Quinland v Governor of HM Prison Belmarsh [2002] EWCA Civ 174

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM DISTRICT JUDGE DUDLEY

SOUTHEND COUNTY COURT

[2002] EWCA Civ 174

Case No Case No: B1/2001/1817 CCRTI

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

QuinlandAppellant

Governor of HM Prison BelmarshRespondent

Before

Lord Justice Kennedy

Lord Justice Clarke

Lady Justice Hale

Michael Oliver (instructed by Jervis Jerman, Southend on Sea) for the appellant

Philip Sales (instructed by Treasury Solicitor) for the respondent

Date 19 February 2002

Lord Justice Kennedy :

This

[1]is a claimant’s appeal from an order made by District Judge Dudley in the Southend County Court on 20 th July 2000 that the claimant’s claim be struck out with costs. The District Judge gave permission to appeal, but no attempt was made to file the appellant’s notice until well out of time. On 16 th July 2001 Judge Yelton gave the claimant permission to appeal out of time, and, being of the opinion that the appeal raises an important point of principle, he ordered, pursuant to CPR part 52.14 that the appeal be transferred to this court. Background

[2]On 14 th June 1993 in the Crown Court at Chelmsford the claimant, having been convicted of blackmail and burglary, was sentenced for those offences to two years and 12 months imprisonment respectively, those sentences being ordered to be served concurrently. The sentencing judge also had to deal with the claimant for other matters and as to those other matters he said – “For the committal for sentence on driving whilst disqualified three months and three years disqualification. For the handling, 3 months; for the no insurance a fine of ten pounds, no time to pay, or three days. That will be concurrent to all other sentences. I take no action on the breach of suspended sentence. So far as the two matters of driving whilst disqualified, and handling, they will be concurrent to each other but consecutive to the two years. That means you will serve two and a half years. Take him down.”

[3]Careful consideration of those sentencing remarks reveals that the total sentence should have been two years three months, but the judge having indicated a total of two years and six months neither counsel nor any one else spotted his error, and the order of the court and the warrant of commitment were, it seems, drawn up in accordance with his total.

[4]The claimant then sought leave to appeal against both conviction and sentence, but without reference to the judge’s error, and on 28 th November 1993 Pill J made this decision pursuant to section 31 of the Criminal Appeal Act 1968 :

“Having read the record sheets and the components of the sentence as expressed by the judge I regard the sentence as one of two years three months imprisonment. That should be checked if necessary. Leave to appeal against conviction and sentence refused.”

[5]What in effect the single judge was doing was giving leave to appeal against sentence restricted to a correction of the judge’s arithmetical error if further enquiries confirmed the existence of that error. If the error had been spotted within 28 days of the sentence being imposed it could have been corrected pursuant to powers then contained in the Supreme Court Act 1981, section 47(2). On 17 th January 1994 a copy of the decision of the single judge was sent both to the claimant and to his solicitors under cover of a letter from the Registrar of Criminal Appeals the material part of which reads – “The case will be referred, without legal aid, to the Full Court for the sentence to be corrected from two years six months to two years three months. If you renew your application for leave to appeal against conviction, that too will go to the Full Court. Otherwise it will be sentence only.”

[6]If Pill J was right, as he was, the claimant was due for release on 11 th April 1994, but if the claimant had to serve the full two and a half years his release would not be until 23 rd May 1994 – six weeks later.

[7]In February and early March 1994 the claimant’s solicitors contacted the Criminal Appeal Office on more than one occasion. As Mr Oliver for the claimant points out, the solicitors were not at that stage privately instructed and they had discharged their obligations under the legal aid certificate pursuant to which they had acted for the claimant at his trial. Nevertheless they were active on his behalf, and in their letter of 9 th March 1994 to the Registrar they set out what they did after hearing of the decision of the single judge. The relevant part of that letter reads – “We telephoned your office on 21 st February 1994 for confirmation that this matter had been referred and sentence corrected. The clerk informed us that the file was no longer in the office as the appeal had been refused on the 12 th November 1993. After some discussion it was agreed that the clerk would retrieve the file and telephone us back. Regrettably we heard nothing from your office so we telephoned your office again on 4 th March 1994. We were told that the file had to be retrieved and the clerk said she would telephone us back that afternoon. When the clerk phoned back later that day we were informed that the file had been put away without being sent to the Full Court for sentence to be corrected. We were then told that mistake would be rectified and the Appeal Court would write to our Client explaining the mistake. We subsequently wrote to our Client explaining what had happened. This morning we received a telephone call from Mr Quinland who informed us that when the Prison authorities contacted the Appeal Office they were told that nothing had been done on his file as his appeal had been refused. Naturally we are most concerned to hear this and should be obliged if you could look into this matter urgently, bearing in mind the length of time our Client has been in custody.”

