Yarl's Wood Immigration Ltd & Ors v Bedfordshire Police Authority

On the night of 14/15 February 2002 a serious riot occurred at the Yarl’s Wood Immigration Detention Centre at Clapham, Bedfordshire (“Yarl’s Wood” or the “detention centre”). Almost half of it was destroyed by fire. Yarl’s Wood is a contracted out detention centre where immigrants and asylum seekers may be detained pending the resolution of their status, ie pending a decision to give or refuse leave to enter the United Kingdom or pending a decision on removal, or pending removal. Whole families may be detained there. Such detention centres may be either directly managed by the Home Secretary or, as in the case of Yarl’s Wood, may be contracted out to private operators. In these proceedings the private operators of Yarl’s Wood and their insurers have claimed to recover the cost of the riot damage from the local police authority, the Bedfordshire Police Authority (the “Authority”), under the provisions of the Riot (Damages) Act 1886 (the “1886 Act”). The claim is substantial: it has been quantified at some £32 million. The claim failed at first instance: see the judgment of Beatson J [2008] EWHC 2207 (Comm).

There has also been litigation between the Authority and its insurers, for the latter disputed cover. However, that litigation has been resolved in favour of the Authority: see Bedfordshire Police Authority v. Constable [2008] EWHC 1375 (Comm) (Walker J), [2009] EWCA Civ 64.

I will have to set out the provisions of the 1886 Act in greater detail below, but for present purposes it may be remarked that its central provision is contained in its section 2(1), as follows:

“Where a house, shop, or building in a police area has been injured or destroyed…by any persons riotously and tumultuously assembled together, such compensation as herein-after mentioned shall be paid out of the police fund of the area to any person who has sustained loss by such injury…or destruction…” (emphasis added).

The operators maintain that they are within the statutory words “any person” and therefore have a right to compensation within the terms of the 1886 Act. The Authority contends that that phrase must be limited so as to exclude parties, at any rate public authorities, who have primary or some responsibility for order within a detention centre, even if such responsibility is shared with the police. Beatson J agreed. He held (at para 159):

“The fact that YWIL and GSL [the appellants] were acting as public authorities exercising coercive powers of the state in carrying out its public function in respect of the Yarl’s Wood immigration detention centre does not per se put them outside the scope of the 1886 Act. However, the fact that they are entities with public law powers and duties for order within the detention centre means that, in respect of loss suffered from riot damage caused by detainees within the centre, they are not qualifying persons within the 1886 Act. The 1886 Act and its predecessors imposed a statutory duty to compensate on those responsible for law and order in a given area. The intention behind the legislation was that local property owners should be entitled to obtain compensation from the body with responsibility for protecting them from the risk of riot. It was not to enable a public authority with a particular responsibility for order within a defined area to seek compensation from another public authority with a broadly equivalent, but not identical, responsibility for order in that area.”

On this appeal the respondent Authority submits that the judge was right for the reasons which he gave. It has a respondent’s notice, but of very narrow scope (I will refer to it below in connection with a so-called “temporal issue”). However, it also seeks to limit the statutory language by reference to the nature of the police’s duty to prevent riot: it submits that no duty is owed to public authorities such as the appellant operators of a detention centre. The appellants submit, on the other hand, that the purpose of the 1886 Act is clear from its wording, namely to provide compensation on a basis of strict liability “to any person who has sustained loss”, without limitation or any concept of a “qualifying person”. They rely on the full provisions of the Act to support submissions that it clearly contemplates compensation in the case of public buildings and public institutions and contains a proviso which enables account to be taken of any fault or responsibility on the part of a claimant.

This court is thus concerned with a question of statutory interpretation on facts agreed only for the purpose of preliminary issues. Like the judge below, we are not concerned with any findings of facts.

The judge pointed out that the state has never claimed under the 1886 Act in respect of prisons which have been damaged by rioting prisoners. The 1990 Strangeways prison riot in Manchester is an example from relatively recent times of a devastating riot. It cost £55 million to rebuild HMP Strangeways. A detention centre is not unlike a prison in many respects. It does appear that the state has not invoked the 1886 Act (or its predecessors) against police authorities (or their predecessors). That goes back, however, to a time before the state contracted out responsibility for prisons and detention centres to private firms. Under the terms of such contracts it is the private operator and not the state that bears the general risk of damage, even in the case of riot. On the other hand, the judge was clearly concerned that, if the appellants were right in their claim, by such means the state might be said to be transferring to the local taxpayer, through the local police authority, losses which were essentially those of the state itself. It seems that new times have created new points.

