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Cite as: [2015] 1 WLR 354, [2015] WLR 354, [2014] EWHC 569 (QB), [2015] PTSR 72

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Neutral Citation Number: [2014] EWHC 569 (QB)
Case No: TLQ/13/0974


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


Kenneth McCreaner
- and -

Ministry of Justice


Philip Rule (instructed by Mark Williams Associates ) for the Claimant
Cathryn McGahey (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 27-29 January 2014



Crown Copyright ©

    Mr Justice Cranston:


  1. This is a claim for damages by a former prisoner. He contends that following the Supreme Court judgment in Noone [2010] UKSC 30; [2010] 1 WLR 1743, he was not released under home detention curfew ("HDC") as he should have been, through the fault of the Ministry of Justice. HDC is a scheme whereby prisoners are released early on curfew, which is monitored by the prisoner wearing an electronic device (a tag). He contends that he spent almost 4 months longer in prison than he should have and that he should be compensated for this. The claimant has pleaded his case as false imprisonment, negligence, misfeasance in public office and breach of the Human Rights Act 1998. In my view the claims in false imprisonment, misfeasance and breach of Convention rights go nowhere. Nor does the attempt to make the Ministry of Justice liable in negligence for the development and adoption of policy in the light of Noone and for the process of identifying him as a beneficiary of the Supreme Court judgment. However, there was a subsequent period of 6 weeks where in my view he was unlawfully detained as the result of the negligence of the prison in failing to ensure that his case received the priority required by the Ministry of Justice's policy.
  2. At the hearing of the claim most of the time was occupied by legal submissions. The evidence of the claimant and his daughter was unchallenged. But short oral evidence was given by the claimant's solicitor, Penelope Hunter. I also heard evidence from Chris Potter, who is responsible for HDC policy in the Sentencing Policy and Penalties Unit of the Ministry of Justice, and from Deborah Martin, who was employed by HM Prison Service for many years and at the relevant time worked as the offender management manager in the custody office at HMP Wayland, where the claimant was detained.
  3. Background

  4. On 10 December 2009, at the Crown Court at Blackfriars, the claimant was sentenced for burglary, breach of a suspended sentence order of 12 months and shoplifting committed to the Crown Court by the Magistrates' Court. HH Judge Worsley imposed 12 months imprisonment for the burglary, activated the suspended sentence in full, and imposed 2 months' imprisonment for the shoplifting, all the sentences to run consecutively. In the ordinary course of events that would be the order in which the judge pronounced sentence, with the burglary first and the shoplifting last. The aggregate sentence was 26 months' imprisonment. The claimant was credited with 57 days which he had spent in custody on remand. With that reduction his sentence thus expired on 13 December 2011. His statutory release date on licence was 13 November 2010, the half way point of the sentence.
  5. The claimant was initially imprisoned at HMP Wormwood Scrubs. He was naturally interested in HDC, which would mean release earlier than the half way point. On inquiry he was told that his HDC eligibility date was 1 June 2010 and that is what he told his family. In April 2010 he was transferred to HMP Wayland. He was informed that his sentence had been recalculated and he was not eligible for HDC. That was because of the way calculations for HDC were then being made. Prisoners were assumed to serve their sentences in the order in which they were pronounced; short sentences could not be aggregated, or "single-termed", with longer sentences; and his last sentence (for the shoplifting) was too short to be eligible for HDC. The claimant lodged an internal complaint. He was especially concerned about his HDC eligibility date because of what he had told his family and his fear that they would think his own behaviour in prison had led to any delay in his release.
  6. The Supreme Court decision in Noone [2010] UKSC 30; [2010] 1 WLR 1743 (of which more below) was handed down on 30 June 2010. In short the Supreme Court overturned the Court of Appeal and held that Miss Noone – and hence this claimant – was entitled to HDC. Permission for Miss Noone to appeal the Court of Appeal judgment to the Supreme Court had been given over six months earlier. No contingency planning had been undertaken in the Ministry of Justice should the Supreme Court find against it. The explanation Mr Chris Potter of the Ministry of Justice gave in his evidence was that although it would have been possible to identify in advance all prisoners who may have been affected, resource pressures precluded it. It was a complex area and it was better to wait for a definitive answer from the Supreme Court. Mr Potter added that the Supreme Court decision, reading words into the legislation, was unexpected. Once the Supreme Court had given judgment in Noone, however, its importance was immediately obvious and it was clear recalculations of prisoners' sentences would be necessary.
  7. On 1 July 2010 the Ministry of Justice wrote to prison governors that the Supreme Court judgment in Noone had implications for HDC eligibility dates and sentence and licence expiry dates in cases where a prisoner had been sentenced to a term of less than 12 months for an offence, which was to run consecutively to, or concurrently with, a term of 12 months or more for another offence. The full implications of the judgment were being worked through, and a revised Prison Service Instruction would be issued shortly, but in the meantime:
  8. "Governors should identify current prisoners and any prisoners sentenced following the issue of this note who are subject to a term of less than 12 months (or a single term comprising multiple under 12 month sentences) which is to run consecutively to, or concurrently with, a term of 12 months or more (or vice versa) so each establishment will be in a position to quickly recalculate [sentence and licence expiry dates] and HDC [eligibility dates] as soon as the new guidance is issued."
  9. At HMP Wayland, where the claimant was imprisoned, work began to identify relevant prisoners. The evidence of Mrs Deborah Martin, who had overall responsibilities at HMP Wayland, including prisoner sentence planning and management, risk reduction, resettlement and the custody process, was that the custody office there did this by examining the files of newly arrived prisoners, and of those being considered for other reasons, to see if HDC eligibility re-calculation was needed. The work of identifying prisoners was fitted around the other work of the custody office which included calculating release dates for prisoners generally. She said that she understood the vital importance of exercising great care in calculating sentences correctly to avoid unlawful imprisonment and delaying prisoners their proper release. Mrs Martin accepted that the obvious risk to prisoners from a failure to calculate their lawful sentence was a loss of liberty, and that it was foreseeable that a delay in recalculating sentence dates could lead to a delay in their release. As regards HDC eligibility dates, and the Noone judgment, parts of which she read, Mrs Martin said that she quickly recognised the impact that delay could have on the release of those eligible for HDC, but who had previously been wrongly said to be ineligible as having one unduly short sentence, which had not been aggregated with longer sentences. However, she accepted that at that stage in July and early August there was no momentum at HMP Wayland in addressing the issue. In the course of her evidence she referred to HDC as being a privilege.
  10. On 13 August 2010 the Ministry of Justice issued a draft of Prison Service Instruction 55/2010 for urgent dissemination. It was to give guidance to staff calculating sentences in the light of Noone. In his evidence Mr Potter explained that 6 weeks elapsed from when that judgment was handed down to issue of the draft because of the complexities of the issues. He said that there was always a danger of making matters worse by acting precipitately. Data collected at the time showed that over 5000 prisoners were potentially affected by the judgment, including more than 3000 requiring a recalculation of their HDC eligibility date. The other categories of prisoners affected by the Supreme Court judgment included those liable to removal from the United Kingdom, those recalled to prison for breach of licence conditions and those subject to a detention and training order. Mr Potter added that consideration also needed to be given to the transitional arrangements necessary for those found as a result of Noone to be serving more than 4 years and therefore presumed unsuitable for HDC. In fact it is a notable feature that one effect of the Noone decision was that some recalled prisoners had their sentence expiry date extended. Mrs Martin gave an example at HMP Wayland of a prisoner who had his sentence extended by 27 months. She explained the difficulties that her team faced in breaking that type of message to prisoners.
  11. The draft Prison Service Instruction stated that, for some, Noone would immediately result in a new HDC eligibility date which had already passed, or was imminent, "so those cases would need to be prioritised and processed as quickly as possible". Where HDC eligibility dates had passed offender managers had to ensure that home circumstances requests were prioritised to deal with the earliest eligibility dates first. Under the heading "Application" the draft stated that staff should familiarise themselves with the instruction and "implement the changes with immediate effect" (para. 1.16). Dates had to be reviewed. On its front page, the policy's "effective date" was 13 August 2010. Mandatory actions included giving immediate effect to the instruction (para. 1.19).
  12. The Governor and staff at HMP Wayland decided not to undertake any recalculations until a Prison Service Instruction was published in final form. In her evidence Mrs Martin confirmed that she was aware of what the draft Prison Service Instruction said, but that along with other Governors her Governor decided not to implement it until it was approved by the National Offender Manager Service Board. Draft instructions in the past had been amended in their final form. No enquiry was made with the Ministry of Justice to confirm whether they should wait. Although no steps were taken to implement the draft, prison staff continued to identify potentially affected prisoners in the way described earlier.
  13. On 20 August the Ministry of Justice sent an email to all prisons. It explained that this was in the light of "quite a few queries" received and "for the avoidance of doubt". Although the 13 August document was a draft PSI, the email instructed prisons to implement it immediately with a target date of 1 September. Prisons were informed that if a prisoner's dates were not recalculated in line with the Supreme Court's judgment, "it would be a contempt of court and the unamended dates would be unlawful."
  14. In her evidence Mrs Martin stated that over the Bank Holiday weekend, 26-31 August 2010, four members of staff at HMP Wayland came in and worked to identify prisoners who required eligibility recalculation. During the time no other work was done. In order to identify the 140 relevant prisoners at HMP Wayland, the staff had to review the sentences of some 800 prisoners. The calculation for the claimant, evident from the calculation sheets, was that he had become eligible almost 2 months previously, in early July. There is no evidence from the prison as to how many of the 140 were like the claimant, beyond their HDC eligibility date. The claimant asserts very few would have required a higher priority than he did.
  15. At some point the claimant received a letter from the HMP Wayland prison authorities dated "August 2010" and headed "Supreme Court Judgment". Although it gave the claimant's correct sentence expiry date, it read: "No, you are not eligible for HDC." On 1 September 2010 the claimant made an internal complaint asking why he did not qualify for HDC. The prison replied on 7 September:
  16. "You are eligible for HDC under the new provisions so we are unsure where you have got the information that you are not eligible for HDC. A [form] HDC2 was sent to you on 2 September which we are waiting for to be returned."

