Quinland v Governor of HM Prison Swaleside and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Lord Justice Clarke,Lady Justice Hale |
| Judgment Date | 19 February 2002 |
| Neutral Citation | [2002] EWCA Civ 174 |
| Docket Number | Case No: B1/2001/1817 CCRTI |
| Court | Court of Appeal (Civil Division) |
| Date | 19 February 2002 |
[2002] EWCA Civ 174
Lord Justice Kennedy
Lord Justice Clarke and
Lady Justice Hale
Case No: B1/2001/1817 CCRTI
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DISTRICT JUDGE DUDLEY
SOUTHEND COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Michael Oliver (instructed by Jervis Jerman, Southend on Sea) for the appellant
Philip Sales (instructed by Treasury Solicitor) for the respondent
This is a claimant's appeal from an order made by District Judge Dudley in the Southend County Court on 20 th July 2000 that the claimant's claim be struck out with costs. The District Judge gave permission to appeal, but no attempt was made to file the appellant's notice until well out of time. On 16 th July 2001 Judge Yelton gave the claimant permission to appeal out of time, and, being of the opinion that the appeal raises an important point of principle, he ordered, pursuant to CPR part 52.14 that the appeal be transferred to this court.
Background
On 14 th June 1993 in the Crown Court at Chelmsford the claimant, having been convicted of blackmail and burglary, was sentenced for those offences to two years and 12 months imprisonment respectively, those sentences being ordered to be served concurrently. The sentencing judge also had to deal with the claimant for other matters and as to those other matters he said –
"For the committal for sentence on driving whilst disqualified three months and three years disqualification. For the handling, 3 months; for the no insurance a fine of ten pounds, no time to pay, or three days. That will be concurrent to all other sentences. I take no action on the breach of suspended sentence.
So far as the two matters of driving whilst disqualified, and handling, they will be concurrent to each other but consecutive to the two years. That means you will serve two and a half years. Take him down."
Careful consideration of those sentencing remarks reveals that the total sentence should have been two years three months, but the judge having indicated a total of two years and six months neither counsel nor any one else spotted his error, and the order of the court and the warrant of commitment were, it seems, drawn up in accordance with his total.
The claimant then sought leave to appeal against both conviction and sentence, but without reference to the judge's error, and on 28 th November 1993 Pill J made this decision pursuant to section 31 of the Criminal Appeal Act 1968:
"Having read the record sheets and the components of the sentence as expressed by the judge I regard the sentence as one of two years three months imprisonment. That should be checked if necessary. Leave to appeal against conviction and sentence refused."
What in effect the single judge was doing was giving leave to appeal against sentence restricted to a correction of the judge's arithmetical error if further enquiries confirmed the existence of that error. If the error had been spotted within 28 days of the sentence being imposed it could have been corrected pursuant to powers then contained in the Supreme Court Act 1981, section 47(2). On 17 th January 1994 a copy of the decision of the single judge was sent both to the claimant and to his solicitors under cover of a letter from the Registrar of Criminal Appeals the material part of which reads –
"The case will be referred, without legal aid, to the Full Court for the sentence to be corrected from two years six months to two years three months.
If you renew your application for leave to appeal against conviction, that too will go to the Full Court. Otherwise it will be sentence only."
If Pill J was right, as he was, the claimant was due for release on 11 th April 1994, but if the claimant had to serve the full two and a half years his release would not be until 23 rd May 1994 – six weeks later.
In February and early March 1994 the claimant's solicitors contacted the Criminal Appeal Office on more than one occasion. As Mr Oliver for the claimant points out, the solicitors were not at that stage privately instructed and they had discharged their obligations under the legal aid certificate pursuant to which they had acted for the claimant at his trial. Nevertheless they were active on his behalf, and in their letter of 9 th March 1994 to the Registrar they set out what they did after hearing of the decision of the single judge. The relevant part of that letter reads –
"We telephoned your office on 21 st February 1994 for confirmation that this matter had been referred and sentence corrected. The clerk informed us that the file was no longer in the office as the appeal had been refused on the 12 th November 1993. After some discussion it was agreed that the clerk would retrieve the file and telephone us back.