[8]On 10 th March 1994 the Registrar wrote to the claimant saying that attempts had been made to return a telephone call which he had made on the previous day. That letter continued :

“Your sentence will be referred to the Full Court for the (total to) be varied from two years six months to two years three months. This is because the sentences passed by the judge in the Crown Court add up to that total and not the one given by the judge at the conclusion of sentencing.”

A copy of that letter was sent to the claimant’s solicitors with an apology.

[9]In fact the case was not then put before the Full Court as it should have been as a matter of urgency. In a letter from the Court Service to the claimant’s solicitors dated 16 th February 1996 it is said that – “Unfortunately the file was put away in error in February and was activated again until early March when you wrote to the Court of Appeal. The case was not put before the Court of Appeal until June because preparation of the case was delayed while a transcript of the court proceedings was being prepared.”

[10]It is difficult to understand why the file was put away in February, or why it was not activated as promised on or soon after the 21 st February. It is also difficult to know why after the file was activated a transcript was considered to be necessary when one was already in existence, as can be seen from the order of the single judge, but in the event the earlier release date of 11 th April 1994 came and went without, it seems, any attention being drawn to it by anyone, and on 23 rd May 1994 the claimant was released, having served the period appropriate to a sentence of two and a half years. On 16 th June 1994 the case was listed before the Full Court, and the sentence was varied to one of two years and three months.

[11]Over five years later on 15 th September 1999 the claimant commenced these proceedings in which he seeks from two prison governors and the Lord Chancellor’s Department damages for false imprisonment arising from his detention for a period in excess of his true sentence. In his Particulars of Claim the claimant states that the sentencing judge did not make it clear whether the two sentences of three months were to run concurrently with or consecutively to each other, but he contends that once the single judge had drawn attention to the point the matter should have been dealt with in such a way as to enable him to be released on 11 th April 1994. Before the District Judge

[12]The defendant applied to strike out the claim, and by the decision now under appeal the District Judge acceded to that application on the grounds that – “(1) the two prison governors acted in accordance with the warrant, and could not legitimately have acted otherwise and - (2) the Registrar was protected from this litigation by section 2(5) of the Crown Proceedings Act 1947”

[13]The District Judge did not therefore find it necessary to rule on the alternative submission made on behalf of the third defendant, namely that the Registrar did not owe any duty of care to the claimant. The position of the Governors

[14]When dealing with the claim against the governors the District Judge referred to two decisions of this Court. The first is Olotu v Home Office

[1997] 1WLR 328

. In that case the plaintiff had been detained in custody after the expiration of her custody time limit, and she sued both the Home Office and the Crown Prosecution Service. The claim against the Home Office was struck out, and that decision was upheld in the Court of Appeal which also struck out the claim against the Crown Prosecution Service. At 334H Lord Bingham CJ said– “The governor’s duty under section 6(3)(a) of the (Magistrates’ Courts Act 1980) and according to the direction given to him in the warrant was to hold the plaintiff until she should be delivered to the Crown Court in due course of law. He was never at any material time called upon to deliver the plaintiff to the Crown Court in due course of law, and could not lawfully take it upon himself to release the plaintiff. ... Once the custody time limit had expired the plaintiff was in my view unlawfully detained, and an order which would have led to her release could have been obtained either from the Crown Court or from the Divisional Court; but it does not follow that in the absence of any such order the governor was guilty of falsely imprisoning the plaintiff and in my view he was neither entitled nor bound to release her.”

