Friday, December 14, 2012

Why false imprisonment in HM Prisons could prove costly

Brought to you by our friends at David Phillips & Partners

A report on failings at Lincoln Prison may have wider implications for prisoners and government officials alike, writes Iain Gould, Solicitor.

HMP Lincoln was subject to an unannounced inspection by HM Inspectorate of Prisons staff in August 2012. The Chief Inspector’s report, published on 10 December 2012 and accessible here, highlights grave problems:
• Occupancy was at 50% over maximum capacity
• External and communal areas were dirty
• There was a high incidence of violence and assaults
• Drug and alcohol abuse were common, with 1 in 5 prisoners on opiate substitution treatment and ‘clear evidence of prisoners developing a drug addiction in prison’
• Poor offender management and other significant issues

Although the National Offender Management Service (NOMS) said it was taking ‘urgent action’, the government has been criticised by Andrew Neilson, director of campaigns for the Howard League for Penal Reform, calling the report ‘among the worst we have seen’, and asking whether the Prison should remain open.

Serving Extra Time
Shocking though these findings are, to an extent they can be expected in a prison with gross overcrowding, poor prisoner care and low morale. However, a surprising issue was the fact that two foreign prisoners have been detained for long periods of time beyond the end of their sentences through no fault of their own. One of them has been held for an additional nine years on the basis that he was unable to be re-patriated at the end of term. As the Inspector says, ‘it cannot be right that they continue to be detained for so long without the authority of a court.’

Strict Liability for False Imprisonment
I agree with this view, and so, in my experience, do the courts, who apply the doctrine of ‘strict liability’ to false imprisonment (a.k.a. unlawful detention). Strict liability, which in tort law applies absolute responsibility to a person or party even if they were not at fault, could potentially be used against the Prison to compensate inmates who are forced to over-stay their sentences through no fault of their own. By way of an example of how the doctrine works in practice, my client Mr. H received £3250 compensation for having been unlawfully detained by the Ministry of Justice at HMP Walton for a mere (compared to the prisoners at HMP Lincoln) five days.

Miscalculation by HMP Walton
On 27 September 2010 Mr. H was sentenced to 10 weeks imprisonment. As he had already spent 2 days in custody, his sentence of 68 days should have ended on Saturday, 30 October 2010. As that was a Saturday, in accordance with accepted procedure, he was due to be released on Friday 29 October. His girlfriend waited for him at the prison gates, but Mr. H did not appear. He had been told before the expected release date that he would be allowed to leave on 5 November and not before. The prison was working on dates from an incorrectly drawn Warrant of Commitment which stated that Mr. H was to be detained for 12 weeks (less the 2 days in credit), not 10 as ordered by the Court. Despite Mr. H’s complaints, and repeated correspondence from my firm (who represented him in the criminal case), HMP Walton refused to release him. On 3 November, when the prison received confirmation from the Court Service of the mistaken detention period, Mr. H was released.

My colleagues in the criminal department of David Phillips & Partners Solicitors asked me to review Mr. H’s case. I sent details of Mr. H’s claim for false imprisonment to the Prison, arguing that strict liability for Mr. H’s unlawful detention applied following the House of Lords case of R v Governor of Brockhill Prison ex parte Evans (No 2) [2001]. (In that case a prisoner’s release date was miscalculated, leading to her continued detention after the correct date being deemed unlawful. She received damages for false imprisonment as it is a tort of strict liability.)  Mr. H was offered a miserable £500 without admission of liability. Following negotiations, I am pleased to confirm that Mr. H secured a settlement of £3,250 plus full costs, an appropriate amount in this case. He received 100% of his compensation without deductions.

I relied upon established authority from the House of Lords (as it then was) to recover compensation for Mr. H. Irrespective of the reasons, the highest court in the land made it very clear that any party detaining another (including prisons, police forces and private security firms) faces a false imprisonment claim if they fail to release someone in their custody on time.
Government officials at HMP Lincoln, other prisons and courts should take note. Failing to do so could be a very costly mistake, not only for the unfortunate victim but also for the State.

Iain Gould is a solicitor who specialises in actions against the police. You can read more about him at his website

No comments: