R v Governor of Brockhill Prison, ex parte Evans (No 2)

JurisdictionEngland & Wales
JudgeLord Woolf MR,Lord Justice Roch,Lord Justice Judge
Judgment Date19 June 1998
Judgment citation (vLex)[1998] EWCA Civ J0619-14
Docket NumberCase No: QBENF97/0925
CourtCourt of Appeal (Civil Division)
Date19 June 1998
Michelle Carol Evans
The Governor HM Prison Brockhill

[1998] EWCA Civ J0619-14


The Master of the Rolls

Lord Justice Roch


Lord Justice Judge

Case No: QBENF97/0925





Royal Courts of Justice

Strand, London, WC2A 21L

MR BEN EMMERSON & MR PETER WEATHERBY (instructed by Messrs Graysons for the Appellant)

MR PHILIP SALES & MR MICHAEL FORDHAM (instructed by The Treasury Solicitor for the Respondent)

Lord Woolf MR

This is an appeal from a judgment of Collins J. given on the 10th of June 1997. Collins J. dismissed a claim for damages for false imprisonment made by the appellant, Michelle Carol Evans, against the Governor of Brockhill Prison. The claim for damages was included in a joint application for leave to apply for judicial review and habeas corpus which was made on the 6th of September 1996. The appeal raises issues of importance involving two principles which are deeply embedded in our law. The first is that any authoritative decision of the courts stating what is the law operates retrospectively. The decision does not only state what the law is from the date of the decision, it states what it has always been. This is the position even if in setting out the law the court overrules an earlier decision which took a totally different view of the law. The second principle is that a person imprisoned without lawful authority is entitled to damages irrespective of any question of fault on the part of the person responsible for the imprisonment.


The Background to the Claim


The applications for judicial review and habeas corpus were made while the appellant was a prisoner at Brockhill Prison. She was in prison after being sentenced on the 12th of January 1996 to two years imprisonment for robbery, to nine months imprisonment concurrent for two offences of burglary and to three months imprisonment concurrent for assault occasioning actual bodily harm.


On the 15th of November 1996 the Divisional Court, [1997] Q.B. 443, (Bingham of Cornhill C.J., Rose L.J. and Blofeld J.) made no order on the appellant's motion for habeas corpus, allowed her application for judicial review and declared that the appellant's conditional release date from prison, as correctly calculated, should have been the 17th of September 1996 (taking into account 19 days awarded for disciplinary offences). The appellant was released the same day, but that was 59 days later than she should have been released. It was for those 59 days additional imprisonment that she claimed damages. The Divisional Court, having given its decision, adjourned this claim for damages and it was this claim which Collins J. heard and dismissed.


The Divisional Court also certified that a point of law of general public importance was involved in their decision, namely:

"What is the correct method of determining the 'relevant period' for the purposes of Section 41 of the Criminal Justice Act 1991 and Section 67 of the Criminal Justice Act 1967 in a case where an offender spent separate periods on remand in custody in respect of offences for which he is given concurrent sentences?"


but refused the Governor leave to appeal to the House of Lords. The appeal was not pursued.


The appellant's application to the court followed a decision of the Divisional Court in R v The Secretary of State for the Home Department, Ex Parte Naughton [1997] 1 WLR 118 given on the 4th of September 1996.In Naughton the Divisional Court suggested that the method which was then being adopted for calculating the date of release of a short term prisoner, where the prisoner had been in prison on remand before being sentenced, was incorrect. The relevant statutory provisions are sections 33, 41, 51 of the Criminal Justice Act 1991 and sections 67 and 104 Criminal Justice Act 1967 as amended by the Police and Criminal Evidence Act 1984. According to the method of calculation criticised in Naughton, the appellant's release date would have been the 18th of November 1996, (3 days after the decision of the Divisional Court in this case). This method of calculation followed the reasoning in a series of decisions of the Divisional Court, commencing with R v The Governor of Blundeston Prison, Ex Parte Gaffney [1982] 1 WLR 696. (All the relevant authorities are referred to in the Divisional Court's judgment which is reported and it is not necessary to refer to them here). The short but by no means easy point which the Divisional Court had to determine was whether, when a person is sentenced to more than one period of imprisonment to be served concurrently, the period spent previously in custody on remand should be deducted from each particular sentence to which the period in remand relates before calculating the total sentence to be served, or whether such periods in custody should be aggregated and the release date calculated simply by deducting that aggregate from the total sentence. The decision in Gaffney had adopted the former solution while the Divisional Court in this case authoritatively decided that the latter solution provided the correct answer. As is confirmed by the facts of this case, which method of calculation is adopted can materially affect a prisoner's release date.


