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Cite as: [2001] 2 AC 19, [2000] UKHRR 836, [2000] Prison LR 160, [2000] Po LR 290, [2000] 4 All ER 15, [2000] UKHL 48, [2000] 3 WLR 843

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Governor of Her Majesty's Prison Brockhill Ex Parte Evans, R v. [2000] UKHL 48; [2000] 3 WLR 843 (27th July, 2000)

HOUSE OF LORDS

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

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v.

GOVERNOR OF HER MAJESTY'S PRISON BROCKHILL

(APPELLANT)

EX PARTE EVANS

(RESPONDENT)

ON 27 JULY 2000

LORD SLYNN OF HADLEY

My Lords,

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

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

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

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

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

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

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

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

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

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

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

LORD BROWNE-WILKINSON

My Lords,

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

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

LORD STEYN

My Lords,

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

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

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

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

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

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

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

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

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

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

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

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

LORD HOPE OF CRAIGHEAD

My Lords,

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

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

Background

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

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

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

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

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

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

Justification for the false imprisonment

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

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

My Lords, I would be inclined to reject this argument on the ground that the defence of justification lacks a secure foundation on the facts. The judgment in Reg. v. Secretary of State for the Home Department, Ex parte Naughton [1997] 1 WLR 118, in which doubt was cast on the existing state of the authorities, was given on 4 September 1996. Two days later, on 6 September 1996, the respondent applied for habeas corpus on the ground that she was entitled to be released on 17 September 1996 and that her proposed release date of 18 November 1996, calculated according to the existing Home Office guidelines, was unlawful. On 15 November 1996 the Divisional Court granted her application and made a declaration that her detention was unlawful as from 17 September 1996. I do not think that the situation which arose in this case can be compared with those where the defence of justification is advanced on the ground that the alleged tortfeasor was acting within the four corners of a warrant issued which had been issued to him by the court. The order for imprisonment which was made by the Crown Court in this case recorded simply that on 12 January 1996 "it was ordered that the defendant be sentenced to two years imprisonment." This was a sufficient authority to the governor to accept the respondent upon her arrival at the prison for which he was responsible as a person who had been lawfully committed to his custody. But it did not give him any instructions about her conditional release date. Under the system laid down by section 67 of the Criminal Justice Act 1967 as amended it was for the governor, not the sentencing judge, to calculate the length of the period of discount. Furthermore the soundness of the existing guidelines had already been put in doubt by the observations in Naughton's case by 6 September 1996 when, prior to the date which she maintained was her release date, the respondent applied to the court for habeas corpus and for judicial review of the decision which had been made by the governor. From the moment when her application was served on him the governor was on notice that he was at risk of it being held that his calculation was erroneous.

But the issue was presented by the Solicitor-General as being primarily one of principle. According to his argument the justification for the detention for the purposes of the tort of false imprisonment had to be determined according to the state of the law at the time of the detention. This argument was developed by analogy with a series of cases where a person had been detained in obedience to the order of a court which was ex facie lawful at the time when it was made or for breach of a byelaw which was only subsequently found to have been unlawful. My immediate impression was that there was quite a strong case for saying that the decisions reached in these cases could be applied to the position of the governor when he was fulfilling his functions under section 67(1) of the Act. It is his responsibility under the statute to calculate the length of the period of discount in each case where the sentence of imprisonment is subject to a discount, and he must carry out that calculation as required by law. But it seemed to me that he could reasonably say that the justification for what he did lay in the fact that he was following the guidance afforded by decisions of the court in similar cases as to how the calculation should be carried out.

The Solicitor-General developed his argument along these lines. He said that the defence of justification was available to the governor because he was the addressee of a valid order of the Crown Court for the respondent's imprisonment and he had been instructed by the decisions of the court in similar cases as to how the conditional release date should be calculated. This argument was presented in a variety of ways. There was the justification point: the governor's method of calculation was based on what at the time was generally understood to be a clear line of authority. There was the obedience point: the governor had to construe the order of the court which imposed the sentence of imprisonment according to the law at the time when he required to act upon it. He had to do, in obedience to that order, what the court through its decisions had told him to do. There was the constitutional point: it was unseemly for the governor, as a member of the executive, to do otherwise than comply with the law as laid down by the court. The executive's relationship with the courts did not depend on coercion. It depended on the executive's respect for the principle that an order of a court had to be obeyed until it was set aside. And there was the byelaw point: the position of the governor was analogous to that of a constable enforcing a byelaw which he had reasonable grounds to think was being breached but was later held to be ultra vires.

