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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Deputy Governor of Parkhurst Prison Ex p Hague [1990] UKHL 8 (24 July 1991)
URL: http://www.bailii.org/uk/cases/UKHL/1990/8.html
Cite as: [1992] COD 69, [1991] 3 WLR 340, [1991] 3 All ER 733, [1992] 1 AC 58, (1993) 5 Admin LR 425, [1992] AC 58, [1990] UKHL 8

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/251

    Regina v. Deputy Governor of Parkhurst Prison and others
    (Respondents) ex parte Hague (A.P.) (Appellant)

    JUDGMENT

    Die Mercurii 24° Julii 1991

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Deputy Governor of Parkhurst
    Prison and others ex parte Hague (A.P.), That the Committee
    had heard Counsel as well on Tuesday the 4th as on Wednesday
    the 5th, Thursday the 6th, Monday the 10th, Tuesday the 11th
    and Wednesday the 12th days of June last, upon the Petition
    and Appeal of Christopher Hague currently detained at Her
    Majesty's Prison Long Lartin, praying that the matter of the
    Order set forth in the Schedule thereto, namely an Order of
    Her Majesty's Court of Appeal of the 25th day of May 1990,
    might be reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Order might be reversed, varied
    or altered or that the Petitioner might have such other relief
    in the premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; as upon the case of the Deputy
    Governor of Parkhurst Prison lodged in answer to the said
    Appeal; and due consideration had this day of what was offered
    on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal of the 25th day of May 1990 complained of in the said
    Appeal be, and the same is hereby, Affirmed and that the said
    Petition and Appeal be, and the same is hereby, dismissed this
    House: And it is further Ordered, That the costs of the
    Appellant be taxed in accordance with the Legal Aid Act 1988.

    Cler: Parliamentor:

    Judgment: 24.7.91

    HOUSE OF LORDS

    REGINA
    v.

    DEPUTY GOVERNOR OF PARKHURST PRISON AND OTHERS

    (RESPONDENTS)

    ex parte

    HAGUE (A.P.)
    (APPELLANT)

    WELDON
    (RESPONDENT)

    v.

    SECRETARY OF STATE FOR THE HOME DEPARTMENT

    (APPELLANT)

    CONJOINED APPEALS

    Lord Bridge of Harwich
    Lord Ackner
    Lord Goff of Chieveley
    Lord Jauncey of Tullichettle
    Lord Lowry


    LORD BRIDGE OF HARWICH

    My Lords,

    There are two appeals before the House. I shall refer to
    them as the case of Hague and the case of Weldon respectively.
    They raise important questions with respect to the rights of
    convicted prisoners.

    Introduction

    The decisions of the Court of Appeal in Reg. v. Board of
    Visitors of Hull Prison, Ex parte St. Germain
    [1979] Q.B. 425 and
    of this House in Leech v. Deputy Governor of Parkhurst Prison
    [1988] AC 533 established that the courts have jurisdiction to
    entertain applications for judicial review of disciplinary awards
    made by boards of visitors and by prison governors respectively
    under the Prison Rules 1964. In both cases it had been contended,
    in effect on behalf of the Home Office, that jurisdiction should be
    declined on the ground that any interference by the courts in the
    management of prisons would be subversive of prison discipline. In
    Leech's case, as I record at p. 566B-C, Mr. Laws had urged that,
    if jurisdiction were accepted in relation to awards by prison

    governors, this would "make it impossible to resist an invasion by
    what he called 'the tentacles of the law' of many other
    departments of prison administration." In deciding the appeal your
    Lordships faced that prospect without undue alarm and I believe
    that the circumstances of the case of Hague now before the House
    show that it was right to do so. In the case of Hague both courts
    below held that they had jurisdiction to entertain an application
    for judicial review which questioned the legality of Hague's
    segregation under rule 43 of the Prison Rules 1964 and the Court
    of Appeal declared that the procedure followed pursuant to the
    terms of a Home Office circular issued in 1974 was not warranted
    by the terms of the rule and was accordingly unlawful. In your
    Lordships' House the Secretary of State, acting by Mr. Laws, has
    chosen, very sensibly if I may say so, not to pursue any challenge
    either to the assumption of jurisdiction or to its exercise by the
    declarations granted. Instead the Home Office have issued a new
    circular prescribing a new procedure to be followed in future in
    the relevant circumstances which conforms to the requirements of
    rule 43 as construed by the Court of Appeal. I believe this
    confirms the view that the availability of judicial review as a
    means of questioning the legality of action purportedly taken in
    pursuance of the prison rules is a beneficial and necessary
    jurisdiction which cannot properly be circumscribed by
    considerations of policy or expediency in relation to prison
    administration. Those considerations only come into play when the
    court has to consider, as a matter of discretion, how the
    jurisdiction should be exercised. But the issues which it is
    necessary to resolve in the present appeals relate neither to the
    scope of the courts' public law jurisdiction in judicial review nor
    to the exercise of discretion in that jurisdiction. The appeals
    raise the wholly different question whether a convicted prisoner
    who, in the course of serving his sentence, has been treated in a
    way which the rules do not permit has in any and what
    circumstances a cause of action in private law sounding in
    damages against the prison governor or the Home Office on the
    ground either of a breach of statutory duty or of the tort of false
    imprisonment.

    Hague

    I turn to recount, so far as necessary, the circumstances in
    each case giving rise to the litigation and the course of the
    litigation in the courts below. In July 1988 Hague was at
    Parkhurst Prison serving a sentence of 15 years' imprisonment. In
    circumstances which it is unnecessary for present purposes to
    relate he was thought by the Deputy Governor then in charge of
    the prison to be a trouble maker and on 8 July 1988 was ordered
    by the Deputy Governor to be transferred to Wormwood Scrubs and
    to be held there for 28 days in segregation from other prisoners.
    The order made by the Deputy Governor was formally confirmed
    by the Regional Director of Prisons on behalf of the Secretary of
    State. The order was given, confirmed and carried into effect in
    purported pursuance of rule 43 of the Prison Rules 1964 and in
    reliance on the terms of the Home Office circular to which I have
    earlier referred. Rule 43 provides as follows:

    "Removal from association

    - 2 -

    "(1) Where it appears desirable, for the maintenance of
    good order or discipline or in his own interests, that a
    prisoner should not associate with other prisoners, either
    generally or for particular purposes, the governor may
    arrange for the prisoner's removal from association
    accordingly.

    1. A prisoner shall not be removed under this rule for a
      period of more than 24 hours without the authority of a
      member of the board of visitors, or of the Secretary of
      State. An authority given under this paragraph shall be for
      a period not exceeding one month, but may be renewed
      from month to month. . . .

    2. The governor may arrange at his discretion for such a
      prisoner as aforesaid to resume association with other
      prisoners, and shall do so if in any case the medical officer
      so advises on medical grounds."

    The effect of the action taken in purported pursuance of the rule
    was that, for a period of 28 days, Hague was denied the benefit
    of association with other prisoners and various other privileges
    enjoyed by long-term prisoners who are subject to the normal
    prison regime. The regime of a prisoner segregated under rule 43
    is not, we are told, significantly different from that of a prisoner
    held in cellular confinement pursuant to a disciplinary award of
    the governor or the board of visitors under rule 51 or 52
    respectively. Hague challenged the legality of his segregation by
    an application for judicial review claiming relief in various forms
    including damages for false imprisonment. The application was
    dismissed by the Divisional Court (Ralph Gibson L.J. and Nolan J.)
    but allowed in part by the Court of Appeal (Sir Nicolas Browne-
    Wilkinson V.-C., Taylor and Nicholls L.JJ.) [1990] 3 W.L.R. 1210.
    They held that the governor of one prison had no power under rule
    43 to order the segregation of a prisoner after his transfer to
    another prison. That power could only be exercised by the
    governor of the receiving prison. They held further that the
    authority of a member of the board of visitors or of the Secretary
    of State under rule 43(2) for the continued segregation of the
    prisoner beyond the period of 24 hours could lawfully be given only
    in the exercise of an unfettered discretion both as to whether it
    should be given and if so for how long, whereas the Home Office
    circular had approved the grant by the Regional Director of
    Prisons on behalf of the Secretary of State of authority confirming
    a governor's order to detain the prisoner for a period of 28 days
    as a matter of routine. The Court of Appeal gave effect to these
    conclusions by making appropriate declarations, but refused in their
    discretion to grant orders of certiorari to quash the relevant
    orders made by the Deputy Governor of Parkhurst Prison and the
    Regional Director of Prisons on behalf of the Secretary of State.
    It will not now be necessary to consider any issue relating to this
    refusal. It was conceded by Mr. Laws in the course of argument
    that, since it has been declared that the procedure which led to
    Hague's segregation was not lawful under rule 43, neither the
    circumstance that the relevant orders were made in reliance on
    the Home Office circular nor the fact that they had not been
    formally quashed by certiorari could afford any defence to Hague's
    claim for damages if such a claim were otherwise sustainable.
    The Court of Appeal held that in the circumstances an action for

    - 3 -

    damages for false imprisonment did not lie. They granted the
    parties leave to appeal and to cross-appeal, but, as already
    indicated, no cross-appeal is presented by the Secretary of State.


