R v Deputy Governor of Parkhurst Prison, ex parte Hague [1991] UKHL 13

Convicted prisoners Hague and Weldon claimed damages for unlawful segregation and harsh prison conditions, alleging breach of prison rules and false imprisonment. The House of Lords held that prison rules do not create private law rights and that lawful imprisonment is not converted into false imprisonment merely by unlawful segregation or intolerable conditions, though other tort and public law remedies may exist.

Facts

Hague

In July 1988, Hague was serving a 15-year sentence at Parkhurst Prison. The Deputy Governor, considering him a troublemaker, ordered his transfer to Wormwood Scrubs on 8 July 1988, to be held there in segregation from other prisoners for 28 days. This was confirmed by the Regional Director of Prisons on behalf of the Secretary of State, purportedly under rule 43 of the Prison Rules 1964 and a Home Office circular.

The effect was that for 28 days Hague was denied association with other prisoners and certain privileges enjoyed by long-term prisoners under the normal regime. The segregation regime was said to be similar to cellular confinement following disciplinary awards under rules 51 or 52. Hague sought judicial review, including damages for false imprisonment.

The Divisional Court dismissed his application. The Court of Appeal held that the governor of one prison could not order segregation of a prisoner after his transfer to another prison, and that authority under rule 43(2) had to be exercised with an unfettered discretion, contrary to the routine 28-day confirmation authorised by the circular. It granted declaratory relief but refused certiorari and concluded that an action for false imprisonment did not lie.

Weldon

Weldon, serving four years’ imprisonment at Leeds Prison in May 1984, issued county court proceedings in 1987 against the Home Office for assault and battery and false imprisonment. His particulars asserted that officers burst into his cell, dragged him onto the landing and down stairs, placed him in a punishment block cell, then in a strip cell where he was kept naked overnight and allegedly further assaulted. He pleaded that this treatment temporarily converted a lawful detention into a false imprisonment.

The Home Office applied to strike out the false imprisonment claim. The registrar, an assistant recorder and the Court of Appeal all refused, holding that there was an arguable case.

Issues

1. Breach of statutory duty

Whether breach of the Prison Rules 1964, in particular rule 43, gives a convicted prisoner a private law cause of action in damages for breach of statutory duty.

2. False imprisonment and “residual liberty”

Whether a convicted prisoner lawfully detained under sentence and section 12(1) of the Prison Act 1952 can sue the governor or the Secretary of State for damages for false imprisonment:

• on the basis of unlawful segregation or other restraints within the prison which contravene the prison rules;
• on the basis that intolerable conditions of detention convert lawful imprisonment into unlawful imprisonment; or
• on the basis that a prisoner retains a “residual liberty” within prison such that its unlawful curtailment constitutes false imprisonment.

3. Responsibility for acts of others

Whether fellow prisoners or prison officers acting in bad faith may be liable in false imprisonment, and whether the Home Office can be vicariously liable for such acts.

Judgment

Breach of statutory duty

The House reviewed the approach to breach of statutory duty in authorities such as Groves v. Wimborne (Lord), Cutler v. Wandsworth Stadium Ltd., Butler (or Black) v. Fife Coal Co. Ltd, and Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2). Lord Bridge emphasised that the critical question is always one of legislative intention.

“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.”

The Prison Rules 1964 were made under section 47 of the Prison Act 1952, which authorises rules for the regulation and management of prisons and for the treatment, discipline and control of prisoners. Lord Jauncey considered that allowing the Secretary of State by rules to create private law rights would improperly extend the scope of the Act in the absence of express authority.

“The Prison Act 1952 is designed to deal with the administration of prisons and the management and control of prisoners. … 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.”

Even if the Secretary of State had the power to create such rights, the rules were characterised as regulatory, providing a framework for prison administration rather than conferring compensatable protections.

“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.”

Earlier authorities, including Arbon v. Anderson and Becker v. Home Office, were approved as correctly stating that breaches of prison rules do not, of themselves, create civil liability.

“neither the Prison Act 1898 nor the rules were intended to confer any such right.”

“The prison rules are regulatory directions only. Even if they are not observed, they do not give rise to a cause of action.”

The House therefore held that breach of rule 43 or other prison rules does not give rise to a private law claim in damages.

False imprisonment and lawful custody

Section 12(1) of the Prison Act 1952 provides:

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

Lord Bridge held that this provision authorises confinement of the prisoner within the defined bounds of the prison by the governor and officers acting with his authority. Within that framework, the day-to-day regime necessarily restricts movement.

“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. … it is the substitution of one form of restraint for another.”

