Judgments - Regina v. Governor of Her Majesty's Prison Brockhill Ex Parte Evans

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    The calculation of the release date of a prisoner is governed by statute and is not uncomplicated. One of the complications relates to the account which should be taken of periods spent in custody prior to sentence when the prisoner has been detained for different periods in respect of different offences and subsequently receives (as did the respondent) concurrent sentences. Should the pre-sentence periods be aggregated? The legislation, to which it is not necessary to refer, did not provide a clear answer - or at least gave rise to a difference of judicial opinion as to what the correct answer was. At the time the respondent was sentenced, the governing judicial decision for concurrent sentences was that of the Divisional Court in ex parte Gaffney [1982] QB 696. It held that the periods should not be aggregated. This decision was followed in several later cases and upheld by another Divisional Court presided over by Simon Brown LJ in ex parte Mooney [1996] 1 CAR(S) 74. This decision was strongly criticised by Dr Thomas ([1995] Crim.L.Rev. 753). One of the points of criticism was the anomalous differences which resulted from Gaffney for consecutive and concurrent sentences. These differences were considered in a case concerning consecutive sentences, ex parte Naughton [1997] 1 WLR 118, by a Divisional Court (again presided over by Simon Brown LJ). The judgment was delivered on 4 September 1996. The Divisional Court considered the fresh arguments which had not been considered in the earlier cases and concluded that the decision in Mooney would probably not have been the same if those arguments had been before the court on that occasion.

    It was under these circumstances that the respondent, on 6 September 1996, issued and served her notice of motion against the Governor asking for Habeas Corpus. In her perfected grounds served later also asking for leave to move for judicial review, she additionally sought a declaration that her release date was 17 September and damages for false imprisonment for the period subsequent to that date. Her case was that the aggregation method was the right one and that Gaffney could not stand with what was said in Naughton. The case of the Crown was that her release date was 18 November and that the calculation used in Gaffney should still be used. On 29 October a Divisional Court presided over by the Lord Chief Justice heard her application and that of another applicant raising a similar point. They delivered judgment on 15 November. They held that Gaffney and Mooney should not be followed. The court held and formally declared that the respondent's (conditional) "release date, as correctly calculated, was 17 September"; they adjourned the claim for damages. The respondent was still in custody and she was released the same day, 15 November . The judgment has not been appealed.

    The Crown had apparently argued that the court should not depart from the earlier decisions: "the [prison] authorities have quite rightly founded their practice on these decisions." The Divisional Court was however "of the clear opinion that the construction previously put upon the legislative provisions we have reviewed was wrong". They felt bound to conclude that the arguments advanced on behalf of the respondent were correct. They added:

    "The principle that a prisoner's release date should be beyond dispute and that the provisions governing it should be easy to apply is of great importance for reasons both of convenience and good administration. It is not on any showing a test which the present provisions meet. They are not clear to the courts or the legal profession or prisoners or (it would seem) the prison authorities. They certainly are not simple. It appears that defendants are remaining in prison when the sentencing court did not intend that they should." (p.462)

    The sequence of events is therefore that the respondent had challenged the legality of her continued imprisonment before the disputed period had started and had done so on the basis of cogent and influential academic criticism of the earlier Divisional Court decisions and doubts as to their correctness raised by the Divisional Court itself. The actual decision in her favour was not given until later but was given in proceedings started before 17 September. The decision of the Divisional Court given in proceedings to which both she and the Governor were parties was that she had been entitled to be released on 17 September. It follows, and is now accepted by the Crown, that her imprisonment after that date was unlawful.

    In these circumstances the respondent has a claim for damages in the tort of false imprisonment unless the Governor has some defence. The law has been clearly stated in judgments of the highest authority.

    "In accordance with British jurisprudence no member of the Executive can interfere with the liberty or the property of a British subject except on the condition that he can support the legality of his action before a court of justice." per Lord Atkin, Eshugbayi Eleko v Officer Administering Govt. of Nigeria [1931] AC 662 at 670.

    "Thus if A imposes on B a restraint within defined bounds and is sued by B for false imprisonment, the action will succeed or fail according whether or not A can justify the restraint imposed on B as lawful." per Lord Bridge, ex parte Hague [1992] 1 AC 58 at 162.