    Weldon

    Weldon was in May 1984 in Leeds Prison serving a sentence
    of four years' imprisonment. In 1987 he issued proceedings in the
    Leeds County Court claiming damages against the Home Office for
    assault and battery and for false imprisonment. The relevant
    paragraph of the particulars of claim reads as follows:

    "2. On or about 9 May 1984, the Plaintiff was falsely
    imprisoned and unlawfully assaulted and battered by certain
    prison officers.

    PARTICULARS

    (i) Shortly after 5.30 pm on the said date, three prison
    officers burst into the Plaintiff's cell and without
    good cause dragged him onto the landing, where they
    were joined by three further prison officers;

    (ii) the Plaintiff was then dragged down the stairs
    (despite his request to walk) and placed in a cell in
    the punishment block;

    (iii) shortly afterwards, the Plaintiff was removed to a
    strip cell where his clothes were taken from him. He
    remained there till the following morning. During
    this time the Plaintiff was further assaulted by the
    same prison officers;

    (iv) the Plaintiff will allege that the unlawful treatment
    hereinbefore described converted pro tem a lawful
    detention into a false imprisonment."

    The Home Office applied to strike out so much of the pleading as
    alleges false imprisonment. The application was dismissed by the
    registrar and appeals by the Home Office were successively
    dismissed by the assistant recorder Mr. D.R. Wood, and by the
    Court of Appeal (Fox, Parker and Ralph Gibson L.JJ.) [1990] 3
    W.L.R. 465. The Home Office now appeals by leave of the Court
    of Appeal.

    Breach of statutory duty

    It was not open to counsel for Hague in any court below
    your Lordships' House to advance a claim to damages for breach
    of statutory duty because of the decision of the Court of Appeal
    in Becker v. Home Office [1972] 2 Q.B. 407, where one of the
    grounds on which it was held that the plaintiff failed was that a
    breach of the prison rules does not, per se, give rise to a cause of
    action. But Mr. Sedley has now put the claim for damages in the
    case of Hague on this alternative basis in the forefront of his
    argument and I think it logical to consider it first.

    On this part of the case Mr. Sedley has constructed an
    elaborate argument resting on a premise which he describes as

    - 4 -

    "the groundrule" for ascertaining whether a plaintiff has a cause of
    action for breach of statutory duty. It ail depends, he submits, on
    whether he belongs to a class which the statutory provision was
    intended to protect and has suffered a detriment in consequence of
    a breach of the duty of a kind from which the provision was
    intended to protect him. If so, then in the absence of any other
    specific provision in the statute, such as a criminal penalty, to
    enforce performance of the statutory duty, it necessarily follows,
    Mr. Sedley submits, that the law affords a remedy in damages for
    its breach. Hence the question of statutory construction is not
    the broad question whether an intention to give a cause of action
    can be inferred from the provision in question read in their
    context, but the narrower question whether the provision is
    intended to protect the interests of a class of which the plaintiff
    is a member. This then leads on to the conclusion that certain
    provisions of the Prison Rules 1964, which were intended to
    protect the interests of prisoners, and in particular rule 43(2)
    which was intended to protect prisoners from unlawful segregation,
    must give rise to a cause of action in favour of any prisoner who
    suffers a detriment from a breach of the duty imposed.

    I believe the fallacy in this argument is that it relies on
    authorities relating to statutory duties imposed for no other
    purpose than to protect various classes of person from the risk of
    personal injury to which they are exposed and seeks to apply
    certain dicta in those authorities to a totally different statutory
    context. Thus Groves v. Wimborne (Lord) [1898] 2 Q.B. 402 was
    concerned with the question whether a breach of the duty to fence
    dangerous machinery imposed by section 5(4) of the Factory and
    Workshop Act 1878 gave a cause of action to a workman thereby
    injured notwithstanding the criminal sanctions also imposed by the
    statute for breach of the duty. It was in this context that
    Vaughan Williams L.J. said, at pp.415-416:

    ". . . it cannot be doubted that, where a statute provides
    for the performance by certain persons of a particular duty,
    and some one belonging to a class of persons for whose
    benefit and protection the statute imposes the duty is
    injured by failure to perform it, prima facie, and, if there
    be nothing to the contrary, an action by the person so
    injured will lie against the person who has so failed to
    perform the duty."

    Again, it was in reference to a provision in the Pedestrian
    Crossing Places (Traffic) Regulations 1941 designed to protect
    pedestrians from injury by motor vehicles that Lord Wright said in
    London Passenger Transport Board v. Upson [1949] A.C. 155, 168:

    "... a claim for damages for breach of a statutory duty
    intended to protect a person in the position of the
    particular plaintiff is a specific common law right which is
    not to be confused in essence with a claim for negligence.
    The statutory right has its origin in the statute, but the
    particular remedy of an action for damages is given by the
    common law in order to make effective, for the benefit of
    the injured plaintiff, his right to the performance by the
    defendant of the defendant's statutory duty."

    - 5 -

    In Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No.2) [1982] A.C. 173,
    185, Lord Diplock describing exceptions to the "general rule" that
    "where an Act creates an obligation, and enforces the performance
    in a specified manner . . . that performance cannot be enforced in
    any other manner" said:


    "The first is where upon the true construction of the Act it
    is apparent that the obligation or prohibition was imposed
    for the benefit or protection of a particular class of
    individuals, as in the case of the Factories Acts and similar
    legislation. As Lord Kinnear put it in Butler (or Black) v.
    Fife Coal Co. Ltd
    . [1912] A.C. 149, 165, in the case of such
    a statute:

    'There is no reasonable ground for maintaining that a
    proceeding by way of penalty is the only remedy
    allowed by the statute . . . We are to consider the
    scope and purpose of the statute and in particular for
    whose benefit it is intended. Now the object of the
    present statute is plain. It was intended to compel
    mine owners to make due provision for the safety of
    the men working in their mines, and the persons for
    whose benefit all these rules are to be enforced are
    the persons exposed to danger. But when a duty of
    this kind is imposed for the benefit of particular
    persons there arises at common law a correlative
    right in those persons who may be injured by its
    contravention."'

    Mr. Sedley relied on all these passages and in particular on
    the references in the passages cited from Lord Wright and Lord
    Kinnear to the common law as the source of the plaintiff's rights.
    But the context in each case makes clear that the role of the
    common law is simply to make effective the benefit which the
    legislature intends to confer on the particular plaintiff of
    protection from danger of a particular kind, in each of the cases
    cited the danger of personal injury. I do not think one escapes by
    this route from the fundamental question: "Did the legislature
    intend to confer on the plaintiff a cause of action for breach of
    statutory duty?" by transposing it into the question: "Did the
    legislature intend to confer on the plaintiff protection from
    damage of a kind for which, if the protection is not effectively
    provided, the common law will afford a monetary remedy?" When
    asked in relation to enactments of the kind to which the
    authorities relied upon refer the two questions are really one and
    the same. When asked in relation to enactments of such a very
    different kind as the prison rules, the second form of the
    question neither avoids nor illuminates the problem of answering
    the first.

    The fuller citation of authority on this point in the speech
    of my noble and learned friend, Lord Jauncey of Tullichettle,
    which I gratefully adopt and need not repeat, amply supports the
    conclusion that, like any other question of statutory construction,
    the question whether an enactment gives rise to a cause of action
    for breach of statutory duty is a question of ascertaining the
    intention of the legislature.

    - 6 -

    The Prison Rules 1964 are made under section 47 of the
    Prison Act 1952 which provides by subsection (1):

    "The Secretary of State may make rules for the regulation
    and management of prisons, remand centres, detention
    centres and Borstal institutions respectively, and for the
    classification, treatment, employment, discipline and control
    of persons required to be detained therein."

