Iqbal v Prison Officers Association
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lady Justice Smith,Lord Justice Sullivan |
| Judgment Date | 04 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1312 |
| Docket Number | Case No: B2/2008/2915 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 December 2009 |
[2009] EWCA Civ 1312
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HIS HONOUR JUDGE SHAUN SPENCER QC
Before: The Master of the Rolls
Lady Justice Smith
Lord Justice Sullivan
Case No: B2/2008/2915
8LS51546
Michael Beloff QC & David Rivers (instructed by Thompsons Solicitors) for the Appellant
Phillippa Kaufmann & Alison Gask (instructed by Messrs Harrison Bundey) for the Respondent
Hearing date: 19 October 2009
The Master of the Rolls:
This appeal raises a question which, at any rate in my view, is not altogether easy to resolve. Does a claim for false imprisonment lie against prison officers who take unlawful strike action, if that action results in a prisoner, who would otherwise have been permitted by the prison governor to leave his cell for the purpose of working, exercise and health care, being confined to his cell? His Honour Judge Spencer QC concluded that the answer was yes, and it is against that decision that the Prison Officers Association (“the POA”) appeals. There is an additional question raised by way of cross-appeal, namely whether the Judge was right to award the claimant only nominal damages.
The factual and procedural background
The claimant, Mr Mohammed Iqbal, who was born in May 1979, was sentenced to 15 years imprisonment by the Leeds Crown Court in June 2003. In August 2007 he was a Category C prisoner occupying a cell with another prisoner on A Wing at HMP Wealstun (“the Prison”) and had been for some seven months. His normal weekday routine, at least on a Wednesday, was as follows. His cell would be unlocked at 7.45am, at which time he would be provided with his breakfast; at 8.00, he would be permitted to leave his cell, to carry out cleaning work on A Wing, until about 11.15, when he would be allowed to enjoy half an hour's exercise in a caged yard (or to seek any medical advice or attention that he required); at 11.45am, he would collect his lunch and return to his cell, in which he would be locked; at 5.45pm, he would be let out to collect a hot meal, after eating which he would go to the gym and then ring his mother; he would return to his cell at 7.45pm, when he would be locked in for the night.
Following a deterioration in the relationship with the Prison Service over pay, the POA decided on 28 August 2007 to call a national strike from 7.00am the following day. This decision was taken by the POA, knowing that the strike would be in breach of contract, and on the basis that the short period between the decision and its implementation, coupled with the absence of any warning, would ensure that the strike could start before any injunction restraining it could be obtained. The POA representative at the Prison, Mr Mottershead, only heard of the proposed strike about thirty minutes before it was due to start. He informed the prison officers of the strike as they arrived for work. As a result, hardly any of the prison officers employed at the Prison reported for duty that day.
Mr Mottershead told the governor in charge of security, Mr Young, and the “Number One Governor”, Ms Rice (“the Governor”), about the strike when they arrived at the Prison on 29 August at around 7.30 and 8.30 respectively. The Governor decided that, as a result of the strike, the prisoners should remain in their cells throughout the day. At about 9.30am, she issued a “Governor's Order” (“the Order”) addressed to the prisoners and referring to the “Strike Action”. The Order stated that prisoners would have to remain in their cells, but would receive meals, and should not use the bells in their cells save if there was a real emergency. It appears that the claimant did not receive a copy of this Order, possibly because there were no prison officers at work on A Wing.
Around midday, the Deputy Governor, Mr Dyer, told Mr Mottershead that the officers should go back to work, but this order was not complied with. Shortly thereafter the Prison Department obtained an injunction from the High Court requiring the officers to return to work. Mr Dyer handed a copy of the injunction to Mr Mottershead at about 2.30pm. The officers employed at the Prison initially refused to obey the injunction, but they ultimately returned to work the following day.
As a result of the strike, the claimant's normal Wednesday routine was broken. His cell was not opened till 11.30am, when a drug worker came to give him a cheese sandwich, and allowed him out of his cell for less than a minute to fill his thermos flask with hot water. For the rest of the day, he remained locked in his cell, where he was provided with a scratch meal at 3.30pm. The following day, his normal routine was re-established.