The principal claimants (here appellants) are Yarl’s Wood Immigration Limited (“YWIL”) and GSL UK Limited (“GSL”). YWIL is the lessee of Yarl’s Wood under a lease made on 8 September 2000 under which the Secretary of State for Defence demised the premises at Yarl’s Wood to YWIL for 15 years. It is also the contractor under a Project Contract dated 1 September 2000 between itself and the Home Office under which YWIL agreed to design and construct the detention centre and associated facilities at Yarl’s Wood and to maintain and operate it. On the same date YWIL entered into an Operating Contract under which it sub-contracted the operation and maintenance of Yarl’s Wood to GSL. Under those contracts, as between YWIL and the state, the loss in question from the damage which has occurred to the premises rests with YWIL. Both YWIL and GSL are companies within the Group 4 group and it is unnecessary to distinguish between them. I shall refer to them as “Group 4”.

The Authority is responsible for the police area for Bedfordshire and is the compensation authority within the meaning of the 1886 Act for that area. It is distinct from the Bedfordshire police force, which is the police force for that area, but is responsible for it. Originally, the responsibility to compensate persons injured by riot was imposed on local inhabitants. The history is discussed by Walker J in Bedfordshire Police Authority v. Constable (at paras 8ff, cited by Beatson J at para 34). The first statute to deal specifically with riot was the Riot Act 1714, but the strict liability there adopted built upon earlier examples, such as the Statute of Winchester of 1285, which made the “hundred” (an ancient subdivision of a county) where a robbery was committed answerable for the loss unless the bodies of the robbers were produced. The Statute of Hue and Cry of 1585 allowed the residents of one hundred where a robbery was committed to claim over against an adjoining hundred where hue and cry proceeded in that latter hundred. The 1714 Act imposed strict liability on the inhabitants of the hundred where riot damage was done. The Remedies against the Hundred Act 1827 consolidated and amended laws relevant to remedies against the hundred, providing that “the Inhabitants of the Hundred, Wapentake, Ward, or other District in the nature of a Hundred, by whatever name it be nominated…shall be liable to yield full compensation to the Person or Persons damnified by the Offence…”. The 1886 Act, in its original form, transferred the liability to make compensation to “the police rate of such district” where the loss took place (section 2(1)) and provided that claims for compensation should be made to the “police authority” of that district (section 3(1)). There were amendments effected by the Police Acts of 1964 and 1996, as a result of which the modern amended form of the 1886 Act refers to “police area”, “police fund” and “compensation authority” respectively.

It is necessary to refer to the respective responsibilities of Group 4, the Home Secretary, and the police in respect of disorder and riotous behaviour at Yarl’s Wood, because it is the Authority’s essential submission that these reveal that Group 4 does not qualify as a “person” within the meaning of the 1886 Act. The judge sets out the statutory and contractual arrangements which govern the respective positions of Group 4 and the Home Secretary, and also sets out the law which governs the responsibility of the police in dealing with riot, all in considerable detail. I refer to section 3 of his judgment headed “Facts agreed for the purposes of the preliminary issues hearing” where he outlines the contingency planning between Group 4 and the Bedfordshire police (at paras 14/20), section 4(A) headed “Legislation concerning immigration detention centres” (at paras 38/41), and section 6(A) headed “The status, powers and responsibilities of the parties” (at paras 48/86). It is not necessary to repeat the detail of those sections of the judgment below, because they are neither controversial nor decisive.

In brief, however, the arrangements at Yarl’s Wood are governed by statute, by contract, and by contingency planning. The statutory underpinnings are to be found in the Immigration and Asylum Act 1999 (the “1999 Act”) and the Detention Centre Rules 2001 (SI 2001 No 238, the “2001 Rules”). Even where the Home Secretary contracts out the operation of a detention centre, he is obliged to appoint a “contract monitor” for each such centre (section 149) and may intervene by appointing a “Controller” if it appears to him that the manager of the centre has lost or is likely to lose effective control of the centre or in the interests of preventing serious damage (section 151). The Home Secretary may certify applicants as “detainee custody officers” and may, if he considers it necessary, in the case of directly managed (not contracted out) detention centres confer the functions of detainee custody officers on prison officers, in which case (but only in which case) do such prison officers have the powers of a constable, which are otherwise lacking (section 154). Subject to that the powers of detainee custody officers are strictly regulated and limited (para 2 of Schedule 11 to the 1999 Act). They are under duties, however, inter alia to prevent escape and the commission of unlawful acts, and to ensure good order and discipline. Further provisions within the 2001 Rules regulate the duties of detention centre officers. These emphasise that the purpose of detention centres is to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment. Detained family members are entitled to enjoy family life consistent with the interests of security and safety. Special provisions authorise temporary confinement or special control or restraint, but save in cases of urgency this can only be done by the Home Secretary.