The decisions which were disapproved of by the Divisional Court in this case set out how the release date should be calculated in unambiguous terms and it is accepted on this appeal that the Governor of Brockhill Prison had no alternative but to adopt the method of calculation laid down in the earlier decisions. He, therefore, had no reason to think that he was doing otherwise than complying with the law in detaining the appellant until the decision of the Divisional Court. It is not suggested that he had any discretion to release the appellant prior to the date calculated in accordance with the statutory provisions. It is common ground that he was not in any way personally at fault and that he could not have released the appellant earlier than he did.


Nonetheless the position was one where, as the Divisional Court stated in its judgment in this case, "the construction previously put upon the legislative provisions, we have reviewed was wrong….that construction is capable of producing, and has, in some of the decided cases produced injustice". It had, as the court states, resulted in a situation where "defendants are remaining in prison when the sentencing court did not intend that they should". This is what has happened to the appellant. She should have been released on the 17th of September 1996 and she was in fact released on the 15th of November 1996. As Collins J recognised, the appellant "is one in respect of whom the practice has produced injustice, because she has served the period of 59 days more than she ought to have served, had the provisions of Section 67 been properly construed." Yet he decided she was not entitled to damages for this period because the Governor was entitled to rely on the earlier decisions until they were held to be in error.


It is to be noted that the effect of the error was not to alter the terms of the court order setting out the sentence. The error was limited to the manner in which that order was implemented.


The Case for the Appellant


It is the fact that the appellant was in prison longer than she should have been, which is the foundation of Mr Emmerson's argument on behalf of the appellant. He submits, correctly, that the tort of false imprisonment has two ingredients, the fact of imprisonment and the absence of lawful authority to justify it. As Lord Bridge stated in Deputy Governor of Parkhurst Prison & Ors. Ex Parte Hague [1992] 1 A.C.58 at 162D:

"if A imposes upon B a restraint within defined bounds, and is sued by B for false imprisonment, the action will succeed or fail according to whether or not A can justify the restraint imposed on B as lawful."


In the same case Lord Jauncey said much the same thing at 178C:

"Imprisonment is either lawful or false and questions of degree do not arise"


If the earlier cases had survived the Divisional Court's decision in this case, then of course there would have been lawful justification. But Mr Emmerson submits that once the Divisional Court gave its decision it became apparent that there was no justification. He submits that the Divisional Court's decision operates retrospectively so that the position as a matter of law is that the extra period of detention was never lawful. Mr Emmerson prays in aid the comment of Simon Brown L.J. in Percy v Hall [1996] QB 924 at 945:

"Clear it is that ordinarily a mistake of law, however understandable, cannot provide the lawful justification for an arrest where otherwise there is none".


Mr Emmerson submits that there was no precedent for a governor in the position of the respondent in this case being granted immunity except by statute. If the imprisonment was unlawful that should be the end of the matter. He relies strongly on Articles 5(1) and(5) of the European Convention of Human Rights. He submits that to grant immunity to the Governor would be in clear conflict with Article 5(1) and (5) of the Convention.


Although Mr Justice Collins dismissed the damages claim, in case the appellant should succeed on appeal, he assessed her damages in the sum of £2,000. Mr Emmerson submits that sum is far too low.


The Contentions On Behalf of The Governor


Not surprisingly, Mr Sales supports the reasoning of Mr Justice Collins. He accepts before this court that the Divisional Court's decision in this case must be treated as having retrospectively overruled the...

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    • 1 October 1999
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