    Mr. Laws submits that the critical question of legislative intent
    must be determined at the stage of considering the ambit of this
    rule-making power and that Parliament cannot have intended to
    enable the Secretary of State to make rules which would confer a
    right of action on prisoners for any breach . I see the attraction
    of this submission but I am unable to accept it. The power
    conferred is very wide, particularly in relation to the "treatment"
    of persons detained in prison. If the Secretary of State were to
    make rules, for example in relation to the employment of prisoners
    in prison workshops, of a kind which were clearly designed for no
    other purpose than to safeguard prisoners from hazards likely to
    cause personal injury, I am of the opinion, on the one hand, that
    those rules would properly be construed as giving a cause of action
    to prisoners injured in consequence of a breach and, on the other
    hand, that such rules could not be condemned as ultra vires
    section 47.

    In Arbon v. Anderson [1943] K.B 252 the question at issue
    was whether a cause of action arose from a breach of the Prison
    Rules 1933 made under the Prison Act 1898. Goddard L.J. said,
    at p. 254:

    "The real question which falls to be determined is whether
    it is intended by the statute to confer an individual right. I
    am clearly of opinion that neither the Prison Act 1898, nor
    the rules were intended to confer any such right."

    In Becker v. Home Office [1972] 2 Q.B. 407 both Lord Denning
    M.R. and Edmund Davies L.J. expressed their conclusion that a
    breach of the Prison Rules 1964 creates no civil liability in equally
    general terms. Mr. Sedley submits that such a general approach is
    erroneous and that each provision in the rules must be considered
    separately. Whilst I do not accept this criticism of the earlier
    authorities, I do accept that we may properly be invited in asking
    the question whether the breach of a particular provision of the
    rules gives rise to a cause of action to examine that provision in
    its context. Adopting that course, I can find nothing in rule 43 or
    in any context that is relevant to the construction of rule 43
    which would support the conclusion that it was intended to confer
    a right of action on an individual prisoner. The purpose of the
    rule, apart from the case of prisoners who need to be segregated
    in their own interests, is to give an obviously necessary power to
    segregate prisoners who are liable for any reason to disturb the
    orderly conduct of the prison generally. The rule is a purely
    preventive measure. The power is to be exercised only in
    accordance with the procedure prescribed by sub-rule (2). But
    where the power has been exercised in good faith, albeit that the
    procedure followed in authorising its exercise was not in
    conformity with rule 43(2), it is inconceivable that the legislature
    intended to confer a cause of action on the segregated prisoner.

    - 7 -

    False imprisonment

    The Court of Appeal in the case of Weldon approached the
    question whether a prisoner serving his sentence cart ever sustain a
    claim for false imprisonment, as they were invited to do by Mr.
    Laws, as a single question which must admit of the same answer
    irrespective of the identity of the defendant. Ralph Gibson L.J.,
    delivering the leading judgment, with which both Fox and Parker
    L.JJ. agreed, said, at p. 474:

    "There is no reason apparent to me why the nature of the
    tort, evolved by the common law for the protection of
    personal liberty, should be held to be such as to deny its
    availability to a convicted prisoner, whose residual liberty
    should, in my judgment, be protected so far as the law can
    properly achieve unless statute requires otherwise. If,
    however, as Mr. Laws submitted, the tort of false
    imprisonment was not available to a convicted prisoner
    against a prison officer, I accept his submission that it
    could not, for the same reasons, be available to a convicted
    prisoner against a fellow prisoner."

    Ralph Gibson L.J. had also delivered the judgment of the
    Divisional Court in the case of Hague in which he expressed the
    view that the segregation of a prisoner would not constitute the
    tort of false imprisonment if the order for segregation, although
    not lawfully authorised under rule 43, was given in good faith.
    Giving the judgment in the case of Weldon he found it unneccesary
    to express a final conclusion on this point since, if want of good
    faith were a necessary ingredient of the tort, he held that it was
    sufficiently alleged in the pleading against the officers concerned.
    The pleading, he held, also alleged circumstances capable of
    amounting to "intolerable conditions of detention" such as would
    sustain a claim of false imprisonment on the authority of the
    decision of the Court of Appeal in Middleweek v. the Chief
    Constable of Merseyside (Note)
    [1990] 3 W.L.R. 481. It was on
    these grounds that the Court of Appeal declined to strike out the
    pleading of false imprisonment in the case of Weldon. Parker
    L.J., in adding his own reasons to his agreement with those given
    by Ralph Gibson L.J., was clearly much concerned with the
    problem of the rights of prisoners as against fellow prisoners or
    prison officers acting in bad faith. He said, at p. 480:

    "Although the plaintiff may, in the end, fail to establish the
    facts, we must proceed for the moment on the basis that he
    was kept locked up naked overnight in a cell known as a
    strip cell. It is said that as he was lawfully detained in the
    prison this cannot amount to false imprisonment. If this be
    right it must, I think, follow that he could have had no
    claim for false imprisonment if his detention naked in that
    cell had continued for weeks. It would also seem to me to
    follow that if he had been locked up in a similar condition,
    not by prison officers, but by fellow inmates, he would have
    no such claim. It would follow, too, that, if a convicted
    criminal were confined in a prison in which he and his
    fellows were permitted, within the confines of a perimeter
    fence enclosing some acres of ground, to lead normal lives,
    he would have no such claim if he were locked up, with or
    without clothes, in a shed in some remote part of the

    - 8 -

    grounds, whether by fellow inmates or prison officers. To
    hold that such treatment could not amount to false
    imprisonment offends, in my judgment, against common
    sense."

    In so far as the Court of Appeal's reasoning in these
    judgments proceeds from the premise urged upon them by Mr.
    Laws that a prisoner's "right to liberty" is either totally abrogated
    or partially retained in the form of a "residual liberty," I think,
    with all respect, that it is erroneous. To ask at the outset
    whether a convicted prisoner enjoys in law a "residual liberty," as
    if the extent of any citizen's right to liberty were a species of
    right in rem or a matter of status, is to ask the wrong question.
    An action for false imprisonment is an action in personam. The
    tort of false imprisonment has two ingredients: the fact of
    imprisonment and the absence of lawful authority to justify it. In
    Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 L.T. 44
    Atkin L.J. said, at p. 54 that "any restraint within defined bounds
    which is a restraint in fact may be an imprisonment". 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 to
    whether or not A can justify the restraint imposed on B as lawful.
    A child may be lawfully restrained within defined bounds by his
    parents or by the schoolmaster to whom the parents have
    delegated their authority. But if precisely the same restraint is
    imposed by a stranger without authority, it will be unlawful and
    will constitute the tort of false imprisonment.

    I shall leave aside initially questions arising from the
    situation where a convicted prisoner serving a sentence is
    restrained by a member of the prison staff acting in bad faith, by
    a fellow prisoner or any other third party, or in circumstances
    where it can be said that the conditions of his detention are
    intolerable. I shall address first what I believe to be the primary
    and fundamental issue, viz. whether any restraint within defined
    bounds imposed upon a convicted prisoner whilst serving his
    sentence by the prison governor or by officers acting with the
    authority of the prison governor and in good faith, but in
    circumstances where the particular form of restraint is not
    sanctioned by the prison rules, amounts for that reason to the tort
    of false imprisonment.

    The starting point is section 12(1) of the Prison Act 1952
    which provides:

    "A prisoner, whether sentenced to imprisonment or
    committed to prison on remand pending trial or otherwise,
    may be lawfully confined in any prison."

    This provides lawful authority for the restraint of the prisoner
    within the defined bounds of the prison by the governor of the
    prison, who has the legal custody of the prisoner under section 13,
    or by any prison officer acting with the governor's authority. Can
    the prisoner then complain that his legal rights are infringed by a
    restraint which confines him at any particular time within a
    particular part of the prison? It seems to me that the reality of
    prison life demands a negative answer to this question. Certainly
    in the ordinary closed prison the ordinary prisoner will at any time
    of day or night be in a particular part of the prison, not because

    - 9 -

    that is where he chooses to be, but because that is where the
    prison regime requires him to be. He will be in his cell, in the
    part of the prison where he is required to work, in the exercise
    yard, eating meals, attending education classes or enjoying
    whatever recreation is permitted, all in the appointed place and at
    the appointed time and all in accordance with a more or less Figid
    regime to which he must conform. Thus the concept of the
    prisoner's "residual liberty" as a species of freedom of movement
    within the prison enjoyed as a legal right which the prison
    authorities cannot lawfully restrain seems to me quite illusory.
    The prisoner is at all times lawfully restrained within closely
    defined bounds and if he is kept in a segregated cell, at a time
    when, if the rules had not been misapplied, he would be in the
    company of other prisoners in the workshop, at the dinner table or
    elsewhere, this is not the deprivation of his liberty of movement,
    which is the essence of the tort of false imprisonment, it is the
    substitution of one form of restraint for another.