    In fact the claimant had received the form and his unchallenged evidence was that he had forwarded it the same day or the next morning. He gave the address he had lived at for 30 years, an address he had used in 1999 for HDC release from HMP Wayland, which he had completed successfully. For reasons not satisfactorily explained it was not received in the custody office until 9 September. That day the prison says that the request on an HDC3 form was sent to the London Probation service central contact point for onward transmission to the local probation office in Tower Hamlets.

  17. Meanwhile, on 13 August 2010 the claimant had instructed a solicitor, Penelope Hunter. She inquired of the prison on 28 September 2010 why they had written to the claimant stating that he was not eligible for HDC. (Ms Hunter gave evidence that the delay in her acting when she had been instructed in mid August was most likely because she needed approval for public funding from the Legal Services Commission). In response to the letter HMP Wayland stated in a letter of 30 September that he was eligible, that his case was being treated as a priority and that the prison was only awaiting a return of the community offender manager report. On 5 October HMP Wayland chased the London Probation service for its report. The claimant complained on 7 October as to why the probation service was taking so long when he had lived at the address for 30 years. Ms Hunter wrote herself to the probation service in Tower Hamlets on 12 October, urging speed. The probation service informed her that they had only received a request on 6 October and their report was not due until 20 October.
  18. On 15 October Ms Hunter wrote a letter before claim, threatening judicial review proceedings. She was concerned that the prison was not acting speedily and asked it to consider compassionate release or the power for special remission. On 18 October 2010 HMP Wayland chased the probation service again. Its report was received the following day. In her evidence Mrs Martin confirmed that nothing was done particularly to treat the claimant's case differently to any standard HDC process; he was treated like all the others. She explained about what she described as the pressure in the probation service; she did not press them to give the matter priority. On 26 October 2010, or earlier, the claimant's case was reviewed by the Governor of HMP Wayland and he authorised release on HDC. On 28 October 2010 the claimant was released on HDC, only 16 days before his release date in any event.
  19. Normally, release on HDC is a 10 week process. Ten weeks before the HDC eligibility date prisoners are asked for information on their proposed home address and the papers reviewed. That takes two weeks. That information is then forwarded to a prisoner's local probation service, which needs to check a range of matters including whether it is possible to monitor the prisoner electronically at that address. Five weeks into the cycle a précis of the offender manager's report and other elements of risk is completed. Seven weeks into the cycle there is an enhanced assessment of risk by the prison's HDC Board. Two weeks prior to release the prisoner is informed. In this case the claimant's cycle was 8 weeks, not 10 weeks.
  20. The claimant lodged this claim in June 2011. The matter was to be heard in March 2012 but very shortly before the trial both sides agreed it should be adjourned in the light of Jama v Home Office [2012] EWHC 533 (QB), which had just been handed down. Subsequently the parties could not agree on future progress of the case and the matter went before a Master in July 2013. The claimant alleges that he suffered depression as a result of his delayed release and that it impacted severely on his relations with his family because they did not believe that his delayed release was not his own fault. The claimant asserted before me that the Prisons and Probation Ombudsman had no jurisdiction over his claim or if it did it could not offer effective or practical relief, an assertion disputed by the Ministry of Justice. Neither side produced any evidence about the matter.
  21. In broad outline the claimant's case is that HDC is a part of the normal progress of a determinate-sentenced prisoner who is not presumed to be unsuitable. The claimant was within a category of prisoner eligible to be released under HDC licence 135 days before what would otherwise be his earliest release date. If his sentence had been lawfully calculated and the discretion lawfully exercised as to HDC release he would have been released on 1 July 2010. (The Ministry of Justice asserts his eligibility date was 2 July; I assume in his favour that it was 1 July). But the Ministry of Justice failed to make the correct and lawful calculation which led to his spending some 4 months (119 days) in prison longer than he should.
  22. Home Detention Curfew and Noone