Regrettably we heard nothing from your office so we telephoned your office again on 4 th March 1994. We were told that the file had to be retrieved and the clerk said she would telephone us back that afternoon.
When the clerk phoned back later that day we were informed that the file had been put away without being sent to the Full Court for sentence to be corrected. We were then told that mistake would be rectified and the Appeal Court would write to our Client explaining the mistake.
We subsequently wrote to our Client explaining what had happened.
This morning we received a telephone call from Mr Quinland who informed us that when the Prison authorities contacted the Appeal Office they were told that nothing had been done on his file as his appeal had been refused.
Naturally we are most concerned to hear this and should be obliged if you could look into this matter urgently, bearing in mind the length of time our Client has been in custody."
On 10 th March 1994 the Registrar wrote to the claimant saying that attempts had been made to return a telephone call which he had made on the previous day. That letter continued :
"Your sentence will be referred to the Full Court for the (total to) be varied from two years six months to two years three months. This is because the sentences passed by the judge in the Crown Court add up to that total and not the one given by the judge at the conclusion of sentencing."
A copy of that letter was sent to the claimant's solicitors with an apology.
In fact the case was not then put before the Full Court as it should have been as a matter of urgency. In a letter from the Court Service to the claimant's solicitors dated 16 th February 1996 it is said that –
"Unfortunately the file was put away in error in February and was activated again until early March when you wrote to the Court of Appeal. The case was not put before the Court of Appeal until June because preparation of the case was delayed while a transcript of the court proceedings was being prepared."
It is difficult to understand why the file was put away in February, or why it was not activated as promised on or soon after the 21 st February. It is also difficult to know why after the file was activated a transcript was considered to be necessary when one was already in existence, as can be seen from the order of the single judge, but in the event the earlier release date of 11 th April 1994 came and went without, it seems, any attention being drawn to it by anyone, and on 23 rd May 1994 the claimant was released, having served the period appropriate to a sentence of two and a half years. On 16 th June 1994 the case was listed before the Full Court, and the sentence was varied to one of two years and three months.
Over five years later on 15 th September 1999 the claimant commenced these proceedings in which he seeks from two prison governors and the Lord Chancellor's Department damages for false imprisonment arising from his detention for a period in excess of his true sentence. In his Particulars of Claim the claimant states that the sentencing judge did not make it clear whether the two sentences of three months were to run concurrently with or consecutively to each other, but he contends that once the single judge had drawn attention to the point the matter should have been dealt with in such a way as to enable him to be released on 11 th April 1994.
Before the District Judge
The defendant applied to strike out the claim, and by the decision now under appeal the District Judge acceded to that application on the grounds that –
"(1) the two prison governors acted in accordance with the warrant, and could not legitimately have acted otherwise and —
(2) the Registrar was protected from this litigation by section 2(5) of the Crown Proceedings Act 1947"
The District Judge did not therefore find it necessary to rule on the alternative submission made on behalf of the third defendant, namely that the Registrar did not owe any duty of care to the claimant.
The position of the Governors
When dealing with the claim against the governors the District Judge referred to two decisions of this Court. The first is Olotu v Home Office [1997] 1WLR 328. In that case the plaintiff had been detained in custody after the expiration of her custody time limit, and she sued both the Home Office and the Crown Prosecution Service. The claim against the Home Office was struck out, and that decision was upheld in the Court of Appeal which also struck out the claim against the Crown Prosecution Service. At 334H Lord Bingham CJ said–
"The governor's duty under section 6(3)(a) of the (Magistrates' Courts Act 1980) and according to the direction given to him in the warrant was to hold the plaintiff until she should be delivered to...
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