R v Deputy Governor of Parkhurst Prison and Others, ex parte Hague ; Weldon v Home Office
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Ackner,Lord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Lowry |
| Judgment Date | 24 July 1991 |
| Judgment citation (vLex) | [1991] UKHL J0724-1 |
| Date | 24 July 1991 |
| Court | House of Lords |
[1991] UKHL J0724-1
Lord Bridge of Harwich
Lord Ackner
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Lowry
House of Lords
My Lords,
There are two appeals before the House. I shall refer to them as the case of Hague and the case of Weldon respectively. They raise important questions with respect to the rights of convicted prisoners.
Introduction
The decisions of the Court of Appeal in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425 and of this House in Leech v. Deputy Governor of Parkhurst Prison [1988] A.C. 533 established that the courts have jurisdiction to entertain applications for judicial review of disciplinary awards made by boards of visitors and by prison governors respectively under the Prison Rules 1964. In both cases it had been contended, in effect on behalf of the Home Office, that jurisdiction should be declined on the ground that any interference by the courts in the management of prisons would be subversive of prison discipline. In Leech's case, as I record at p. 566B-C, Mr. Laws had urged that, if jurisdiction were accepted in relation to awards by prison governors, this would "make it impossible to resist an invasion by what he called 'the tentacles of the law' of many other departments of prison administration." In deciding the appeal your Lordships faced that prospect without undue alarm and I believe that the circumstances of the case of Hague now before the House show that it was right to do so. In the case of Hague both courts below held that they had jurisdiction to entertain an application for judicial review which questioned the legality of Hague's segregation under rule 43 of the Prison Rules 1964 and the Court of Appeal declared that the procedure followed pursuant to the terms of a Home Office circular issued in 1974 was not warranted by the terms of the rule and was accordingly unlawful. In your Lordships' House the Secretary of State, acting by Mr. Laws, has chosen, very sensibly if I may say so, not to pursue any challenge either to the assumption of jurisdiction or to its exercise by the declarations granted. Instead the Home Office have issued a new circular prescribing a new procedure to be followed in future in the relevant circumstances which conforms to the requirements of rule 43 as construed by the Court of Appeal. I believe this confirms the view that the availability of judicial review as a means of questioning the legality of action purportedly taken in pursuance of the prison rules is a beneficial and necessary jurisdiction which cannot properly be circumscribed by considerations of policy or expediency in relation to prison administration. Those considerations only come into play when the court has to consider, as a matter of discretion, how the jurisdiction should be exercised. But the issues which it is necessary to resolve in the present appeals relate neither to the scope of the courts' public law jurisdiction in judicial review nor to the exercise of discretion in that jurisdiction. The appeals raise the wholly different question whether a convicted prisoner who, in the course of serving his sentence, has been treated in a way which the rules do not permit has in any and what circumstances a cause of action in private law sounding in damages against the prison governor or the Home Office on the ground either of a breach of statutory duty or of the tort of false imprisonment.
Hague
I turn to recount, so far as necessary, the circumstances in each case giving rise to the litigation and the course of the litigation in the courts below. In July 1988 Hague was at Parkhurst Prison serving a sentence of 15 years' imprisonment. In circumstances which it is unnecessary for present purposes to relate he was thought by the Deputy Governor then in charge of the prison to be a trouble maker and on 8 July 1988 was ordered by the Deputy Governor to be transferred to Wormwood Scrubs and to be held there for 28 days in segregation from other prisoners. The order made by the Deputy Governor was formally confirmed by the Regional Director of Prisons on behalf of the Secretary of State. The order was given, confirmed and carried into effect in purported pursuance of rule 43 of the Prison Rules 1964 and in reliance on the terms of the Home Office circular to which I have earlier referred. Rule 43 provides as follows:
" Removal from association
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"(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly.