  23. The Home Detention Curfew ("HDC") scheme was introduced in 1999 as a result of section 33A of the Criminal Justice Act 1991 ("the 1991 Act") (added by the Crime and Disorder Act 1998). The later statutory framework is provided for by section 246 of the Criminal Justice Act 2003 ("the 2003 Act"). At the relevant time it read (in its relevant parts):
  24. "246. Power to release prisoners on licence before required to do so
    (1) Subject to subsections (2) to (4), the Secretary of State may—
    (a) release on licence under this section a fixed-term prisoner … at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period
    (2) Subsection (1)(a) does not apply in relation to a prisoner unless—
    (a) the length of the requisite custodial period is at least 6 weeks,
    (b) he has served—
    (i) at least 4 weeks of that period, and
    (ii) at least one-half of that period.
    (3) Subsection (1)(b) does not apply in relation to a prisoner unless—
    (a) the number of required custodial days is at least 42, and
    (b) the prisoner has served—
    (i) at least 28 of those days, and
    (ii) at least one-half of the total number of those days ..."

    The section contained exceptions from eligibility in section 246(4), none of which apply in this case. The "requisite custodial period" had the meaning given by paragraph (a), (b) or (d) of section 244(3), which for concurrent and consecutive sentences cross-referred to sections 263 and 264. The provisions in the 2003 Act were brought into effect by the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005, Sch 2, para 14 ("the 2005 Order"). The import of these provisions is explained fully in R (Noone) v Governor of Drake Hall Prison [2010] UKSC 30; [2010] 1 WLR 1743, [60]-[61] per Lord Mance.

  25. The National Offender Manager Service laid down a policy designed to reconcile these various statutory provisions. Where consecutive sentences imposed fell under both the 1991 Act and the 2003 Act, they were not to be aggregated. Rather the policy took the first sentence of the court as the lead sentence and for HDC eligibility purposes treated the point at which a prisoner became eligible as the last sentence, or where there were two or more short sentences, by reference to the aggregate of these. The effect was that prisoners who served a short sentence first were eligible for release on HDC before the prisoners who served a long sentence first (if they were eligible at all). The policy was contained in Prison Service Order 6700, as amended by Prison Service Instruction 31/2003. The amendment in PSI 31/2003 had increased the period of HDC eligibility to up to 135 days before the date the prisoner was otherwise entitled to release.
  26. PSO 6700 states that for those who are eligible, HDC is considered part of the normal progression through sentence.
  27. "For most eligible prisoners HDC will be a normal part of their progression through their sentence. They will normally be released on HDC unless there are clear grounds to indicate that they are unlikely successfully to complete the period on curfew. However, prisoners must pass a risk assessment and have suitable accommodation approved by the Probation Service before they can be granted Home Detention Curfew."

    PSO 6700 explains that where possible the risk assessment for HDC must be commenced ten weeks before a prisoner's eligibility date. Paragraph 5.8.1 contains a sample timetable for completing the assessment process. Unless prisoners have requested not to be considered they must normally be released on HDC unless there are substantive reasons for retaining them in custody until their release date. The reasons are an unacceptable risk to the victim or members of the public; a pattern of offending which indicates a likelihood of re-offending during the HDC period; a likelihood of failure to comply with the conditions of the curfew; a lack of suitable accommodation for HDC; and shortness of the potential curfew.

  28. In R (Noone) v Governor of Drake Hall Prison [2008] EWHC 207 (Admin) there was a challenge to the calculation of the claimant's eligibility period for HDC, when there were consecutive sentences, some being longer than 12 months and imposed under the 2003 Act, some being shorter than 12 months and under the 1991 Act. Mitting J (applying R (Highton) v Governor of Lancaster Farm YOI [2007] EWHC 1085 (Admin)) held firstly, that it was not possible to aggregate consecutive sentences under the 1991 Act and 2003 Act to produce a single term to which the provisions of both Acts applied to determine the mid-point of the sentence, and thus the point before which the power to release on HDC could be exercised. Secondly, Mitting J held that the policy for calculating HDC eligibility was unlawful. In a reserved judgment on 28 October 2008, the Court of Appeal disagreed on the second point: [2008] EWCA Civ 1097; [2009] 1 WLR 1321. Scott Baker LJ held that although it was objectionable for the Home Office to be laying down policy as to when prisoners were eligible for release from prison, the policy in fact followed sentencing practice. It was inevitable that when passing consecutive sentences the judge would identify which was the sentence to be served first, the lead sentence: [51]. In submissions, the Secretary of State identified five different ways in which the relevant legislation might be applied: [26]. The court refused leave to appeal but the Supreme Court gave leave on 9 December 2009. The Supreme Court allowed the appeal on 30 June 2010: [2010] UKSC 30; [2010] 1 WLR 1743. It gave a purposive construction to the 2005 Order and read words into it. The effect was that consecutive sentences were aggregated and the order in which individual sentences were imposed did not matter. A prisoner qualified for the maximum grant of home detention curfew. At the same time a prisoner was subject to the latest sentence (and licence expiry date) given the sentences imposed. As a result some prisoners were released later than they expected.