    Mr. Harris seeks to surmount these difficulties by submitting
    that whenever there is a breach of the rules which is sufficiently
    "fundamental" this converts an otherwise lawful imprisonment into
    an unlawful imprisonment. This, as I understand it, is quite a
    different concept from that of an infringement of residual liberty.
    The submission is that any breach of the rules which is sufficiently
    far reaching in its effect on the prisoner, for example the failure
    to supply him with clothing "adequate for warmth and health"
    pursuant to rule 20(2), undermines the legality of his imprisonment.
    Logically this would lead to the conclusion that the prisoner who
    has not been supplied with proper clothing would be entitled to
    walk out of the prison, but Mr. Harris understandably disclaims any
    such extravagant proposition. It follows that the authority given
    by section 12(1) for lawful confinement of the prisoner cannot
    possibly be read as subject to any implied term with respect to
    compliance with the prison rules and this is fatal to any
    submission which seeks to make the lawfulness of the imprisonment
    depend in any sense on such compliance.

    In my opinion, to hold a prisoner entitled to damages for
    false imprisonment on the ground that he has been subject to a
    restraint upon his movement which was not in accordance with the
    Prison Rules 1964 would be, in effect, to confer on him under a
    different legal label a cause of action for breach of statutory duty
    under the Rules. Having reached the conclusion that it was not
    the intention of the Rules to confer such a right, I am satisfied
    that the right cannot properly be asserted in the alternative guise
    of a claim to damages for false imprisonment.

    Mr. Sedley and Mr. Harris both rely on a number of 19th
    century decisions. These are considered in the judgment of Taylor
    L.J. in the case of Hague [1990] 3 W.L.R. 1210, 1263-1264, and in
    the speech of my noble and learned friend, Lord Jauncey of
    Tullichettle. I agree with their reasons for reaching the conclusion
    that these cases are no longer relevant in view of the broad scope
    of section 12(1) of the Act of 1952.

    I turn next to the question posed by the example given in
    the judgment of Parker L.J. in the case of Weldon [1990] 3 W.L.R.
    465, 480, of a prisoner locked in a shed by fellow prisoners. I
    think the short answer to this question is given by Taylor L.J. who
    said in the case of Hague [1990] 3 W.L.R. 1210, 1267G:

    - 10 -

    "In such a situation action for false imprisonment would
    surely lie (for what it was worth), since the fellow prisoners
    would have no defence under section 12 of the Prison Act
    1952."

    The prisoner locked in the shed is certainly restrained within
    defined bounds and it is nihil ad rem that if he were not locked in
    the shed, he would be locked in his cell or restrained in
    accordance with the prison regime in some other part of the
    prison. The restraint in the shed is unlawful because the fellow
    prisoners acted without the authority of the governor and it is
    only the governor, who has the legal custody of the prisoner, and
    persons acting with the authority of the governor who can rely on
    the provisions of section 12(1).

    This consideration also leads to the conclusion that a prison
    officer who acts in bad faith by deliberately subjecting a prisoner
    to a restraint which he knows he has no authority to impose may
    render himself personally liable to an action for false imprisonment
    as well as committing the tort of misfeasance in public office.
    Lacking the authority of the governor, he also lacks the protection
    of section 12(1). But if the officer deliberately acts outside the
    scope of his authority, he cannot render the governor or the Home
    Office vicariously liable for his tortious conduct. This no doubt
    explains why Mr. Harris did not seek to sustain the decision of the
    Court of Appeal in his favour on the ground that the plaintiff's
    pleading should be read as involving an allegation of bad faith.

    There remains the question whether an otherwise lawful
    imprisonment may be rendered unlawful by reason only of the
    conditions of detention. In Reg. v. Commissioner of the Police of
    the Metropolis, Ex parte Nahar
    (unreported) 27 May 1983, two
    applicants for habeas corpus who had been remanded in custody
    were held pursuant to the provisions of section 6 of the
    Imprisonment (Temporary Provisions) Act 1980 in cells below the
    Camberwell Green Magistrates Court which were designed only to
    enable persons to be held in custody for a few hours at a time
    and which were obviously deficient in many respects for the
    purpose of accommodating prisoners for longer periods. They
    sought their release on the ground that the conditions of their
    detention rendered it unlawful. The applications were rejected,
    but Stephen Brown J. said in the course of his judgment: "There
    must be some minimum standard to render detention lawful. . ."

    McCullough J. said:

    "Despite the temporary nature of the detention there
    contemplated, there must be implied into section 6 of the
    Act of 1980 some term which relates to the conditions
    under which a prisoner may lawfully be detained. I say so
    because it is possible to conceive of hypothetical
    circumstances in which the conditions of detention were
    such as would make that detention unlawful. I do not
    propose to offer any formulation of that term. Were it
    broken in any particular case I would reject emphatically
    the suggestion that the matter would not be one for the
    exercise of the court's jurisdiction to grant the writ of
    habeas corpus."

    - 11 -

    These observations were considered by the Court of Appeal
    in Middleweek v. Chief Constable of Merseyside (Note) [1990] 3
    W.L.R. 481. The plaintiff had been awarded damages for false
    imprisonment by the jury on the basis that his otherwise lawful
    detention at a police station had been rendered unlawful because it
    was unreasonable in the circumstances to keep him in a police
    cell. The defendant successfully appealed, but Ackner L.J.,
    delivering the judgment of the court, said at p. 487:

    "We agree with the views expressed by the Divisional Court
    that it must be possible to conceive of hypothetical cases in
    which the conditions of detention are so intolerable as to
    render the detention unlawful and thereby provide a remedy
    to the prisoner in damages for false imprisonment. A
    person lawfully detained in a prison cell would, in our
    judgment, cease to be so lawfully detained if the conditions
    in that cell were such as to be seriously prejudicial to his
    health if he continued to occupy it, e.g., because it became
    and remained seriously flooded, or contained a fractured gas
    pipe allowing gas to escape into the cell. We do not
    therefore accept as an absolute proposition that if detention
    is initially lawful, it can never become unlawful by reason
    of changes in the conditions of imprisonment."

    I sympathise entirely with the view that the person lawfully
    held in custody who is subjected to intolerable conditions ought not
    to be left without a remedy against his custodian, but the
    proposition that the conditions of detention may render the
    detention itself unlawful raises formidable difficulties. If the
    proposition be sound, the corollary must be that when the
    conditions of detention deteriorate to the point of intolerability,
    the detainee is entitled immediately to go free. It is impossible, I
    think, to define with any precision what would amount to
    intolerable conditions for this purpose. McCullough J.

    understandably and perhaps wisely abstained from any attempt at
    definition in Ex parte Nahar. The examples given by Ackner L.J.
    of a flooded or gas-filled cell are so extreme that they do not,
    with respect, offer much guidance as to where the line should be
    drawn. The law is certainly left in a very unsatisfactory state if
    the legality or otherwise of detaining a person who in law is and
    remains liable to detention depends on such an imprecise criterion
    and may vary from time to time as the conditions of his detention
    change.

    The logical solution to the problem, I believe, is that if the
    conditions of an otherwise lawful detention are truly intolerable,
    the law ought to be capable of providing a remedy directly related
    to those conditions without characterising the fact of the detention
    itself as unlawful. I see no real difficulty in saying that the law
    can provide such a remedy. Whenever one person is lawfully in
    the custody of another, the custodian owes a duty of care to the
    detainee. If the custodian negligently allows, or a fortiori, if he
    deliberately causes, the detainee to suffer in any way in his health
    he will be in breach of that duty. But short of anything that
    could properly be described as a physical injury or an impairment
    of health, if a person lawfully detained is kept in conditions which
    cause him for the time being physical pain or a degree of
    discomfort which can properly be described as intolerable, I believe
    that could and should be treated as a breach of the custodian's

    - 12 -

    duty of care for which the law should award damages. For this
    purpose it is quite unnecessary to attempt any definition of the
    criterion of intolerability. It would be a question of fact and
    degree in any case which came before the court to determine
    whether the conditions to which a detainee had been subjected
    were such as to warrant an award of damages, for the discomfort
    he had suffered. In principle I believe it is acceptable for the law
    to provide a remedy on this basis, but that the remedy suggested
    in the cases of Nahar and Middleweek is not. In practice the
    problem is perhaps not very likely to arise.

    Conclusion

    For the reasons I have given I conclude that a claim for
    damages either for breach of statutory duty or for false
    imprisonment is not sustainable in either of the cases before the
    House. I would accordingly dismiss the appeal in the case of
    Hague. In the case of Weldon I would allow the appeal and order
    that in paragraph 2 of the particulars of claim the words "falsely
    imprisoned and" and sub-paragraph (iv) of the particulars given
    thereunder be struck out.