    Similar statements are to be found in Article 5 of the Convention on Human Rights as scheduled to the Human Rights Act 1998 -

    ".... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ...... Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation." (emphasis supplied)

    Imprisonment involves the infringement of a legally protected right and therefore must be justified. If it cannot be lawfully justified, it is no defence for the defendant to say that he believed that he could justify it. In contrast with the tort of misfeasance in public office, bad faith is not an ingredient of the the tort; it is not a defence for the defendant to say that he acted in good faith. (eg per Taylor LJ, ex parte Hague [1992] 1 AC at p.123).

    The Crown however argued that on the facts of the present case it had defences to the respondent's claim. The argument was put in two ways. Both relied upon the fact that, until disapproved by the Divisional Court in the present proceedings on 15 November 1996, Gaffney and Mooney were the judicial decisions which actually related to concurrent sentences and it was in accordance with those decisions that the Home Office and the Governor had refused to release the respondent on 17 September. Both arguments involved inviting your Lordships to introduce into English Law new rules of law -

(a) If a court has held that a statute has a certain construction, then that construction provides a defendant with a defence to an action for damages even though the construction was wrong and the detention was in fact unlawful. (the 'special defence') (b) A principle of non-retrospectivity should be introduced into English law so that a decision which declines to follow or over-rules a previous decision or changes a widely held assumption as to what the law is should not be viewed as declaratory or as affecting anything which happened before the later decision. (the 'no-retrospectivity principle')

    The adoption of either of these new rules would necessarily involve major departures from pre-existing law and require your Lordships to over-rule previous decisions and depart from previously unquestioned statements of the law. Ironically, they would themselves involve a departure from the contended for no-retrospectivity principle. Submission (b) has to be formulated in the extreme form set out otherwise it will, on any view, not assist the defendant in the present case. It is contrary to the ratio of the majority in Kleinwort Benson v Lincoln City Council [1999] AC 349 and its strong reconfirmation of the declaratory principle.

    The agreed facts of the present case do not lend support to the plausibility or justice of introducing novel rules to enable the Crown (ie the Executive) to escape liability in damages for infringing a fundamental right of the plaintiff. Before 17 September, Gaffney had been seriously questioned in Naughton - the Agreed Facts say 'raised doubts whether [it] was correctly decided'; the Home Office had accepted Naughton as correctly stating the law in relation to consecutive sentences; the plaintiff had challenged the right of the prison authorities to keep her in prison longer than 17 September and had commenced legal proceedings. The Home Office nevertheless chose to direct the Governor to continue to detain her. The Home Office and the Governor have put in no evidence to explain or justify that choice. It is to be inferred that they knew that they might be held to be acting unlawfully. It is possible that if the plaintiff had known that it would be argued that the reservation of the Divisional Court's judgment to 15 November would mean that she was to be deprived of both her liberty and her remedy in damages, she might have pressed for a more speedy announcement of the decision.

The Special Defence:

    It is contrary to principle that the Executive should not be liable for illegally interfering with the liberty of the subject. The remedy of Habeas Corpus and the tort of false imprisonment are important constitutional safeguards of the liberty of the subject against the Executive. It was surprising that the argument of the Solicitor-General should implicitly question this and seek to avoid the consequences. In support of his submission under this head, the Solicitor-General advanced two arguments: first, that the Governor was acting in obedience to a court order; second, that what a court or judge has said is the law whether or not that statement is wrong (and whether or not it has been questioned and may not be followed by a court of concurrent jurisdiction). Each of these arguments were also advanced as refinements of answering the question: what was "lawful" at the time? They were inconsistent with the decision of the Divisional Court in Evans No.1. That decision did not say that the appellant's was entitled to be released on 15 November, the date of the judgment: it declared that she had been entitled to be released on 17 September.

    The first argument controverted the law. The appellant had been sentenced to two years imprisonment. The Governor had a certificate to that effect. But that was all. The Governor had no order which directed or authorised him to detain the plaintiff until 15 November.