    False imprisonment

  30. The claimant contends, firstly, that he was falsely imprisoned for the 119 days between 1 July 2010, when under the Noone judgment he became eligible for HDC, and 28 October 2010, when he was actually released. Had the claimant been treated lawfully he would have been released on licence subject to HDC on 1 July. The Ministry of Justice did not treat him lawfully, either because it fell down in its duty to calculate the sentence correctly or because it failed to exercise lawfully the discretion given to it. In Mr Rule's submission either way the imprisonment was false and a tort because the Ministry of Justice had not discharged the onus on it to justify the imprisonment.
  31. The tort of false imprisonment is established on the claimant proving the fact of the imprisonment and the defendant failing to establish lawful authority to justify it: R v Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58, 162 C-D, per Lord Bridge; R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 2 AC 245, [65]-[66], per Lord Dyson. The leading case in this area is R v Governor of Brokhill Prison ex p Evans (No 2) [2001] 2 AC 19, where the prison governor in calculating the prisoner's automatic release date had detained the claimant in accordance with existing case law on how to credit days on remand for those serving concurrent sentences. That was 59 days beyond what was subsequently held to be her automatic release date. The House of Lords held that the prison governor was liable for false imprisonment, despite acting in good faith.
  32. For the claimant Mr Rule submitted that there was no difference between Evans, which dealt with an automatic release date, and the claimant's case, where release on HDC turned on the exercise of a statutory discretion. Mr Rule rejected the Secretary of State's case that the claimant's imprisonment was lawful until his automatic release date on 13 November 2010. He accepted that the court's sentence authorised the claimant's detention for a total of 26 months. However, he contended that that could not require the claimant's detention for any specific period because any sentence is subject to the statutory release regime (normally, the half way period); potential earlier release on HDC; potential release under prerogative or by special remission; and potential compassionate release. Any sentence takes effect subject to these factors. The sentence imposed in the claimant's case of 26 months imprisonment must to that extent be understood to be a potential, not an actual, period regarding the time which he would expect to spend in custody. Detention cannot remain lawful pursuant to the original sentence if there are public law errors in calculating the release date. There is a distinction drawn between what may be lawful detention pursuant to the court order following sentence, and what is the necessary lawful administration and execution of the sentence. To justify imprisonment as lawful there must be both the warrant to authorise it and a lawful sentence calculation and lawful exercise of discretion such as actually requires the detention.
  33. In my view public law error in calculating a prisoner's release date can mean that the Ministry of Justice is unable to justify imprisonment and the tort of false imprisonment is established. Public law error would include not acting in accordance with a proper understanding of the law and the wrongful exercise of a discretion (acting for an improper purpose, taking account of irrelevant factors, exercising a discretion in a Wednesbury unreasonable manner and so on). There is support for this in the Supreme Court's decision in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, involving the detention of foreign national prisoners under immigration powers. The court held that the claimants there had an action in false imprisonment because the power to detain had not been lawfully exercised, being pursuant to an unlawful policy and thus in breach of public law principles: [63], [65]-[66], [69], per Lord Dyson; [175], per Lord Hope; [207]-[208], [210], per Lady Hale. See also R (SK Zimbabwe) v Secretary of State for the Home Department [2011] UK SC 23, [2011] 1 WLR 1299, [40], [42], [46], per Lord Hope; [69], per Lady Hale.
  34. However, Mr Rule faces two difficulties in this case. The first is that he has to establish public law error. Certainly until 30 June 2010 the Ministry of Justice calculated the claimant's HDC release date in accordance with a policy which the Supreme Court decision in Noone held was unlawful. But since the claimant did not become eligible under the lawful policy until 1 July that did not matter. After 1 July those detaining him knew that the policy was unlawful. Prisoners like the claimant continued to be held, however, not under what was now an unlawful policy but until their lawful release dates could be calculated. There was a delay in calculating what precisely was the claimant's HDC release date in accordance with the Supreme Court judgment. That certainly led to the claimant's imprisonment beyond 1 July which subsequently a lawful calculation concluded was the date from which he was eligible to be released. But delay of itself does not constitute public law error; something more is required. Delay must flow, for example, from acting for an improper purpose or it must be irrational in a public law sense: see J Auburn, J Moffett, A Sharland, Judicial Review (Oxford, 2013), 239. On the facts of this case I cannot conclude that those high thresholds are met. At one point in his oral submissions Mr Rule suggested systemic error, in that thousands of prisoners were affected by the need to recalculate eligibility dates. The argument was not developed but I cannot see how numbers alone can constitute the Ministry's actions as systemic failure.
  35. The second road block to Mr Rule's submission are the decisions of the Divisional Court and the Court of Appeal in R (Francis) v Secretary of State for Justice and Secretary of State for the Home Department [2011] EWHC 1271 (Admin); and [2012] EWCA Civ 1200. That was a judicial review concerned with the lawfulness of the Secretary of State's refusal on 13 October 2009 to release a foreign national prisoner on HDC. She sought public law relief although subsequent to the Divisional Court hearing she added a claim for damages for false imprisonment. The date on which ordinarily she was eligible for HDC was 27 July 2009, 135 days before 8 December 2009, when she was entitled to be released on licence at the half way point in her sentence. As a foreign national prisoner, however, she could be detained under immigration powers for deportation. The Secretary of State decided that she was liable to deportation on 11 November.
  36. The Divisional Court rejected the submission that the refusal decision on 13 October was unlawfully delayed. If that were wrong, Toulson LJ said this of the claim that her detention constituted the tort of false imprisonment under domestic law, and a breach of article 5(1) of the European Convention on Human Rights ("ECHR" or "the Convention"):
  37. "[41]…Even if the Justice Secretary's refusal of her application for HDC was an unlawful exercise of his discretion, her detention during the relevant period continued to be detention pursuant to a sentence lawfully passed. It was therefore neither tortious under domestic law nor in breach of article 5.1 , which excludes "the lawful detention of a person after conviction by a competent court". A person sentenced to a determinate sentence of imprisonment is required by law to serve the requisite custodial period, subject to the Justice Secretary's discretion to allow earlier release. A breach of the Justice Secretary's public law duty in the exercise of that discretion does not affect the continuing validity of the sentence or the length of the requisite custodial period: cf. R (Noorkoiv) v Home Secretary [2002] EWCA Civ 770, [2002] 1 WLR 3285 and R (James) v Home Secretary [2009] UKHL 22, [2010] 1 AC 553."

    Lloyd Jones LJ agreed. The Court of Appeal adopted the same approach: [35], per Pill LJ; [61], per Lloyd LJ.