The Home Secretary retains considerable control of a contracted out detention centre. The contract monitor is required to keep the running of the centre under review, to report to the Home Secretary, and to investigate allegations against persons performing custodial functions. The Home Secretary may, as stated above, intervene by appointing his own Controller to act as manager.

The provisions of the 1999 Act and the 2001 Rules were reflected in and underpinned by the Project Contract. Clause 7.2 of Schedule D requires Group 4 to maintain security and good order at Yarl’s Wood at all times, and clause 7.8 requires the implementation of contingency planning, to be approved by the Home Secretary, including liaison with local emergency services in the event of demonstrations and concerted indiscipline.

The judge summed up these provisions in this way:

“58.

Those who operate contracted out detention centres do so for the Home Secretary and in order to enable the detention of persons pursuant to the Home Secretary’s powers of detention under the Immigration Act 1971. The power to manage those detained has been delegated to the claimants by virtue of the contractual arrangements made under the 1999 Act and the powers and duties in the Act and the 2001 Rules. This, together with the degree of control given to the Home Secretary by the 1999 Act and the 2001 Rules and the Project and Operating Contracts, means that a contracted out detention centre is to be regarded as operated by and on behalf of the Home Secretary…59…[P]owers are divided between [Group 4] and their employees and the Home Secretary…”

The judge also referred to the contingency planning required of Group 4. This led to the exchange of contingency plans with the Bedfordshire police and to a Joint Protocol Agreement made between Group 4 and the police force dated 31 August 2001 (the “JPA”). This was based on an earlier protocol which Group 4 had made with the Thames Valley police with respect to another contracted out detention centre (at Campsfield House). A serious disturbance there had led to a 24 hour delay in the deployment of the Thames Valley police and out of that emerged a plan whereby in the event of an incident which Group 4 could not control, control of the incident would be formally handed over to the police. It was an agreed fact that the intention of this protocol was that this arrangement would operate over and above the police’s normal duties to control law and order and would be reflected in Group 4 paying additional policing costs. It would also formalise the command structure upon a formal handover of control.

The judge annexed the JPA to his judgment. Its provisions contain the following:

“1…The safety and security of everyone detained, employed and visiting within the centre must rest with Group 4 and nothing in this Agreement shall in any way alter the responsibilities and obligations of Group 4 under its contract with the Secretary of State (the “Contract”).

2.

The Bedfordshire Police has a legal duty to act in certain circumstances, using their powers under the Police and Criminal Evidence Act and the Immigration Acts.

3.

The purpose of this Agreement is to ensure a speedy response by Bedfordshire Police officers to serious incidents at the Detention Centre and one, which does not adversely affect their other operational duties.

4.

The command and control of police officers, however engaged, remains always with the Bedfordshire Police…

9.

Criteria:

i.

Serious incident…

AND in the opinion of Group 4’s Centre Manager, that Group 4 employees cannot reasonably resolve the incident safely. In these circumstances the Centre Manager will formally hand over control to the police…

11.

Group 4 will undertake to fund, without reservation, all officers judged by the officer in charge to be sufficiently needed to resolve the situation safely…”

It was agreed between the parties for the purpose of the preliminary issues that on the night of 14/15 February (a) the riot broke out at around 19.30 and continued for some hours, although it remains in dispute whether the riot ended by 22.30 (the Authority’s case) or only by 02.00 (Group 4’s case); (b) the Bedfordshire police were called at about 20.06, and the ambulance and fire services at about 20.17; (c) at 20.26 Group 4 contacted the prison service in order to put into effect the so-called contingency “Operation Tornado”, which contemplated that the prison service would operate the Gold Command over the incident as a whole (however, this is not accepted by the Bedfordshire police); (d) at about 21.00 the police silver commander (Chief Superintendent Comb) was asked to instigate police containment at the perimeter fence and complied; (e) at about 21.30 a group of about 30 detainees broke down the gates and police were engaged in trying to apprehend them, and there were also subsequent such attempts and police responses; (f) Group 4 contends and the Authority denies that between 22.15 and about 00.50 the silver commanders of Bedfordshire police, the prison service and Group 4 met and liaised with a view to implementing an intervention plan to retake control of the detention centre; (g) at between 00.50 and 00.59 the prison service handed over control of the detention centre to the police. There is an important dispute between the parties as to whether the riot was over by the last of those timings, indeed by 23.30, or whether on the contrary it both continued and caused most of the damage by fire thereafter.