The tort of false imprisonment consists of restraint within defined bounds without lawful authority. Since section 12(1) and the sentence of the court provide such authority for confinement in any prison, variations in location or ordinary regime, even if made in breach of the rules, do not of themselves amount to false imprisonment when carried out in good faith under the governor’s authority.

Lord Jauncey rejected the idea that unlawful segregation or changes in conditions involved any deprivation of liberty that the prisoner had not already lost upon lawful confinement.

“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. … 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.”

Lord Bridge concluded that to treat unlawful segregation as false imprisonment would effectively confer by another route a right of action for breach of statutory duty, which Parliament had not intended.

“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.”

Intolerable conditions of detention

The House considered earlier suggestions (notably in Ex parte Nahar and Middleweek) that detention in intolerable conditions might become unlawful so as to found an action for false imprisonment. Ackner LJ in Middleweek had stated:

“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.”

Both Lord Bridge and Lord Jauncey rejected this as a correct basis for false imprisonment. Lord Bridge accepted that intolerable conditions should attract a remedy but located that remedy in negligence or similar torts rather than in recharacterising the confinement itself as unlawful.

“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.”

He considered that a custodian owes a duty of care to detainees, covering physical injury and, in appropriate cases, intolerable pain or discomfort, and that breach of that duty could sound in damages without altering the legality of the detention.

“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 duty of care for which the law should award damages.”

Lord Jauncey expressly disapproved the Middleweek dictum that detention could become unlawful solely because conditions became intolerable.

“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). … I am therefore of the opinion that the above quoted dictum of Ackner L.J. in Middleweek is an incorrect statement of the law.”

Lord Ackner acknowledged that his Court of Appeal dictum in Middleweek was erroneous, while reaffirming that intolerable conditions are remediable through negligence, assault, misfeasance in public office and judicial review.

Residual liberty and claims against others

The House distinguished between claims against the governor/Secretary of State and claims against others lacking lawful authority under section 12.

Lord Bridge accepted that a fellow prisoner who unlawfully confined another, such as locking him in a shed, would be liable for false imprisonment, because he could not rely on section 12(1).

“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.”

Similarly, a prison officer acting in bad faith outside the scope of the governor’s authority might be personally liable for false imprisonment and misfeasance in public office, but the governor or Home Office would not be vicariously liable for such ultra vires acts.

“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).”

However, as to claims against the governor or Secretary of State, Lord Jauncey concluded:

“In my view that subsection [section 12(1)] provides a complete answer to any claim of false imprisonment against the Governor or anyone acting on his authority.”

Availability of other remedies

The House stressed that prisoners are not without remedies when rules are broken or conditions are harsh. Lord Jauncey noted that a prisoner may complain to the governor or board of visitors, leading potentially to a report to the Secretary of State, and may challenge administrative decisions by judicial review. In addition, ordinary private law remedies (negligence, assault, misfeasance in public office) remain available.

Lord Ackner listed alternative remedies for intolerable conditions:

“an action in tort against a prison authority for damages for negligence … where the facts fit, an action in tort for damages for assault; … where malice can be established, an action for misfeasance in the exercise of a public office; and … the termination of such conditions by judicial review.”

Implications

The decision firmly establishes that the Prison Rules 1964, made under section 47 of the Prison Act 1952, are regulatory and do not of themselves create private law causes of action in damages for their breach. The House affirmed earlier decisions such as Arbon v. Anderson and Becker v. Home Office on this point.

It clarifies that a convicted prisoner lawfully detained under sentence and section 12(1) cannot, as against the governor or Secretary of State acting in good faith and within the general authority conferred by that section, maintain an action for false imprisonment merely because segregation or other restrictions were imposed contrary to the rules, or because conditions were harsh. The concept of a legally protected “residual liberty” within prison, enforceable by the tort of false imprisonment against the prison authorities, was rejected.

At the same time, the House preserved the potential liability of fellow prisoners or officers acting without the governor’s authority, and confirmed that intolerable conditions are justiciable through negligence and other torts and through public law remedies, including judicial review and habeas corpus.

In practical terms, the case delineates the boundary between public law control of prison administration (with declarations and quashing orders) and private law claims in tort. It confirms that unlawful use of administrative powers in prisons may attract public law remedies and prompt administrative reform (as illustrated by the revision of the Home Office circular on rule 43) but will not ordinarily expose the state to damages in tort for false imprisonment or breach of statutory duty in respect of the manner of confinement.

Verdict: The House of Lords held that no claim for damages lay for breach of the Prison Rules 1964 or for false imprisonment in either case. It dismissed Hague’s appeal, affirmed the Court of Appeal’s order in his case, and allowed the Home Office’s appeal in Weldon, striking out the false imprisonment allegation.

Source: R v Deputy Governor of Parkhurst Prison, ex parte Hague [1991] UKHL 13