  38. Mr Rule sought to distinguish Francis from the present case and submitted that the conclusion there as to the lawfulness of detention was obiter (detention having been found in that case to be lawful); Francis involved errors of fact and not law; and the conclusion was based on authorities which did not justify it. As to the first argument, even if the statements were obiter, I would be loath to ignore them given the curial hierarchy which underlies our common law system. Effectively I have already dealt with the second argument: in my view the error in the present case cannot be said to constitute an error of law because, after 1 July, the claimant was held not under the old policy but pursuant to the court's sentence until his correct eligibility date could be calculated.
  39. The third argument involves brief consideration of the authorities referred to in Francis, notably R (James) v Secretary of State for Justice [2007] UKHL 22; [2010] 1 AC 553 and Noorkoiv v Secretary of State for the Home Department [2002] EWCA Civ 770; [2002] 1 WLR 3284. In Mr Rule's submission neither case related to the exercise of a discretion, as in Francis. James was concerned with article 5(4) ECHR and the public law failure to provide coursework to indeterminate prisoners to enable speedy demonstration of reduced risk, which would not impact on the lawfulness of the custody. Noorkoiv was concerned with the impact of delay in providing a parole hearing in breach of article 5(4), again not such as automatically to render continued detention unlawful. In both cases the sentence was indeterminate and thus no issue of sentence miscalculation could arise. Furthermore, the length of detention for an indeterminate prisoner rests with the Parole Board. Finally, the House of Lords accepted that even indeterminate sentences could, by reason of administrative error in the form of undue delay, become unlawful: an extreme breakdown of the system would render detention arbitrary and unlawful: James, at [15], per Lord Hope; [128], per Lord Judge CJ. Mr Rule also referred to R (Faulkner) v Secretary of State for Justice and the Parole Board [2013] UKSC 23; [2013] 2 AC 254 where Lord Reed confirmed that, for indeterminate prisoners who have not yet had their release directed by the Parole Board, a delay in providing a parole hearing did not mean that they were unlawfully imprisoned even though it prolonged their detention: [16].
  40. As I pointed out to Mr Rule in argument, it is obvious that in Francis Toulson LJ appreciated that James and Noorkoiv were not directly applicable to the circumstances of that case, hence his introduction of those cases in the passage quoted earlier in this judgment with the symbol "cf". It is also clear from the judgment of the Court of Appeal in Francis that it was well aware that James concerned an indeterminate sentence: [36]-[37]. The decision in Francis concerned both a determinate sentence and a delay in considering HDC. It is binding on this court. I accept Ms McGahey's submission on behalf of the Ministry of Justice that, bearing in mind the authorities referred to in the judgments, the experience of counsel instructed and the lack of any positive evidence to indicate that a relevant argument was not drawn to the courts' attention, I should reject the argument that the courts in Francis did not appreciate that earlier authorities to which they referred did not directly support their conclusion.
  41. Moreover, in Noorkoiv Lord Woolf CJ said that the justification for the detention of a prisoner sentenced to life imprisonment (whether discretionary or automatic or mandatory) is the sentence and not the fixing of the tariff period: [68]. The same approach was taken in James, [3]-[5], per Lord Hope, [36] per Lord Brown, [127], per Lord Judge. That detention cannot amount to false imprisonment if it is imposed pursuant to the sentence of a court is the current position in the authorities, whether the sentence is determinate or indeterminate. No reliance can be placed upon R v Governor of HMP Brockhill ex p Evans [2001] AC 19 for the contrary position, since there, as I have said, the prison governor miscalculated the date on which the prisoner was entitled to be released. At no time prior to 13 November 2010 did this claimant have a legal right to be released.
  42. As an alternative to the false imprisonment claim, Mr Rule submitted that somehow there was trespass to the person. He contended that the nature of the detention in closed conditions, as opposed to on licence subject to curfew, could not be said to have any support from the sentence passed by the court. Mr Rule cited cases such as R v Deputy Governor of Parkhurst Prison ex p Hague [1992] 1 AC 58, where Lord Ackner said that he was not prepared to accept that as a matter of general principle a person who is lawfully deprived of part only of his liberty, cannot sue in tort for false imprisonment, if unlawfully deprived of the residue or balance of that liberty: at 166H-167A. See also Iqbal v Prison Officers Association [2009] EWCA Civ 1312, [2010] QB 732.
  43. Not to put too fine a point on it, I regard this claim as misconceived. Once the claimant was lawfully imprisoned, any allegation that his imprisonment by itself amounted to a trespass to the person must fail. There is no suggestion that he suffered physical restraint, assault or any restriction other than that inherent in imprisonment. The claim, if any, must be one for false imprisonment. It is wholly artificial to concede that while the imprisonment is lawful it is somehow unlawful as a trespass to the person.
  44. Negligence

