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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brooks, R (on the application of) v The Independent Adjudicator & Anor [2016] EWCA Civ 1033 (28 October 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/1033.html Cite as: [2016] EWCA Civ 1033 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Mrs Justice Laing
CO47002012
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE McCOMBE
____________________
REGINA ( on the application of Matthew BROOKS) |
Claimant/ Respondent |
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- and – |
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THE INDEPENDENT ADJUDICATOR -and- SECRETARY OF STATE FOR JUSTICE |
Defendant Interested Party/ Appellant |
____________________
Caoilfhionn Gallagher (instructed by The Howard League for Penal Reform) for the Claimant/Respondent
The Defendant did not appear and was not represented.
Hearing date: 13 October 2016
____________________
Crown Copyright ©
Lord Justice McCombe:
"An inmate is guilty of an offence against discipline if he -…
(20) …is present at any place where he is not authorised to be;".
"…a District Judge (Magistrates Courts) or Deputy District Judge (Magistrates Courts) approved by the Lord Chancellor for the purpose of inquiring into a charge which has been referred to him."
The claimant's case (and the cases of the other detainees similarly charged in respect of the incident on 2 February 2012) came before a District Judge accordingly on 1 March 2012.
"If he [the adjudicator] finds an inmate guilty of an offence against discipline the adjudicator may…impose one or more of the following punishments: …
(b) in the case of an inmate who is a short term prisoner or long term prisoner or fixed term prisoner an award of additional days not exceeding 42 days…".
"…in which the act of a public authority which is done in good faith on the reasonably assumed legal validity of the act of another public authority, is not ipso facto vitiated by a later finding that the earlier act of another public authority was unlawful…".
Mr Murray referred us in this context (among other materials) to Boddington v British Transport Police [1999] 2 AC 143, 164-165 and 172-174, Percy v Hall [1997] QB 924 at 943, 947 and 950-1, Mossell v Office of Utilities Regulations & ors [2010] UKPC 1. This difficult subject is most helpfully summarised in Wade & Forsyth on Administrative Law 11th Edn. (2009) pp. 251 et seq.
"… (a) any period which he must serve before becoming entitled to…release…
is extended by the aggregate of those additional days".
"…a short-term prisoner who has served half his sentence and a long-term prisoner who has reached his non-parole date have a statutory right to free, a conditional right, but nonetheless a right, breach of which gives an enforceable right of redress".
However, it is submitted for the Secretary of State that there was no such statutory right to be free at the original "half-time" date because of the express provision to the contrary to be found in section 257.
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right",
Section 6(2) provides that,
"(2) Subsection (1) does not apply if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently… ".
Section 7 of the same Act provides that,
"7 – Proceedings
(1) A person who claims that a public authority has acted…in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is…a victim of the unlawful act."
Section 8 then provides that,
"8. Judicial Remedies
(1) In relation to any act…of a public authority which the court finds is…unlawful, it may grant such relief or remedy, or make such other order, within its powers, as it considers just and appropriate….
(6) In this section –
"unlawful" means unlawful under section 6(1)".
"…the evident purpose of section 6(2) is to preserve the sovereignty of Parliament... If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation…".
It was submitted that where a provision of primary legislation forced an authority to act in breach of Convention rights, this should lead to a declaration of incompatibility (i.e. under section 4 of the Act). The 2003 Act, as I understood the submission, could not bar a remedy under Article 5 in this case.
"42. This provision has been considered by Strasbourg over the years and is not itself intended to provide compensation for those whose convictions have been quashed on appeal but which had been reached by a lawfully constituted court. In Krzycki v Germany (1978) 13 DR 57, 61 the Commission made it clear:
"Article 5.1(a) does not require a 'lawful conviction' but only speaks of 'lawful detention'. This detention must be ordered 'in accordance with a procedure prescribed by law' as article 5(1) lays down. Consequently the Commission has always refused to consider applications of prisoners who have been convicted and sentenced in accordance with a procedure prescribed by law and who complain that their conviction was based on error of law or fact (Decisions on the admissibility of Applications Nos 458/459, Yearbook 3, pp 222, 232; 1140/61, Coll of 8 December, pp 57, 62)."
"43. The European Court of Human Rights underlined that proposition in Benham v United Kingdom 22 EHRR 293 which concerned the quashed committal of an unrepresented defendant to prison for non-payment of the community charge. Although tests which permitted committal were found not to have been satisfied, the court concluded that there was no breach of article 5.1 because the lawfulness of detention was a matter of national, domestic law.
44. The court went on to adopt the distinction drawn by the House of Lords in In re McC (A Minor) [1985] AC 528 between custody decisions which are, on the one hand, voidable because they are wrong in law by reason of errors within jurisdiction and, on the other hand, those which are void ab initio and ex facie because they are so wrong in law as to be outside or in excess of jurisdiction. These were summarised in the Benham case in this way, at para 25:
"In its judgment [i e that of the House of Lords], a magistrates' court acted in excess of jurisdiction in three circumstances only: (I) if it acted without having jurisdiction over the cause, (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent."
45. The Benham case goes on to make it clear what is meant by lawful detention. It does so in these terms, at para 42:
"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 retrospectively affect the validity 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 (see Bozano v France (1986) 9 EHRR 297, para 55, and the Report of the Commission of 9 March 1978 in Krzycki v Germany (1978) 13 DR 57, 60-61)."
"Consider two extremes of a very wide spectrum. Jurisdiction meant one thing to Lord Coke in 1613 when he said in the Marshalsea Case (1613) 10 Co. Rep. 68b, at p. 76a:
"when a court has jurisdiction of the cause, and, proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the court who executes the precept or process of the court, no action lies against them. But when the court has not jurisdiction of the cause, there the whole proceeding is coram non judice, and actions will lie against them without any regard of the precept or process…
The Court of the Marshalsea in that case acted without jurisdiction because, its jurisdiction being limited to members of the King's household, it entertained a suit between two citizens neither of whom was a member of the King's household. Arising out of those proceedings a party arrested "by process of the Marshalsea" could maintain an action for false imprisonment against, inter alios, "the Marshal who directed the execution of the process." This is but an early and perhaps the most quoted example of the application of a principle illustrated by many later cases where the question whether a court or other tribunal of limited jurisdiction has acted without jurisdiction (coram non judice) can be determined by considering whether at the outset of the proceedings that court had jurisdiction to entertain the proceedings at all. So much is implicit in the Lord Coke's phrase "jurisdiction of the cause."
The implication is that if the court had been acting within its jurisdiction in that case there would have been no false imprisonment. Lord Bridge contrasted this case with the excess of jurisdiction found in Anisminic Ltd. v Foreign Compensation Commission [1969] 2 AC 147.
"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 court or pursuant to the exercise of statutory powers." (Italics added).
In that case, the governor had misconstrued the relevant statutory provisions, albeit in accordance with existing case authority. He was not acting pursuant to the court order or complying with any other order or direction made in exercise of statutory powers.
Lord Justice Jackson:
Note 1 We were informed that he served only 11 rather than 14 additional days, as his release would otherwise have fallen upon a bank holiday weekend. [Back]