    This position can be contrasted with that in Olotu v Home Office [1997] 1 WLR 328 where the Magistrates' Court had committed the plaintiff in custody to the Crown Court for trial. The warrant of commitment directed the prison governor to "keep the accused until the accused is delivered in due course of law". This committal was subject to a statutory 112 day limit unless extended by the Crown Court. She was detained for 193 days but no one applied for an extension nor did the CPS bring her before the court so that an application for bail could be made. The Court of Appeal held that she had not been falsely imprisoned. Lord Bingham LCJ explained (p. 335):

    "The plaintiff was in the custody of the Crown Court. Only by order of the court could that period of custody be brought to an end. .... Once the custody time limit had expired, the plaintiff was in my view unlawfully detained and an order which would have led to her release could have been obtained either from the Crown Court or from the Divisional Court; but it does not follow that in the absence of any such order the governor was guilty of falsely imprisoning the plaintiff and in my view he was neither entitled nor bound to release her."

    The warrant authorised and required the governor to keep her until she was taken to the Crown Court. The steps which needed to be taken when the time limit was exceeded were for others to take and did not affect his duty to continue to hold her in custody. He had no authority to release her. In the present case the Governor did not have any authority which permitted him to detain her beyond her lawful release date. It was his responsibility to release her when that date was reached without any further order of a court.

    This decision was in line with the earlier authorities. In Henderson v Preston (1888) 21 QBD 362 the plaintiff had been sentenced to 7 days imprisonment. He had already been held in custody for one day prior to sentence. However he was committed to prison on the following day under a warrant which required the governor to receive him and hold him for 7 days. This warrant protected the governor from a claim for false imprisonment. Lord Esher pointed out that it was not a void warrant:

    "It is not on its face issued by persons who have no jurisdiction to issue a warrant. It is issued by a court having jurisdiction and its terms are perfectly clear."

    In Greaves v Keene (1879) 4 ExD 73 a similar decision was reached where a warrant was clear in its terms and not on its face invalid. The imprisonment in compliance with the warrant was not unlawful.

    "The warrant commands that the plaintiff should be detained so that he may be brought before the Common Pleas Division of the High Court of Justice and until that takes place the prisoner has no claim to be discharged." (per Kelly CB at p.75)

    "For the decision of this case it is sufficient to say that the defendant, in obedience to his duty under the warrant of the court detained the plaintiff The defendant is not by that warrant ordered to keep the plaintiff for any particular time or any particular offence. .... Thus it is in different case from that in which the time of detention is expressed in the margin of the warrant or may be gathered from it ... in which case the at the expiration of the time the gaoler ought to discharge his prisoner without order." (per Pollock B at p.75-6)

    In the present case the problem for the Governor was that the certificate was not helpful to him. All it told him was that the appellant had been sentenced to two years imprisonment. It did not even include the factual information which he needed in order to be able to work out the respondent's release date. Further factual enquiries were needed and were no doubt made on his behalf. Then, he (or the Home Office) needed to consult the relevant statutory provisions and come to the right conclusion as to how long he was authorised to imprison her. They got the answer wrong. The highest that it can be put is that Gaffney gave a basis for a belief that 18 November might be the right answer. But any legal decision is no more than evidence of the law. In the Lincoln C.C. case, Lord Goff (at p. 377) quoted from Hale and Blackstone:

    "The decisions of the courts do not constitute the law properly so called but are evidence of the law and as such have great weight and authority in expounding, declaring and publishing what the law of this Kingdom is."

    They are a source of law but not a conclusive source. Judicial decisions are only conclusive as between the parties to them and their privies. The doctrine of precedent may give certain decisions a more authoritative status but this is relative as the present case shows: the Divisional Court was at liberty not to follow its own previous decision. A decision or judgment may on examination be shown to be inconsistent with other decisions. The value, force and effect of any decision is a matter to be considered and assessed. They are not statutes which (subject to EU law) have an absolute and incontrovertible status.

    This leads on to the second argument that the detention of the plaintiff beyond 17 September was lawful because it was not determined to be unlawful until the decision in Evans No.1. This argument too is directly contrary to established law; vide Lord Atkin (sup). It is also directly contrary to the Divisional Court's decision in Evans No.1. The Divisional Court might have held, but rightly did not, that the existence of Gaffney meant that, whether right or wrong, the Plaintiff was not entitled to be released until Gaffney had been over-ruled.

