Prison Officers Association v Iqbal (Rev 1) [2009] EWCA Civ 1312

A serving prisoner claimed damages for false imprisonment after an unlawful prison officers’ strike kept him locked in his cell instead of following the usual regime. The Court of Appeal majority held there was no false imprisonment, clarifying liability for omissions and indirect causation, though indicating misfeasance in public office may apply in such situations.

Facts

The respondent, Mr Mohammed Nazim Iqbal, was a Category C prisoner at HMP Wealstun, serving a 15-year sentence. His normal weekday regime involved his cell being unlocked at about 7.45am, followed by several hours out of his cell for cleaning work, limited exercise, access to medical care, evening gym, and a phone call to his mother, before being locked in again at 7.45pm.

On 28 August 2007, the Prison Officers Association (POA), following a dispute over pay, decided to call a national strike from 7.00am on 29 August 2007. The decision was taken knowing the strike would be in breach of contract and without warning, to prevent the Prison Service obtaining an injunction in advance. At HMP Wealstun, the POA representative, Mr Mottershead, informed officers as they arrived; hardly any reported for duty.

The governor in charge of security and the Number One Governor, Ms Rice, were informed of the strike on the morning of 29 August. The Governor decided that, because of the strike, prisoners should remain in their cells throughout the day. At about 9.30am she issued a Governor’s Order stating that prisoners would remain in their cells but receive meals and should only use cell bells in real emergencies. The respondent did not receive a copy, apparently because there were no officers on A Wing.

Around midday the Deputy Governor ordered officers to return to work, but they refused. Later that afternoon an injunction was obtained requiring them to resume work, which they did only the next day.

As a result, on 29 August the respondent’s cell was opened only briefly at around 11.30am to allow a drug worker to hand him food and permit him out for less than a minute to fill a thermos. He otherwise remained locked in his cell all day, receiving a scratch meal at 3.30pm. The normal routine resumed the following day.

Mr Iqbal sued, contending that the officers’ unlawful strike and refusal to work, contrary to the established regime authorised by the Governor, caused his confinement to his cell and amounted to false imprisonment. His Honour Judge Spencer QC granted a declaration that he had been falsely imprisoned for some six hours and awarded nominal damages of £5, partly due to perceived exaggeration of his distress and partly because the declaration was thought to provide “just satisfaction”. The POA appealed on liability; the respondent cross‑appealed on the quantum of damages.

Issues

The key legal issues were:

• Whether prison officers who take unlawful strike action, resulting in a prisoner’s confinement to his cell rather than following the usual regime, can be liable in the tort of false imprisonment.
• Whether a mere failure to act (an omission) can amount to false imprisonment in the absence of a specific duty owed to the claimant.
• Whether the strike was the direct and immediate cause of the confinement, or merely provided the occasion for the Governor’s decision to confine.
• Whether the prisoner, lawfully in custody under sections 12 and 13 of the Prison Act 1952, had any right to be out of his cell which could found a claim for false imprisonment against officers acting without the Governor’s authority.
• If liability for false imprisonment arose, what level of damages was appropriate for the loss of his limited liberty within the prison.

Judgment

Majority (The Master of the Rolls and Smith LJ)

(1) Lawful custody and the role of the Governor

The court noted that under section 12(1) of the Prison Act 1952 a sentenced prisoner “may be lawfully confined in any prison” and section 13(1) provides that “[e]very prisoner shall be deemed to be in the legal custody of the governor of the prison.” It was common ground that Mr Iqbal could have no claim for false imprisonment against the Governor arising out of his confinement in his cell on 29 August 2007, as he was lawfully in the Governor’s custody throughout.

The claim focused instead on the liability of individual officers and, via them, the POA.

