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

JurisdictionUK Non-devolved
Judgment Date27 July 2000
Judgment citation (vLex)[2000] UKHL J0727-5
CourtHouse of Lords
Date27 July 2000
Governor of Her Majesty's Prison Brockhill

Ex Parte Evans


[2000] UKHL J0727-5

Lord Slynn of Hadley

Lord Browne-Wilkinson

Lord Steyn

Lord Hope of Craighead

Lord Hobhouse of Woodborough



My Lords,


This appeal raised an important question on which the judges in the courts below were divided. Many issues have been ventilated in argument before your Lordships and many cases cited: in the event it seems to me that the principles to be followed have been clearly established and the matter can be dealt with shortly since on the view I have reached on the first point other difficult questions do not arise.


On 12 January 1996 the respondent was sentenced inter alia to two years in prison. Because of the period she had spent in prison before trial she was entitled to a reduction in the actual period to be served pursuant to section 67 of the Criminal Justice Act 1967. It was for the governor of the prison where she was detained, not the sentencing judge, to work out the reduction and hence her release date. She was entitled to release on the date properly calculated and any detention after that date was unlawful unless some justification can be found.


The governor calculated the release date in accordance with earlier decisions of the Divisional Court in other cases which the Home Office and the governor thought that they were bound to follow. Reg. v. Governor of Blundeston Prison, Ex parte Gaffney [1986] 1 W.L.R..696: Reg. v. Secretary of State for the Home Office, Ex parte Read (1987) 9 Cr.App.R. (S)206: Reg. v. Governor of Styal Prison, Ex parte Mooney [1996] 1 Cr. App. Rep.(S) 74 and Reg. v. Secretary of State for the Home Department, Ex parte Woodward & Wilson [ 24 June 1996] (unreported). Accordingly the governor said that her release date was to be 18 November 1996. The respondent contended that the governor, and therefore the Divisional Court in the earlier cases, were wrong and that her release date should be 17 September 1996. On 6 September she applied for a writ of habeas corpus to procure her release and on 16 October she sought leave for judicial review of the decision fixing her release date together with damages for false imprisonment. On 15 November 1996 the Divisional Court held that her release date properly calculated was 17 September 1996 and ordered that she be released immediately: [1997] Q.B. 443. On 10 June 1997 Collins J. dismissed her application for damages for false imprisonment: the Court of Appeal by a majority allowed her appeal on liability and increased the judge's assessment of damages from £2,000 to £5,000: [1999] Q.B. 1043.


It is accepted that false imprisonment is a tort of strict liability equally clearly deprivation of liberty may be shown to be lawful or justified. It may be so for example where it is pursuant to an order of a court or pursuant to the exercise of statutory powers. Here the court order did not specify the release date and the sentence of two years imprisonment had to be read subject to the governor's duty to calculate the release date. The governor cannot therefore rely on the court's sentence alone. He has to rely on compliance with the statutory provisions. He thought that he was complying with those provisions because what he did was in compliance with what the law was thought to be. The Divisional Court has since held that that is not the law; the statutory provisions have never had the meaning he thought they had.


Is it a defence to a claim for false imprisonment that he complied with the law as the court then said it was? The Solicitor-General has adduced forceful arguments to the effect that the governor had no choice. He was bound to obey the law as expounded by the court not just once but several times. Not to do so would be to ignore the separation of powers between the judiciary and the executive.


Whatever the answer the governor cannot be criticised for what he did and I do not consider that the doubt raised in Reg. v. Secretary of State for the Home Department, Ex parte Naughton [1997] [1 W.L.R..118] as to the correctness of the earlier decisions meant that he was obliged to depart from those decisions.


If the claim is looked at from the governor's point of view liability seems unreasonable; what more could he have done? If looked at from the respondent's point of view she was, it is accepted, kept in prison unlawfully for 59 days and she should be compensated. Which is to prevail?


