Court of Appeal
| Date | 01 June 1999 |
| Published date | 01 June 1999 |
| DOI | 10.1177/002201839906300302 |
| Subject Matter | Court of Appeal |
Court
of
Appeal
Consequences of Overruling Well-established Decisions
R v
Governor
of Brockhill
Prison,
ex p Evans (No 2) [1998] 4All ER
993
The operation of
the
doctrine of
the
retroactivity of
the
decision of a
competent
court
which
overrules
the
decisions of its predecessors
may
sometimes
appear
to fly in the face of
common
sense. There
may
be
those
who
will
think
of
the
instant case as
an
example of this. The
reported proceedings were afollow-up of
an
earlier application by a
prisoner for judicial review
and
habeas
corpus,
in
which
she also claimed
damages: see [1997] QB 443; 61 JCL
241.
She
had
been
sentenced
to four
concurrent
terms of
imprisonment
amounting
to
two
years
for robbery, burglary
and
assault occasioning actual bodily
harm.
The
governor of
the
prison in
which
she
served
that
sentence, relying
correctly
upon
the
decisions of
the
courts
handed
down
before
the
date
on
which
he
made
his decision as to
the
prisoner's conditional release
date, fixed
that
date in accordance
with
the
method
of calculation laid
down
in those cases, based
on
their
interpretation
of s 67 of
the
Criminal
Justice Act 1967. On
an
application
made
by
the
prisoner to
the
High
Court, the Divisional Court reversed
the
earlier decisions
on
which
the
governor
had
relied
and
held
that
her
conditional release date should,
on
the
'new'
calculation,
have
been
fixed for 59 days earlier
than
that
fixed by
the
governor
according to
the
earlier decisions
which
were
then
binding
on
him. The
court
therefore ordered
her
release
on
the
same
day,
which
was,
even
so, 59 days later
than
the
court's
'new'
calculations
would
have required. She
brought
an
action against
the
governor
for
damages for false inprisonment,
but
the
trial
judge
dismissed
her
claim
on
the
ground
that
the
governor
had
been
entitled to rely
on
the
law as
it
had
been
stated authoritatively by
the
courts before
the
date
on
which
he
made
his decision as to
the
release date. This,
he
held, afforded
him
alawful justification for continuing to
detain
her
until
the
release date
calculated
upon
the
existing decisions of
the
courts. She was lawfully
detained
under
the
law as
it
existed at
the
time at
which
she
was being
detained.
In
case she succeeded
on
appeal, however,
the
judge
fixed
her
damages at
£2,000.
She appealed from
the
dismissal of
her
claim
and
from
the
amount
of
the
tentative damages.
The issues in
the
Court of Appeal
may
be
put
in
the
form of
two
questions: (1) was
the
imprisonment
for
the
59 days lawful, so
that
the
governor could plead lawfuljustification for
not
releasing
the
prisoner?;
(2)
if
not, could
the
governor rely on
any
other
justification for
the
continued
imprisonment
(that is,
other
than
the
lawfulness of
the
imprisonment)? The
answer
to
the
first question
depended
on
whether
the
governor was entitled to rely
on
the
decisions of
the
courts
current
at
the
time at
which
he
determined
the
release date, so
that
he
could
claim
that
his reliance
on
those decisions as to
the
proper
way
in
which
to calculate
that
date afforded
him
'lawful justification' for his decision.
204
Consequences
of
Overruling
Well-established
Decisions
The
prisoner
took issue
with
the
governor
as to this
ground
because
the
latest decision of
the
court
as to
the
proper
method
of calculating
the
release date was retrospective
and
had
therefore destroyed
what
he
had
believed to be
the
law governing
the
calculation
which
he
had
made.
It
was therefore claimed
that
there
was
no
lawful
judgment
on
which
the
governor
could plead lawful justification. Upon
the
second question
(whether
there
could be
any
justification if
the
imprisonment
was
unlawful),
the
prisoner relied
on
the
proposition
that
aplaintiff in
an
action for false
imprisonment
need
prove
no
more
than
the
imprison-
ment
and
its unlawfulness.
If
that
is done,
then
there
can
be
no
other
justification, for absence of fault is
not
adefence to
such
an
action. The
question was
whether
the
governor
could rely
on
the
fact
that
he
had
correctly applied
the
law as it
had
authoritatively
been
declared to be at
the
time at
which
he
acted. His defence was
that
he
was forced by
law
as
so declared to act as
he
had
done
and
that
compulsion by law was his
justification. The prisoner's
answer
was
that
the
last decision of
the
court
meant
that
what
the
governor
(and
everyone
else)
had
believed
to
be
the
law
had
never
been
the
law, so
that
he
could place
no
reliance
on
that
belief. That
may
fly in
the
face of
the
facts,
but
it is in accordance
with
the
legal fiction
which
attaches to
the
consequences of
the
over-
ruling of
any
case
which
has
enunciated
arule of law.
HELD,
ALLOWING
THE
APPEAL:
When
a
court
of
competent
jurisdiction overrules earlier decisions its
decision is retroactive, so
that
those earlier decisions
are
to be treated
not
merely
as if
they
do
not
exist
but
also as if
they
had
never
existed. By a
fiction,
the
law is stated always to
have
been
as set
out
in
the
last case.
The governor, therefore, could
not
say
that
he
had
relied
on
the
law
and
he
had
in consequence no
ground
for saying
that
the
imprisonment
for
the
59 days was
ever
lawful. The majority of
the
court
therefore
awarded
the
prisoner damages, increasing
them
from £2,000 to £5,000,
on
the
ground
that
the
original figure proposed was 'well below
the
figure appropriate' to a case of false
imprisonment
for 59 days.
(2) There can be
no
alternative justification in a case in
which
it is
held
that
imprisonment
is unlawful,
other
than
'lawful justification'.
The majority view was that, since fault is irrelevant in this action,
the
fact
that
it was agreed by all
that
the
governor
was blameless in follow-
ing
the
law
as it
then
stood,
that
absence of fault was irrelevant. Roch LJ,
however, dissented
on
the
ground
that, as
the
authorities
which
dealt
with
situations
which
he
regarded as analagous
appeared
to allow
justification in the form of proof
that
the
law
as it stood at
the
time of
the
defendant's action is a defence,
he
was in favour of dismissing
the
prisoner's action.
COMMENTARY
(1) Lawful justification The retroactivity of a court's decision in over-
ruling earlier
authority
entails
the
consequence
that
the
earlier
author-
ity did
not
exist as law.
It
must, therefore, be
treated
AS IF it
had
never
existed. The old
method
by
which
release dates
were
in fact calculated
by
the
governor
(and
everyone
else)
must
now
be said to
have
been
205
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