  45. Mr Rule contended that the Ministry of Justice owed the claimant a duty to take reasonable care in the administration of his sentence and in decisions concerning his release from prison. First, he attacked the policy applied to the claimant prior to Noone as wrong in law: reasonable care was required in formulating it and the Ministry of Justice selected a policy which created what the Supreme Court held were real and disturbing anomalies between prisoners who ought in fairness to have been treated similarly. Secondly, the duty to act with reasonable care also arose in light of the legal challenge to the policy. As Noone was winding its way through the courts, the Ministry had a duty to prepare contingency plans in the event the judgment of the Supreme Court decided as it did. Thirdly, the implementation of the decision to redraft the policy subsequent to the decision was one which required the Ministry to exercise reasonable care on behalf of those affected. Yet it took 6 weeks for the draft Prison Service Instruction to be issued and then in the Ministry's email of 21 July, where prisons were told they should treat it as for immediate implementation, they were given until the end of the month to complete recalculation returns.
  46. None of the Ministry's actions in my judgment can give rise to an action in negligence. In Rice v Secretary of State for Trade and Industry [2007] EWCA Civ 289; [2007] ICR 1469, May LJ considered both the assumption of responsibility approach to negligence and the three step approach in Caparo Industries plc v Dickman [1990] 2 AC 605: foreseeability, proximity and whether it is fair, just and reasonable for a duty to be imposed. He then reviewed leading cases on the negligence liability of public authorities, including Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057; Phelps v Hillingdon London Borough Council [2001] 2 AC 619; and Stovin v Wise [1996] AC 923. May LJ then said:
  47. "42. Drawing together and synthesising the threads of these authorities, a statute containing broad target duties owed to the public at large, and which does not itself confer on individuals a right of action for breach of statutory duty, is unlikely to give rise to a common law duty of care, breach of which will support a claim by an individual for damages. Such a public law duty is enforceable, if it is justiciable at all, only by judicial review. There may, however, be relationships, arising out of the existence and exercise of statutory powers or duties, between a public authority and one or more individuals from which the public authority is to be taken to have assumed responsibility to guard against foreseeable injury or loss to the individuals caused by breach of the duty. There is then a sufficient relationship of proximity and it is fair, just and reasonable that a duty of care should be imposed. In order to determine whether the law should impose such a duty, an intense focus on the particular facts and the particular statutory background is necessary"
  48. In no way can the Ministry of Justice be regarded as assuming a responsibility to the claimant individually in respect of its policy development and adoption. Rather, it was acting in the public interest. In terms of the Caparo approach, the claimant was not in a sufficiently proximate relationship with the Ministry of Justice as regards the formulation and adoption of its policies. The distinction drawn between the policy and operational aspects of a public authority's functions, although imprecise and not always an adequate tool, has some application here. These three prongs to the case in negligence are at the policy level and not justiciable.
  49. In any event, on the facts I cannot see how any breach can arise from the decision of the Ministry of Justice until 30 June 2010 to apply the existing policy (the Court of Appeal decided it paralleled a lawful approach) or from its failure to anticipate the adverse Supreme Court ruling. Until the judgment of the Supreme Court on that date this was an area of legal uncertainty, and it was only by writing words into the 2005 Order that the Supreme Court reached the outcome it did. Moreover, it seems to me reasonable for the Ministry of Justice not to have allocated resources before the judgment of the Supreme Court since the task, even of identification, would have been resource intensive, involving some 5000 prisoners, and might have proved entirely unnecessary. Nor in my view is it possible (or indeed appropriate) for a court to scrutinise through a negligence claim the time the Ministry of Justice took to analyse the decision of the Supreme Court, to work out its implications on legal advice for a wide range of prisoners, including those adversely affected through their release dates being extended, and to draft guidance in the form of a Prison Service Instruction. I accept Mr Potter's evidence that the task could not have been done more quickly. It was reasonable to take time to ensure that the consequences of the Supreme Court judgment were properly analysed.
  50. That takes us to the implementation of the policy at HMP Wayland up to early September. Mr Rule submitted that there was failure there to exercise reasonable care in the process of calculating the claimant's proper HDC eligibility date. But again on the authorities the doctrine of negligence cannot bite. There was no assumption of responsibility to the claimant as the prison worked through all of its number to identify those who might be benefited or disadvantaged by Noone. To put it another way, under Caparo there was a lack of proximity between the prison and the claimant as the prison went through the process of identifying the claimant as being a beneficiary of the Supreme Court judgment and recalculating his HDC eligibility date.
  51. There are two authorities binding on me in this regard. In W v Home Office [1997] Imm AR 302 a Liberian who had been detained in an immigration centre, pending determination of his immigration claim, sued on the grounds that officials had been negligent in conducting an interview with him and in placing the test results of another person on his file with adverse consequences for him. For the Court of Appeal Lord Woolf MR said (at 312)
  52. "The process whereby the decision-making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking it into account the defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy."

    At some point the case may need to be reconsidered since abuse or other public law error is no longer a pre-requisite to the liability of public authorities in negligence: see Gorringe v Calderdale MBC [2004] UKHL 15, [2004] 1 WLR 1057, [26],[32], per Lord Hoffmann. See also R (on the application of Kanidagli) v Secretary of State for the Home Department [2004] EWHC 1585 (Admin), [39].

  53. W v Home Office was applied by the Court of Appeal in Mohammed v Home Office [2011] EWCA Civ 351; [2011] 1 WLR 2862. There 8 Iraqi Kurds sought damages on the basis that they would have been granted the indefinite leave to remain which they eventually received at an earlier point but for, inter alia, the negligence of the Home Office either in putting their applications on hold pursuant to a priority policy subsequently held to be unlawful, or because the Home Office failed to implement the appropriate ministerial policy. Giving the judgment of the court, Sedley LJ said that while common law negligence can occur in the course of exercising a statutory duty or power, it cannot in principle occur in the actual discharge of the function and may well be inconsistent with or contra-indicated by the statutory scheme. There the Home Secretary had public duties to perform, in the course of which she was required to act in accordance with the law. The common law had not generally recognised a concurrent duty of care alongside the statutory framework. Adopting the Caparo test it was not fair, just or reasonable to do so and, as a general rule, the proximity created by a statutory relationship did not by itself create a duty of care (citing Stovin and Gorringe).
  54. As to the facts, the prison waited for central guidance from the Ministry of Justice, but that was what they were told to do on 1 July. The task of identifying those affected at the prison began. That was by fitting in the work around other duties, but obviously that other work included the calculation in the ordinary way of release dates for all prisoners eligible to be released. HMP Wayland decided not to implement the Prison Service Instruction in its draft form but that was like other prisons because drafts of other Prison Service Instructions had had to be amended in the past. The draft Prison Service Instruction issued on 13 August 2010 was marked for immediate effect, but the 20 August email set the goal for completion of recalculations by 1 September. HMP Wayland did this for the 800 relevant prisoners by the four members of staff working over the Bank Holiday weekend, when they had no other tasks to perform and could undertake the work without interruption. Even were a duty of care to apply in this context, I cannot see how a claim for breach would succeed on these facts.
  55. In my view, however, the situation changed in early September. The prison had decided that the claimant was eligible for HDC, indeed that he had been eligible from 1 July. When he complained on 2 September the prison assured him that he was indeed eligible and that it was only waiting for him to give them information on his home address for checking by probation. At that point it assumed a responsibility to him to complete the final stage of the process associated with his release in accordance with government policy. Alternatively, it came into a proximate relationship with him under Caparo and it was fair, just and reasonable for a duty of care to be imposed in this regard. The situation no longer fell under W v Home Office and Mohammed v Home Office. And in my view it was at this point that things began to go wrong; it was almost another 2 months before he was released.
  56. Before analysing the character of that delay – whether it constituted a breach of the duty of care - it is necessary to meet Ms McGahey's submission, that by reason of the direct authority of Jama v Ministry of Justice [2012] EWHC 533 (QB) no cause of action in negligence can arise through a failure to consider an individual for HDC. Although the case has a High Court reference, it involved a claim for race discrimination, justiciable only in the County Court. With the agreement of both parties, Kenneth Parker J sat as a judge of the Manchester County Court. While not binding on me, the case must be treated as having a highly persuasive quality, especially given the great knowledge of the judge in this area from his work with the Law Commission.
  57. In Jama Kenneth Parker J held that under the third step in the Caparo approach to duty of care, public policy considerations dictated that no cause of action in negligence would lie in that case. He held:
  58. "65 If the Claimant were to succeed in his claim, I do not see any principled basis upon which other victims of alleged administrative "negligent detention" could be turned away, including those in the position of the claimant in W v Home Office itself. The proliferation of claims would be potentially vast, including, within the present context alone, those who alleged that they had received a "negligent" decision on HDC or, as foreign national prisoners, on early removal from the UK, and those serving life sentences or other indeterminate sentences who alleged that they had received a "negligent" decision as to the safety of their return into the community (where imposition of a duty of care would also be flatly inconsistent with Dixon v Secretary of State for the Home Office (CA, 30 November 1998)) .
    66 … Imposing liability to pay compensation for administrative fault may lead to a deployment of resources to the targeted area that is out of proportion to the real needs of delivery of public services and, budgets not being unlimited, to a diversion of scarce resources from other parts of the public administration: See Hill v Chief Constable of West Yorkshire [1989] AC 53 at 63, by Lord Keith, Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 349, by Steyn LJ, as he then was; and, generally, Carol Harlow, State Liability, 2004 at pages 22–30. The Prison Service must meet a formidable array of demands, and must do so within ever tightening financial constraints. Disproportionate allocation of resources to HDC or early removal of foreign national prisoners would be a very great concern. It might also be noted, as a more general point, that all policy implementation is now subject to economic impact assessment: it would be a matter of considerable concern if the creation of legislative schemes such as HDC, which promote important objectives of public policy, were to be influenced by the likely prospect of having to pay compensation for any administrative failures in their operation. Finally, there is an element of distributive justice: selective extension of common law liability for administrative failure, in the absence of compelling justification, inevitably leaves other victims of maladministration wondering why their claims have failed and why they too were not beneficiaries ..."