The justification, obedience and constitutional points all depended on the Solicitor-General's basic proposition that the governor was complying with an order made by the court at all times during the period of the respondent's detention in custody until the Divisional Court issued its judgment as to the correct method of calculating her release date. He relied on Olliet v. Bessey (1682) T. Jones' Rep. 214, Greaves v. Keene (1879) 4 Ex.D. 73 and Henderson v. Preston (1888) 21 QBD 362, and on Olutu v. Home Office [1997] 1 WLR 328. The first three cases support the proposition that a gaoler is entitled to detain a person in reliance upon a court order until the order is set aside. Olutu v. Home Office was concerned with a person's right to be released on bail on the order of the court after the expiry of the custody time limit. It was held that, as an order of the court was required for the person's release on bail, the governor was neither entitled nor bound to release the person until a court order had been made. For his byelaw point the Solicitor-General relied on Percy v. Hall [1997] QB 924 which concerned the arrest and detention of the plaintiffs by constables on many occasions for breach of various byelaws. The constables were acting in pursuance of powers conferred on them by those byelaws which were in law presumed to be valid and which needed to be enforced in the public interest. Addressing the argument that, assuming the byelaws to have been invalid the constables were nevertheless entitled to rely on the defence of justification, the Court of Appeal held that the defence was available to the constables if they could show that they were acting in the reasonable belief that the plaintiffs were committing an offence under the byelaws for whose assumed invalidity they were not responsible.

On further reflection I have reached the view that neither of these lines of authority can be applied by analogy to the position of the governor. The order which was issued by the Crown Court did no more that set out the date when the sentence of imprisonment was imposed and the length of that sentence. It did not identify the respondent's conditional release date. This was because the calculation of a prisoner's release date is a matter which has been committed by the statute to the governor. His obligation is to release the prisoner on a date which he has calculated in the manner laid down by the statute. It is for him to make the calculation, so the responsibility for any error in the calculation lies with him and not with the court which imposed the sentence of imprisonment. In practice he will no doubt rely on the relevant Home Office guidelines, and such guidance as is available from decisions of the courts in similar cases will no doubt be taken into account in the course of their preparation by the Home Office. But relying upon guidance of that kind is not the same thing as complying with the terms of a court order. It is no answer to a claim based on a tort of strict liability to say that the governor took reasonable care or that he acted in good faith when he made the calculation. Nor can he say, as in the case of the constables who were seeking to enforce the byelaws in the reasonable belief that a byelaw offence was being committed, that he had a lawful justification for doing what he did. His position would have been different if he had been able to show that he was acting throughout within the four corners of an order which had been made by the court for the respondent's detention. The justification for the continued detention would then have been that he was doing what the court had ordered him to do. As it is, the court order when construed in the light of the provisions of the statute left it to the governor to calculate the release date according to the statute laid down. The justification had to be found in the terms of the statute.

I respectfully agree with Judge L.J.'s observation in the Court of Appeal [1999] QB 1043, 1078E-F, that for the governor to escape liability for any extended period of detention on the basis that he was acting honestly or on reasonable grounds analogous to those which apply to arresting police officers would reduce the protection currently provided by the tort of false imprisonment. I can see no justification for limiting the application of the tort in this way. The authorities are at one in treating it as a tort of strict liability. That strikes the right balance between the liberty of the subject and the public interest in the detection and punishment of crime. The defence of justification must be based upon a rigorous application of the principle that the liberty of the subject can be interfered with only upon grounds which a court will uphold as lawful. The Solicitor-General was unable to demonstrate that the respondent's detention was authorised or permitted by law after the date which was held by the Divisional Court to be her release date. I would hold that she is entitled to damages.

Retrospective effect

Among the orders which were made by the Divisional Court on 15 November 1996 was an order that the respondent was entitled to release on 17 September 1996. There was some discussion of the question whether that order should be understood as having determined the matter prospectively only or whether it should be held to have retrospective effect according to the declaratory theory of law-making.

It is difficult to see how the Divisional Court's order could be understood as having any other meaning than that it was stating retrospectively what the respondent's rights were as at 17 September 1996. Nevertheless the Solicitor-General suggested that some thought should be given to this issue in view of the importance which it might have following the coming into force of the Human Rights Act 1998. He said that there was a possibility that it might be appropriate for the technique of prospective overruling to be adopted in a limited number of cases, such as where a consistent line of authority was developed pointing one way and then reversed. But he recognised that there was a risk that the courts might be seen to be departing from the judicial function if they were to indulge in the practice of laying down the law only for the future. He said that there were other ways of addressing the problems caused by retrospective effect, such as limitation and the defence of justification on which he had based his principal argument.

Your Lordships also had the advantage of careful and well researched submissions on these points which were admirably presented by Mr Rabinowicz as amicus curiae. His assistance was sought in the light of the observations in the Court of Appeal by Lord Woolf M.R. [1999] QB 1043, 1059F-G, that this case revealed the need for an examination of our present approach to the retrospectivity of judicial decisions, and that the imminence of the arrival within our domestic law of the Convention gave added urgency to that need.