    The argument of the Solicitor-General persistently confused a valid order for detention which is subsequently set aside with a valid order which is misinterpreted; it also confused a valid order which has not yet been set aside with an order which was never valid. These distinctions are basic to any legal system. An appeal against a conviction or sentence may lead to the conviction being quashed or the sentence being set aside or varied. But up to that time there were lawful orders of the sentencing court which were orders which had to be obeyed. This point was clearly and correctly made by Lord Woolf MR in the Court of Appeal in the present case, [1999] QB 1043 at 1063, even though the sentencing court may have exceeded its powers in passing the sentence which it did. (See also the judgment of Judge LJ.) A prison governor must obey an order unless it is on its face unlawful. (Re McC [1985] AC 528; ex parte Davies [1989] 1 AER 90.) This is the same as the type of question which arises in relation to bye-laws. (Boddington v BTP [1999] 2 AC 143, Secretary of State v Percy [1999] AER 732)

    The critical importance of the warrant and what detention it actually commands and authorises applies both ways as illustrated by the judgment in Demer v Cook (1903) 88 LT 629. Lord Alverstone CJ contrasted two situations. One was where the gaoler receives a prisoner under a warrant which is correct in form in which case no action will lie against him if it should turn out that the warrant was improperly issued or the court had no jurisdiction to issue it. The other was where the warrant had on its face expired or the gaoler has received the prisoner without any warrant, in which case the action will lie. "The warrant and nothing else is the protection to the gaoler and he is not entitled to question it or go behind it." (p.631)

    The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside is also to be found in the ECHR case law as illustrated by Benham 22 EHRR 293. The Commission had categorised the relevant order as coming into the former category and therefore held that there had been a breach of Article 5; the Court disagreed, categorising the order for detention as prima facie valid, and held that there had been no breach of that Article. The Commission and the Court applied the same criteria in considering whether the detention had been lawful under the domestic law. Paragraph 42 of the judgment relied on by the Solicitor-General does not support his argument.

    "A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily affect the legality of the intervening period of detention. For this reason the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law."

    In the present case there was an order; it was never set aside nor did it have to be. The illegality arose because it did not authorise the detention which took place. The order was not obeyed.

    Article 5 of the Convention is inconsistent with the Solicitor-General's arguments and corresponds to the existing English law. It is therefore highly persuasive against accepting the Solicitor-General's arguments or introducing the new rule he contends for into English law. The elements to be found in 5(1)(a) are, first, an affirmation of the basic right not to be deprived of one's personal liberty (Lord Atkin), secondly, the recognition of the legal significance of a conviction by a competent court (Re McC), thirdly, the recognition that lawful detention may consequently be ordered and, fourthly, that legal procedures must be followed (Demer v Cook). 5(4) is a requirement that there be a specific remedy for unlawful detention as afforded by Habeas Corpus. 5(5) further requires the payment of compensation for unlawful detention as does English law (Lord Atkin).

    The Solicitor-General sought to reconcile his argument with Article 5. But it did not assist him on the facts of the present case to argue that the detention was "lawful at the time" or to rely on paragraph 42 of Benham (v.s.). He also submitted that the ECHR may take a different view to domestic law as to what is 'lawful', but this argument failed to recognise that the ECHR cumulatively applies a double test. For detention to be lawful under Article 5, it must be both lawful under the domestic law and the domestic law must (substantively and procedurally) be in compliance with the requirements of the Convention. (Benham; Tsliris and Kouloumpas 25 EHRR 198) If it fails either test, it is unlawful for the purposes of Article 5 and 5(5) applies. Here the detention failed the domestic law test (Evans No.1) and , like English law, Article 5(5) requires compensation to be paid. Section 9 of the Human Rights Act reinforces the same conclusions.

    In the present case, the State (through the Legislature) has defined the power of detention; the State (through the Executive) has detained the plaintiff in excess of that power; it creates no injustice that the State should compensate the plaintiff. It certainly does not make it just for the State to fail to compensate the plaintiff that one or more emanations of the State have misunderstood the legislation. Under the Convention, the State is already under an obligation to compensate; when the Human Rights Act comes into force it will also be under a domestic law obligation to do so.