    Kenneth Parker J added that judicial review was available for decisions on HDC, including instances of unreasonable and unexplained delay in making decisions, and the Prisons and Probation Ombudsman could make non-binding recommendations including those for the payment of compensation in an appropriate case: [67].

  59. The balance Kenneth Parker J struck between the competing policy interests, and whether he gave too little weight to what historically is one of the most protected interests in our law, the right not to be unlawfully detained, is for another day. For in my view the situation in Jama is removed from what happened to the claimant in this case. There Kenneth Parker J found as a fact that the claimant had told the young offender institution where he was detained that he was a Somalian national, when all the time he was a British citizen. In breach of policy the officers did not with reasonable diligence refer him to the Immigration and Nationality Directorate to have his nationality checked. He claimed damages for the extra time he was detained, instead of being on HDC, for which otherwise he was found to qualify. After dismissing the race discrimination claim, Kenneth Parker J said that HDC was not automatic and citing, inter alia, Toulson LJ in Francis, held that his detention remained lawful until a favourable decision had been made. He said the claimant had a very high responsibility for his own continued detention and dismissed the damages claim.
  60. Here the prison knew from late August that the claimant was eligible for HDC and his eligibility date was 8 weeks previously, in very early July. The claimant was told on 7 September of his eligibility and that what the prison needed was information about the address where he proposed to spend the curfew for checking by the probation service. Mr Rule raised in his reply the allegation that the Ministry of Justice was liable for the acts and omissions of probation staff as well as those at HMP Wayland. Without more I am not prepared to accept this since probation staff are employed by regional Probation Trusts and, under the terms of the Offender Management Act 2007, each Probation Trust is a legal entity. The focus must be on HMP Wayland, for which the Ministry is responsible, on what officers there did and whether that constituted a breach of the duty of care.
  61. For the Ministry of Justice Ms McGahey submitted that what was involved was delay and the fact that some steps could have been taken more quickly does not, in itself, indicate that it was negligent to follow the slower timetable that was in fact followed. I do not accept this. The prison was at fault and breached its duty of care to the claimant. The Ministry of Justice made plain to prisons in the Prison Service Instruction, and in the 20 July email, that they must give priority to those like the claimant already eligible for HDC. In her evidence Mrs Martin recognised the impact that delay would have on those eligible for HDC, but who had previously been said to be ineligible, and that they would suffer detention they would otherwise not have suffered. But she accepted that the prison did not give the claimant's case priority and treated it like any ordinary HDC case. There is no need to explore the reasons for this, although in the course of her evidence Mrs Martin rather worryingly described HDC as a privilege. To the contrary, for those not falling into the excluded categories, the Ministry of Justice's policy is that HDC is a normal expectation.
  62. For some reason (not explained) Tower Hamlets probation did not receive the prison's request to check the suitability of the claimant's address until 6 October, 4 weeks after the prison says it sent it to the London Probation service and almost 6 weeks after the prison knew from its calculations over the bank holiday weekend in late August that he had qualified on 1 July. Tower Hamlets probation was then given a generous deadline until 20 October to return the result of its home address inquiries when the claimant had already been released successfully to this address on HDC previously. Only after Ms Hunter became involved did the prison chase matters with the London Probation service central contact point but it was she who took the initiative to approach the local probation office in Tower Hamlets directly. Finally the Probation Service approved release on 19 October. It still took over a week after the prison received the information from the probation service on 19 October for the claimant to be released on 28 October.
  63. In my view the prison was at fault in not following the Ministry of Justice guidance. It fell well below the standard of care when the claimant had long passed what was known to be his HDC eligibility date. All that was required to do was to ensure the claimant's case was expedited, including with the probation service. There would have been no, or minimal resource implications, in doing this. If the prison had not been in breach of duty I estimate that at least 6 weeks could have been shaved off the period for the claimant's release on HDC. That was the period the claimant was negligently detained.
  64. There is no need for me to consider the claimant's additional suggestion that the prison was also negligent not to consider releasing the claimant on grounds other than HDC (e.g. compassionate release). In any event I accept Ms McGahey's submission that even if consideration had been given to those other avenues the Ministry had to consider factors such as whether the claimant had an appropriate address for release and what licence conditions should be applied to any release. In other words the process of obtaining the relevant information and making appropriate decisions would have been along the same lines as for HDC.
  65. Misfeasance in public office