    LORD ACKNER

    My Lords,

    A person lawfully held in custody who is subjected to
    intolerable conditions, must, of course, have a remedy against his
    custodian. This clearly can include the following:

    1. an action in tort against a prison authority for damages for
      negligence where, for example, the intolerable conditions
      cause him to suffer injury to his health;

    2. where the facts fit, an action in tort for damages for
      assault;

    (c) where malice can be established, an action for misfeasance
    in the exercise of a public office; and

    (d) the termination of such conditions by judicial review.

    I accept, however, for the reasons stated by my noble and
    learned friends, Lord Bridge of Harwich and Lord Jauncey of
    Tullichettle that an otherwise lawful imprisonment is not rendered
    unlawful by reason only of the conditions of detention, thereby
    providing a prisoner with a potential action for the tort of false
    imprisonment. Accordingly my dictum in the judgment of the
    Court of Appeal in the Middleweek case was erroneous.

    I am not however 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. While a
    prisoner has no residual liberty vis a vis the governor, I would not
    accept that he had no remedy against a fellow prisoner who locked
    him in some confined space. I agree with the observations of
    Taylor L.J. in Weldon when he said at p. 1267:

    - 13 -

    "In such a situation an action for false imprisonment would
    surely lie (for what it was worth), since the fellow prisoner
    would have no defence under section 12 of the Prison Act
    1952."

    I agree, that for the reasons stated in the speech of my
    noble and learned friend, Lord Bridge of Harwich that no claim for
    damages is sustainable either for breach of statutory duty or for
    false imprisonment in the case of either prisoner and I, too, would
    therefore dismiss the appeal in Hague and allow the appeal in
    Weldon.

    LORD JAUNCEY OF TULLICHETTLE

    My Lords,

    These two appeals arise out of actions by convicted
    prisoners in respect of incidents during their confinement. In
    Hague the prisoner sought judicial review of a decision of the
    Deputy Governor of Parkhurst Prison to segregate him and
    thereafter to transfer him to Wormwood Scrubs for continued
    segregation. He claimed certain declarations as well as damages
    for false imprisonment. The Divisional Court dismissed the
    application but on appeal the Court of Appeal held, inter alia (1)
    that he was entitled to a declaration that his continued
    segregation in Wormwood Scrubs on the authority of the Deputy
    Governor of Parkhurst was unlawful, (2) that a breach of the
    Prison Rules 1964 could not found a private law claim for damages
    by a prisoner, and (3) that a convicted prisoner could only succeed
    in an action of false imprisonment in respect of his detention in
    prison if he was kept in intolerable conditions which, so far as
    Hague was concerned, was not the case. In Weldon the prisoner
    claimed damages for false imprisonment in respect of his
    confinement over night in a strip cell in the prison in which he
    was serving a sentence. The Court of Appeal dismissed an appeal
    against a refusal to strike out the claim on the grounds that the
    facts disclosed an arguable case of false imprisonment either on
    the ground that he had been unlawfully deprived of his residual
    liberty or that he had been kept in intolerable conditions. Hague
    appealed on the grounds (1) that a breach of the Prison Rules 1964
    sounded in damages, and (2) that the reasons given by the Court
    of Appeal in Weldon for refusing to strike out the claim were
    sound. The Home Office appealed in Weldon on the ground that a
    convicted prisoner serving a sentence could not maintain an action
    of damages for false imprisonment against the prison authorities.
    There was no challenge to the declaration granted to Hague by the
    Court of Appeal. In these circumstances I propose to address
    myself to the issues of a breach of statutory duty and the tort of
    false imprisonment at common law.

    My Lords, I am able to give this brief summary of the
    background to these appeals because of the detailed account
    contained in the speech of my noble and learned friend Lord
    Bridge of Harwich which I gratefully adopt.

    Breach of Statutory Duty

    -14-

    Mr. Sedley for Hague submitted that there had been a
    breach of the prison rules which sounded in damages. In a
    carefully reasoned argument to which I hope that I do justice in
    paraphrasing he argued that a breach of statutory duty
    unaccompanied by a statutory remedy or penalty affords a right of
    action to a person injured thereby where the plaintiff belongs to a
    class which the statutory provision was intended to protect, and
    the breach has caused the plaintiff damage of a kind against which
    the provision was intended to protect him. In support of this
    proposition he relied on Groves v. Wimborne (Lord) [1898] 2 Q.B.
    402 and Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398.
    Where such a situation existed, as it did in the present case, no
    question of legislative intent arose. Mr. Sedley invited your
    Lordships to overrule Arbon v. Anderson [1943] K.B. 252 and
    Becker v. Home Office [1972] 2 Q.B. 407, in both of which cases
    it had been held that a breach of the prison rules did not give
    rise to an action of damages.

    Mr. Laws on the other hand maintained that the first
    question to be considered was what rights, if any, Parliament
    intended to confer in passing the statute and that matters such as
    availability of other remedies merely assisted the resolution of
    that question and were not in themselves decisive. He also relied
    on Groves v. Wimborne (Lord) and Cutler v. Wandsworth Stadium
    Ltd. Mr. Laws argued that the Secretary of State had no power
    under section 47 of the Prison Act 1952 to make rules which
    conferred private rights on individuals.

    In order to consider these arguments it is necessary to
    examine the relevant authorities. Groves v. Wimborne (Lord) arose
    out of a breach of a duty imposed by the Factory and Workshop
    Act 1878 to fence dangerous machinery. At the beginning of his
    judgment on p. 406 A.L. Smith L.J. referred to the Act of 1878 as
    "A public Act passed in favour of the workers in factories and
    workshops to compel their employers to do certain things for their
    protection and benefit". In dealing with the question whether the
    cause of action which was prima facie given by the relevant
    section had been taken away by certain provisions as to payment
    of fines, he said, at pp. 407-408:

    "In dealing with the question whether this was the intention
    of the Legislature it is material ... to consider for whose
    benefit the Act was passed, whether it was passed in the
    interests of the public at large or in those of a particular
    class of persons. The Act now in question, as I have said,
    was clearly passed in favour of workers employed in
    factories and workshops, and to compel their employers to
    perform certain statutory duties for their protection and
    benefit."

    Later, at p. 408, after consideration of further matters, he said
    that he had been led to the conclusion:

    "That it cannot have been the intention of the Legislature
    that the provision which imposes upon the employer a fine
    as a punishment for neglect of his statutory duty should
    take away the prima facie right of the workman to be fully
    compensated for injury occasioned to him by that neglect."

    - 15 -

    Rigby L.J. at p. 414 said:

    "The plaintiff is one of those persons, the possibility of
    injury to whom through neglect to fence ''machinery the
    section contemplates. That being so, the only question
    seems to be whether the provisions of the Act with regard
    to the imposition of fines for neglect of the duty created
    by the section reasonably lead to the conclusion that the
    Legislature intended that such fines should be the only
    remedy for breach of that duty. I think that, when those
    provisions are examined, it is impossible to arrive at that
    conclusion."

    Vaughan Williams L.J. at p. 416 said:

    "In such a case as this one must, as Lord Cairns said in
    Atkinson v. Newcastle Water Works Co. (1877) 2 Ex.D. 441,
    look at the general scope of the Act and the nature of the
    statutory duty; and in addition one must look at the nature
    of the injuries likely to arise from a breach of that duty,
    the amount of the penalty imposed for a breach of it, and
    the kind of person upon whom it is imposed, before one can
    come to a proper conclusion as to whether the legislature
    intended the statutory remedy to be the only remedy for
    breach of the statutory duty."

    All the members of the Court of Appeal were clearly of the
    view that the intention of the legislature had to be looked at in
    determining whether breach of a statutory duty gave rise to an
    action in tort.

    In Cutler v. Wandsworth Stadium Ltd. Lord Simonds at p.
    407, after referring to the question whether where a statutory
    obligation is placed on A, B who conceives himself to be damnified
    by A's breach of it has a right of action against him, stated:

    "I do not propose to try to formulate any rules by reference
    to which such a question can infallibly be answered. The
    only rule which in all circumstances is valid is that the
    answer must depend upon a consideration of the whole Act
    and the circumstances, including the pre-existing law in
    which it was enacted. But that there are indications which
    point with more or less force to the one answer or the
    other is clear from authorities which, even where they do
    not bind, will have great weight with the House. For
    instance, if a statutory duty is prescribed but no remedy by
    way of penalty or otherwise for its breach is imposed, it
    can be assumed that a right of civil action accrues to the
    person who is damnified by the breach. For if it were not
    so, the statute would be but a pious aspiration."

