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IN THE SUPREME COURT OF JUDICATURE QBCOF 97/0925/4

(MR JUSTICE COLLINS )

Royal Courts of Justice

Strand

London WC2

Friday 19 June 1998

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE ROCH

LORD JUSTICE JUDGE

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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

R E G I N A

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THE GOVERNOR HM PRISON BROCKHILL Respondent

EX PARTE MICHELLE CAROL EVANS Appellant

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(Transcript of the handed-down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR B EMMERSON and MR P WEATHERBY (Instructed by Messrs Graysons, Sheffield, S1 1TD (London Agents: Messrs Kingsford Stacey, London WC2A 3UB)) appeared on behalf of the Appellant.

MR P SALES and MR M FORDHAM (Instructed by The Treasury Solicitors, London SW1H 9JS) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

JUDGMENT

LORD WOOLF, MR: This is an appeal from a judgment of Collins J. given on the 10th of June l997. Collins J. dismissed a claim for damages for false imprisonment made by the appellant, Michelle Carol Evans, against the Governor of Brockhill Prison. The claim for damages was included in a joint application for leave to apply for judicial review and habeas corpus which was made on the 6th of September l996. The appeal raises issues of importance involving two principles which are deeply embedded in our law. The first is that any authoritative decision of the courts stating what is the law operates retrospectively. The decision does not only state what the law is from the date of the decision, it states what it has always been. This is the position even if in setting out the law the court overrules an earlier decision which took a totally different view of the law. The second principle is that a person imprisoned without lawful authority is entitled to damages irrespective of any question of fault on the part of the person responsible for the imprisonment.

The applications for judicial review and habeas corpus were made while the appellant was a prisoner at Brockhill Prison. She was in prison after being sentenced on the 12th of January l996 to two years imprisonment for robbery, to nine months imprisonment concurrent for two offences of burglary and to three months imprisonment concurrent for assault occasioning actual bodily harm.

On the 15th of November l996 the Divisional Court, [1997] Q.B. 443, (Bingham of Cornhill C.J., Rose L.J. and Blofeld J.) made no order on the appellant's motion for habeas corpus, allowed her application for judicial review and declared that the appellant’s conditional release date from prison, as correctly calculated, should have been the 17th of September l996 (taking into account 19 days awarded for disciplinary offences). The appellant was released the same day, but that was 59 days later than she should have been released. It was for those 59 days additional imprisonment that she claimed damages. The Divisional Court, having given its decision, adjourned this claim for damages and it was this claim which Collins J. heard and dismissed.

The Divisional Court also certified that a point of law of general public importance was involved in their decision, namely:

“What is the correct method of determining the ‘relevant period’ for the purposes of Section 41 of the Criminal Justice Act l991 and Section 67 of the Criminal Justice Act l967 in a case where an offender spent separate periods on remand in custody in respect of offences for which he is given concurrent sentences?”

but refused the Governor leave to appeal to the House of Lords. The appeal was not pursued.

The appellant’s application to the court followed a decision of the Divisional Court in R v The Secretary of State for the Home Department, Ex Parte Naughton [l997] 1 WLR 118 given on the 4th of September l996. In Naughton the Divisional Court suggested that the method which was then being adopted for calculating the date of release of a short term prisoner, where the prisoner had been in prison on remand before being sentenced, was incorrect. The relevant statutory provisions are sections 33, 41, 51 of the Criminal Justice Act l991 and sections 67 and 104 Criminal Justice Act l967 as amended by the Police and Criminal Evidence Act l984. According to the method of calculation criticised in Naughton , the appellant’s release date would have been the 18th of November l996, (3 days after the decision of the Divisional Court in this case). This method of calculation followed the reasoning in a series of decisions of the Divisional Court, commencing with R v The Governor of Blundeston Prison, Ex Parte Gaffney [l982] 1 WLR 696. (All the relevant authorities are referred to in the Divisional Court’s judgment which is reported and it is not necessary to refer to them here). The short but by no means easy point which the Divisional Court had to determine was whether, when a person is sentenced to more than one period of imprisonment to be served concurrently, the period spent previously in custody on remand should be deducted from each particular sentence to which the period in remand relates before calculating the total sentence to be served, or whether such periods in custody should be aggregated and the release date calculated simply by deducting that aggregate from the total sentence. The decision in Gaffney had adopted the former solution while the Divisional Court in this case authoritatively decided that the latter solution provided the correct answer. As is confirmed by the facts of this case, which method of calculation is adopted can materially affect a prisoner's release date.

