Weldon v Home Office

JurisdictionEngland & Wales
Judgment Date28 March 1990
Judgment citation (vLex)[1990] EWCA Civ J0328-5
Docket Number90/0297
CourtCourt of Appeal (Civil Division)
Date28 March 1990
Kenneth Weldon
Plaintiff (Respondent)
The Home Office
Defendants (Appellants)

[1990] EWCA Civ J0328-5


Lord Justice Fox

Lord Justice Parker


Lord Justice Ralph Gibson


No. 0314/89




(Mr. Assistant Recorder Wood)

Royal Courts of Justice

MR. J. LAWS and MR. J. SCOTT WOLSTENHOLME (instructed by Messrs. Marklands, Leeds) appeared on behalf of the Appellants (Defendants).

MR. D. HARRIS Q.C., and MR. T. OWEN (instructed by Messrs. R.M.Broudie & Co., Liverpool) appeared on behalf of the Respondent (Plaintiff).


This appeal by the Home Office raises the question whether it is possible in law for a prison officer to commit against a convicted prisoner, who is lawfully in custody in a prison, the common law tort of false imprisonment. The Home Office asks in this appeal that the claim made by the plaintiff, Kenneth Weldon, in his action against the Home Office, be struck out in so far as it is a claim in respect of false imprisonment.


The facts pleaded by the plaintiff are that the Home Office is the authority responsible for Leeds Prison and employed the prison officers there. The plaintiff was detained in the prison pursuant to a sentence of four years' imprisonment. He complains of two incidents which occurred on 9th and 10th May 1984. The first includes the claim in respect of false imprisonment and must be set out in full:

"2. On or about 9th May 1984, the Plaintiff was falsely imprisoned and unlawfully assaulted and battered by certain prison officers. (i) Shortly after 5.30 p.m. 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 incident of the following day, 10th May 1984, is alleged to have included various assaults and batteries upon the plaintiff after a disciplinary hearing but alleges no further false imprisonment. There is, of course, no suggestion that the allegations of assault could be struck out and it is not necessary to describe them further.


The proceedings in the County Court.


The particulars of claim were dated 9th December 1987. As appears from the passage set out above, the allegations lack particulars in several respects. It would appear that the plaintiff alleges that he was left naked overnight in the strip cell. It is not clear whether there was a bed or bedding available to him. The defendants did not ask for particulars before making application for the claim in respect of false imprisonment to be struck out. Their application was dismissed by the Registrar on 3rd October 1988. It is not clear why there was such long delay. The appeal by the Home Office from the Registrar's decision was heard by Mr. Assistant Recorder Wood on 22nd November 1988 and was dismissed. The learned Recorder was not satisfied that the allegations of false imprisonment had no prospects of success and therefore ruled that they should go for trial.


For the purposes of the striking out application the allegations made by the plaintiff are to be taken as true. It is, nevertheless, right to mention the terms of the Home Office defence. The defence was served on 17th November 1988. The allegations of assault are denied. In brief, it is alleged that the plaintiff on 9th May 1984, when lying on his bed in his cell, attacked a prison officer by kicking him in the face. Other officers were then kicked by the plaintiff while the plaintiff was being removed from the cell. The plaintiff was lawfully restrained. It is further alleged that the plaintiff on 25th May 1984 before the Board of Visitors at Leeds Prison pleaded guilty to assaulting the officers in the incident of 9th May 1984.


As to the 10th May 1984 the Home Office asserts that, during a disciplinary hearing on that day, the plaintiff became aggressive and the Governor ordered that he be removed. The plaintiff was then lawfully restrained, removed by prison officers, and placed in a strip cell.


The right to the jury trial.


Before considering the submissions made in this court one matter of procedural background should be mentioned which the parties, no doubt, regard as important. By section 66 of the County Courts Act 1984 it is provided that certain sorts of proceedings shall be without a jury and then by subsection (2): "In all other proceedings in a county court the trial shall be without a jury unless the court otherwise orders on an application made in that behalf by any party to the proceedings..…" and by subsection (3): "Where, on any such application, the court is satisfied that there is in issue….. (b) a claim in repsect of libel, slander, malicious prosecution or false imprisonment….. the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts..…" It is clear, and neither side has argued to the contrary, that the provisions of section 66, and the effect of those provisions upon the trial of this action if the claim in respect of false imprisonment is sustainable in law, have no relevance to the questions which this court must decide.


Mr. Laws, for the Home Office, submitted that the tort of false imprisonment consists of complete deprivation of liberty for a period of time, however short, without lawful excuse. Since a prisoner is not entitled to his liberty he cannot make a claim in respect of a loss of it. Further, it is provided by section 12 (1) of the Prison Act 1952 that "A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison." That provision operates, it was submitted, as a defence to an action of false imprisonment brought by any duly sentenced prisoner. The detention of a prisoner is not rendered unlawful by any variation in the regime or conditions of confinement.


It was conceded that a prisoner retains his ordinary rights in law so far as consistent with his detention as a prisoner. If he suffers ill treatment while in prison he may bring an action for assault, or battery, or for damage caused by negligence. In respect of alleged ill treatment falling short of those torts, however, it was submitted that a prisoner's remedy is by way of appeal to the Governor, the visiting Committee, and, finally, the Secretary of State, under the Prison Act 1952 and the Prison Rules. The Secretary of State is subject to judicial review in the exercise of his duties under those provisions.


Next it was submitted that no action lies in respect of a breach of the Prison Rules: Becker -v- Home Office and Another [1972] 2 Q.B. 407; and that neither breaches of the Prison Rules, nor torts committed against a prisoner, during a lawful imprisonment, can render the imprisonment itself unlawful so as to found an action for false imprisonment: Williams -v- Home Office (No. 2) [1981] 1 All E.R. 1211, Tudor Evans J.; and R -v- Board of Visitors at Gartree Prison, Ex parte Sears, Mann J., ( The Times, March 20, 1985).


As to a detention becoming unlawful, although initially lawful, because of changes in the conditions of imprisonment, reference was made to ( R -v- Commissioner of Police of the Metropolis, Ex parte Nahar The Times, May 28, 1983); to ( Middleweek -v- Chief Constable of Merseyside The Times, August 1, 1988); and Furber -v- Kratter and others (The Independent, August 9, 1988.) Mr. Laws submitted that in so far as those cases held that there is a remedy in false imprisonment, they were wrongly decided. Alternatively, if those cases were correctly decided, they are, it was said, applicable only to a prisoner under arrest and not to a convicted prisoner; and false imprisonment in the case of a serving prisoner will only be made out if it is shown that the conditions of detention were intolerable or seriously prejudicial to health and no allegation to that effect is made by the plaintiff.


For the plaintiff, Mr. Harris conceded that the unlawful use of force against a prisoner could not by itself convert the confinement into a false imprisonment. He submitted, however, that the treatment of the plaintiff alleged in paragraph 2 of the particulars of claim constituted false imprisonment. Mr. Harris supported that contention in two ways. Firstly, he argued that a prisoner retains such residual liberty as is left to him under the provisions of the Prison Rules; and to confine such a prisoner, without lawful authority, in a segregation cell, or in a strip cell, deprived the plaintiff of that residual liberty and was false imprisonment. Secondly, in reliance upon Middleweek, he submitted that the treatment of the plaintiff on the 9th May 1984, done in bad faith and with an improper motive or, at least, without lawful authority, rendered the conditions of detention of the plaintiff intolerable and thus made his detention during that time unlawful.


Further, of course, Mr. Harris relied upon the well known rule that recourse should be had to the summary process of striking out only in plain and obvious cases when the action...

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