Against this background the judge went on to consider the powers and responsibilities of the police. He pointed out that the fundamental obligation on the police is to preserve the Queen’s peace, also expressed as an obligation to keep law and order. He referred to Glamorgan Coal Co v. Glamorgan Joint Standing Committee [1915] 1 KB 483 where Bankes LJ said that the duties of police forces include the preservation of the peace, the protection of the inhabitants, and the safeguarding of property within their area, and to Glasbrook Bros Ltd v. Glamorgan County Council [1925] AC 270, at 277 where Viscount Cave LC said:

“No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury…”

However, how the police respond to an incident is also a matter of discretion and the courts will be reluctant to interfere with a chief constable’s decision: see Viscount Finlay, ibid at 285:

“There is no doubt that it is the duty of the police to give adequate protection to all persons and their property. In discharging this duty those in control of the police must exercise their judgment as to the manner in which the protection should be afforded.”

In these circumstances the judge considered to what extent Group 4’s responsibilities for law and order within Yarl’s Wood, together with the JPA, affected (and if so how) the Bedfordshire police’s duty. He referred to Group 4’s submissions that, notwithstanding its public duties as representing the Home Secretary, it was not responsible for protecting the public from the risk of riot and disorder in Yarl’s Wood. First, it had no general responsibility for maintaining law and order within it. Detention custody officers are not constables and, compared to constables, their powers are limited and do not include a constable’s power of arrest. Secondly, the power and duty of the local police force to maintain law and order had not been removed in respect of Yarl’s Wood. The judge essentially accepted the basis of these submissions, but rejected the conclusion which Group 4 sought to derive from them and concluded in effect that responsibility was shared.

It is sufficient for the purposes of this appeal to underline the judge’s conclusion that responsibility for law and order at Yarl’s Wood was shared. Nevertheless, it needs to be emphasised that Group 4’s powers were indeed constrained, and that, so far as a threatened riot might be concerned, severely constrained. They lacked a constable’s anticipatory power of arrest; and the circumstances in which a detainee could be confined in special accommodation was exercisable only by the manager and not by any detainee custody officer, and was hedged around with restrictions (see rule 40 of the 2001 Rules set out by the judge at para 40). Moreover, it follows from the judge’s own analysis of the rationale of the 1886 Act concerning the police’s strict and no-fault duty to prevent and suppress riot (see below) that it may well be said that, so far as riot is concerned, the police have always been recognised as having a special responsibility.

The judge reasoned the matter variously as follows. He said:

“79.

The public law responsibilities of the first and second claimants in respect of order and security within the detention centre do not of themselves remove the powers and duties of the Bedfordshire police force to maintain law and order in it. This is recognised in paragraph 2 of the Yarl’s Wood JPA…

80.

It is clear law that a contractual arrangement by a public authority may not fetter the authority in the exercise of its powers and duties: see eg Ayr Harbour Trustees v. Oswald (1883) 8 App Cas 623; Commissioners of Crown Lands v. Page [1960] 2 QB 274. The duty of the police to maintain law and order has been described as a fundamental duty. Given the fundamental nature of that duty, a provision of the JPA which expressly sought to remove the powers and duties of the Bedfordshire police force to maintain law and order in the Yarl’s Wood detention centre would probably have amounted to an improper fetter on the police’s duty to maintain order. But this does not mean that the first and second claimants’ specific public law responsibilities in respect of order and security within the detention centre have no impact on the position of the police force…

82.

It is clear from the assumed facts that the parties do not agree about the impact of the Yarl’s Wood JPA on the common law and statutory duties of the Bedfordshire police force to attend and deal with serious incidents at the detention centre. However, both parties knew that the Bedfordshire police intended to include the Yarl’s Wood JPA as an appendix to their Operational Order. Paragraph 7 of the Yarl’s Wood JPA provides that it is the claimants’ duty to manage all minor or protracted incidents within the centre. Paragraph 8-9 of the JPA provide for the police to assist with serious incidents if the centre’s manager was of the view that the claimants’ employees could not reasonably resolve the incident safely and formally handed over control to the police…

84.