    The respondent's case is straightforward and covered by authority. The appellant's case is not supported by authority and involves the introduction of a new defence to the tort of false imprisonment which is contrary to principle and unpersuasive both in general and in relation to this particular case.


    In the present case this defence fails on its own facts even in the wide terms in which the defence has been formulated. Before the disputed period of custody had started, the respondent had already challenged the legality of her continued detention. A decision of the Divisional Court had questioned the previous decisions as had important academic opinion. The Divisional Court was at liberty to depart from the previous decisions as in fact occurred in Evans No.1. Whether or not Gaffney and Mooney should still be followed was, at best, a moot point.

    Therefore this ground of appeal does not assist the appellant. The decision of the Court of Appeal must be upheld. Anything said further about the question of 'no-retrospectivity' will be obiter and is best left over to a case which requires its decision. It is extremely doubtful that there will be any such case. None has clearly arisen so far even though the argument has been known about and discussed for a very long time. With this in mind, I will confine my further observations to the minimum likely to assist the evaluation of the argument if it should be raised again.

    The Lincoln City case gave rise to a discussion of the 'declaratory' theory of common law judgments and strongly supported it. This is not the same as the rightly condemned 'fairy story' that the common law is static and unchanging. The common law develops as circumstances change and the balance of legal, social and economic needs changes. New concepts come into play; new statutes influence the non-statutory law. The strength of the common law is its ability to develop and evolve. All this carries with it the inevitable need to recognise that decisions may change. What was previously thought to be the law is open to challenge and review; if the challenge is successful, a new statement of the law will take the place of the old statement.

    Two things follow from this. The first is that judicial decisions are not infallible or immutable. The doctrine of precedent recognises this and caters for it. Decisions of lower courts are not binding on higher courts. Even your Lordships' House is able to depart from its previous decisions. Any decision is open to re-evaluation and reinterpretation. The second is that lawyers are well aware of this. They know that it is open to a client who is not satisfied with the existing state of the law to challenge it in litigation. This is done in a subtle way the whole time; only very occasionally will it be necessary or wise to do it head-on. But the choice is always there even though it will only be very rarely indeed that it is worth pursuing.

    The constitutional role of the courts is to decide disputes and grant remedies. The disputes will include disputes whether a previous decision still represents the law and should be followed or over-ruled. It is a denial of the constitutional role of the courts for courts to say that the party challenging the status quo is right, that the previous decision is over-ruled, but that the decision will not affect the parties and only apply subsequently. They would be declining to exercise their constitutional role and adopting a legislative role deciding what the law shall be for others in the future. This anomaly is also illustrated by the law of precedent and the concept of ratio decidendi which it uses. Such a decision would by definition not be part of the ratio decidendi of the case and therefore would not constitute an authoritative decision.

    There is an exception to this, decisions on the practice and procedure of the courts. Here it is proper for the courts to control their own procedure and in doing so to decide that previously approved or acceptable practices shall not be followed in the future although the parties were not to be penalised for following the existing practice. The reason for this is that in relation to procedure the courts do have a legitimate quasi-legislative function and in exercising it are not in terms dealing with the substantive rights of the parties (although, of course, the dividing line may be a narrow one). The law of remedies can also provide an exception to the general rule.

    If in individual cases the declaratory principle presents a problem for doing justice between the parties before the court, the right response in my view is to consider why this is and then to decide what is the appropriate response for those parties. The Lincoln City case itself did so in considering what remedy to grant for mistake of law. In commercial law consideration has had to be given to the fact that parties may have contracted on the basis of a particular state of the law or that risks may have been assessed in reliance on previous decisions as to how they should be borne. The possible situations that may arise are diverse. The arguably adverse consequences will be just as likely to arise between parties other than those involved in the case in which the declaratory judgment was given: such consequences and the appropriate way in which to respond to them must be considered and decided in subsequent litigation. It may be thought that they are best accommodated by an approach which recognises the essentially declaratory nature of a judicial decision but then addresses any additional problem of doing justice to the individual parties before the court rather than adopting a non-retrospective approach which then has to be subject to exceptions as the experience in the United States has shown. (eg, see Chevron Oil Co v Huson (1971) 404 US 97.)

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