The decisions which were disapproved of by the Divisional Court in this case set out how the release date should be calculated in unambiguous terms and it is accepted on this appeal that the Governor of Brockhill Prison had no alternative but to adopt the method of calculation laid down in the earlier decisions. He, therefore, had no reason to think that he was doing otherwise than complying with the law in detaining the appellant until the decision of the Divisional Court. It is not suggested that he had any discretion to release the appellant prior to the date calculated in accordance with the statutory provisions. It is common ground that he was not in any way personally at fault and that he could not have released the appellant earlier than he did.

Nonetheless the position was one where, as the Divisional Court stated in its judgment in this case, “the construction previously put upon the legislative provisions, we have reviewed was wrong....that construction is capable of producing, and has, in some of the decided cases produced injustice”. It had, as the court states, resulted in a situation where “defendants are remaining in prison when the sentencing court did not intend that they should”. This is what has happened to the appellant. She should have been released on the 17th of September l996 and she was in fact released on the 15th of November l996. As Collins J recognised, the appellant “is one in respect of whom the practice has produced injustice, because she has served the period of 59 days more than she ought to have served, had the provisions of Section 67 been properly construed.” Yet he decided she was not entitled to damages for this period because the Governor was entitled to rely on the earlier decisions until they were held to be in error.

It is to be noted that the effect of the error was not to alter the terms of the court order setting out the sentence. The error was limited to the manner in which that order was implemented.

It is the fact that the appellant was in prison longer than she should have been, which is the foundation of Mr Emmerson’s argument on behalf of the appellant. He submits, correctly, that the tort of false imprisonment has two ingredients, the fact of imprisonment and the absence of lawful authority to justify it. As Lord Bridge stated in Deputy Governor of Parkhurst Prison & Ors. Ex Parte Hague [l992] 1 A.C.58 at 162D:

“if A imposes upon 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.”

In the same case Lord Jauncey said much the same thing at 178C:

“Imprisonment is either lawful or false and questions of degree do not arise”

If the earlier cases had survived the Divisional Court’s decision in this case, then of course there would have been lawful justification. But Mr Emmerson submits that once the Divisional Court gave its decision it became apparent that there was no justification. He submits that the Divisional Court’s decision operates retrospectively so that the position as a matter of law is that the extra period of detention was never lawful. Mr Emmerson prays in aid the comment of Simon Brown L.J. in Percy v Hall [l996] QB 924 at 945:

“Clear it is that ordinarily a mistake of law, however understandable, cannot provide the lawful justification for an arrest where otherwise there is none”.

Mr Emmerson submits that there was no precedent for a governor in the position of the respondent in this case being granted immunity except by statute. If the imprisonment was unlawful that should be the end of the matter. He relies strongly on Articles 5(1) and(5) of the European Convention of Human Rights. He submits that to grant immunity to the Governor would be in clear conflict with Article 5(1) and (5) of the Convention.

Although Mr Justice Collins dismissed the damages claim, in case the appellant should succeed on appeal, he assessed her damages in the sum of £2,000. Mr Emmerson submits that sum is far too low.

Not surprisingly, Mr Sales supports the reasoning of Mr Justice Collins. He accepts before this court that the Divisional Court's decision in this case must be treated as having retrospectively overruled the earlier cases. However he submits that until the decision of the Divisional Court in this case, the Governor was justified in applying the approach to the relevant statutory provisions which had specifically been laid down by the courts. The Governor did not make any mistake of law. He applied the law as laid down by the courts, as he was duty bound to do. The error of law was that of the courts in decisions prior to that of the Divisional Court. Ordinarily no claim of false imprisonment arises out of a decision of a court which is subsequently shown to have been erroneous and there is no reason here to hold the Governor responsible for simply obeying the courts. The Governor at the time that he continued to detain the appellant had no legal justification for doing other than he did. It was immaterial in the circumstances of this case that there was no direct court order. Collins J. therefore came to the correct decision.

Both Mr Sales and Collins J. relied heavily on the decision of this court in Percy v Hall . Although Mr Emmerson relied on the statement in the judgment of Simon Brown L.J. already quoted, the decision is undoubtedly helpful to the Governor. In Percy v Hall , the plaintiffs had brought an action for wrongful arrest and false imprisonment against constables who arrested them for breaching certain by-laws. In a trial of the preliminary issues, the Judge held the by-laws were invalid but that the invalidity did not preclude the constables from pleading lawful justification for making the arrests. This court, presided over by Simon Brown L.J., reversed the Judge’s decision as to the validity of the by-laws and also dismissed the plaintiff’s cross appeal as to the by-laws providing justification for the arrest.