    Lord Simonds later referred with approval to a passage from the
    speech of Lord Kinnear in Butler (or Black) v. Fife Coal Co. Ltd.
    [1912] A.C. 149, 165, which included the following sentences:

    "We are to consider the scope and purpose of the statute
    and in particular for whose benefit it is intended. Now the
    object of the present statute is plain. It was intended to
    compel mine owners to make due provision for the safety of

    - 16 -

    the men working in the mines, and the persons for whose
    benefit all these rules are to be enforced are the persons
    exposed to the danger."

    Once again the intention of the legislature is treated as a
    matter of importance. In Lonrho Ltd v. Shell Petroleum Co. Ltd.
    (No. 2)
    [1982] A.C. 173 Lord Diplock at p. 185 referred to the
    general rule that where an Act creates an obligation, and enforces
    the performance in a specified manner the performance cannot be
    enforced in any other manner, and then set out one or two
    exceptions to the rule . . .

    "The first is where upon the true construction of the Act it
    is apparent that the obligation or prohibition was imposed
    for the benefit or protection of a particular class of
    individuals, as in the case of the Factories Acts and similar
    legislation."

    This exception was referred to by Lord Bridge of Harwich in P. v.
    Liverpool Daily Post and Echo Newspapers Plc.
    [1991] 2 W.L.R.
    513 at p. 523H in the following terms:

    "But in order to fall within the principle which Lord Diplock
    had in contemplation it must, in my opinion, appear upon
    the true construction of the legislation in question that the
    intention was to confer on members of the protected class a
    cause of action sounding in damages occasioned by the
    breach."

    Finally, in Calveley v. Chief Constable of the Merseyside
    Police
    [1989] A.C. 1228 Lord Bridge of Harwich, in the context of
    a submission that breach of one of the Police (Discipline)
    Regulations 1977 gave a right to damages, said at p. 1237D:

    "That the duty is imposed for the benefit of the police
    officer subject to investigation is plain. It seems to me
    equally plain that the legislature cannot have contemplated
    that the object of the duty was to protect the officer from
    any injury of a kind attracting compensation and cannot,
    therefore have been intended to give him a right to
    damages for breach of the duty".

    My Lords, I take from these authorities that it must always
    be a matter for consideration whether the legislature intended that
    private law rights of action should be conferred upon individuals in
    respect of breaches of the relevant statutory provision. The fact
    that a particular provision was intended to protect certain
    individuals is not of itself sufficient to confer private law rights
    of action upon them, something more is required to show that the
    legislature intended such conferment.

    The Prison Act 1952 is designed to deal with the
    administration of prisons and the management and control of
    prisoners. It covers such wide-ranging matters as Central
    Administration, Prison Officers, Confinement and Treatment of
    Prisoners, Release of Prisoners on Licence, Provision and
    Maintenance of Prisons and Offences. Its objects are far removed
    from those of legislation such as the Factories and Coal Mines
    Acts whose prime concern is to protect the health and safety of

    - 17 -

    persons who work therein. Section 47 empowers the Secretary of
    State to make rules in relation to many of the matters with which
    the Act is concerned and is in the following terms, inter alia . . .


    "(1) The Secretary of State may make rules for the
    regulation and management of prisons, remand centres,
    detention centres and Borstal institutions respectively, and
    for the classification, treatment, employment, discipline and
    control of persons required to be detained therein."

    I find nothing in any of the other sections of the Act to suggest
    that Parliament intended thereby to confer on prisoners a cause of
    action sounding in damages in respect of a breach of those
    provisions. To give the Secretary of State power in section 47 to
    confer private law rights on prisoners would therefore be to allow
    him to extend the general scope of the Act by rules. This could,
    of course, be done by some such provision as is found in section
    76(2) of the Factories Act 1961 whereby the Minister is
    specifically empowered to make regulations which "impose duties
    on owners, employed persons and other persons . . .". However, in
    the absence of such a specific provision I conclude that it was not
    intended that the Secretary of State should be able to extend the
    scope of the Act by creating private rights by way of rules, from
    which it follows that had he done so he would have been acting
    ultra vires. That is sufficient for disposal of this part of the
    appeal but in deference to the able arguments addressed to your
    Lordships I turn to consider the effect of the rules upon the
    assumption that the Secretary of State did have power thereby to
    confer private law rights upon prisoners.

    The appellant Hague relies on a breach of rule 43 which is
    in the following terms:

    "Removal and association

    1. Where it appears desirable, for the maintenance of
      good order or discipline or in his own interests, that
      a prisoner should not associate with other prisoners,
      either generally or for particular purposes, the
      governor may arrange for the prisoner's removal from
      association accordingly.

    2. A prisoner shall not be removed under this Rule for a
      period of more than 3 days without the authority of a
      member of the board of visitors or of the Secretary
      of State. An authority given under this paragraph
      shall be for a period not exceeding one month, but
      may be renewed from month to month except that, in
      the case of a person aged less than 21 years who is
      detained in prison, such an authority shall be for a
      period not exceeding 14 days, but may be renewed
      from time to time for a like period.

    3. The governor may arrange at his discretion for such a
      prisoner as aforesaid to resume association with other
      prisoners, and shall do so if in any case the medical
      officer so advises on medical grounds."

    This rule should be read in the context of rule 2(1) which provides:

    - 18 -

    "Maintenance of order and discipline

    "2. (1) Order and discipline shall be maintained with
    firmness, but with no more restriction than is
    required for safe custody and well ordered community
    life."

    Mr. Sedley argued that the limitation in rule 43(2) on the
    time during which a prisoner may be removed from association was
    imposed for the benefit of prisoners in whom there arose a
    correlative private law right if they were injured by a breach. My
    Lords, I cannot accept this proposition. The rules are wide-ranging
    in their scope covering a mass of matters relevant to the
    administration and good government of a prison. Many of these do
    not directly relate to prisoners and I do not consider that those
    which do were ever intended to confer private law rights in the
    event of a breach. The rules are regulatory in character, they
    provide a framework within which the prison regime operates but
    they are not intended to protect prisoners against loss, injury and
    damage nor to give them a right of action in respect thereof. I
    would only add that if a prisoner suffered in health as a result of
    segregation contrary to the rules he would in all probability have a
    right of action in negligence against the prison authorities. If, as
    in the case of Hague, he suffered no damage to health then a
    breach of the rules would not result in loss or injury of the kind
    which normally flows from a breach of statutory duty and which
    the statute is designed to prevent (see Lord Bridge of Harwich in
    P. v. Liverpool Daily Post and Echo Newspapers Plc. [1991] 2
    W.L.R. 513 at p. 524 A-B).

    In Arbon v. Anderson [1943] K.B. 252 Goddard L.J., sitting
    as an additional judge of the King's Bench Division, said at p. 254:

    "With regard to the prison rules, it would be enough to say
    that there were no breaches, but, in case a higher court
    should take a different view, I should say that, in my
    opinion, neither do these rules confer rights on prisoners
    which can be enforced by action. They are made under the
    Prison Act 1898, section 2, for the 'government of prisons' .
    . . The real question which falls to be determined is
    whether it is intended by the statute to confer an individual
    right. I am clearly of opinion that neither the Prison Act
    1898 nor the rules were intended to confer any such right."

    In Becker v. Home Office [1972] 2 Q.B. 407, in which Arbon v.
    Anderson
    does not appear to have been cited, the plaintiff sought
    to claim damages in respect of an alleged breach of the prison
    rules. Lord Denning M.R. said at p. 418H:

    "The prison rules are regulatory directions only. Even if
    they are not observed, they do not give rise to a cause of
    action. So I hold that in point of law Mrs. Becker cannot
    claim."

    Edmund Davies L.J. said at p. 420C:

    "... I hold (as Lord Denning M.R. has done) that a breach
    of these prison rules does not, per se, create any civil
    liability at the suit of a party who claims to have been
    damnified thereby."

    - 19 -

    For the reasons which I have already given I have no doubt
    that the dicta which I have just quoted from these two cases
    correctly state the law as do the observations 'of Taylor and
    Nicholls L.JJ. in Hague [1990] 3 W.L.R. 1210 at 1263c and 1270H
    respectively.

    Finally, I should emphasise that the conclusion which I have
    reached on this part of the appeal does not leave a prisoner
    without a remedy if the rules are broken to his detriment. He
    may complain to the governor or board of visitors under rule 8(1)
    and in the event of a complaint to the latter a report may be
    made to the Secretary of State under section 6(3) of the Act. He
    may also challenge any administrative decision of the Secretary of
    State or the governor which he considers to contravene the
    provisions of the Act or the rules by judicial review proceedings.
    In the case of a continuing wrong done to him a prisoner could
    expect that a hearing in judicial review proceedings could be
    obtained with little delay. These public law remedies are
    additional to any private law remedies which would be available to
    him such as damages for misfeasance in public office, assault or
    negligence.