The claimant's case before the Judge was that, on 29 August 2007, his daily Wednesday routine at the Prison, which was established under the authority of the Governor, and which involved him enjoying time out of his cell between 8.45 and 11.45am and 5.45 and 7.45pm, was interrupted in that he was locked in his cell all day owing to the wrongful refusal of the members of the POA to work at the Prison, as a result of the POA calling an unlawful strike, and that this amounted to false imprisonment by the prison officers for which the POA was responsible. Judge Spencer QC accepted that argument and granted a declaration that the claimant had been falsely imprisoned for some six hours on 29 August 2007. The Judge then went on to assess damages at £5, partly because the claimant's description of the distress he suffered was “something of an exaggeration” and partly because the declaration the Judge was prepared to make went “a long way to provide the claimant with just satisfaction”.
The POA appeals against the finding of liability for false imprisonment and the claimant cross-appeals against the quantum of damages he has been awarded.
False imprisonment: preliminary remarks
A person held in prison pursuant to a sentence of imprisonment imposed by a court is lawfully in prison by virtue of the provisions of sections 12 and 13 of the Prison Act 1952. Section 12(1) provides that a person “sentenced to imprisonment … may be lawfully confined in any prison.” Section 13(1) states that “[e]very prisoner shall be deemed to be in the legal custody of the governor of the prison.” It is thus common ground that the claimant can have no claim against the Governor arising out of his confinement in his cell during 29 August 2007.
It is also common ground that, if any individual prison officers, or indeed any group of officers, employed at the Prison, are liable to the claimant for false imprisonment as a result of their not having worked on that day because of the strike which had been called, then the POA is similarly liable to the claimant.
The claimant's case against the POA was accepted by the Judge in these terms: “If as a result of their own decision, prison officers acting under the direction of the [POA] do not unlock a cell at a time when the cell by the routine is to be unlocked, then obviously the prisoners remain confined and the cause of the confinement is the strike action, not the decision of the Governor, and a strike action is certainly not something that takes place under the Governor's authority.”
As I have mentioned, there is no doubt but that, throughout 29 August 2007, the claimant was lawfully confined in the Prison and in the legal custody of the Governor. Thus, if the Governor had, of her own free will, ordered that he be confined to his cell throughout that day, he would have had no claim that he had been wrongfully so confined. His complaint that he was wrongly so confined is made against the prison officers, on the basis that it was their strike, their breach of contract, which resulted in his being confined in his cell.
Mr Beloff QC, for the POA, points out that the prison officers took no positive steps to shut the claimant in his cell, or even to force him to stay in his cell: they merely did not report for duty at the Prison on 29 August 2007, as a result of which the Governor decided that the claimant had to be confined to his cell. In those circumstances, the case advanced to support the contention that there was no liability to the claimant for false imprisonment had a number of strands of argument, namely:
(a) The prison officers cannot be liable for false imprisonment which occurred simply as a result of their inaction;
(b) The claimant's incarceration in his cell was only the indirect result of the unlawful strike;
(c) The Governor authorised the claimant's confinement in his cell, so no false imprisonment claim can arise;
(d) So long as he was lawfully in the prison, the claimant had no right to be let out of his cell.
There are, I think, dangers in treating each of these arguments as entirely distinct from each other. While one must be careful of conflating different points, one must be equally assiduous to avoid over-compartmentalising the issues. I shall begin, however, by considering each argument, and then try to synthesise their implications.
No liability for a pure omission
In Smith v Littlewoods Organisation Ltd [1987] 1 AC 241, 271, Lord Goff of Chieveley said that “the common law does not impose liability for what are called pure omissions”. Specifically in relation to the tort of false imprisonment, it seems to me that this proposition derives support from Herd v Weardale Steel, Coal and Coke Co [1913] 3 KB 771, affirmed [1915] AC 67. In that case, the Court of Appeal, by a majority...
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