Law Report: Prison governor liable for false imprisonment

Wednesday Law Report: 24 June 1998 Evans v Governor of Brockhill Prison Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Roch and Lord Justice Judge) 19 June 1998

A PRISONER who had successfully challenged by judicial review proceedings the method by which release dates were calculated was entitled to damages for false imprisonment in respect of the extra days she had served, notwithstanding that the method of calculation used was, at the time, the correct method.

The Court of Appeal allowed the appeal of Michelle Carol Evans against the dismissal her claim for damages for false imprisonment in respect of 59 extra days served at Brockhill Prison, and awarded her pounds 5,000 damages.

The plaintiff, who had been sentenced to a total of two years' imprisonment, had applied, whilst still a prisoner, for judicial review of the decision of the prison governor as to her release date, and had claimed damages for false imprisonment.

On 15 November 1996 the Divisional Court (R v Governor of Brockhill Prison, ex p Evans [1997] 1 All ER 439) had allowed the application for judicial review, declaring that the plaintiff's conditional release date, as correctly calculated, should have been 17 September 1996. The plaintiff was thus released 59 days later than she should have been.

Ben Emmerson and Peter Weatherby (Graysons) for the plaintiff; Philip Sales and Michael Fordham (Treasury Solicitor) for the governor.

Lord Woolf MR said that the Divisional Court had had to decide whether, when a person was sentenced to more that one period of imprisonment to be served concurrently, the period spent in custody on remand should be deducted from the particular sentence to which the period in remand related 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. A previous line of authority had adopted the former solution while the Divisional Court in the plaintiff's case had authoritatively decided that the latter was correct.

The Divisional Court had adjourned the hearing of her claim for damages for false imprisonment. It had come before Collins J, who had decided that the plaintiff was "one in respect of whom the practice has produced injustice", but that she was not entitled to damages for the extra period spent in prison because the governor had been entitled to rely on the earlier decisions until they were held to be in error.

It had been contended for the plaintiff that the decision of the Divisional Court operated retrospectively, so that the position as a matter of law was that the extra period of detention had never been lawful. It was argued for the governor that he had been justified in applying the approach previously laid down by the courts, the error of law not being his, but that of the courts in the earlier decisions.

There was no authority for regarding a decision authoritatively overruled as still for some purposes correctly setting out what was the law. Whilst the principle of retrospectivity could be said to involve a fairy tale, it was a fairy tale which was a long- established foundation of judicial law-making within the common law system, and if it were to be undermined or weakened that should be left to the legislature or possibly to the House of Lords.

The judge's approach involved extending the court's recognition for some purposes of an executive or administrative act or a court order which had been quashed, to the different situation where a court, having authority to do so, had overruled an earlier decision of the courts so that the earlier decision no longer represented the law. Fault was not an element of an action for false imprisonment: the sole issue was whether the period in prison was, as a matter of law, justified or not.

The judge had been led into error because he had been looking at what was the just result, judged by the irrelevant consideration of blameworthiness of the governor, and accordingly his decision must be set aside.

Kate O'Hanlon, Barrister