The approach of this court on the cross appeal, on the assumption the by-laws were invalid, was that whether the by-laws provided immunity should be determined at the time of the events about which complaint was made. At that time the by-laws were apparently and were in law presumed to be valid, and in the public interest needed to be enforced. This being the case, even if the by-laws were properly to be regarded as void for uncertainty, this would not deprive the constables of a defence of lawful justification, provided they could show that they had been acting in the reasonable belief that the plaintiffs were committing an offence against the by-laws.

In giving the first judgment, Simon Brown L.J. referred to the House of Lords decision in Wills v Bowley [l983] 1 A.C. 57. This was a case which concerned a constable’s power of arrest under Section 28 of the Town Police Clauses Act l847, a section which required a constable to “take into custody without warrant, and forthwith convey before a Justice, any person who in his view” commits a range of offences. Lord Bridge of Harwich, in that case, stated at p.102:

“If a power of arrest in flagrante delicto is to be effective at all, the person who exercises it needs protection,....so far as the law can give it”.

The House of Lords held by a majority of 3 to 2 that section 28 of the 1847 Act protects the police, if they honestly but mistakenly believe on reasonable grounds that they have seen an offence being committed.

Lord Justice Simon Brown went on to say:

“This question, as it seems to me, falls to be answered as at the time of the events complained of. At that time these by-laws were apparently valid; they were in law to be presumed valid; in the public interest, moreover they needed to be enforced. It seems to me one thing to accept, as readily I do, that a subsequent declaration as to their invalidity operates retrospectively to entitle a person convicted of their breach to have their conviction set aside; quite another to hold that it transforms what, judged at the time, was to be regarded as the lawful discharge of the constables’ duty into what must later be found actionably tortious conduct.

I do not understand this point ever to have been addressed before. .... It is not covered by the general doctrine of restrospectivity with regard to the annulment of invalid instruments. I am not prepared to regard the many broad statements of principle as going this far.

On the face of it, any right of redress on the part of those arrested under what ultimately are found to be defective by-laws should be against the Secretary of State as the maker of the invalid instrument. The Secretary of State is, indeed, here said to be liable on that ground. If however, as Mr Pleming recognises may well be the case, no such claim succeeds, essentially because English law provides no cause of action for invalid administrative action as such, that is no basis for creating a cause of action instead against those, here the defendant constables, who are not responsible for the invalidity. Nor is it good ground for denying them the common law defence of lawful justification which should surely be available to them. Quite the contrary. I see no sound policy reasons for making innocent constables liable in law, even though such liability would be under-written by public funds;"

(947-8)

Lord Justice Peter Gibson on this issue said he was in entire agreement with Simon Brown L.J. Schiemann L.J. also agreed. However, he considered the broader issue as to when a declaration that an enactment is invalid, takes effect. Does it take effect retroactively or only from the time of the court’s ruling? As to the second solution, Schiemann L.J. indicates that it has initial attractiveness. The law should never have been made and therefore one must proceed as though it never had been made. To do otherwise will in effect legalise the illegal and the courts are not in business to do that. Moreover, once the courts start to give some effect to illegal legislation, there will be less incentive for the legislature to refrain from such activity.

Schiemann L.J. also points out the disadvantages of this approach. He says:

“Society cannot function if all legislation has first to be tested in court for legality. In practice, money will have been spent, taxes collected, businesses and property bought and sold and people arrested and perhaps imprisoned on the basis that what appears to be the law is the law”.

(p.951)

He added:

“It has been common place in our jurisprudence,....... to speak of a basic principle that an ultra vires enactment is void ab initio and of no effect. This beguilingly simple formulation, as is widely acknowledged, conceals more than it reveals. Manifestly in daily life an enactment will have had an effect in the sense that people will have regulated their conduct in the light of it. Even in the law courts it will often be found to have had an effect because the courts will have given a remedy to a person disadvantaged by the application of the ultra vires enactment to him or because a decision, binding on the parties thereto, has been rendered on the basis of the apparent law or because some period of limitation had expired making it too late now to raise any point on illegality.

The policy questions which the law must address in this type of case is whether any and if so what remedy should be given to whom against whom in cases where persons have acted in reliance on what appears to be valid legislation. To approach these questions by rigidly applying to all circumstances a doctrine that the enactment which has been declared invalid was “incapable of ever having had any legal effect on the rights or duties of the parties”, seems to me with all respect to the strong stream of authority in our law to that effect, needlessly to restrict possible answers which policy might require.”

