, or contained a fractured gas
pipe allowing gas to escape into the cell., We do not
therefore accept as an absolute proposition that if detention
is initially lawful, it can never become unlawful by reason
of changes in the conditions of imprisonment."

My Lords, there is no doubt that in the conditions
predicated by Ackner L.J. the prisoner would have a public law
remedy and, if he sustained injury to health, a private law remedy
as well, but the latter remedy would lie in negligence rather than
in false imprisonment. To say that detention becomes unlawful
when the conditions thereof become intolerable is to confuse
conditions of confinement with nature of confinement and to add a
qualification to section 12(1). If, as I believe to be the case, a
prisoner at any time has no liberty to be in any place other than
where the regime permits, he has no liberty capable of deprivation
so as to constitute the tort of false imprisonment. An alteration
of conditions therefore deprives him of no liberty because he has
none already. I am therefore of the opinion that the above quoted
dictum of Ackner L.J. in Middleweek is an incorrect statement of
the law.

General

There are certain further matters which are relevant to
both of the arguments on residual liberty and intolerable
conditions. Mr. Harris argued than a substantial breach of a
justiciable prison rule affected the legality of the detention and
could give rise to false imprisonment. This argument is unsound
for two reasons. In the first place it turns the tort of false
imprisonment into one of degree dependent upon whether or not
the breach in question is substantial. Such a concept is at odds
with the definition of the tort and particularly at odds with the
dictum of Atkin L.J. in Meering v. Grahame-White Aviation Co.
Ltd. (1919) 122 L.T. 44, 53-54:

"It appears to me that a person could be imprisoned without
his knowing it. I think a person can be imprisoned while he
is asleep, while he is in a state of drunkenness, while he is
unconscious, and while he is a lunatic. Those are cases
where it seems to me that the person might properly
complain if he were imprisoned, though the imprisonment



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began and ceased while he was in that state. Of course,
the damages might be diminished and would be affect by
the question whether he was conscious of it or not.




"So a man might in fact, to my mind, be imprisoned by
having the key of a door turned . . .It is quite unnecessary
to go on to show that in fact the man knew that he was
imprisoned."

If a man can be falsely imprisoned when he is unaware of the fact
it is difficult to see what relevance comfort or discomfort has to
the constitution of the tort. In my view, imprisonment is either
lawful or false and questions of degree do not arise. In the
second place, the argument seeks to obtain by the back door the
remedy which is not available by the front, namely, that based on
breach of statutory duty.

If deprivation of residual liberty or subjection to intolerable
conditions could constitute false imprisonment it would mean
adding to section 12(1) some such words as "so long as the
conditions of his confinement are tolerable and the provisions of
this Act and of any rules made hereunder are observed in relation
to him in all material respects". I see no justification for so
qualifying section 12(1). In my view that subsection provides a
complete answer to any claim of false imprisonment against the
Governor or anyone acting on his authority.

It was suggested during argument that if no action of false
imprisonment could lie against the Governor, a prisoner would have
no remedy against a fellow prisoner who locked him in some
confined space. While a prisoner has no residual liberty vis a vis
the Governor, it does not necessarily follow that vis a 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. As the matter is not
necessary to the determination of these appeals and was not fully
argued I say no more. It was further suggested that as a matter
of general principle someone who had already suffered some
deprivation of liberty could not thereafter suffer false
imprisonment. This appears to misunderstand the definition of the
tort which is total deprivation of liberty, that is to say of all such
liberty as the individual presently enjoys and not deprivation of
total liberty, namely, liberty which is otherwise wholly
unrestricted. I see no reason why an individual enjoying restricted
liberty such as an undergraduate "gated" within his college should
not be falsely imprisoned if the result thereof is to deprive him
totally of such liberty as he presently enjoys.

To summarise my conclusion on these appeals:

1. No action of damages lies in respect of a breach of
   the Prison Rules 1964.

2. No action of damages for false imprisonment lies
   against the Secretary of State or the Governor of a prison
   either on the ground of unlawful deprivation of residual
   liberty, or on the ground of subjection to intolerable
   conditions.

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I would therefore dismiss the appeal in Hague and allow
that in Weldon making the orders proposed by my noble and
learned friend, Lord Bridge of Harwich.

LORD GOFF OF CHIEVELEY

My Lords,

I agree with my noble and learned friends, Lord Bridge of
Harwich and Lord Jauncey of Tullichettle, that the Prison Rules
1964 are regulatory in character and were never intended to
confer private law rights on prisoners in the event of their breach.
I also agree, for the reasons given by my noble and learned
friends, with the second conclusion summarised at the end of Lord
Jauncey's speech, viz. that no action of damages for false
imprisonment lies against the Secretary of State or governor of a
prison either on the ground of unlawful deprivation of residual
liberty, or on the ground of subjection to intolerable conditions;
though I accept that, in the latter circumstances, an action for
damages for negligence may be available to the prisoner, but only
in respect of the type or types of damage which, on accepted
legal principles, will give rise to such an action. I too, therefore,
would dismiss the appeal in the case of Hague and allow the
appeal in the case of Weldon.

LORD LOWRY

My Lords,

I have had the advantage of reading in draft the speeches
of my noble and learned friends, Lord Bridge of Harwich and Lord
Jauncey of Tullichettle. I agree with both of them that no claim
for damages is sustainable either for breach of statutory duty or
for false imprisonment in the case of either prisoner. Accordingly
I, too, would dismiss the appeal in Hague and allow the appeal in
Weldon.

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