Law Report: Home Office not liable for prison officer's acts: Racz v the Home Office: Queen's Bench Division (Mrs Justice Ebsworth). 15 June 1992.

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The Home Office cannot be vicariously liable for the tort of misfeasance in public office where a prison officer unlawfully ordered a prisoner to detention in a strip cell since the officer had acted outside the scope of his authority.

Mrs Justice Ebsworth, giving judgment in open court, struck out an allegation of misfeasance in public office in the plaintiff's statement of claim.

The plaintiff was a remand prisoner at Leeds Prison and was lodged in the hospital building. He was ordered to perform cleaning duties and refused. He was moved to a cell and thereafter to a special or strip cell on the order of a prison officer of the rank of hospital senior officer. The plaintiff complained of assault before and during the detention and of interference with his food.

He issued a writ against the Home Office claiming damages for, among other things, misfeasance in public office in respect of which he sought to fix the Home Office with vicarious liability.

He alleged that the officers who ordered his removal knew they had no lawful power under the Prison Rules for such removal and were motivated by malice and their actions thereby amounted to misfeasance in public office.

The Home Office denied liability and applied to strike out that claim.

N S Garnham (Treasury Solicitor) for the Home Office; Tim Owen (Birnberg & Co) for the plaintiff.

MRS JUSTICE EBSWORTH said that recourse should only be had to the remedy to strike out where the action was one which could not succeed or was an abuse of the process or where the case was unarguable.

The detention of prisoners within a prison was governed by the Prison Act 1952 and the Prison Rules 1964. Under the Home Office Guidance to Prisons, a prison officer of appropriate rank in the course of carrying out his duties as a Crown servant might cause the prisoner to be detained in a special cell in proper circumstances.

The plaintiff's case was that in applying the ordinary principles of the law of tort the Home Office would be responsible for the wrongful act of a prison officer if it was an unauthorised act or if it was a wrongful or unauthorised mode of doing some act which he was employed to do in the course of his employment, that is, it was argued here, confining a prisoner in a special cell.

Mr Owen submitted that a master was responsible not merely for what he authorised his servant to do, but also for the way in which he did it; that if a servant did negligently that which he was authorised to do carefully, or if he did fraudulently that which he was authorised to do honestly, or if he did mistakenly that which he was authorised to do correctly, his master would answer for that negligence, fraud or mistake; on the other hand, if the unauthorised or wrongful act of the servant was not so connected with the authorised act as to be a mode of doing it, but an independent act, the master was not responsible, for in such a case the servant was not acting within the course of his employment but went outside it.

Misfeasance in public office was the tort of deliberate abuse of power. The gist of such an action for damages had been held to be malice. If the holder of a public office had either done an act knowing that he had no lawful power to do that act which he did, or did it maliciously with the intention of injuring another, then that would amount to the tort of misfeasance in public office. An action would lie against the individual prison officers but they had not been sued.

The Home Office's case was that there could not be vicarious liability for such a tort and relied on the decision of the House of Lords in Hague v Deputy Governor of Parkhurst Prison and Weldon v Home Office (1991) 3 All ER 733.

Lord Bridge, as p 745, said: 'But if the officer deliberately acts outside the scope of his authority, he cannot render the governor or the Home Office vicariously liable for his tortious conduct.'

Those remarks might well be obiter because both cases turned on the question of false imprisonment and residual liberty and did not give rise to any necessity for determining the nature of the tort of misfeasance in public office and the nature of vicarious liability.

Vicarious liability for false imprisonment was the issue in Suen King-On v AG (1987) HKLR 331. That decision was not concerned with the different tort of misfeasance and did not meet Lord Bridge's point as to vicarious liability where the Crown servant deliberately and knowingly acted outside his authority.

On the pleadings in this case, where there was no suggestion that the servant held himself out to the plaintiff as acting within his authority, an argument based on ostensible authority did not lie comfortably with the allegation of misfeasance.

The essence of the plaintiff's case, as Mr Garnham for the Home Office argued, was that the prison officers knew that they were acting without authority and no question arose of the plaintiff believing that they were acting within it; therefore no question of ostensible authority arose.

Nothing in Lord Ackner's speech in Hague and Weldon indicated any difference of opinion with the observations of Lord Bridge.

Lord Ackner did not deal with the question of whether or not there could be a claim for the tort of misfeasance in public office. Lord Jauncey also did not dissent from the observations of Lord Bridge.

Having considered the arguments and authorities, the Home Office's argument was correct and the plaintiff's claim was unsustainable in law.

The paragraph of the statement of claim alleging the tort of misfeasance in public office would be struck out.

Leave to appeal to the Court of Appeal.