Despite sympathy for the governor's position it seems to me that the result is clear. She never was lawfully detained after 17 September 1996. She was merely thought to be lawfully detained. That is not a sufficient justification for the tort of false imprisonment even if based on rulings of the court. Although in form it is the governor, it is in reality the State which must compensate her for her unlawful detention.


The judgment of the Divisional Court in this case follows the traditional route of declaring not only what was the meaning of the section at the date of the judgment but what was always the correct meaning of the section. The court did not seek to limit the effect of its judgment to the future. I consider that there may be situations in which it would be desirable, and in no way unjust, that the effect of judicial rulings should be prospective or limited to certain claimants. The European Court of Justice, though cautiously and infrequently, has restricted the effect of its ruling to the particular claimant in the case before it and to those who had begun proceedings before the date of its judgment. Those who had not sought to challenge the legality of acts perhaps done years before could only rely on the ruling prospectively. Such a course avoided unscrambling transactions perhaps long since over and doing injustice to defendants.


But even if such a course is open to English courts there could in my view be no justification for limiting the effect of the judgment in this case to the future. The respondent's case has established the principle and she is entitled to compensation for false imprisonment; there could it seems in any event be no compensation for the period after the Divisional Court's decision since she was released immediately.


I would dismiss the appeal on these grounds. It is, therefore, not relevant or necessary to consider what would have been the position under article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms if the imprisonment though unlawful could be said in answer to a claim in tort to have been justified.


My Lords,


I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Steyn and Lord Hope of Craighead. Subject to certain reservations mentioned below, for the reasons which they give I would dismiss the appeal.


My reservations are these. I believe the case can be satisfactorily decided on the grounds that false imprisonment is a tort of strict liability, the consequences of which cannot be escaped even by showing that the defendant acted in accordance with the view of the law which at the time was accepted by the courts as being correct. I express no view on the merits of introducing a doctrine of prospective overruling. Nor do I think that this case is necessarily decisive of the different questions which arise where a defendant has acted in accordance with statutory provisions which are subsequently held to be ultra vires and void. In my judgment those points will be better dealt with when it is necessary to do so.


My Lords,


The respondent was kept in prison for 59 days longer than she should have been. The Governor was blameless. He relied on a Home Office explanation of the legal position of prisoners in the position of the appellant. The Home Office was also blameless. The Home Office view of the position was founded on a clear line of Divisional court decisions, starting with Reg. v. Governor of Blundeston Prison, Ex parte Gaffney [1982] W.L.R. 696. But the courts had erred. On the respondent's application for judicial review the Divisional court overruled the earlier decisions: Reg. v. Brockhill Prison, Ex parte Evans [1997] Q.B. 443. It was held that the respondent was unlawfully detained. The governor immediately released the respondent. The respondent pursued claim for false imprisonment against the Governor. Collins J. dismissed the claim but in the event that he was wrong, assessed damages at £2,000. By a majority the Court of Appeal allowed the appeal of the respondent, and increased the assessment to £5,000: [1999] Q.B. 1043. The majority (Lord Woolf, M.R. and Judge L.J.) took the view that a defendant may be liable for false imprisonment of a plaintiff in circumstances where the defendant acts in good faith on a view of the law which appears to be settled by precedent but which subsequently turns out to have been wrong.


The primary question is whether in the circumstances the governor is liable to compensate the respondent for false imprisonment. The point is a novel one. There is no English authority which directly addresses the precise question before the House. The law knows no tort special to prisons and prisoners. The question has to be resolved within the contours of the general principles governing the tort of false imprisonment.


It is common ground that the tort of false imprisonment involves the infliction of bodily restraint which is not expressly or impliedly authorised by the law. The plaintiff does not have to prove fault on the part of the defendant. It is a tort of strict liability. These propositions are also common ground. There the agreement ends. The parties invoke competing principles of law. The Solicitor-General argued that the...

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