My Lords, I am in sympathy with the view that the issue of retrospectivity is likely to assume an added importance when the Human Rights Act 1998 is brought into force. I am aware of at least one case in Scotland where incompatibility with the Convention was raised as a devolution issue under the Scotland Act 1998 as to which it will be a matter of great importance to establish whether the court's decision that there was an incompatibility must be given effect to retrospectively: Starrs v. Ruxton, 2000 SLT 42. Similar problems are bound to occur sooner or later throughout the United Kingdom after the coming into force of the Human Rights Act 1998. As for the suggestion that a decision might be given effect to prospectively only, it is worth noting that there is an important difference between the situation where a decision is to take effect from the date of its pronouncement and that where the court wishes to suspend the effect of its decision until some date in the future. It is commonly understood that decisions which indicate an alteration in the court's practice or which are designed to lay down guidelines for the assistance of judges operate prospectively as from the date of their pronouncement. But that is not the kind of issue with which we are dealing in this case. A statutory power to remove or limit the retrospective effect of decisions as to whether legislation is within the legislative competence of the Scottish Parliament and to suspend their effect to allow the defect to be corrected has been given to courts and tribunals by section 102 of the Scotland Act 1998. Similar powers are to be found in section 110 of the Government of Wales Act 1998, in section 81 of the Northern Ireland Act 1998 and, in regard to decisions within the powers of the court on constitutional matters, in section 172 of the Constitution of the Republic of South Africa. No such power is currently recognised by the common law: see Reg. v. National Insurance Commissioner, Ex parte Hudson [1972] A.C. 944, per Lord Diplock at p. 1015F-H and Lord Simon of Glaisdale at p. 1026B-1027A; Launchbury v. Morgans [1973] AC 127, per Lord Wilberforce at p. 137D-E. The working assumption is that where previous authorities are overruled decisions to that effect operate retrospectively.

Mr Rabinowicz submitted that an inflexible application of the declaratory theory could give rise to unfairness and injustice, that it might work against the principle of certainty which was regarded by English law as a valuable principle and that, while there were good reasons to be cautious, there might be some benefits to be gained by recognising that the appellate courts had power in very exceptional cases to avoid the application of an invariable rule of retrospectivity. But I think that this is not an appropriate case for detailed consideration of these arguments. I do not see how it can be sensibly argued that section 67(1) meant one thing at the time when the governor made his calculation and another when its meaning was determined authoritatively by the Divisional Court. As I have said, it is difficult to see how the court's order could be understood as having any application to the respondent's case other than that it was to be applied to her retrospectively. If ever there was a case where the declaratory theory should be applied it must surely be one where the liberty of the subject is in issue - as it plainly is where the point relates to the entitlement of the subject to be released from custody.

Mention was made of the differences of opinion which were expressed in your Lordships' House in Kleinwort Benson Ltd. v. Lincoln City Council [1999] 2 AC 349 as to the application of the declaratory theory in the context of a claim for restitution where money had been paid under a mistake: contrast Lord Browne-Wilkinson at pp.357G-362H and Lord Lloyd at pp. 390F and 393B-394A for the view that the fact that a decision was overruled did not mean that the law as stated in the overruled case should not be considered as the law at the time of the payment, with the contrary view as expressed by Lord Goff of Chieveley at pp. 377D-381G and by myself at pp. 410E-411E. I doubt whether much is to be gained from an analysis of those differences of view in the present context. As I tried to make clear in my own speech, the critical issue where a claim is made for money paid under a mistake on the ground of unjust enrichment is one of fact - would the payer have made the payment if he had known the true state of the law or the facts at the time of the payment? The function of mistake in this context is to show that the benefit which was received when the payment was made was an unintended benefit. The principles which underlie the law of unjust enrichment enable this matter to be examined retrospectively. The declaratory theory is consistent with those principles. That is not to say that it may not be appropriate in another context to depart from this theory. But an examination of that matter is best left over until another day.

Human Rights

The Solicitor-General submitted that his argument on justification was consistent with the provisions of article 5 of the European Convention on Human Rights and Fundamental Freedoms. As I would reject his argument that the defence of justification is available in this case on common law grounds, I would also hold that the respondent does not need to rely on her additional argument that the appellant's position is contrary to article 5. But I should like to deal with this issue briefly, if only because the application to the facts of this case of the tort of false imprisonment has raised a novel point of some difficulty. It is of interest to see whether the provisions of article 5 of the E.C.H.R. support the conclusion which I would favour as to the present state of our domestic law.

The relevant provisions of article 5 are as follows:

(a)

(b)

(c)

The jurisprudence of the European Court of Human Rights indicates that there are various aspects to article 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under article 5(1). It will thus give rise to an enforceable right to compensation under article 5(5), the provisions of which are not discretionary but mandatory. The second question is whether, assuming that the detention is lawful under domestic law, it nevertheless complies with the general requirements of the Convention. These are based upon the principle that any restriction on human rights and fundamental freedoms must be prescribed by law: see articles 8 to 11 of the Convention. They include the requirements that the domestic law must be sufficiently accessible to the individual and that it must be sufficiently precise to enable the individual to foresee the consequences of the restriction: Sunday Times v. United Kingdom (1979-80) 2 E.H.R.R. 245; Zamir v. United Kingdom (1985) 40 D.R. 42, paras. 90-91. The third question is whether, again assuming that the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate: Engel v. Netherlands [1976] 1 EHRR 647, para. 58; Tsirlis and Kouloumpas v. Greece [1997] 25 E.H.R.R. 198, para. 56.