  66. The next head of liability the claimant advanced is misfeasance in public office. The officers of HMP Wayland, for whom the Ministry of Justice is vicariously liable, committed misfeasance in public office as a consequence of which the claimant suffered loss or damage. After 1 July 2010 HMP Wayland had notice of the Noone judgment and it was plain speedy action was needed to ensure the unlawful sentence calculations of affected prisoners were remedied. By their inaction – the lack of momentum Mrs Martin described – the officers at HMP Wayland demonstrated that they did not care whether or not they were acting illegally in the wrongful sentence calculations being applied and were reckless whether the consequences of detention longer than necessary happened. Their acts or omissions were in the knowledge that there was a serious risk that the claimant and anyone in his position would suffer loss. That risk was disregarded. There was failure to take the steps which would have been taken by honest and reasonable persons, not least when the prison governor at HMP Wayland consciously decided not to act after the 13 August draft Prison Service Instruction was issued.
  67. In Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1, 191, Lord Steyn set out the two forms of the tort of misfeasance in public office:
  68. "… First, there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."
  69. Lord Steyn's analysis was approved in Watkins v Secretary of State for the Home Department [2006] UKHL 17; [2006] 2 AC 395, [22], [39] where a prisoner failed in an action for misfeasance in public office arising from prison officers opening his correspondence with his lawyers in breach of the Prison Rules. The House of Lords in that case resisted removing special damage as a requirement of the tort because alternatives existed to safeguard the interests of prisoners, in particular, the ability to commence a claim under section 7 of the Human Rights Act 1998: [26], per Lord Bingham; [64]-[65], per Lord Rodger; and [73], per Lord Walker.
  70. In London Borough of Southwark v Dennett [2007] EWCA Civ 1091; [2008] BLGR 94 May LJ considered the state of knowledge that a claimant must prove a defendant to have had as regards the second form of the tort, untargeted malice. Mere reckless indifference without the addition of subjective recklessness will not do. The claimant must identify those said to have acted with subjective recklessness. "An institution can only be reckless subjectively if one or more individuals acting on its behalf are subjectively reckless, and their subjective state of mind needs to be established": [13].
  71. This claim invokes the second form of the tort, untargeted malice. There is no evidential basis on which the claimant can allege that Mrs Martin or anyone else had the state of mind, subjective recklessness, necessary to establish untargeted malice. There is no evidence of bad faith or malice on the part of anyone. At one point Mr Rule sought to invoke the state of mind of the prison governor, on the basis of Mrs Martin's evidence about his decision to disregard the draft form of the Prison Service Instruction. But that will not do, not least because he was not called as a witness. My clear conclusion is that the misfeasance claim must fail.
  72. Human rights claims

  73. Pursuant to section 7 of the Human Rights Act 1998 the claimant contends that he is a victim of the acts of a public authority and seeks damages for the loss of liberty of 119 days and for the anxiety, distress, and frustration suffered. Three Convention rights are invoked: articles 8, 5 and 14.
  74. As regards article 8, the claimant's contention is that the Ministry of Justice was in breach of his right to private and family life occasioned first, by the decision as to his sentence calculation and secondly, the delays in providing his HDC decision and release. In advancing his submissions Mr Rule placed particular reliance on R (on the application of MP) v Secretary of State for Justice [2012] EWHC 214 (Admin). There Lang J held that Article 8 was breached in the policy on Childcare Resettlement Leave and its application to two prisoners. In my view, while article 8 was engaged in the claimant's case, the claim must fail in this court in the light of the Court of Appeal decision in R (on the application of Francis) v Secretary of State for Justice [2012] EWCA Civ 1200. That was a case involving HDC and the court held that an article 8 claim could not lie when imprisonment was lawful: [38].
  75. The decision in Francis also puts paid to the claim of breach of article 5(1) ECHR, in that the claimant's detention was allegedly arbitrary. Mr Rule referred to the Strasbourg Court's decision in James, Wells & Lee v United Kingdom (2013) 56 EHRR 12, which held that compliance with national law was not sufficient for the deprivation of liberty to be considered lawful, and there could be arbitrariness in both the order to detain and in its execution [191], [193]. Mr Rule submitted that the arbitrariness of execution of the order depriving the claimant of his liberty in this case was caused by a failure to apply the law properly or by failing speedily to determine the question of HDC release.
  76. Mr Rule was realistic in accepting that the Strasbourg approach is not reflected in domestic case law. In R (Black) v Secretary of State for Justice [2009] UKHL 1; [2009] 1 AC 949 detention pursuant to a lawfully imposed sentence of the court was held not to amount to a breach of Article 5(1): [40], per Lord Rodger; [57]-[58], per Lord Carswell. (See also [11]-[15], per Lord Hope, [51], per Lord Brown, [126]-[128], per Lord Judge in R (James) v Secretary of State for Justice [2009] UKHC 22; [2010] 1 AC 553). The House of Lords' decision in James remains binding, despite the existence of a conflict between it and the Strasbourg Court's decision in James, Wells & Lee v United Kingdom (2013) 56 EHRR 12. Until the position is resolved the present case cannot be said to constitute a breach of article 5(1).
  77. The claimant's article 14 ECHR discrimination claim is based on the discrimination which Mr Rule contended operated between (1) prisoners given concurrent sentences of 26 months and those given consecutive sentences of that length; and (2) prisoners with consecutive sentences of 26 months but where the order of pronouncement of the sentences differed. As explained earlier the HDC eligibility date could vary between those different categories. Mr Rule relied on the decision of the Strasbourg Court in Clift v United Kingdom, No 7205/07, 13 July 2010, [63]. However, he recognised that that was inconsistent with the House of Lords decision in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [28], per Lord Bingham, which is binding on this court. In Clift, the House of Lords held that the nature of an individual's sentence did not amount to "other status" in article 14 and that a prisoner could not rely on the type of sentence imposed on him in order to found a claim under it. On the current state of the law this claimant cannot bring a claim which is based in any part on reliance on article 14.
  78. Conclusion

  79. The claimant remained in prison well after his HDC eligibility date on 1 July as calculated pursuant to the Supreme Court's judgment in Noone, handed down on 30 June 2010. He fails on his claims for false imprisonment and misfeasance in public office and under the Human Rights Act 1998. He also fails to establish negligence against the Ministry of Justice in its development and adoption of policy on HDC eligibility, and also against HMP Wayland before the prison identified him as having passed his eligibility date for HDC. However, after the prison calculated in late August 2010 that the claimant was long past his eligibility date for HDC of 1 July 2010, it owed him a duty of care. It fell well short of that duty in not according his HDC application the priority which Ministry of Justice policy demanded that such applications should be given. As a result the claimant is entitled to damages for 6 weeks detention until his final release on HDC in late October 2010.

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