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(2) A prisoner shall not be removed under this rule for a period of more than 24 hours without the authority of a member of the board of visitors, or of the Secretary of State. An authority given under this paragraph shall be for a period not exceeding one month, but may be renewed from month to month….
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(3) The governor may arrange at his discretion for such a prisoner as aforesaid to resume association with other prisoners, and shall do so if in any case the medical officer so advises on medical grounds."
The effect of the action taken in purported pursuance of the rule was that, for a period of 28 days, Hague was denied the benefit of association with other prisoners and various other privileges enjoyed by long-term prisoners who are subject to the normal prison regime. The regime of a prisoner segregated under rule 43 is not, we are told, significantly different from that of a prisoner held in cellular confinement pursuant to a disciplinary award of the governor or the board of visitors under rule 51 or 52 respectively. Hague challenged the legality of his segregation by an application for judicial review claiming relief in various forms including damages for false imprisonment. The application was dismissed by the Divisional Court (Ralph Gibson L.J. and Nolan J.) but allowed in part by the Court of Appeal (Sir Nicolas Browne-Wilkinson V.-C., Taylor and Nicholls L.JJ.) [1990] 3 W.L.R. 1210. They held that the governor of one prison had no power under rule 43 to order the segregation of a prisoner after his transfer to another prison. That power could only be exercised by the governor of the receiving prison. They held further that the authority of a member of the board of visitors or of the Secretary of State under rule 43(2) for the continued segregation of the prisoner beyond the period of 24 hours could lawfully be given only in the exercise of an unfettered discretion both as to whether it should be given and if so for how long, whereas the Home Office circular had approved the grant by the Regional Director of Prisons on behalf of the Secretary of State of authority confirming a governor's order to detain the prisoner for a period of 28 days as a matter of routine. The Court of Appeal gave effect to these conclusions by making appropriate declarations, but refused in their discretion to grant orders of certiorari to quash the relevant orders made by the Deputy Governor of Parkhurst Prison and the Regional Director of Prisons on behalf of the Secretary of State. It will not now be necessary to consider any issue relating to this refusal. It was conceded by Mr. Laws in the course of argument that, since it has been declared that the procedure which led to Hague's segregation was not lawful under rule 43, neither the circumstance that the relevant orders were made in reliance on the Home Office circular nor the fact that they had not been formally quashed by certiorari could afford any defence to Hague's claim for damages if such a claim were otherwise sustainable. The Court of Appeal held that in the circumstances an action for damages for false imprisonment did not lie. They granted the parties leave to appeal and to cross-appeal, but, as already indicated, no cross-appeal is presented by the Secretary of State.
Weldon was in May 1984 in Leeds Prison serving a sentence of four years' imprisonment. In 1987 he issued proceedings in the Leeds County Court claiming damages against the Home Office for assault and battery and for false imprisonment. The relevant paragraph of the particulars of claim reads as follows:
"2. On or about 9 May 1984, the Plaintiff was falsely imprisoned and unlawfully assaulted and battered by certain prison officers.
(i) Shortly after 5.30 pm on the said date, three prison officers burst into the Plaintiff's cell and without good cause dragged him onto the landing, where they were joined by three further prison officers;
(ii) the Plaintiff was then dragged down the stairs (despite his request to walk) and placed in a cell in the punishment block;
(iii) shortly afterwards, the Plaintiff was removed to a strip cell where his clothes were taken from him. He remained there till the following morning. During this time the Plaintiff was further assaulted by the same prison officers;
(iv) the Plaintiff will allege that the unlawful treatment hereinbefore described converted pro tern a lawful detention into a false imprisonment."
The Home Office applied to strike out so much of the pleading as alleges false imprisonment. The application was dismissed by the registrar and appeals by the Home Office were successively dismissed by the assistant recorder Mr. D.R. Wood, and by the Court of Appeal (Fox, Parker and Ralph Gibson L.JJ.) [1990] 3 W.L.R. 465. The Home Office now appeals by leave of the Court of Appeal.
Breach of statutory duty
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