In the present case the governor's decision not to release the respondent until the date which he had calculated as being her release date under the current Home Office guidelines cannot be said to have been arbitrary. The requirement to calculate the release date was laid down in the statute, and until that date was reached the court's order provided him with a lawful basis for the respondent's continued detention in custody. The clarity of the statutory provisions which fall to be taken into account when calculating the release date was criticised in Reg. v. Secretary of State for the Home Department, Ex parte Naughton [1997] 1 WLR 118. I think that there is much force in Simon Brown L.J.'s observation in that case at p. 127F that the language of section 67 of the Criminal Justice Act 1967 could not be described as unambiguous with regard to the treatment of concurrent sentence cases. But the Act of 1998 is not yet in force, and no argument was developed to the effect that the extra period which the respondent spent in custody was unlawful in Convention terms because it was attributable to this lack of clarity. The crucial point is whether the respondent's detention after 17 September 1996 which was held by the Divisional Court to be unlawful was nevertheless to be regarded as lawful under domestic law for the purposes of the Convention. If it was, paragraph (a) of article 5(1) would apply. If it was not, it would follow that there was a contravention of article 5(1), with the inevitable result that that there was enforceable right to compensation under article 5(5).

The Solicitor-General submitted that the touchstone of lawful detention so far as article 5(1) was concerned was that it was carried out according to law and pursuant to a court order. He said that there was a legal basis under domestic law for a prisoner's detention by the governor when a court had ordered the detention, even though the court's order was later shown to have been made in error: Olliet v. Bessey (1682) T. Jones' Rep. 214: Greaves v. Keene (1879) 4 Ex.D. 73: Henderson v. Preston (1881) 21 Q.B.D. 362. It had been recognised by the Strasbourg Court in Benham v. United Kingdom [1996] 22 EHRR 293 that the mere fact that the order was set aside on appeal did not in itself affect the lawfulness of the detention; see also Tsirlis and Kouloumpas v. Greece [1997] 25 EHRR 647, para. 58. In the present case the order for the respondent's detention was addressed to the governor who was bound to act upon it, and he had been instructed by decisions of the court following Reg. v. Governor of Blundeston Prison, Ex parte Gaffney [1982] 1 W.L.R. 696 as to how he should perform the calculation in order to identify the release date. The instructions which these decisions gave to him provided the requisite causal link between the order for the respondent's imprisonment and her continued detention by the governor. The fact that those decisions were later shown to be wrong did not affect the lawfulness of the detention for the purposes of the Convention.

For the reasons which I gave when I was dealing with the issue of justification I am not persuaded that these arguments would support the submission that the continued detention of the respondent after 17 September 1996 was lawful within the meaning of article 5(1) of the Convention. As I have said, it is sufficient to show that there was a contravention of that article to demonstrate that the detention was unlawful under domestic law. The question whether detention is or is not lawful under domestic law for the purposes of the Convention is a matter which the jurisprudence of the Strasbourg Court has left for decision by the domestic courts. The Divisional Court held that the respondent was entitled to release on 17 September 1996. It must follow that under domestic law her continued detention after that date was unlawful. This would indicate that there was a contravention of article 5(1). The consequence of the Divisional Court's order under domestic law is that the governor is liable to the respondent for damages under the tort of false imprisonment. The conclusion that the respondent has an enforceable claim for damages is consistent with article 5(5) of the Convention.

Damages

Collins J. was confronted by the fact that there was almost no authority to which he could turn for guidance as to the right amount to award as damages in a case of this kind. He said that he would have awarded the sum of £2,000 as general damages. There was no claim for special damages, and the respondent accepted that this was not a case for aggravated or exemplary damages. The Court of Appeal increased his figure to £5,000. The Solicitor-General submitted that they should not have interfered with the decision of the judge at first instance. For the respondent Mr. Emmerson said that the figure which had been fixed by Collins J. was out of line with awards which had been made by the Strasbourg Court as compensation for contraventions of article 5 of the Convention. But he accepted that the question in this case related to the position in domestic law.

It is clear from the reasons which Lord Woolf M.R. has given [1999] QB 1043, 1060F-G, that the decision of the Court of Appeal to increase the amount of the award can be explained in part by the fact that the sum fixed by Collins J. resulted in an amount per day which, when spread over the 59 extra days of imprisonment, was less than the daily figure which had been contended for by the governor. But these reasons indicate that the Court of Appeal were also taking the opportunity to provide guidance, in an area where guidance was almost entirely lacking, as to approach which should be taken in the making of such awards, as to some of the factors to be taken into account in the assessment and as to the general level of award which should be made in similar cases. I consider that in each of these respects they were performing a legitimate function. I do not think that their decision as to the appropriate sum to be awarded is one with which your Lordships should interfere.