    False imprisonment

    Are there any circumstances in which a convicted prisoner
    committed to a prison in terms of section 12 of the Prison Act
    1952 can sue the prison authorities for damages for false
    imprisonment? The divisional court in Weldon answered this
    question in the affirmative and referred to two possible situations,
    namely:

    (1) Where the prisoner has been deprived of his residual liberty
    without reasonable cause and in bad faith, and (2) where the
    prisoner has been subjected to intolerable conditions of detention.
    The Court of Appeal in Hague considered whether the conditions
    under which he was imprisoned were intolerable but concluded that
    they were not. The relevant circumstances in Weldon were that,
    according to his averments, he was dragged out of his cell,
    dragged downstairs, placed in a cell in the punishment block, later
    removed to a strip cell where his clothes were taken from him
    and wherein he remained until the following morning. In Hague
    his continued segregation after transfer to Wormwood Scrubs
    contravened the provisions of the Prison Rules 1964 and was
    unlawful. It was said that the conditions in which Weldon was
    kept in the strip cell were, prima facie, intolerable, but no such
    submission was made on behalf of Hague.

    False imprisonment is defined in Clerk and Lindsell on
    Torts,
    16th ed., (1989) pp. 972-973, para. 17-15 as "complete
    deprivation of liberty for any time, however short, without lawful
    cause". The work then quotes the "Termes de la Ley":

    "Imprisonment is no other thing but the restraint of a man's
    liberty, whether it be in the open field, or in the stocks, or
    in the cage in the streets or in a man's own house, as well
    as in the common gaols; and in all the places the party so
    restrained is said to be a prisoner so long as he hath not
    his liberty freely to go at all times to all places whither he
    will without bail or mainprise or otherwise."

    - 20 -

    The latter definition of imprisonment was cited with approval by
    Duke and Atkin L.JJ. in Meering v. Grahame-White Aviation Co.
    Ltd.
    (1919) 122 L.T. 44 at pp. 51' and 53. The reference to
    liberty to go "at all times to all places" must, of course, be read
    in the context of the normal restrictions imposed by general law
    or contract on the ability of individuals to go where and when
    they please.

    Residual liberty

    In the Court of Appeal in Weldon Ralph Gibson L.J. [1990] 3
    W.L.R. 465, 473H, after referring in some detail to the Prison
    Rules 1964, said:

    " It is apparent, in my judgment, from consideration of

    those rules that the legislative intention is that a prisoner
    should, subject to any lawful order given to him and to any
    rules laid down in the prison, enjoy such liberty - his
    residual liberty - within prison as is left to him."

    In reaching the conclusion that the Prison Rules 1964 left a
    prisoner with some residual liberty Ralph Gibson L.J. had regard to
    a passage in the speech of Lord Wilberforce in Raymond v. Honey
    [1983] 1 AC 1 at p. 10G where he said:

    "Secondly, under English law, a convicted prisoner, in spite
    of his imprisonment, retains all civil rights which are not
    taken away expressly or by necessary implication".

    These observations were made in the context of a case
    concerning a prisoner's right of access to the Courts. They are
    highly relevant to the protection of such rights as a prisoner
    retains but they do not assist in determining what those rights are.
    In seeking to support the decision of the Court of Appeal Mr.
    Harris for Weldon referred to four 19th century authorities which,
    he maintained, supported the proposition that a convicted prisoner
    could be falsely imprisoned. In Osborne v. Angle (1835) 2 Scott
    500, a prisoner in the Fleet Prison was, on being subsequently
    charged with dealing with a forged bill of exchange, conveyed to
    the strong room. He obtained a rule calling upon the warden to
    show cause why he should not be restored to the proper and
    ordinary custody of the prison. The rule was discharged upon the
    ground that the warden was well justified in what he had done,
    although it appears from the judgments of Tindal C.J. and Gaselee
    J. that the court would have interfered if improper and unnecessry
    restraint had been imposed. It was argued, by Mr. Harris, that
    the apparent willingness of the court to have interfered in
    appropriate conditions supported the proposition which he was
    advancing. I do not think that it did. If the court had interfered
    it would have been to affirm the rule by making an order such as
    today would be made in judicial review proceedings but not by
    awarding damages for false imprisonment. In Yorke v. Chapman
    (1839) 10 Ad. & E. 207, a prisoner committed to the Queen's
    Bench Prison for debt was confined by the marshal in terms of a
    rule of court in a strong room for disorderly behaviour. He had a
    statutory right to petition the court on the ground of abuse by the
    prison authorities and in respect of that complaint the court had
    power to award recompense and costs. However, he chose instead

    - 21 -

    to bring an action of assault and false imprisonment against the
    marshal. The Attorney-General sought a rule absolute to stay the
    action on the ground, inter alia, that there was no charge of
    excess but Lord Denman C.J. held that the plaintiff's statutory
    remedy did not remove his right to bring an action for redress. I
    do not think that this case assists Mr. Harris because there was no
    attempt to strike out the action based on false imprisonment and
    indeed the Attorney-General appears to have accepted that a
    charge of "excess" would have been actionable. Furthermore, the
    existence of allegations of assault, if proved, would have entitled
    the plaintiff to a remedy at common law irrespective of any
    remedy for false imprisonment.

    The two remaining 19th century cases were Cobbett v. Grey
    (1850) 4 Exch. 729 and Osborne v. Milman (1886) 17 Q.B.D. 514, in
    both of which prisoners complained that they were falsely
    imprisoned in a part of a prison in which they could not lawfully
    be confined. In Arbon v. Anderson [1943] K.B. 252, Goddard L.J.
    at p. 254 analysed these two cases and concluded that both related
    to the nature of the imprisonment rather than to the conditions
    thereof. In Hague [1990] 3 W.L.R. 1210, 1263F-1264H, Taylor L.J.
    again analysed the two cases and concluded that both depended
    upon the strict classification of prisoners at the time and the
    statutory requirements as to where they should be confined
    dependent upon their classification. I entirely agree with his
    careful analysis of these two cases and do not feel that I can
    usefully add anything thereto. I would merely emphasise, as
    Taylor L.J. did, that the Secretary of State's power under section
    12(1) of the Prison Act 1952 to confine a prisoner "in any prison"
    demonstrates how different is the position today to that which
    prevailed in the 19th century. I do not therefore consider that
    these four cases support the proposition that a prisoner committed
    to prison in terms of section 12 can, nevertheless, be falsely
    imprisoned.

    I turn to more recent authority. In Williams v. Home
    Office (No. 2)
    [1981] 1 All E.R. 1211, Tudor-Evans J. at p. 1241
    said:

    "In my judgment, the sentence of the court and the
    provisions of section 12(1) always afford a defence to an
    action of false imprisonment. The sentence justifies the
    fact of imprisonment and the subsection justifies the
    confinement of a prisoner in any prison. How then can it
    be unjustifiable and unlawful to confine him there? I
    accept the submission . . . that the sentence of the court
    and the provisions of section 12(1) provide a defence to this
    action, subject to the arguments based on the Bill of Rights
    and natural justice . . . The next question is whether the
    lawfulness of the detention can be affected by the
    conditions of the detention. I do not think so. The
    question of the conditions of imprisonment is a matter for
    the Secretary of State. The check or safeguard against
    unacceptable conditions . . . lies in the prisoner's rights
    under the rules to complain to the governor or the
    Secretary of State."

    In Reg. v. Board of Visitors of Gartree Prison, Ex parte
    Sears,
    14 March 1985, The Times, 20 March 1985, a prisoner

    - 22 -

    sought damages in respect of cellular confinement and loss of
    privilege. Mann J. said:

    "If a person is imprisoned in al place where he is lawfully so
    imprisoned, then it does not seem to me that a variation in
    conditions of confinement can constitute the tort of false
    imprisonment at common law."

    These two cases were referred to by Ackner L.J. in Middleweek v.
    Chief Constable of Merseyside (Note)
    [1990] 3 W.L.R. 481 with
    apparent approval although this was later qualified to the extent
    of propounding the proposition that lawful detention could become
    unlawful when the conditions became intolerable. To this
    proposition I shall return later.