[15]Mr Oliver submits that the Olotu decision can be distinguished on the basis that it related to a custody time limit and in that case the plaintiff was not entitled to be freed without an order of the court. That is true so far as it goes, but the focus of the court was on the governor’s authority, and in the present case, as in that case, the warrant of commitment made it clear what the two governors were required to do.

[16]The second decision which was drawn to the attention of the District Judge is R v Governor of HMP Brockhill ex parte Evans (No 2)

[1999] QB 1043

(CA) and

[2000] 3 WLR 843

(HL) which concerned the miscalculation of a release date. In fact the release date had been calculated in accordance with the law as then understood, but in the light of a later decision that understanding was shown to be incorrect, and the plaintiff was held by the Court of Appeal to be entitled to damages for false imprisonment. Mr Oliver seeks to derive some assistance from that case, but in my judgment it is of no assistance to him at all. In the present case the governors made no arithmetical or other error. In Evans at 1056D Lord Woolf MR pointed out that three older cases to which the court had been referred were authority “for the proposition that a warrant ‘good on its face’ can be relied upon by a gaoler until set aside” and those cases illustrate “the fact that until an order of a court is set aside it justifies detention, so the imprisonment is not tortious”. Roch LJ made the same point at 1067D citing the decision of the Court of Appeal in Henderson v Preston

(1888) 21 QBD 362

where Lord Esher MR said at 366:

“That being the warrant, I adopt the judgment of Stephen J when he said that the warrant protects the governor, and that no more need be said. In the case of Olliet v Bessey , T.Jones’ Rep.214 decided about 200 hundred years ago, it was so held, and from that day to this no action can be found in the books to have been maintained against a gaoler where he acted within the terms of the warrant.”

In the same case Lindley LJ said :

“What is the governor of a gaol who receives such a warrant to do except to obey it? .... It appears to me that the governor by obeying that warrant has simply done his duty, and the warrant protects him and is an answer to the action.”

[17]Similarly in the case of Evans Judge LJ said at 1072D – “Even if the detention proved to be unlawful, provided that an individual is in custody in obedience to an order of the court the governor is not liable to an action for false imprisonment. In effect the order of the court provides the necessary justification.”

[18]In my judgment the District Judge was plainly right to decide as he did to strike out the claim against the prison governors and I would dismiss that part of this appeal. Claim against Lord Chancellor’s Department

[19]Section 2(1) of the Crown Proceedings Act 1947 renders the Crown subject to liability in tort, but section 2(5) of the Act provides :

“No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by a person whilst discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.”

[20]For the third respondent it was and is contended that the duties of the Registrar and of his staff are duties “in connection with the execution of judicial process.” The duties of the Registrar are set out in section 21(1) of the Criminal Appeal Act 1968 which reads:

“The Registrar shall: (a) take all necessary steps for obtaining a hearing of any appeal or application of which notice is given to him and which is not referred and dismissed summarily under the foregoing section; and (b) obtain and lay before the Court of Appeal in proper form all documents, exhibits and other things which appear necessary for the proper determination of the appeal or application.”

[21]Mr Oliver submits that the shortcomings in the performance of the Criminal Appeal Office of which he complains fall outside the ambit of section 2(5) of the 1947 Act because they were administrative rather than judicial. The effective decision, he contends, was that of the single judge, and the Registrar was then merely required to place the matter before the Full Court so that it could be “rubber-stamped”. Mr Oliver reminded us that in Welsh v the Chief Constable of Merseyside Police

[1993] 1 All ER 692

Tudor Evans J relied upon the distinction which he found to exist between administrative and judicial functions when considering the effect of section 2(5) in relation to an alleged shortcoming of the Crown Prosecution Service. In that case the plaintiff was brought before the Crown Court when he was on bail in relation to other offences which were due to be dealt with in the Magistrates Court. It was agreed that he could have those offences taken into consideration in the Crown Court but there was, it seems, a failure of communication on the part of the CPS as a result of which a warrant was issued by the Magistrates Court for the arrest of the plaintiff in respect of the offences already taken into consideration. He sued the police and the CPS, and his claim against the CPS was struck out. At the hearing of the appeal Tudor Evans J, having set out the terms of section 2(5), said at 699h – “(Counsel for the CPS) relied on the disjunctive part of the subsection and he contended that, that if the second defendant had an administrative responsibility or assumed it in practice or in this particular case, it was discharging a responsibility which it had in connection with the execution of a judicial process. I do not accept that submission. In my opinion the language of the subsection shows that it is directed to the immunity of judicial and not of administrative functions. It is a subsection which is dealing with judicial functions. In my view recording that an offence has been taken into consideration or communicating the fact does not fall within the language of the subsection.”