Conclusion

For the reasons which I have given I too would dismiss the appeal.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

This is a claim for damages in the tort of false imprisonment. On 12 January 1996, Miss Evans, the respondent to this appeal, was sentenced to serve various periods of imprisonment for a number of offences of which she had earlier been convicted. The sentences were to be served concurrently, the longest being for 2 years. She had been held in custody for various periods in respect of some of the offences before her conviction and between conviction and sentence. On the same day as she was sentenced, an officer of the Crown Court at Cardiff signed an "Order for Imprisonment" which simply stated: "On 12/1/96 it was ordered that the defendant be sentenced to two years imprisonment." It was this document which accompanied her that day to HM Remand Centre Pucklechurch and formed the documentary authority for her retention in custody thereafter. She was subsequently moved to HM Prison Brockhill and it was there that she was held at the times material to this appeal; the Governor is the other party to these proceedings and the formal appellant in your Lordships' House. He was at all material times acting on the instructions of the Home Office and is represented on this appeal by the Solicitor-General.

The calculation of the release date of a prisoner is governed by statute and is not uncomplicated. One of the complications relates to the account which should be taken of periods spent in custody prior to sentence when the prisoner has been detained for different periods in respect of different offences and subsequently receives (as did the respondent) concurrent sentences. Should the pre-sentence periods be aggregated? The legislation, to which it is not necessary to refer, did not provide a clear answer - or at least gave rise to a difference of judicial opinion as to what the correct answer was. At the time the respondent was sentenced, the governing judicial decision for concurrent sentences was that of the Divisional Court in ex parte Gaffney [1982] QB 696. It held that the periods should not be aggregated. This decision was followed in several later cases and upheld by another Divisional Court presided over by Simon Brown LJ in ex parte Mooney [1996] 1 CAR(S) 74. This decision was strongly criticised by Dr Thomas ([1995] Crim.L.Rev. 753). One of the points of criticism was the anomalous differences which resulted from Gaffney for consecutive and concurrent sentences. These differences were considered in a case concerning consecutive sentences, ex parte Naughton [1997] 1 WLR 118, by a Divisional Court (again presided over by Simon Brown LJ). The judgment was delivered on 4 September 1996. The Divisional Court considered the fresh arguments which had not been considered in the earlier cases and concluded that the decision in Mooney would probably not have been the same if those arguments had been before the court on that occasion.

It was under these circumstances that the respondent, on 6 September 1996, issued and served her notice of motion against the Governor asking for Habeas Corpus. In her perfected grounds served later also asking for leave to move for judicial review, she additionally sought a declaration that her release date was 17 September and damages for false imprisonment for the period subsequent to that date. Her case was that the aggregation method was the right one and that Gaffney could not stand with what was said in Naughton. The case of the Crown was that her release date was 18 November and that the calculation used in Gaffney should still be used. On 29 October a Divisional Court presided over by the Lord Chief Justice heard her application and that of another applicant raising a similar point. They delivered judgment on 15 November. They held that Gaffney and Mooney should not be followed. The court held and formally declared that the respondent's (conditional) "release date, as correctly calculated, was 17 September"; they adjourned the claim for damages. The respondent was still in custody and she was released the same day, 15 November . The judgment has not been appealed.

The Crown had apparently argued that the court should not depart from the earlier decisions: "the [prison] authorities have quite rightly founded their practice on these decisions." The Divisional Court was however "of the clear opinion that the construction previously put upon the legislative provisions we have reviewed was wrong". They felt bound to conclude that the arguments advanced on behalf of the respondent were correct. They added:

The sequence of events is therefore that the respondent had challenged the legality of her continued imprisonment before the disputed period had started and had done so on the basis of cogent and influential academic criticism of the earlier Divisional Court decisions and doubts as to their correctness raised by the Divisional Court itself. The actual decision in her favour was not given until later but was given in proceedings started before 17 September. The decision of the Divisional Court given in proceedings to which both she and the Governor were parties was that she had been entitled to be released on 17 September. It follows, and is now accepted by the Crown, that her imprisonment after that date was unlawful.

In these circumstances the respondent has a claim for damages in the tort of false imprisonment unless the Governor has some defence. The law has been clearly stated in judgments of the highest authority.

Eshugbayi Eleko v Officer Administering Govt. of Nigeria

[1931] AC 662

ex parte Hague

[1992] 1 AC 58

Similar statements are to be found in Article 5 of the Convention on Human Rights as scheduled to the Human Rights Act 1998 -

lawful

Imprisonment involves the infringement of a legally protected right and therefore must be justified. If it cannot be lawfully justified, it is no defence for the defendant to say that he believed that he could justify it. In contrast with the tort of misfeasance in public office, bad faith is not an ingredient of the the tort; it is not a defence for the defendant to say that he acted in good faith. (eg per Taylor LJ, ex parte Hague [1992] 1 AC at p.123).

