R v Deputy Governor of Parkhurst Prison Ex p Hague; Weldon v Secretary of State for the Home Department

The House held that the Prison Rules 1964 are regulatory and do not, of themselves, give rise to private law causes of action for damages. Rule 43 (removal from association) and the Secretary of State's circular could not be read as conferring a private right of action. Section 12(1) of the Prison Act 1952, which authorises lawful confinement "in any prison", provides a defence to a claim of false imprisonment against the Governor or the Secretary of State so long as the restraint is imposed with the governor's authority and in good faith. Prison officers acting without authority or in bad faith may be personally liable for false imprisonment or other torts, and intolerable conditions will ordinarily give rise to public law remedies and, where injury to health arises, private law remedies in negligence rather than a cause of action for false imprisonment.

The appeals arise from two related sets of proceedings concerning the treatment of convicted prisoners while serving sentences.

Background and parties

• Hague: Christopher Hague was segregated and transferred between prisons under an order said to be made under Rule 43 of the Prison Rules 1964 and a Home Office circular. He sought judicial review declarations and damages for false imprisonment and breach of statutory duty after his segregation.
• Weldon: Weldon brought a common law action in the county court alleging assault, battery and false imprisonment after being placed in a strip cell; the Home Office sought to strike out the false imprisonment allegation.

Procedural history

• Divisional Court dismissed Hague's judicial review application; the Court of Appeal allowed Hague in part (declaring certain procedures unlawful) but refused certiorari in the exercise of discretion. The Court of Appeal in Weldon refused to strike out the false imprisonment pleading. Both matters came to the House of Lords by leave.

Issues for decision

1. Whether a breach of the Prison Rules 1964 gives rise to a private law cause of action for damages (breach of statutory duty).
2. Whether a convicted prisoner may maintain an action for false imprisonment against the Governor or Secretary of State for changes in the conditions of detention or for deprivation of so-called "residual liberty".
3. What remedies, if any, are available where a prisoner suffers from intolerable conditions or from conduct by officers or fellow prisoners acting without authority or in bad faith.

Reasoning and outcome

• The court construed the Prison Act 1952 and the rules made under section 47, holding that those rules are regulatory and not intended to create private causes of action; the authorities (notably Arbon v Anderson and Becker v Home Office) support that construction.
• Section 12(1) of the Prison Act 1952, which permits lawful confinement "in any prison", operates to justify confinement imposed by the governor or by officers acting with his authority; the concept of a judicially protected "residual liberty" within prison vis-à-vis the governor was rejected as illusory.
• The court accepted that prison officers acting without lawful authority or in bad faith do not enjoy the protection of section 12(1) and may be personally liable for false imprisonment or other torts; similarly, fellow prisoners who unlawfully confine a prisoner may be liable.
• Where conditions of detention are truly "intolerable" the proper remedies are public law (habeas corpus/judicial review) and private law remedies such as negligence or assault where injury or misconduct is established; the court declined to treat such conditions as converting lawful detention into false imprisonment by the governor or Secretary of State.

Hague: appeal dismissed. The House held that breach of the Prison Rules 1964 does not, of itself, give rise to a private right of action for damages and that section 12(1) of the Prison Act 1952 provides lawful authority for confinement by the governor or officers acting with his authority, so false imprisonment did not arise. Weldon: appeal allowed. The false imprisonment pleading was struck out as not sustainable against the Governor or Secretary of State; officers acting without authority or in bad faith remain potentially personally liable and intolerable conditions may give rise to negligence or other remedies.

Divisional Court (Ralph Gibson L.J. and Nolan J.) dismissed Hague's application; Court of Appeal [1990] 3 W.L.R. 1210 allowed Hague in part (declarations) but refused certiorari in the exercise of discretion. In Weldon the county court registrar refused to strike out; appeals from that refusal were dismissed by the assistant recorder and by the Court of Appeal [1990] 3 W.L.R. 465; leave to appeal to the House of Lords was granted.