(2) No liability for a pure omission absent a specific duty

The Master of the Rolls drew on authority including Smith v Littlewoods Organisation Ltd and Herd v Weardale Steel, Coal and Coke Co, emphasising that the common law does not usually impose liability for pure omissions absent a specific duty. He quoted Buckley LJ in Herd where the plaintiff miner, unable to leave a mine because the employer had not operated the winding gear, failed in a false imprisonment claim:

“What kept [the plaintiff] from getting to the surface was not any act which the defendants did, but the fact that he was at the bottom of a deep shaft, and there was no means of getting out other than the particular means which belonged to his employers and over which the plaintiff had contractual rights and which at that moment were not in operation.”

Buckley LJ also observed:

“The master has not imprisoned the man. He has not enabled him to get out as the under the contract he ought to have done, but he has done no act compelling him to remain there.”

Hamilton LJ similarly stated:

“The fact is that he remained at the bottom of the shaft simply because the power was not turned on at the top of the shaft to raise the cage. Could that be held to have been an imprisonment?”

The Master of the Rolls considered that reasoning supported the principle, reflected in Street on Torts, that false imprisonment will normally result from a positive act. Defendants are generally not liable in tort for failure to act, absent a specific duty owed to the claimant. He characterised the prison officers’ withdrawal of labour as an omission: their contractual duty to work was owed to the employer/Governor, not to individual prisoners, and there was no tortious duty owed to prisoners to attend for work or not to strike.

He distinguished R v Governor of Brockhill Prison, Ex p Evans (No 2), where a governor was liable for false imprisonment in failing to release a prisoner at the end of her sentence. In that situation, the prisoner had an absolute right to be released, and the governor was under a specific duty to do so. In contrast, Mr Iqbal, on 29 August, had no right to be released from prison and no arguable right to be let out of his cell save if permitted by the Governor.

(3) Requirement of direct causation

The majority stressed that false imprisonment must result from a direct act of the defendant. The Master of the Rolls relied on authority such as Grinham v Willey and Davidson v Chief Constable for North Wales, where it was held that a person merely giving information to a constable does not “directly and immediately” cause the claimant’s imprisonment.

Sir Thomas Bingham MR’s formulation in Davidson was quoted:

“Accordingly, as it would seem to me, the question which arose for … decision… was whether there was information properly to be considered by the jury as to whether what [the defendant] did went beyond laying information before police officers for them to take such action as they thought fit, and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting [the plaintiffs].”

In the present case, the officers’ strike was said to have only indirectly led to the claimant’s continued confinement; the Governor’s decision and subsequent Governor’s Order were the direct cause of his staying in his cell. Though it was foreseeable that the strike would lead to increased confinement, this was analogous to the store detective in Davidson foreseeing, and indeed intending, that the suspect would be arrested upon her report, which did not amount to a direct causative act.

Lady Justice Smith accepted that, at least until the Governor’s decision and Order, the strike could be seen as the immediate cause. However, from 9.30am at the latest the Governor’s Order became the direct and immediate cause of the claimant’s confinement; the strike was merely part of the background causal chain.

She stated:

“In my view, in Grinham and Davidson, there was a causal link between the defendant’s report and the plaintiff’s loss of liberty but the police officer’s decision rendered the link insufficiently direct and immediate.”

She applied the same reasoning here: after the Governor’s Order, the direct and immediate cause of confinement was that Order, not the officers’ earlier decision to strike.

(4) No prisoner’s right to be released from cell; no duty owed by officers

Lady Justice Smith examined whether a prisoner has any legally enforceable right to be released from a cell at a particular time and whether officers owe a corresponding duty. Referring to Hague, she stressed that, vis‑à‑vis the Governor, prisoners have no residual liberty to move within the prison; confinement anywhere within the prison is lawful during the sentence under sections 12 and 13 of the 1952 Act.

Considering hypothetical acts by fellow prisoners and officers acting without authority, she accepted that a fellow prisoner who actively locks another in a confined space could be liable for false imprisonment, and that Lord Bridge in Hague had suggested 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”. However, those observations were framed in terms of positive acts of “locking up”, not omissions.