    It is perhaps instructive to examine once more the
    circumstances which in each of the two cases were said to
    constitute false imprisonment. In Weldon it was said that his
    removal to and confinement in a strip cell constituted the tort.
    In Hague the Court of Appeal held that his continued segregation
    in the prison to which he was transferred on the orders of the
    Governor of the transferring provision was unlawful and in breach
    of rule 43. This unlawful segregation, it was argued, amounted to
    false imprisonment. No complaints were made about his presence
    in the second prison and no complaint about segregation could have
    been made had the Governor of that prison independently ordered
    and obtained leave for it. Thus in each case what was said to
    constitute false imprisonment was not the confinement in the
    particular prison but rather the treatment therein, or, as Goddard
    L.J. put it in Arbon v. Anderson the conditions and not the nature
    of the imprisonment. The alteration in the conditions infringed
    the residual liberty possessed by the two men and thus constituted
    false imprisonment.

    This proposition presupposes that a prisoner lawfully confined
    in prison has, vis a vis the Governor, residual liberty which can be
    protected by private law remedies. That a prisoner has a right to
    sue in respect of torts committed against him in prison is beyond
    doubt (Raymond v. Honey (supra)). If he is assaulted by a prison
    officer he may sue for damages, and if he is negligently cared for
    whereby he sustains injury to his health he may likewise sue. But
    does he have such residual liberty, vis a vis the Governor, as
    amounts to a right protectable in law? I do not consider that he
    does.

    He is lawfully committed to a prison and while there is
    subject to the Prison Act 1952 and the Prison Rules 1964. His
    whole life is regulated by the regime. He has no freedom to do
    what he wants, when he wants. His liberty to do anything is
    governed by the prison regime. Placing Weldon in a strip cell and
    segregating Hague altered the conditions under which they were
    detained but did not deprive them of any liberty which they had
    not already lost when initially confined.

    Intolerable conditions

    In the Court of Appeal in Weldon Ralph Gibson L.J. at p.
    479E concluded that the plaintiff's allegation included "an assertion
    of fact capable of constituting such 'intolerable conditions of

    - 23 -

    detention' as to render the detention unlawful within the principle
    stated by Ackner L.J. in the Middleweek case". In that case,
    Middleweek v. Chief Constable of Merseyside (Note) [1990] 3
    W.L.R. 481, Ackner L.J. after referring to an unreported decision
    of the Divisional Court in Reg. v. Commissioners of Police of the
    Metropolis, Ex parte Nahar
    (unreported) 14 March 1985, said at p.
    487:

    "We agree with the views expressed by the Divisional Court
    that it must be possible to conceive of hypothetical cases in
    which the conditions of detention are so intolerable as to
    render the detention unlawful and thereby provide a remedy
    to the prisoner in damages for false imprisonment. A
    person lawfully detained in a prison cell would, in our
    judgment, cease to be so lawfully detained if the conditions
    in that cell were such as to be seriously prejudicial to his
    health if he continued to occupy it, e.g., because it became
    and remained seriously flooded, or contained a fractured gas
    pipe allowing gas to escape into the cell., We do not
    therefore accept as an absolute proposition that if detention
    is initially lawful, it can never become unlawful by reason
    of changes in the conditions of imprisonment."

    My Lords, there is no doubt that in the conditions
    predicated by Ackner L.J. the prisoner would have a public law
    remedy and, if he sustained injury to health, a private law remedy
    as well, but the latter remedy would lie in negligence rather than
    in false imprisonment. To say that detention becomes unlawful
    when the conditions thereof become intolerable is to confuse
    conditions of confinement with nature of confinement and to add a
    qualification to section 12(1). If, as I believe to be the case, a
    prisoner at any time has no liberty to be in any place other than
    where the regime permits, he has no liberty capable of deprivation
    so as to constitute the tort of false imprisonment. An alteration
    of conditions therefore deprives him of no liberty because he has
    none already. I am therefore of the opinion that the above quoted
    dictum of Ackner L.J. in Middleweek is an incorrect statement of
    the law.

    General

    There are certain further matters which are relevant to
    both of the arguments on residual liberty and intolerable
    conditions. Mr. Harris argued than a substantial breach of a
    justiciable prison rule affected the legality of the detention and
    could give rise to false imprisonment. This argument is unsound
    for two reasons. In the first place it turns the tort of false
    imprisonment into one of degree dependent upon whether or not
    the breach in question is substantial. Such a concept is at odds
    with the definition of the tort and particularly at odds with the
    dictum of Atkin L.J. in Meering v. Grahame-White Aviation Co.
    Ltd
    . (1919) 122 L.T. 44, 53-54:

    "It appears to me that a person could be imprisoned without
    his knowing it. I think a person can be imprisoned while he
    is asleep, while he is in a state of drunkenness, while he is
    unconscious, and while he is a lunatic. Those are cases
    where it seems to me that the person might properly
    complain if he were imprisoned, though the imprisonment

    - 24 -

    began and ceased while he was in that state. Of course,
    the damages might be diminished and would be affect by
    the question whether he was conscious of it or not.


    "So a man might in fact, to my mind, be imprisoned by
    having the key of a door turned . . .It is quite unnecessary
    to go on to show that in fact the man knew that he was
    imprisoned."

    If a man can be falsely imprisoned when he is unaware of the fact
    it is difficult to see what relevance comfort or discomfort has to
    the constitution of the tort. In my view, imprisonment is either
    lawful or false and questions of degree do not arise. In the
    second place, the argument seeks to obtain by the back door the
    remedy which is not available by the front, namely, that based on
    breach of statutory duty.

    If deprivation of residual liberty or subjection to intolerable
    conditions could constitute false imprisonment it would mean
    adding to section 12(1) some such words as "so long as the
    conditions of his confinement are tolerable and the provisions of
    this Act and of any rules made hereunder are observed in relation
    to him in all material respects". I see no justification for so
    qualifying section 12(1). In my view that subsection provides a
    complete answer to any claim of false imprisonment against the
    Governor or anyone acting on his authority.

    It was suggested during argument that if no action of false
    imprisonment could lie against the Governor, a prisoner would have
    no remedy against a fellow prisoner who locked him in some
    confined space. While a prisoner has no residual liberty vis a vis
    the Governor, it does not necessarily follow that vis a vis fellow
    prisoners he does not have such measure of liberty as is permitted
    to him by the prison regime. Furthermore section 12 would
    provide no defence to a fellow prisoner. As the matter is not
    necessary to the determination of these appeals and was not fully
    argued I say no more. It was further suggested that as a matter
    of general principle someone who had already suffered some
    deprivation of liberty could not thereafter suffer false
    imprisonment. This appears to misunderstand the definition of the
    tort which is total deprivation of liberty, that is to say of all such
    liberty as the individual presently enjoys and not deprivation of
    total liberty, namely, liberty which is otherwise wholly
    unrestricted. I see no reason why an individual enjoying restricted
    liberty such as an undergraduate "gated" within his college should
    not be falsely imprisoned if the result thereof is to deprive him
    totally of such liberty as he presently enjoys.

    To summarise my conclusion on these appeals:

    1. No action of damages lies in respect of a breach of
      the Prison Rules 1964.

    2. No action of damages for false imprisonment lies
      against the Secretary of State or the Governor of a prison
      either on the ground of unlawful deprivation of residual
      liberty, or on the ground of subjection to intolerable
      conditions.

    - 25 -

    I would therefore dismiss the appeal in Hague and allow
    that in Weldon making the orders proposed by my noble and
    learned friend, Lord Bridge of Harwich.

    LORD GOFF OF CHIEVELEY

    My Lords,

    I agree with my noble and learned friends, Lord Bridge of
    Harwich and Lord Jauncey of Tullichettle, that the Prison Rules
    1964 are regulatory in character and were never intended to
    confer private law rights on prisoners in the event of their breach.
    I also agree, for the reasons given by my noble and learned
    friends, with the second conclusion summarised at the end of Lord
    Jauncey's speech, viz. that no action of damages for false
    imprisonment lies against the Secretary of State or governor of a
    prison either on the ground of unlawful deprivation of residual
    liberty, or on the ground of subjection to intolerable conditions;
    though I accept that, in the latter circumstances, an action for
    damages for negligence may be available to the prisoner, but only
    in respect of the type or types of damage which, on accepted
    legal principles, will give rise to such an action. I too, therefore,
    would dismiss the appeal in the case of Hague and allow the
    appeal in the case of Weldon.

    LORD LOWRY

    My Lords,

    I have had the advantage of reading in draft the speeches
    of my noble and learned friends, Lord Bridge of Harwich and Lord
    Jauncey of Tullichettle. I agree with both of them that no claim
    for damages is sustainable either for breach of statutory duty or
    for false imprisonment in the case of either prisoner. Accordingly
    I, too, would dismiss the appeal in Hague and allow the appeal in
    Weldon.

    - 26 -


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