[22]Mr Philip Sales, who has appeared for all of the respondents before us, submits that although the decision in Welsh may have been right on the facts of that case the language of the subsection cannot be approached in quite the way suggested by Tudor Evans J. There is no simple division between judicial and administrative functions. Mr Sales submits that the alleged shortcomings of the Registrar and of his staff in the present case were not omissions by a person whilst discharging or purporting to discharge responsibilities of a judicial nature vested in him, but they were, he submits, omissions whilst discharging or purporting to discharge responsibilities which the Registrar had “in connection with the execution of judicial process”. Those words it is submitted should be read together, and the word “execution” in particular should not be given a narrow meaning. It is used to indicate implementation of judicial process, and should not be read as if it were restricted to the execution of court orders.

[23]Mr Sales submits that the way in which he invites us to interpret section 2(5) is consistent with the scheme of the 1947 Act which deals in Part I with substantive law, in Part II with jurisdiction and procedure, and in Part III with judgments and execution. Execution is not defined, but in section 25(1) the Act deals with orders made by the court against the Crown and how they are to be satisfied, concluding in section 25(4) that “save as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown ...”. Section 26 deals with “Execution by the Crown” and in enables the Crown to enforce orders made in its favour. Mr Sales submits that in each of those sections the focus is on implementation of the order, whereas in section 2(5) it is on implementation of the judicial process as a whole.

[24]Applying that approach to the facts of this case Mr Sales submits that after the single judge made his decision what was done or omitted to be done by the Registrar and those for whom he was responsible were things done or omitted to be done when discharging or purporting to discharge responsibilities which the Registrar had in connection with the execution or implementation of the judicial process, responsibilities which flowed from the decision of the single judge as a result of the provisions of section 21 of the 1968 Act and which therefore fall within the ambit of section 2(5) of the 1947 Act.

[25]Mr Sales then invited our attention to Laura Wood v Lord Advocate

[1996] SCLR 278

where the pursuer lodged a caveat with the Sheriff Clerk requesting that she be given notice if certain steps were taken in relation to the estate of her grandfather. When the steps were taken the existence of the caveat was overlooked, and the pursuer thus lost the opportunity to arrest funds. She then sued the Lord Advocate relying on the alleged negligence of an employee in the office of the Sheriff Clerk. The Lord Advocate relied on section 2(5) and at 281D the Sheriff Principal said – “There is no suggestion in this case that the Sheriff Clerk or his depute was discharging responsibilities of a judicial nature.”

[26]He then cited this passage from an article written by Sir Thomas Barnes, Procurator General and Treasury Solicitor, in [1948] 26 Canadian Bar Review 387 in relation to section 2(5) of the 1947 Act – “Clearly, the Crown ought not to interfere in the manner in which judicial functions are exercised; for, to the extent to which the Crown interferes, the functions cease to be judicial. Equally the Crown ought not to interfere with any servant who is charged with the execution of judicial process; any such interference would, in effect, be an interference by the executive in the course of justice. If the Crown, therefore, cannot interfere with the acts of the servant of the Crown in these cases, it seems wrong that the Crown should be liable for those acts; the basis of a master’s vicarious liability is the power of the master to control and direct the servant.” After that citation the Sheriff Principal continued – “This branch of this case turns upon a pure question of construction and it seems to me that that passage gives us some guidance as to the proper approach. The first question is whether at the time of the negligent act or omission a judicial process existed. If that question is answered in the affirmative, the second question is whether at the material time the delinquent clerk was discharging or purporting to discharge responsibilities which he had in connection with the execution of that process. In my opinion the answer to both questions is clearly ‘yes’. There are grounds for arguing that the processing of a caveat is, in itself, a judicial process... but it is not necessary to decide that point, for it seems to me that the tempus inspiciendum is not the lodging of the caveat but the lodging by the pursuer’s father of the petition for appointment as executor-dative. It was at the latter stage that the clerk failed to act upon the caveat. Application for appointment as executor-dative entails presenting an initial writ to the Sheriff Clerk who warrants it. In most cases, after due intimation, the Sheriff Clerk certifies that no objection has been received and places the petition before the Sheriff, who grants decree appointing the executor-dative. Occasionally such an application is opposed, in which case pleadings may be adjusted and ultimately a proof may take place.... That procedure has all the hall marks, and in my opinion is, judicial process. The significance of a caveat is that it guarantees the caveator the opportunity to enter the process before decree in absence is pronounced. The operation of a caveat is triggered by the presentation of the petition, at which point the judicial process has been started. When the Sheriff Clerk receives a petition against which a caveat has been lodged, it is his responsibility to give intimation to the caveator. When the matter is analysed in that way it seems to me quite plain that that is a responsibility which he has in connection with the execution of judicial process. It is not a responsibility in connection with which the Crown is entitled to interfere. It follows that the admission in this case falls squarely within the protection of section 2(5) of the 1947 Act.”