She concluded that even if a prisoner might, in some circumstances, have a claim for wrongful additional restraint against a fellow prisoner or an officer acting without the Governor’s authority, that did not establish any right to be released from a cell at a given time under the routine, nor a duty owed personally by officers to unlock him.

She said that a prison officer’s duty to unlock cells is owed to the employer as part of his contractual duties, not to individual prisoners, and that a refusal to attend work is a breach of contract and disciplinary matter, but does not itself create a tortious duty owed to prisoners.

(5) Limiting false imprisonment; role of misfeasance in public office

The Master of the Rolls expressed concern that recognising liability here would have far‑reaching practical consequences. It might turn minor delays in unlocking cells, even due to poor time‑keeping, into actionable false imprisonment claims and could arguably make officers liable even when on lawful strike, subject to contract terms.

He considered that it better accorded with principle and practicality to confine prisoners’ remedies in such circumstances to the tort of misfeasance in public office. He quoted Lord Steyn’s description of misfeasance in Three Rivers (No 3):

“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 that he has no power to do the act complained of and the act will probably injure the [claimant]. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful”.

He also referred to Karagozlu v Commissioner of the Police of the Metropolis, where the Court of Appeal accepted that a prison officer who “deliberately and ‘dishonestly’ refuses to carry out his duties” so as to affect unlocking decisions could be liable for misfeasance, even if not for false imprisonment.

Accordingly, the majority held that, on the facts, the striking officers’ conduct did not amount to false imprisonment: it was an omission, they owed no relevant duty to the respondent, and their strike was not the direct cause of the confinement. The appeal was allowed.

(6) Damages (hypothetical)

Although the issue became academic given the finding of no liability, the court addressed damages. The trial judge had awarded £5 nominal damages. The Master of the Rolls considered this “indefensibly low” and based on flawed reasoning. The respondent suffered “real damage” through the loss of several hours of limited freedom within the prison: cleaning work, exercise, gym, and telephone contact with his mother.

The Master of the Rolls rejected reliance on “just satisfaction” as a common law concept and emphasised that exaggeration of distress does not justify reducing substantial damages to a nominal sum. Given the limited nature of the liberty lost, but real harm suffered, he considered a relatively modest compensatory award appropriate and stated that £120 (£20 per hour) would have been a fair assessment.

Lady Justice Smith agreed, stating that in false imprisonment nominal damages would be appropriate only in very rare cases, such as if a claimant was asleep and unaware of confinement. She endorsed the figure of £120 as the proper award had the tort been established.

Dissent (Sullivan LJ)

Lord Justice Sullivan would have dismissed the POA’s appeal and allowed the cross‑appeal, increasing damages to £120.

(1) Prisoners’ residual liberty and unauthorised restraint

He agreed that, vis‑à‑vis the Governor, section 12(1) of the 1952 Act gives lawful authority for restraint, but treated officers acting without the Governor’s authority as in the same position as any other person. He relied on Lord Bridge’s statement in Hague that section 12(1) 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.”

He then quoted Lord Bridge’s further comment:

“This consideration [that it is only the governor who can rely on section 12 of the Prison Act 1952] 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).”

Similarly, he cited Lord Jauncey’s observation that, while a prisoner had no residual liberty vis‑à‑vis the Governor, “section 12 would provide no defence to a fellow prisoner”. He reasoned that section 12 immunity extends only to the Governor and those acting with her authority. A prison officer who deliberately restrains a prisoner without such authority has no more justification than a fellow prisoner.

(2) Characterising the officers’ conduct as a positive act, not a mere omission

Sullivan LJ rejected the description of the officers’ conduct as a “mere omission”. He contrasted the indifferent stranger who happens upon a locked cage and ignores pleas to release the occupant (for whom there would be no liability) with prison officers whose job, under the Governor’s standing regime, includes unlocking cells at specified times.