The Crown however argued that on the facts of the present case it had defences to the respondent's claim. The argument was put in two ways. Both relied upon the fact that, until disapproved by the Divisional Court in the present proceedings on 15 November 1996, Gaffney and Mooney were the judicial decisions which actually related to concurrent sentences and it was in accordance with those decisions that the Home Office and the Governor had refused to release the respondent on 17 September. Both arguments involved inviting your Lordships to introduce into English Law new rules of law -

(a) If a court has held that a statute has a certain construction, then that construction provides a defendant with a defence to an action for damages even though the construction was wrong and the detention was in fact unlawful. (the 'special defence') (b) A principle of non-retrospectivity should be introduced into English law so that a decision which declines to follow or over-rules a previous decision or changes a widely held assumption as to what the law is should not be viewed as declaratory or as affecting anything which happened before the later decision. (the 'no-retrospectivity principle')

The adoption of either of these new rules would necessarily involve major departures from pre-existing law and require your Lordships to over-rule previous decisions and depart from previously unquestioned statements of the law. Ironically, they would themselves involve a departure from the contended for no-retrospectivity principle. Submission (b) has to be formulated in the extreme form set out otherwise it will, on any view, not assist the defendant in the present case. It is contrary to the ratio of the majority in Kleinwort Benson v Lincoln City Council [1999] AC 349 and its strong reconfirmation of the declaratory principle.

The agreed facts of the present case do not lend support to the plausibility or justice of introducing novel rules to enable the Crown (ie the Executive) to escape liability in damages for infringing a fundamental right of the plaintiff. Before 17 September, Gaffney had been seriously questioned in Naughton - the Agreed Facts say 'raised doubts whether [it] was correctly decided'; the Home Office had accepted Naughton as correctly stating the law in relation to consecutive sentences; the plaintiff had challenged the right of the prison authorities to keep her in prison longer than 17 September and had commenced legal proceedings. The Home Office nevertheless chose to direct the Governor to continue to detain her. The Home Office and the Governor have put in no evidence to explain or justify that choice. It is to be inferred that they knew that they might be held to be acting unlawfully. It is possible that if the plaintiff had known that it would be argued that the reservation of the Divisional Court's judgment to 15 November would mean that she was to be deprived of both her liberty and her remedy in damages, she might have pressed for a more speedy announcement of the decision.

The Special Defence:

It is contrary to principle that the Executive should not be liable for illegally interfering with the liberty of the subject. The remedy of Habeas Corpus and the tort of false imprisonment are important constitutional safeguards of the liberty of the subject against the Executive. It was surprising that the argument of the Solicitor-General should implicitly question this and seek to avoid the consequences. In support of his submission under this head, the Solicitor-General advanced two arguments: first, that the Governor was acting in obedience to a court order; second, that what a court or judge has said is the law whether or not that statement is wrong (and whether or not it has been questioned and may not be followed by a court of concurrent jurisdiction). Each of these arguments were also advanced as refinements of answering the question: what was "lawful" at the time? They were inconsistent with the decision of the Divisional Court in Evans No.1. That decision did not say that the appellant's was entitled to be released on 15 November, the date of the judgment: it declared that she had been entitled to be released on 17 September.

The first argument controverted the law. The appellant had been sentenced to two years imprisonment. The Governor had a certificate to that effect. But that was all. The Governor had no order which directed or authorised him to detain the plaintiff until 15 November.

This position can be contrasted with that in Olotu v Home Office [1997] 1 WLR 328 where the Magistrates' Court had committed the plaintiff in custody to the Crown Court for trial. The warrant of commitment directed the prison governor to "keep the accused until the accused is delivered in due course of law". This committal was subject to a statutory 112 day limit unless extended by the Crown Court. She was detained for 193 days but no one applied for an extension nor did the CPS bring her before the court so that an application for bail could be made. The Court of Appeal held that she had not been falsely imprisoned. Lord Bingham LCJ explained (p. 335):

The warrant authorised and required the governor to keep her until she was taken to the Crown Court. The steps which needed to be taken when the time limit was exceeded were for others to take and did not affect his duty to continue to hold her in custody. He had no authority to release her. In the present case the Governor did not have any authority which permitted him to detain her beyond her lawful release date. It was his responsibility to release her when that date was reached without any further order of a court.

This decision was in line with the earlier authorities. In Henderson v Preston (1888) 21 QBD 362 the plaintiff had been sentenced to 7 days imprisonment. He had already been held in custody for one day prior to sentence. However he was committed to prison on the following day under a warrant which required the governor to receive him and hold him for 7 days. This warrant protected the governor from a claim for false imprisonment. Lord Esher pointed out that it was not a void warrant:

In Greaves v Keene (1879) 4 ExD 73 a similar decision was reached where a warrant was clear in its terms and not on its face invalid. The imprisonment in compliance with the warrant was not unlawful.