[27]Mr Sales invited us to follow the reasoning of the Sheriff Principal, and I would do so. In my judgment the District Judge was right to decide as he did in relation to section 2(5). Other matters

[28]That makes it unnecessary for me to consider whether in the absence of section 2(5) the claimant could establish an actionable duty of care, and I merely indicate my gratitude to counsel for the submissions addressed to us in relation to that issue. Mr Oliver also invited us to have regard to the provisions of the European Convention of Human Rights which was ratified after the 1947 Act. Even if it is permissible to look to the Convention for assistance in relation to an Act which was passed prior to ratification I cannot find anything in the Act which resort to the Convention would help to resolve, and of course the claimant cannot rely on the provisions of the Human Rights Act 1998 in relation to events which took place long before that Act became law. Even the decision under appeal was made before the Act was implemented. Conclusion

[29]I reach the conclusion that this appeal fails with regret. The evidence clearly suggests that as a result of maladministration the claimant was in prison for six weeks longer than he should have been. It may be that he and his volunteer legal advisers could have done more than he did to press his cause at the critical time but the prime fault lay elsewhere, and even in the absence of any legal obligation to compensate that seems to me to be something that should have been recognised.

Lord Justice Clarke:

[30]I agree that this appeal should be dismissed for the reasons given by Kennedy LJ. I add a few words of my own on the construction of section 2(5) of the Crown Proceedings Act 1947 (“the 1947 Act”), which I have found in some ways somewhat puzzling.

[31]Section 2(5) provides: “No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he had in connection with the execution of judicial process”.

[32]The question is what is meant by the expression “in connection with the execution of judicial process”. In particular, the question is whether, on the facts set out by Kennedy LJ, the failure on the part of the Criminal Appeal Office to put the papers before the full court in due time was a failure to discharge its responsibilities “in connection with the execution of judicial process”.

[33]I at one time thought that the word “execution” should be construed as limited to execution in the sense of execution of judgments, on the basis that the purpose of the provision was to protect those who execute judgments, such as bailiffs. However, on reflection, I do not think that the words in the section can be so limited. For example, it seems to me to be clear that a person drawing up a court order made by a judge would be exercising responsibilities in connection with the execution of judicial process. Thus the Crown Court clerk who drew up the order in this case on the basis that the appellant had been sentenced to two years six months was, I see it, doing an act in connection with the execution of judicial process. He was implementing what he thought the judge had ordered and, in my judgment, would be immune from suit under section 2(5).

[34]Once it is appreciated that the word “execution” means something more than the execution of judgments or orders, it must I think be used in the sense of implementation. Thus any act in connection with the implementation of judicial process is within the meaning of the sub-section. I do not think that Tudor-Evans J can have been correct in Welsh v The Chief Constable of Merseyside Police

[1993] 1 All ER 692

in so far as he expressed the view (quoted by Kennedy LJ) that the language of the sub-section is directed to judicial and not administrative functions. The second part of the sub-section is to be contrasted with the first and is not concerned with those discharging or purporting to discharge responsibilities.

[35]There remains a question as to precisely what is meant by “judicial process”. It is not, however, necessary to decide how wide a meaning should be given to those words in order to decide this appeal. As Kennedy LJ has explained, the appellant sought leave to appeal against both conviction and sentence and his application was considered by Pill J on 28 th November 1993. There can to my mind be no doubt that both his consideration and his decision was part of the appeal process and thus part of the judicial process. So too was the subsequent consideration of the matter by and the decision of the Full Court.

[36]It was pursuant to Pill J’s statement that he regarded the sentence as one of two years three months but that “that should be checked if necessary” that the decision by or on behalf of the Registrar was made to refer the matter to the Full Court “for the sentence to be corrected from two years six months to two years three months”. In these circumstances, it seems to me that that decision was made in the course of discharging or purporting to discharge the responsibilities of the Registrar in connection with the execution of judicial process. As I see it, it follows that the failure of those in the Criminal Appeal Office thereafter to ensure that the matter was in fact referred to the Full Court in due time was something omitted to be done by or on behalf of the Registrar in discharging or purporting to discharge his responsibilities in connection with the execution of the judicial process within the meaning of section 2(5).

[37]In arriving at that conclusion, like Kennedy LJ, I too have found the reasoning of the Sheriff Principal in Laura Wood v Lord Advocate

[1996] SCLR 278

to be convincing.

[38]For these reasons and those given by Kennedy LJ I too would dismiss the appeal and would only add two comments. The first is that I agree with Kennedy LJ that there is nothing in the European Convention on Human Rights which leads to any other conclusion in a case where the Convention was ratified after the 1947 Act and where all the relevant events, including the decision under appeal, occurred before the Human Rights Act 1998 came into force. The principles in cases such as Krasner v Dennison

[2001] Ch 76

do not lead to any such conclusion. Nor do cases like Fitzpatrick v Sterling Housing Association Ltd

[2001] 1 AC 27

which discuss the construction of statutes in a changing world.

[39]It does not, however, necessarily follow that the position would be the same if a similar case fell to be decided after section 3 of the Human Rights Act 1998 came into force: see eg RvA (No 2)

[2001] UKHL 25

[2001] 2 WLR 1546

per Lord Steyn at paragraph 44. I express no view on the correct approach to section 2(5) of the 1947 Act in such circumstances because it is not relevant to do so.

[40]Finally, the second comment I would make is that I too reach the conclusion that this appeal fails with regret. It seems to me that the extra six weeks served by the appellant was either wholly or in large part caused by error in the Criminal Appeal Office. In these circumstances, I would have hoped that some compensation would have been available to him. Indeed I still hope that it may be, albeit on an ex gratia basis.

Lady Justice Hale:

[41]I agree that the errors made in the Criminal Appeal Office in this case are covered by section 2(5) of the Crown Proceedings Act 1947. The reasoning of Sir Thomas Barnes, relied upon by the Sheriff Principal in Laura Wood v Lord Advocate [1006] SCLR 278 and quoted by Kennedy LJ at paragraph 26, is particularly compelling. The Court Service may be an agency of the executive but it exists, in part if not in whole, to facilitate and implement the workings of the judiciary. There are some of its activities over which the judiciary and not the executive must have the ultimate control. Whatever else these may include, they must include the putting into effect of the orders or directions of a court. There is little point in having an independent judiciary if the executive, through the Court Service, is free to pick and choose which of its orders to implement. The ironic but inevitable consequence is that the Crown cannot be liable for its failure to do that in this case.

[42]Whether that principle can survive the Human Rights Act 1998, at least where the result is that a person is deprived of his liberty when he should not have been, is a matter upon which, like Clarke LJ, I would prefer not to express an opinion. But whether or not the law requires a remedy, no system of public administration can find any satisfaction in denying the claimant some recompense. The Criminal Appeal Office was certainly largely, and quite possibly wholly, the cause of the extra six weeks’ imprisonment that he served. I share the hope expressed by Clarke LJ that, even now, compensation can be made available to him on an ex gratia basis.

Order

Appeal dismissed. No order as to costs, but legal aid assessment if required. Permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)