False imprisonment – Measure of damages – Prison officers/strikes

Prison Officers Association v Mohammed Nazim Iqbal: CA (Civ Div) (Lord Neuberger of Abbotsbury MR, Lady Justice Smith, Lord Justice Sullivan): 4 December 2009

The appellant association (P) appealed against a decision that it was liable for false imprisonment where prison officers took unlawful strike action which resulted in the respondent prisoner (R) being confined to his cell, and R cross-appealed against an award of damages of £5. In furtherance of a dispute over pay, P decided to call a national strike to start at 7am on the following day. At the prison where R was held, prison officers were informed about the strike by P’s representative as they arrived for work. As a result very few of the officers reported for duty that day. The prison governor decided that, because of the strike, the prisoners should remain in their cells throughout the day, and issued an order to that effect. The Prison Service obtained an injunction and the officers returned to work the following day. On the day of the strike, R’s normal routine, which involved substantial periods out of his cell, was broken. He was allowed out of his cell for less than a minute to fill a thermos flask with hot water. For the rest of the day he remained locked in his cell. The judge held that that amounted to false imprisonment by the officers for which P was responsible. He awarded damages of £5. P submitted that the officers took no positive steps to shut R in his cell, or even to force him to stay in his cell. They merely did not report for duty at the prison, as a result of which the governor decided that R had to be confined to his cell. In those circumstances, there was no liability to R for false imprisonment.

Held: (Sullivan LJ dissenting on the issue of P's liability) (1) The judge was wrong to hold that any officers, and hence P, were liable for the tort of false imprisonment in the present case. The mere failure of the officers to work at the prison, while it might have been a breach of their employment contracts, involved no positive action on their part. A defendant was not to be held liable for the tort of false imprisonment as the result of a failure or refusal to release the claimant from confinement in the absence of a specific duty to do so, Herd v Weardale Steel Coal & Coke Co Ltd [1915] AC 67 HL followed and R v Deputy Governor of Parkhurst Prison Ex p Hague [1992] 1 AC 58 HL and R v Governor of Brockhill Prison Ex parte Evans (No2) [2001] 2 AC 19 HL considered. In the tort of false imprisonment, there had to be a direct and immediate causal link between the act and the imprisonment, Grinham v Willey 157 ER 934 Ex Ct and Davidson v Chief Constable of North Wales [1994] 2 All ER 597 CA (Civ Div) applied. In the present case, there was a causal link between the officers’ decision to go on strike and the prisoners’ confinement in their cells. However, the direct and immediate cause of R’s confinement was the governor’s order and not the officers’ decision to strike. (2) The level of damages was unjustifiably low. R had suffered real damage in not being able to enjoy his customary limited freedom for some six hours. Instead of nominal damages he should have been awarded £120, representing £20 an hour.

Appeal allowed.

Michael Beloff QC, David Rivers (instructed by Thompsons) for the appellant; Phillippa Kaufmann, Alison Gask (instructed by Harrison Bundey) for the respondent.