In the present case the problem for the Governor was that the certificate was not helpful to him. All it told him was that the appellant had been sentenced to two years imprisonment. It did not even include the factual information which he needed in order to be able to work out the respondent's release date. Further factual enquiries were needed and were no doubt made on his behalf. Then, he (or the Home Office) needed to consult the relevant statutory provisions and come to the right conclusion as to how long he was authorised to imprison her. They got the answer wrong. The highest that it can be put is that Gaffney gave a basis for a belief that 18 November might be the right answer. But any legal decision is no more than evidence of the law. In the Lincoln C.C. case, Lord Goff (at p. 377) quoted from Hale and Blackstone:

They are a source of law but not a conclusive source. Judicial decisions are only conclusive as between the parties to them and their privies. The doctrine of precedent may give certain decisions a more authoritative status but this is relative as the present case shows: the Divisional Court was at liberty not to follow its own previous decision. A decision or judgment may on examination be shown to be inconsistent with other decisions. The value, force and effect of any decision is a matter to be considered and assessed. They are not statutes which (subject to EU law) have an absolute and incontrovertible status.

This leads on to the second argument that the detention of the plaintiff beyond 17 September was lawful because it was not determined to be unlawful until the decision in Evans No.1. This argument too is directly contrary to established law; vide Lord Atkin (sup). It is also directly contrary to the Divisional Court's decision in Evans No.1. The Divisional Court might have held, but rightly did not, that the existence of Gaffney meant that, whether right or wrong, the Plaintiff was not entitled to be released until Gaffney had been over-ruled.

The argument of the Solicitor-General persistently confused a valid order for detention which is subsequently set aside with a valid order which is misinterpreted; it also confused a valid order which has not yet been set aside with an order which was never valid. These distinctions are basic to any legal system. An appeal against a conviction or sentence may lead to the conviction being quashed or the sentence being set aside or varied. But up to that time there were lawful orders of the sentencing court which were orders which had to be obeyed. This point was clearly and correctly made by Lord Woolf MR in the Court of Appeal in the present case, [1999] QB 1043 at 1063, even though the sentencing court may have exceeded its powers in passing the sentence which it did. (See also the judgment of Judge LJ.) A prison governor must obey an order unless it is on its face unlawful. (Re McC [1985] AC 528; ex parte Davies [1989] 1 AER 90.) This is the same as the type of question which arises in relation to bye-laws. (Boddington v BTP [1999] 2 AC 143, Secretary of State v Percy [1999] AER 732)

The critical importance of the warrant and what detention it actually commands and authorises applies both ways as illustrated by the judgment in Demer v Cook (1903) 88 LT 629. Lord Alverstone CJ contrasted two situations. One was where the gaoler receives a prisoner under a warrant which is correct in form in which case no action will lie against him if it should turn out that the warrant was improperly issued or the court had no jurisdiction to issue it. The other was where the warrant had on its face expired or the gaoler has received the prisoner without any warrant, in which case the action will lie. "The warrant and nothing else is the protection to the gaoler and he is not entitled to question it or go behind it." (p.631)

The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside is also to be found in the ECHR case law as illustrated by Benham 22 EHRR 293. The Commission had categorised the relevant order as coming into the former category and therefore held that there had been a breach of Article 5; the Court disagreed, categorising the order for detention as prima facie valid, and held that there had been no breach of that Article. The Commission and the Court applied the same criteria in considering whether the detention had been lawful under the domestic law. Paragraph 42 of the judgment relied on by the Solicitor-General does not support his argument.

In the present case there was an order; it was never set aside nor did it have to be. The illegality arose because it did not authorise the detention which took place. The order was not obeyed.

Article 5 of the Convention is inconsistent with the Solicitor-General's arguments and corresponds to the existing English law. It is therefore highly persuasive against accepting the Solicitor-General's arguments or introducing the new rule he contends for into English law. The elements to be found in 5(1)(a) are, first, an affirmation of the basic right not to be deprived of one's personal liberty (Lord Atkin), secondly, the recognition of the legal significance of a conviction by a competent court (Re McC), thirdly, the recognition that lawful detention may consequently be ordered and, fourthly, that legal procedures must be followed (Demer v Cook). 5(4) is a requirement that there be a specific remedy for unlawful detention as afforded by Habeas Corpus. 5(5) further requires the payment of compensation for unlawful detention as does English law (Lord Atkin).

The Solicitor-General sought to reconcile his argument with Article 5. But it did not assist him on the facts of the present case to argue that the detention was "lawful at the time" or to rely on paragraph 42 of Benham (v.s.). He also submitted that the ECHR may take a different view to domestic law as to what is 'lawful', but this argument failed to recognise that the ECHR cumulatively applies a double test. For detention to be lawful under Article 5, it must be both lawful under the domestic law and the domestic law must (substantively and procedurally) be in compliance with the requirements of the Convention. (Benham; Tsliris and Kouloumpas 25 EHRR 198) If it fails either test, it is unlawful for the purposes of Article 5 and 5(5) applies. Here the detention failed the domestic law test (Evans No.1) and , like English law, Article 5(5) requires compensation to be paid. Section 9 of the Human Rights Act reinforces the same conclusions.

