On 29 August 2007 the Prison Officers Association (“POA”) held an unlawful national strike. As the Governor of HMP Wealstun was left with a skeleton staff she issued an order that prisoners were to be confined to their cells for the day. As a result Mr Iqbal, a prisoner, was deprived of the few hours he would typically have been allowed out of his cell according to the daily routine established by the Governor. He brought proceedings for false imprisonment against the POA relating to the period for which he was confined to his cell when he would otherwise have been allowed out.

In Iqbal v. Prison Officers Association [2009] EWCA Civ 1312, [2010] 2 W.L.R. 1054 the Court of Appeal, by a majority, dismissed the claim. It was common ground that if the striking officers were liable then the POA would also be liable. It is a fundamental feature of the rule of law in England that public officers who act outside legal authority can be liable in tort for their actions in the same way as any other individual. A claim could not be made against the Governor because at all times she had lawful authority to detain the prisoner under the Prison Act 1952.

There is a clear reason why the officers could not be liable after the Governor had issued her order at 9.30 a.m. From that point the Governor had, under her statutory authority, sanctioned the confinement of the prisoners to their cells, and her order “superseded” the daily routine. In R v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 A.C. 58 it was established that a prisoner has no “residual liberty” vis-à-vis the Governor as under the Prison Act prisoners are deemed to be in her lawful custody and subject to her authority at all times. Equally, prisoners have no residual liberty vis-à-vis officers who are acting in accordance with the Governor's authority. From 9.30 a.m. it could not be said that the officers were acting outside the Governor's authority in not releasing the prisoners as their conduct was consistent with the terms of the order. Surprisingly, the majority judges only lightly touched on these significant points. They focused more intently on the Governor's order as it affected causation. For a defendant to be liable for false imprisonment their act (or omission) must be the “direct and immediate” cause of the claimant's confinement. The majority considered that the Governor's order was an intervening event that supplanted the strike action as the direct cause of the prisoners' confinement, meaning the officers were not legally responsible for the continued confinement. Sullivan L.J., dissenting, considered the strike to be the direct cause of the confinement even after the order, given that he believed the Governor's hands were practically tied by the lack of staff. However, while the situation certainly precipitated the order, the order represented the Governor's own judgment as to how best to respond to the situation and it was directly pursuant to her order that the prisoners were confined for the day.

So much for the situation after 9.30 a.m. As for the preceding period, from 7.45 a.m. the officers did not release the prisoners from their cells contrary to the daily routine, and this was the direct cause of the prisoners' confinement. This raises the issue of whether officers can rely on the Governor's general legal authority over the prisoners as a defence to liability, where they act contrary to the Governor's will? Significantly, all three of the judges in Iqbal were willing to accept that, where an officer restrains a prisoner within defined bounds without the authority of the Governor, he may be liable for false imprisonment in his personal capacity and cannot rely on the Governor's authority as a shield to liability.

Thus, where a confinement is effected by an officer without lawful authority and via a positive act – such as locking a prisoner in a shed – the officer may be liable. But is it false imprisonment where the officer omits to open the cell door, as in Iqbal? The majority affirmed the orthodox view that a positive act is normally required to establish the tort, while accepting that there may be some exceptional instances where an omission may give rise to liability. These include where the defendant is under a specific duty to release the claimant from confinement, for example under a contract (cf. Herd v. Weardale Steel, Coal and Coke Co Ltd. [1913] 3 K.B. 771; [1915] A.C. 67) or upon a prisoner's release date (R v. Governor of Brockhill Prison, ex parte Evans (No 2) [2001] 2 A.C. 19) – although the latter scenario is probably better explained as entailing a continuing act of imprisonment by the Governor, which ceases to be lawfully authorised when the release date passes. In terms of omissions, the Court's requirement of a specific duty must be correct, as an omission can only be actionable where there is a positive obligation to act. While at 7.45 a.m. it could be said that there was a duty on the officers to release Iqbal according to the Governor's daily routine, that was a contractual duty owed to the Governor and not to Iqbal. The relevant duty must be owed by the defendant to the claimant.

Sullivan L.J., dissenting, did not consider the officers' refusal to work as entailing a “mere failure” to act; a deliberate refusal to implement the Governor's directive constituted an act of defiance. However, while the officers may have acted defiantly and deliberately in not turning up to work, that does not change the fact that in so doing they omitted to release Iqbal: “omitting to do A is often a matter of doing something other than A” (Lucy, Philosophy of Private Law (Oxford 2007), p. 150).

The law's different treatment of positive acts and omissions may give rise to perceived unfairness: the practical effect of the positive act of locking up a prisoner contrary to an order and omitting to release a prisoner contrary to an order may be identical. But this is a line the common law routinely draws. It reflects the view that positive acts are generally more culpable than omissions, and the common law's traditional antagonism towards imposing positive duties on the basis that such duties can make significant inroads into individual freedom.

Lastly, the trial judge, having upheld Iqbal's claim, awarded only £5 in nominal damages because Iqbal had exaggerated the hurt to his feelings from being confined, and the declaration that he had been falsely imprisoned afforded him substantial “just satisfaction”. This approach was rightly rejected by all members of the Court of Appeal, who, if they had found liability, would have substituted a compensatory award of £120 for six hours of wrongful confinement. Every false imprisonment imports a “normative” injury to the underlying right in liberty, notwithstanding whether mental distress is in fact suffered, and therefore ought to sound in substantial damages, even if small in quantum: e.g. R v. Governor of Brockhill Prison, ex parte Evans (No 2) [1999] Q.B. 1043, 1060. The language of “just satisfaction” is associated with the remedial jurisdiction of the European Court of Human Rights and has no place in the common law of damages. Under English law, if false imprisonment is established substantial damages are awarded as of right because of the importance of the underlying right to liberty, notwithstanding whether a declaration has been made or not.