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PRISONERS’ RIGHTS: DISTORTING TORT?

1. The law of tort, which is designed to allow individuals to sue for

compensation for wrongs (trepasses) against them, is one of the most
dynamic and adaptable areas of the common law. Over hundreds of years
torts have developed to provide remedies where other areas of law fell
short. Since the coming into force of the Human Rights Act 1998 in
particular, it has been suggested that prisoners’ rights may have caused
various torts to have metamorphosed. This has arisen in 3 principle ways:
a. the concept of prisoners having certain inalienable rights recognised by
law (which are not necessarily restricted to Convention rights) and
b. the interpretative role set out in the HRA when considering the law of
tort; and
c. the desire for the Court to provide a cause of action and a remedy for
‘wrongs’ sustained by prisoners.

THE THEORY

Why bother with tort? – what’s wrong with the HRA?

2. From a Claimant’s point of view, the HRA has various shortcomings:

(1) it is only available in respect of events which occurred after
2nd October 2000
(see R (oao Wright v SSHD [2006] EWCA Civ 68 CA which
concerned unlawful detention prior to the HRA. The CA held
that there was ‘no enforceable right to compensation’ in
respect of the Article 5(5) ECHR breach before the domestic
court);
(2) there is a 1 year limitation primary period (compared to a 6
year limitation period for certain torts);
(3) declaratory relief is the norm (in contrast to tort, where
compensation is the norm): see R (oao Greenfield) v SSHD
[2005] UKHL 14; [2005] 2 All ER 240 HL;
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(4) the HRA is limited only to Convention rights (whereas,

arguably, some torts can protect any ‘constitutional right’ or
‘a right which the law protects’)
(5) exemplary damages are not available under the HRA.

Necessity argument: does the common law need to be developed to protect

Convention rights?

3. Now that the HRA is in force, it is not obvious that the common law needs
to be developed to protect the prisoner’s rights under the ECHR. For
example, in Wainwright Lord Hoffman did not consider that the mere fact
that a Convention right (article 8) may have been breached necessitated the
development of the common law to protect such a constitutional right:
(para 52)
‘....., a finding that there was a breach of article 8 will only demonstrate that
there was a gap in the English remedies for invasion of privacy which has
since been filled by sections 6 and 7 of the 1998 Act. It does not require that
the courts should provide an alternative remedy which distorts the principles
of the common law’

And (at para 34):

‘Furthermore, the coming into force of the Human Rights Act 1998 weakens
the argument for saying that a general tort of invasion of privacy is needed to
fill gaps in the existing remedies. Sections 6 and 7 of the Act are in
themselves substantial gap fillers; if it is indeed the case that a person's
rights under article 8 have been infringed by a public authority, he will have
a statutory remedy. The creation of a general tort will, as Buxton LJ pointed
out in the Court of Appeal [2002] QB 1334, 1360, para 92, pre-empt the
controversial question of the extent, if any, to which the Convention requires
the state to provide remedies for invasions of privacy by persons who are not
public authorities’ (para 34)

4. Perhaps the disadvantages of the HRA do not matter as long as the breach
of a constitutional right has a remedy (eg public law, statutory or criminal).
The remedy does not necessarily:
(1) Require compensation (injunctive and declaratory relief may
suffice) and
(2) Need to be a remedy in tort.

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5. If it is necessary to change the law in order to give greater protection to

‘constitutional rights’, then perhaps the law should be changed by statute,
rather than the metamorphosis of a tort: see Wainwright v Home Office
(HL) [2003] UKHL 1152; [2003] 3 WLR 1152 per Lord Hoffman ( a
‘radical change’ required legislation) and Sir Robert Megarry V-C in
Malone v Metropolitan Police Commissioner [1979] Ch 344, 372-381 at
p372.
‘… it is no function of the courts to legislate in a new field. The
extension of the existing laws and principles is one thing, the
creation of an altogether new right is another.’
And at p379
‘… where Parliament has abstained from legislating on a point that
is plainly suitable for legislation, it is indeed difficult for the court to
lay down new rules of common law or equity that will carry out the
Crown's treaty obligations, or to discover for the first time that such
rules have always existed’

6. Tort is not the best mechanism for balancing the rights of individuals
against the interests of the public. Most rights are not absolute. A detailed
description of the circumstances in which there may be an interference
with such rights must be set out. This does not lie easily with tort as we
know it. Detailed rules are required to indicate the circumstances in which
there may be lawful interference with rights: see Lord Hoffman in
Wainwright (para 31) and Sir Robert Megarry V-C in Malone (at 372-381
in relation o telephone tapping). The protection of constitutional rights
requires detailed rules and not broad common law principles. The common
law is too blunt an instrument.

What is a constitutional right?

7. Constitutional rights can either be viewed

a. Positively – that is as a benefit to the individual which can be enforced;
or
b. Negatively – that is, as a restriction on the powers of the State – a limit
of its power to intervene with an individual.

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8. Apart from the ECHR there is no list of constitutional rights in domestic

law.

9. There is no judicial definition or test which would enable an individual to

recognise a constitutional right by its inherent characteristics. In numerous
cases the Court has referred to ‘constitutional rights’ the context of
statutory interpretation, but this is
(1) the result of an ad hoc process – it is a result of happenstance;
(2) the use of the concept of constitutional rights does not
necessarily mean that the constitutional rights identified are
of such a nature as to require special protection in tort. It may
just be a construction exercise.

10. There is a hierarchy of constitutional rights:

a. constitutional rights enshrined in a written constitution and adopted by
a democratic vote:
eg : Attorney General of Trinidad and Tobago v Ramanoop
[2005] UKPC 15; [2005] 2 WLR 1324 the Privy Council;
and
b. constitutional rights protected by statute:
eg Cullen v RUC [2003] 1 WLR 1763; [2003] UKHL 39
and
c. constitutional rights identified in the common law:
eg R v Secretary of State for the Home Department ex p Leech
[1994] QB 198 and R v Lord Chancellor ex p Witham [1998] QB
575.

11. The remedy for breach of these different sorts of constitutional rights
differ. In summary:
a. constitutional right in a written constitution can be actionable without
proof of loss by relying on the provisions of the written constitution
itself or the implementing statute without proof of loss;

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b. constitutional rights which are not in a written constitution (either

constitutional rights appearing in case law or constitutional rights
protected by statute) are not actionable without proof of loss.

12. A right given to a prisoner by virtue of the Prison rules is not a

constitutional right (or at least is not an enforceable constitutional right): R
v Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58.

Damage in tort

13. Historically, torts have been divided into torts that are actionable per se
(that is, without proof of damage) and torts that are actionable on the case
(that is, where proof of damage is required.) Examples of torts which are
actionable per se are
(1) Trespass and conversion. (which concern property rights)
(2) trespass to the person (which concerns liberty of the person)
(3) defamation (which concern reputation).

14. In (actions on the case) torts, there is a need to prove

i. pecuniary loss; or
ii. non-pecuniary loss, that is
(a) physical or mental injury
(b) loss of liberty

15. In respect of physical or mental injury in tort, the mental injury must be a
recognised psychiatric condition. Mere anxiety and distress is insufficient
damage to be actionable.

16. However in Wainwright Lord Hoffman considered that there might be a

case for recovering such damages in the case of intentional torts, but left
the point undecided (see paras 46) but Lord Hutton was clear that ‘… the
infliction of humiliation and distress by conduct calculated to humiliate
and cause distress’ was not tortious at common law.
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IN PRACTICE

(1) MISFEASANCE IN PUBLIC OFFICE

17. It is the Court of Appeal’s judgment in Watkins v Home Office (2005) QB

883 1 that it has been suggested that the modern tort of misfeasance in
public office does not require damage, at least where a constitutional right
is involved:
(a) At paragraph 48 Brooke LJ stated:
‘if there is a right which may be identified as a constitutional right, then there
may be a cause of action for an infringement of that right without proof of
special damage, provided that there is something more than the mere
infringement.’

(b) Similarly, Laws LJ stated at paragraph 67:

‘Where a claimant is exposed to economic or material injury by virtue of the
public officer’s wrongful and malicious act, it will be inherent in his claim that
he has suffered quantifiable loss; and he does not have to prove that in causing
such loss the public officer has violated some freestanding right which the
claimant enjoys. That is one class of case. But the claimant may be adversely
affected in a different sense. The wrongful act may have interfered with a right of
a kind which the law protects without proof of loss. In that case, the public
officer’s interference with the right will complete the tort and no actual damage
needs to be shown. This is the second class of case. Its paradigm is the instance
where the public officer’s unlawful conduct has interfered with a constitutional
right’

18. The Court of Appeal decision in Watkins is surprising given that

(1) in Three Rivers District Council v Governor and Company of
the Bank of England (No 3) [2000] 2 WLR 1220, Lord
Hobhouse stated (at p1268 at F)
‘The subject matter of the tort of misfeasance in public office
… does not, and does not need to, apply where the defendant
has invaded a legally protected right of the plaintiff. Because
there are other torts which already protect such rights eg
trespass to property, trespass to the person and conversion
(see also p1268 at B)’

(2) Misfeasance in public office in other commonwealth

jurisdictions require damage as a constituent element of the
tort.

1
Judgment of the House of Lords awaited (hearing 14th February 2006)

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19. The case which gave rise to misfeasance in public office as a cause of
action was Ashby v White which concerned the right to vote. However, in
right to vote cases, the ECHR provides a much more effective remedy: see
Hirst v UK (blanket ban on prisoners’ right to vote breached Article 3 of
the First Protocol).

20. Arguably, allegations of breaches of Article 3 and/or 8 ECHR in particular

would give rise to claims of misfeasance in public office. These are
common in tortious claims involving prisoners, eg
(1) Observed urine samples as part of MDT: Young v UK;
(2) Conditions of detention: Khudoyorov v Russia (08/11/2005),
Napier v Scottish Ministers (2004) UKHRR 881;
(3) Monitoring of prisoner’s correspondence: Zappia v Italy
(29/09/05);
(4) Price v UK (2002) 11 BHRC 401 – detention of a disabled
prisoner in circumstances in which she was likely to suffer
cold, develop sores and was unable to use the toilet or keep
clean, constituted degrading treatment in contravention of
Article 3.

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(2) NEGLIGENCE

Suicides/self-harming

21. Sadly, negligence claims in respect of suicides or self-harming have

increased recently. Traditionally, the Home Office has a common law duty
to protect the prisoner from killing himself by committing suicide: Reeves
v Commissioner of Police for the Metropolis [2000] 1 AC 360. It has been
suggested that Article 2 has strengthened this obligation:
(1) In Trubrukov v Russia (05/07/05) the ECtHR held that the
failure to foresee the suicide was not a breach of Article 2 (cf
Smiley v Home Office (11/02/04))
(2) In Younger v UK (07/01/03) a mother’s complaint that the
authorities had breached Article 2 in failing to prevent her
son’s suicide while he was in custody was held to be
inadmissible.

22. Sometimes a failure to prevent a prisoner from killing another is a breach

of the positive obligation to protect the life of a prisoner who was at risk :
Edwards v UK (14/03/02).

23. If the Claimant’s health is endangered, he can bring an action in

negligence:
(1) Brooks v Home Office [1999] 2 FLR 33 (QBD);
(2) Keenan v UK (2001) 33 EHRR 38 – inadequate medical
treatment and a lack of effective monitoring of a prisoner
who was an identified suicide risk could constitute a breach
of Article 3;
(3) McGlinchey v UK (2003) 37 EHRR 41, [2003] Lloyd’s Rep
Med 264.

24. Curiously however the Home Office cannot intervene to enforce medical
treatment or food on a prisoner (with capacity) to prevent him dying (even

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if it is the prisoner’s choice to take action that results in his death): Kay J
in R v Collins and Ashworth Hospital Authority ex p Brady [2000] Lloyd’s
Rep. Med 355 at para 71:
‘it would be somewhat odd if there is a duty to prevent suicide by an action
(for example, the use of a knife in a cell) but not even a power to intervene to
prevent self-destruction by starvation. I can see no moral justification for the
law indulging its fascination with the difference between acts and omissions
in a context such as this and no logical need for it to do so’.

(3) FALSE IMPRISONMENT

25. The HRA has not directly modified the tort of false imprisonment: the
Court in R v Deputy Governor of Parkhurst Prison ex p Hague rejected the
suggestion that an otherwise lawful detention could be rendered unlawful
by intolerable conditions of detention (cf Article 3) and stopped the
potential expansion of the tort.

26. However, in practice the implementation of the HRA it has helped to

expand the categories of detention which are considered to be unlawful:
(1) in Young v UK the Claimant alleged that her additional days
detention resulting from her adjudication for failing to
provide a urine sample in MDT constituted an unlawful
imprisonment.
(2) R (oao Hammond) v SSHD [2005] UKHL 69, (2005) 3 WLR
1229, (2006) 1 All ER 219: Criminal Justice Act 2003 denied
the sentencing judge the possibility of an oral hearing to
determine an existing prisoner’s minimum term of
imprisonment. Article 6 was breached.

27. However, the Court has not balked from leaving a prisoner without a
remedy if he does not fall within the HRA: R (oao Wright) v SSHD [2006]
EWCA 68 CA.

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28. Further the Court has not facilitated a reversal of the burden of proof so
that the State has to justify the continued detention, as is common when
considering a breach of Convention rights. In R (oao Henry) v Parole
Board (25/03/04) Sullivan J held that it was not wrong of the Parole Board
to place the burden of proof on the prisoner to show that he was no longer
a danger to the public and the imposition of such an evidential burden was
not incompatible with Article 5 ECHR.

(4) TRESPASSES AGAINST THE PERSON

29. It is likely that the approach of the Court in determining whether an assault
has occurred or not will be informed by the HRA caselaw. It is likely that
claims for breach of the HRA will be brought together with claims for
trespass against the person and there will be a cross-fertilisation of
approach. The Court will more easily find that there has been an assault
where there has also been a breach of a Convention right. For example:

(i) Consent to medical treatment

30. As prisoners are detained and there is no alternative source of medical
treatment, consent is particularly important and will not easily be justified
on Article 8(2) grounds (eg Vaccination schemes (Hep B) and opiate
detoxification). There is some argument for prisoners being able to require
specific medical treatment.

(ii) Drug testing

31. In Young v UK the requirement to provide a urine sample for the purpose
of MDT, without the Claimant’s consent and while watched by prison
officers was alleged to have breached her Article 8 right to privacy and
autonomy.

(iii) Searches

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32. A strip search was considered to have breached Article 3 in Iwanczuk v

Poland (15/11/01)

BREACH OF CONFIDENCE/PRIVACY

33. An action for breach of confidence can arise where confidential

information comes to the knowledge of a person in circumstances where
he has notice that the information is confidential. The court has to interpret
the tort while respecting the Article 10 right to freedom of expression. In
Campbell v MGN Ltd [2004] 2 WLR 1232 the House of Lords developed
the tort of breach of confidence to protect privacy interests. However the
House of Lords stopped short of developing a tort of invasion of privacy –
such a cause of action was not necessary to comply with Article 8 ECHR.
The tort has been developed in line with Article 8 so that it protects against
the ‘misuse of private information’ and protects ‘the individual’s
informational autonomy’.

34. The obligations under the ECHR have strengthened those torts which can
be used to protect privacy (eg misfeasance in public office). For example,
(1) privacy of prisoner’s correspondence (rule 39 & confidential
handling arrangements): Watkins v Home Office;
(2) privacy of medical records: R (oao Szuluk) v (1) Governor of
Full Sutton (2) SSHD [2004] EWCA Civ 1426 CA.

‘CONSTITUTIONAL RIGHTS’ NOT PROTECTED BY TORT

(a) peaceful protect

35. The right to peaceful protest does not appear to have been protected: see
Sedley J in Hipperson v (1) Hodge Jones & Allen and (2) T V Edwards

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(Unreported) where by-laws interfered with the Greenham Common

protestors and a tortuous claim for misfeasance in public office failed.

(b) privacy

36. No tort of privacy in English law: Wainwright.

GENERAL PROCEDURAL CONSIDERATIONS

37. ECHR principles have effected the procedure applicable to torts. The
following are only examples but have a greater or lesser impact on
establishing whether a tort has been committed:
(1) Burden and standard of proof in assaults on prisoners:
Sheppard v Home Office (11/12/02) CA;
(2) Absence of Documentation on discovery: where the State has
no convincing explanation for failing to provide the original
documents (medical records) then the court can draw
inferences: Trubrukov v Russia (05/07/05);
(3) Cross-examination: there is no need for a prisoner to have the
right to cross-examine witnesses in an inquest into a self-
harming incident: R (oao D) v SSHD [2006] EWCA 143 CA;
(4) Handcuffing of witnesses/Claimants while in court and/or
giving evidence: Trotter v HM’s Advocate (27/09/000).

WENDY OUTHWAITE
March 2006

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