Ex-prisoner cannot sue prosecution service

LAW REPORT: 5 December 1996

Olotu v Home Office and another; Court of Appeal (Lord Bingham of Cornhill, Lord Chief Justice, Lord Justice Auld, Lord Justice Mummery) 20 November 1996

An accused person who had been remanded in custody pending trial had no right to sue either the Home Office or the Crown Prosecution Service if they were held in custody beyond the statutory time limit.

The Court of Appeal dismissed an appeal by the plaintiff, Jeanette Ann Olotu, against the decision of Barbara Dohmann QC, sitting as a deputy High Court judge on 29 April 1996, to strike out the plaintiff's claim against the Home Office, and allowed an appeal by the Crown Prosecution Service against the judge's refusal to strike out a separate claim against it.

In February 1994 the plaintiff was arrested and charged with criminal offences for which, on 25 April 1994, she was committed in custody by the magistrates' court for trial at the Crown Court. She was held in custody until her release on 3 November 1994, a period of 193 days.

She contended that the last 81 days of this period of detention were unlawful, being in excess of the time limit of 112 days between committal and arraignment prescribed by regulation 5(3)(a) of the Prosecution of Offences (Custody Time Limits) Regulations 1987, as amended. She sued the Home Office, as the department responsible for prisons, claiming damages for false imprisonment.

She also sued the CPS for damages for breach of its statutory duty, under regulation 6(1), to bring her before the court so that she might be admitted to bail.

Both defendants applied under Order 18, rule 19 of the Rules of the Supreme Court, for the claims to be struck out as disclosing no reasonable cause of action.

Nicholas Blake QC and Tim Owen (Bobbetts Mackan, Bristol) for the plaintiff; Stephen Richards (Treasury Solicitor) for the defendants.

Lord Bingham CJ said that, following her committal under section 6 of the Magistrates' Courts Act 1980, the plaintiff was to be regarded as in the custody of the Crown Court (see section 22(1)(b)(ii) of the Prosecution of Offences Act 1985 and regulation 5(2)(a) of the regulations). Only by order of the court could that period of custody be brought to an end.

Once the custody time limit had expired without extension (see section 22(3) of the 1985 Act) the Crown Court would have been obliged to order the plaintiff's release, but such release would have been on bail and could have been subject to terms.

In his Lordship's view, once the custody time limit had expired the plaintiff was unlawfully detained, and an order for her release could have been obtained either from the Crown Court or the Divisional Court. But it did not follow that in the absence of any such order the governor was guilty of falsely imprisoning the plaintiff and he was neither entitled nor bound to release her.

The issue in relation to the CPS was whether the statutory duty imposed by regulation 6, which it wholly failed to perform, was a public law duty only, or could also give rise to a private law right enforceable by an action for compensation. This depended on the whether Parliament, in passing the Act, or the Secretary of State, in making the regulations, intended them to confer such a right. Regard must be had to the object and scope of the provisions, the class (if any) intended to be protected by them, and the means of redress open to a member of such a class if the duty was not performed.

The object of the provisions was clearly to expedite prosecutions and protect defendants remanded in custody from languishing there for excessive periods. But while the power conferred on the Secretary of State by section 22 was expressed in very broad terms, there was nothing to suggest that Parliament intended to give him power to create new private law rights of action.

If for any reason the CPS did not perform its duty, a defendant injured by that failure was doubtless expected to apply for release on bail at once, such application being assured of success. It cannot have been intended to confer a private law right of action for damages in such circumstances.