(p.951)

Schiemann L.J. went on to point out that in the future our law might be developed in a similar way to that of European Community law where a considerable amount of flexibility has been shown in dealing with this question. It is, however, important to note that Schiemann L.J. was not referring to questions of retrospectivity of decisions elucidating the law.

The only other recent decision to which it is necessary to refer is Olotu v Home Office [1997] 1 WLR 328. In this case this court was concerned with the effect of the right to bail provided by section 4 of the Bail Act 1997 on a person who had been remanded in custody after the expiry of the custody time limit. This court decided that the expiry of the time limit did not render the custody unlawful but only gave a right to be released on bail. Accordingly until a court order had been made the custody was not unlawful and an action for damages could not succeed. The fact that the warrant in accordance with the required practice referred to the custody time limit did not alter the position. As the Lord Chief Justice said in that case at p.334/5:

“She in any event, had no right to be released after 112 days; her right was to be released on bail by order of the court. Although alerted by the terms of the warrant to the date upon which the custody time limit was to expire, the governor had no independent role in making any application to the court, nor any authority to release the plaintiff without an order of the court”.

Lord Justice Mummery said very much the same at p.339. The Lord Chief Justice did say later on p335 that once the custody limit expired the plaintiff was “unlawfully detained” but he said this in the context of the plaintiff being obliged to order her release but until the court did so the governor being “neither entitled nor bound to release her.”

Reliance was placed on the case of Henderson v Preston [1888] 21 QBD 362 but that case and the earlier case to which reference was made in the judgment of Lord Esher M.R. of Olliet v Bessy T. Jones Rep.214 are only authority for the proposition that a warrant “good on its face” can be relied upon by a gaoler until set aside and are no more than illustrations of the fact that until an order of a court is set aside it justifies detention so the imprisonment is not tortious. The same is true of Greaves v Keene [1879 ] 4 Exch D. 73

I readily endorse the approach of the Court of Appeal in Percy v Hall in relation to the facts which they were considering. In particular, I agree with Schiemann L.J. as to the need for flexibility when what appears on its face to be a perfectly valid by-law is declared invalid. I do not regard the recent decision of Boddington v British Transport Police [l998] 2 AER 203 as undermining authority of the decision in Percy v Hall . The only speech which could have such a consequence is that of Lord Irvine of Lairg, Lord Chancellor, but he did not refer to Percy v Hall. Lord Browne Wilkinson expressly reserved the question of its correctness and Lord Steyn's reasoning does not adversely reflect on its correctness.

Percy v Hall cannot, however, be applied directly to the facts of this case. The application of the reasoning of the court in Percy v Hall to this case involves applying the reasoning to a different situation. In Percy v Hall the court were concerned as to whether a by-law although it was invalid could be given recognition, at least, to the extent of providing a defence to an action for false arrest. There is respectable, though still controversial, authority for regarding a by-law, like other executive and administrative decisions as being valid for some purposes until set aside. There is no similar authority for regarding a decision authoritatively overruled as still for some purposes setting out correctly what is the law. The situation is different from that where a prisoner is convicted and the conviction is subsequently set aside on appeal. Here the conviction is not retrospectively set aside by the higher court for all purposes. It can therefore provide lawful authority for imprisonment prior to it being set aside even though it has been shown to state inaccurately what is the law. This is the position if a court of record passes a sentence which is in excess of what the law allows on a defendant (for example a court only having power to pass nine months, passes a 12 months sentence where the mistake is found out afterwards and the sentence is subsequently quashed and a lawful sentence substituted). The Governor will be still entitled to rely on the fact of the sentence passed by the court as providing a justification for the imprisonment. The Governor is not required or entitled to assess for himself the validity of the sentence. He is entitled to assume that it is a valid sentence. However here the principle of retrospectivity has never applied, contrary to the position as to changes as to the interpretation of the law. Collins J. was therefore being far more radical than he acknowledges when he says (at page 16 of the transcript):

“It seems to me that the position here is not far from that. It is not on all fours, of course, because there is no direct court order, but there is what amounts to much the same thing, namely a court declaration as to how the Governor should approach his task of determining the length of the sentence to be served following the imposition of two years imprisonment overall by the Crown Court. The Governor was bound to calculate the correct term to be served in accordance with the provisions of Section 67 as construed by the court, because that was then the law. He did just that, and it seems to me, that it would be quite wrong for him, in those circumstances, to be liable in tort on the basis that he had no lawful justification for doing what he did. Indeed the contrary is surely the case, namely that he would have had no lawful justification for doing anything else.”