He emphasised that the respondent was lawfully locked in his cell overnight by officers acting with the Governor’s authority, and that the same regime required other officers to unlock him at about 7.45am. The officers arriving for duty on 29 August knew, without any need for fresh orders, that the regime required them to unlock prisoners’ cells at that time.

In that context, a collective, deliberate refusal to implement the Governor’s standing regime was properly characterised as a positive act of disobedience, not passive inaction. He stated that there was no material difference between:

• an officer who locks a prisoner in a cell in defiance of the Governor’s instruction not to do so; and
• an officer who refuses, in defiance of the Governor’s regime, to unlock the prisoner from that cell when required.

Both would be acting without the Governor’s authority and could be liable for false imprisonment.

He regarded the timing of a specific instruction to return to work (around noon) as irrelevant; the officers already knew their duties under the established regime. Nor did it matter that they chose not to enter the prison at all rather than enter and refuse to unlock; the collective, organised refusal was an act, not a mere failure.

(3) Causation and the Governor’s response

Sullivan LJ considered that the striking officers clearly procured the Governor’s response—her Order requiring prisoners to remain in their cells—which was entirely predictable to officers familiar with the prison regime and staffing requirements. He distinguished the situation from Davidson, where the constables retained and lawfully exercised independent judgment. In contrast, the Governor here was, in practical terms, left with no real choice as to unlocking; it would have been unsafe to release prisoners without adequate staffing, which the strike deliberately removed.

He pointed out that an essential purpose of strike action is to demonstrate the importance of the services withdrawn, observing that the strike here was timed so that prisoners would be prevented from leaving their cells on the morning of 29 August.

(4) Balancing prisoners’ rights and the right to strike

Sullivan LJ accepted that recognising liability would have significant implications for the POA but considered this acceptable. He noted that third parties are often affected by industrial action. In the prison context, those third parties will be prisoners, and the harm will usually be the loss of such limited liberty as the Governor’s regime affords.

In his judgment, where there was a conflict between prisoners’ right not to be unlawfully deprived of that liberty by unauthorised acts of prison officers and officers’ right to strike (in the absence of statutory prohibition), the prisoners’ right must prevail, given the fundamental nature of freedom from false imprisonment.

He would therefore have upheld the finding of liability and, for the reasons given by the other members of the court, increased damages to £120.

Implications

The majority decision clarifies that, in English tort law, liability for false imprisonment ordinarily requires a positive act directly and immediately causing confinement, and cannot usually be founded on a mere omission to act in the absence of a specific duty owed to the claimant. The decision also underscores that where an intervening lawful decision by a primary custodian (such as a prison governor) directly authorises confinement, those whose conduct merely formed the background to that decision will not typically be liable for false imprisonment.

The judgment confirms that prisoners lawfully in custody under sections 12 and 13 of the Prison Act 1952 have no general right, as against the Governor, to a particular level of movement within the prison. However, it leaves open, and indeed supports in principle, the possibility that prison officers or others acting without the Governor’s authority may be personally liable either for false imprisonment where they positively and unlawfully restrain a prisoner, or for misfeasance in public office where their deliberate and dishonest inaction (such as refusing to unlock cells) causes additional restraint.

The court’s obiter discussion of damages stresses that false imprisonment, if proved, should ordinarily attract compensatory rather than purely nominal damages, even where the deprivation of liberty is relatively short and occurs within an already custodial setting. The notional award of £120 for approximately six hours’ loss of limited prison liberty provides a guide to proportional damages in similar contexts.

Overall, the case is a significant authority on the limits of false imprisonment in institutional settings, particularly regarding omissions, causation, the effect of statutory custody provisions, and the relationship between false imprisonment and misfeasance in public office.

Verdict: Appeal allowed; the Court of Appeal held that the respondent had not been falsely imprisoned and dismissed his claim. The respondent’s cross‑appeal on damages was treated as academic, though the court indicated that, had liability been established, £120 would have been the appropriate compensatory award.

Source: Prison Officers Association v Iqbal (Rev 1) [2009] EWCA Civ 1312