In the present case, the State (through the Legislature) has defined the power of detention; the State (through the Executive) has detained the plaintiff in excess of that power; it creates no injustice that the State should compensate the plaintiff. It certainly does not make it just for the State to fail to compensate the plaintiff that one or more emanations of the State have misunderstood the legislation. Under the Convention, the State is already under an obligation to compensate; when the Human Rights Act comes into force it will also be under a domestic law obligation to do so.

The respondent's case is straightforward and covered by authority. The appellant's case is not supported by authority and involves the introduction of a new defence to the tort of false imprisonment which is contrary to principle and unpersuasive both in general and in relation to this particular case.

No-retrospectivity:

In the present case this defence fails on its own facts even in the wide terms in which the defence has been formulated. Before the disputed period of custody had started, the respondent had already challenged the legality of her continued detention. A decision of the Divisional Court had questioned the previous decisions as had important academic opinion. The Divisional Court was at liberty to depart from the previous decisions as in fact occurred in Evans No.1. Whether or not Gaffney and Mooney should still be followed was, at best, a moot point.

Therefore this ground of appeal does not assist the appellant. The decision of the Court of Appeal must be upheld. Anything said further about the question of 'no-retrospectivity' will be obiter and is best left over to a case which requires its decision. It is extremely doubtful that there will be any such case. None has clearly arisen so far even though the argument has been known about and discussed for a very long time. With this in mind, I will confine my further observations to the minimum likely to assist the evaluation of the argument if it should be raised again.

The Lincoln City case gave rise to a discussion of the 'declaratory' theory of common law judgments and strongly supported it. This is not the same as the rightly condemned 'fairy story' that the common law is static and unchanging. The common law develops as circumstances change and the balance of legal, social and economic needs changes. New concepts come into play; new statutes influence the non-statutory law. The strength of the common law is its ability to develop and evolve. All this carries with it the inevitable need to recognise that decisions may change. What was previously thought to be the law is open to challenge and review; if the challenge is successful, a new statement of the law will take the place of the old statement.

Two things follow from this. The first is that judicial decisions are not infallible or immutable. The doctrine of precedent recognises this and caters for it. Decisions of lower courts are not binding on higher courts. Even your Lordships' House is able to depart from its previous decisions. Any decision is open to re-evaluation and reinterpretation. The second is that lawyers are well aware of this. They know that it is open to a client who is not satisfied with the existing state of the law to challenge it in litigation. This is done in a subtle way the whole time; only very occasionally will it be necessary or wise to do it head-on. But the choice is always there even though it will only be very rarely indeed that it is worth pursuing.

The constitutional role of the courts is to decide disputes and grant remedies. The disputes will include disputes whether a previous decision still represents the law and should be followed or over-ruled. It is a denial of the constitutional role of the courts for courts to say that the party challenging the status quo is right, that the previous decision is over-ruled, but that the decision will not affect the parties and only apply subsequently. They would be declining to exercise their constitutional role and adopting a legislative role deciding what the law shall be for others in the future. This anomaly is also illustrated by the law of precedent and the concept of ratio decidendi which it uses. Such a decision would by definition not be part of the ratio decidendi of the case and therefore would not constitute an authoritative decision.

There is an exception to this, decisions on the practice and procedure of the courts. Here it is proper for the courts to control their own procedure and in doing so to decide that previously approved or acceptable practices shall not be followed in the future although the parties were not to be penalised for following the existing practice. The reason for this is that in relation to procedure the courts do have a legitimate quasi-legislative function and in exercising it are not in terms dealing with the substantive rights of the parties (although, of course, the dividing line may be a narrow one). The law of remedies can also provide an exception to the general rule.

If in individual cases the declaratory principle presents a problem for doing justice between the parties before the court, the right response in my view is to consider why this is and then to decide what is the appropriate response for those parties. The Lincoln City case itself did so in considering what remedy to grant for mistake of law. In commercial law consideration has had to be given to the fact that parties may have contracted on the basis of a particular state of the law or that risks may have been assessed in reliance on previous decisions as to how they should be borne. The possible situations that may arise are diverse. The arguably adverse consequences will be just as likely to arise between parties other than those involved in the case in which the declaratory judgment was given: such consequences and the appropriate way in which to respond to them must be considered and decided in subsequent litigation. It may be thought that they are best accommodated by an approach which recognises the essentially declaratory nature of a judicial decision but then addresses any additional problem of doing justice to the individual parties before the court rather than adopting a non-retrospective approach which then has to be subject to exceptions as the experience in the United States has shown. (eg, see Chevron Oil Co v Huson (1971) 404 US 97.)

My noble and learned friend Lord Slynn has already referred to the position in the European Court of Justice and explained that the present case would not come within the principles recognised by that court for qualifying the impact of its judgments. SW v United Kingdom (1995) 21 EHRR 363 shows that the Strasbourg jurisprudence recognises that, even in the criminal law and the definition of criminal offences, the law can be developed by domestic courts through judicial interpretation from case to case.

It follows that I agree with your Lordships that the appeal on liability must be dismissed.

Damages:

I also agree that the Court of Appeal?s increase in the sum of damages should be upheld for the reasons already given by your Lordships.