Looking at the matter from the point of view of the Governor, that may appear to be fair and reasonable. However, looking at the matter from the point of view of the appellant, the position is that, as everyone agrees, she has been wrongfully imprisoned and if this reasoning is correct, she has no right of redress. In addition the approach, as already indicated, is totally inconsistent with the principle of retrospectivity. The principle can be said to involve a fairytale, but it is a fairytale which is a long established foundation of judicial law making within our common law system and if it is to be undermined or weakened this should be left to the legislature or possibly the House of Lords.

A difficulty with Collins J's approach is illustrated by asking: what would be the position if there are conflicting decisions of the courts of equal standing? What is the position of a governor until the law is clarified by a later decision? If a governor acts on advice which proves to be mistaken as to which decision correctly sets out the law does he have a defence? Mr Sales was prepared to concede he would not. But what if Collins J. is correct? What is the position if a governor by an oversight keeps a prisoner in custody for longer than he should on the basis of a binding decision, but contests the action for false imprisonment and on appeal it is established that the previous decision was wrongly decided with the result that the prisoner was not detained unlawfully on the correct interpretation of the law, is the governor to be held liable because of what was incorrectly thought to be the law at the time of the detention? The answer is surely that a governor would not be under any liability. But it is difficult to apply the principle of retrospectivity only when it is in the interest of a governor to do so. The correct answer is provided when it is remembered that fault is not an element of an action for false imprisonment and the sole question is whether the period in prison was as a matter of law justified or not. The sentence passed by the court was never in dispute. It was that sentence and that sentence alone which provided the Governor's justification. The dispute was as to how the law required the sentence to be calculated. As to this question of law the decision in the Divisional Court provided the correct answer. Collins J. was led in to error because he was looking at what was the just result, judged by the irrelevant consideration of the blameworthiness of the Governor.

The approach of Collins J. involves extending the court’s approach of recognising for some purposes an executive or administrative act or a court order which has been quashed to the different situation where a court, having authority to do so, overrules an earlier decision of the courts so that the earlier decision no longer represents the law. Until the approach to the doctrine of precedent is changed, the practical consequence is that once the later decision has been given there is no right to rely on the earlier decision as correctly representing the law. For Collins J's approach to be justified there must be reliance on the fact of a court's decision rather than a statement as to what is the law made in reaching a decision. From the Governor's point of view, it is as though the earlier decision had not existed. This is an undoubtedly highly artificial result. It involves a fairytale. However as Mr Sales accepts it is not open to this court to abandon the fairytale. If the sentence cannot provide the justification, what the Governor is asking this court to do is to provide him with an immunity because of lack of fault but this is a task beyond the proper role of this court. It is inconsistent with the nature of the tort. In the case of Magistrates justification was provided by legislation in cases where they acted beyond their jurisdiction but it is not clear that Parliament would wish to interfere with the usual position here.

At the start of his skeleton argument Mr Emmerson has put before the court a note on the case law in the United States on prospective overruling. This results in a much more flexible position than that which exists within this jurisdiction. It has much to commend it. In the field of administrative law there has been what I would regard as being some progress made in this area. The most notable illustration of this has been in conjunction with the grant of a declaration in public law proceedings. A particularly good example of this is provided by the case of R v The Panel On Take-overs and Mergers, ex parte Datafin [l987] QB 815. (See also Lewis “Retrospective and Prospective Rulings in Administrative Law” l987, Public Law pp 81 to 83). However what is involved here is a different situation. It is depriving an appellant of a right to damages which up until now she would receive as a right once it had been shown that the Governor had detained her contrary to law. The court did not purport to change and had no power to change the law for the future only. Although this could not be appreciated at the time of the false imprisonment the Governor did misapply the law, so that while he thought that the sentence justified the whole of the period of detention, it did not justify the extra 59 days. This is the position irrespective of any fault on the part of the Governor. Up to this case the consequence of a change in the law has been that the State in positions such as this has to bear the cost. It is by no means clear to me that this is not the just result where, albeit because of a mistaken view of the law based on decisions of the courts, individuals have been deprived of their liberty. Even if the Court had a discretion to deprive the appellant of her right to damages, I am not satisfied that it would be appropriate to exercise that discretion so as to do so. Any development of the law would, as Mr Emmerson contends, involve a contravention of Article 5(1) and (5) of the European Convention of Human Rights. (See Benham v United Kingdom (1996) 22 EHRR 293).

The Benham case differed from this case in that it concerned a decision of Justices and, as already pointed out, a Magistrates Court is a Court of limited jurisdiction and in this respect differs from the High Court and the Crown Court. In the case of Justices, until the law was changed by Section 208 of the Court and Legal Services Act l990, so as to provide that there is no right to damages unless they acted in bad faith, Justices could be liable to pay damages if they acted in excess of jurisdiction. In Benham the Court found that the applicant who had been imprisoned for non payment of community charge had not been detained unlawfully as he would have been if the Magistrates had acted without jurisdiction. In these circumstances there was no contravention of Article 5(1) and in consequence Article 5(5) was not applicable (paragraph 50 at p.322). However, it is clear from the approach of the Court that if there had been a contravention of Article 5(1), then Article 5 would have required a right to compensation to comply with Article 5(5) of the Convention. The approach of the Court (and of the Commission) suggests, in addition, that if the sentence of imprisonment had been imposed without jurisdiction, then the immunity in relation to an action for damages granted by Section 108 of the Courts and Legal Services Act l989 would not have avoided a breach of Article 5(5) of the Convention. Mr Emmerson is therefore probably correct in submitting that if an imprisonment under domestic law is unlawful, a statutory immunity from liability will not be regarded under the Convention as excusing the failure to provide a remedy.

The right to compensation contained in Article 5(5) is unqualified. When there is a bill before Parliament designed to bring the European Convention of Human Rights into our domestic law, it would not be desirable for the courts to establish a new head of immunity for the State which could well contravene Article 5(5).

This case does reveal the need for an examination of our present approach to the retrospectivity of judicial decisions. The imminence of the arrival within our domestic law of the European Convention of Human Rights gives added urgency to that need. As it is, however, the conclusion which I have come to is that the appeal on liability from the decision of Collins J. should succeed and that the appellant should be granted the appropriate sum by way of damages.

In awarding £2000, Collins J. pointed out that there is singularly little help to be obtained from the authorities as to the correct amount to award in these circumstances. It is accepted by the appellant that this is not a case for an award of aggravated or exemplary damages. Nor are we concerned with special damages. The Judge accepted a submission on behalf of the Governor that there can be two elements to an award of damages for false imprisonment; the first being compensation for loss of liberty and the second being the damage to reputation, humiliation, shock, injury to feelings and so on which can result from the loss of liberty. In this case the second element is absent.

The Judge was referred to two cases. The first, an unreported decision of the Court of Appeal Lunt v Liverpool City Justices , decided on 5th March l991 and the other Thompson v The Commissioner of Police of the Metropolis [l997] 2 AER 762.

In the former case the Court of Appeal increased an award of £13,500 to £25,000 for a period of 42 days false imprisonment in respect of an alleged default in the payment of rates. While there is nothing significant about the circumstances in which the appellant lost his liberty in that case, the facts are very different from here. In Lunt the court was concerned with someone of good reputation and none of the imprisonment was justified. The experience was described by Lord Justice Bingham as “horrific” to a person of previous good character. The situation is also different from those considered by this court in Thompson. As a result of the period she was lawfully imprisoned, the appellant would have already made the necessary adjustments to serving a prison sentence. She was someone who had been properly sentenced to a term of two years imprisonment for serious criminal offending and until the court gave its decision in Naughton, she had no reason to think that she was not perfectly properly incarcerated.

Collins J. declined to propose an amount for each extra day imprisoned. He considered that a global approach was correct. He was right in doing so. Mr Emmerson nonetheless pointed out that the sum of £2000 was the “equivalent of less than £35 per day” and was even lower than the daily figure contended for by the respondent. He suggested that as a guide for other cases, it would be useful for the court to indicate a daily or weekly amount so as to provide a guide for the many other cases which will also result from the Divisional Court's and our decisions in this case.

We accept that an award of £2,000 is well below the appropriate figure for 59 extra days of imprisonment. We increase the award to £5,000. This is a global figure. We recognise that it is possible to work out a daily, weekly, or monthly figure from this amount for the approximately two months extra imprisonment of this case but we discourage such an exercise. No two cases are the same. The shorter the period the larger can be the pro rata rate. The longer the period the lower the pro rata rate. The length of sentence lawfully imposed is clearly similarly significant. The fact that the appellant was prepared to risk postponing her release date by committing disciplinary offences while in prison is also relevant.