For the reasons I have given, while the police remain under their fundamental duty, where the claimants, with their public law duties for order in the centre and, in accordance with the procedures entered into by the claimants and the police, remain responsible for an incident, the police may not be in breach of the duty while the claimants remain so responsible for the incident…

98.

The report of the Prisons and Probation Ombudsman (HC 1257) published on 16 November 2004 stated (p 125) that, if there was widespread damage and threat to life, it is arguable that the police could only perform their duty to maintain order by taking control of the incident. The police undoubtedly had power to enter; the question was whether their decision to await a request was unlawful and put them in breach of their duty. In view of the claimants’ public law responsibilities within the detention centre, and the arrangements made by the claimants and the police (in the JPA), and the powers of the Home Secretary which I have discussed, a decision by the police not to take over or to enter the centre until requested to do so by the claimants was lawful. Accordingly, until so requested (at the earliest at 0050), the police were not in breach of their public duty of enforcing the law and keeping the peace. If, as is the defendant’s case, but is disputed by the claimants, the period of riotous and tumultuous behaviour ended at about 23.30 hours, before the police were asked to take over, the police were not in breach of their duty during the period of the riot.

99.

The fact that a decision by the police not to enter the centre until requested to do so by the claimants was lawful does not, however, address the issue of the scope and intention of the 1886 Act, to which I now turn.”

As do I.

Tomlinson J ordered a trial of five preliminary issues, of which one disappeared before trial (whether the JPA had the effect of waiving any liability of the Authority under the 1886 Act; but the Authority did not ultimately rely on waiver). The remaining four to some extent overlap (as the judge himself remarked) and are as follows:

It will be observed that each of these four issues commences by asking for an assessment of a legal situation or relationship and then, on the hypothesis grounded by the answer to that initial assessment, raises the identical question as to the “scope and/or intention” of the 1886 Act. The Judge answered these four issues as follows.

Issue 1: the judge found that Group 4 was acting as a public authority with responsibility for good order within the detention centre and on that ground held that it did not qualify as “any person” within section 2(1) of the 1886 Act (para 159).

Issue 2: the judge held that this issue did not arise in light of the answer to issue 1. The judge said, however, that if Group 4 had been a qualifying person within the 1886 Act, then the Authority would have been liable to compensate it, on a strict basis, even if Group 4 had sole responsibility for good order within the detention centre and even though the police force had been free of any fault in failing to prevent damage within the centre due to riot (para 163).

Issue 3: the judge said that in as much this raised the same question as issues 1 or 2, the answer was to be found there. To the extent, however, that it raised the (presumably factual) question of whether Group 4 was the source of its own loss, it was an issue which was not susceptible of determination at this preliminary stage (para 164).

Issue 4: this issue concentrated upon the impact of the JPA. The judge answered this issue by giving a resume of his earlier conclusions about the situation caused by the symbiotic relationship of Group 4 and the police in relation to good order at Yarl’s Wood, viz the JPA did not displace the police’s powers and duties to respond to criminal acts there but did have an impact upon their discretion to intervene prior to any formal handover of control, so that a “decision by the police not to take over or to enter the centre until requested to do so was lawful”. Nevertheless, if Group 4 had been a qualifying person within the 1886 Act, then its claims for compensation would have been in principle maintainable irrespective of whether there had been any formal handover of control under the JPA, although “the fact that the claimants did not invoke a handover pursuant to paragraph 9 of the JPA would be relevant to the assessment of the amount of compensation under section 2(1), as part of the consideration of the claimants” (paras 165/167).

There was some uncertainty between the parties on this appeal as to whether the judge had answered the question, implicit in the issues and the facts agreed (or agreed to be disputed) for the purpose of the preliminary issues, whether, whatever may have been the position before any formal handover, Group 4 was nevertheless a qualifying person after any formal handover. Group 4 submitted that this was a lacuna in the judgment. The Authority submitted that there was no lacuna and that if Group 4 was not a qualifying person before any handover, it followed that it remained as a non-qualifying person after any handover: it was a matter of status. However, if there was a lacuna, then that ought to be recognised as the consequence of the judge’s reasoning, and it was in effect in this respect alone that the Authority served a respondent’s notice. Otherwise, it did not dispute the judge’s answers. I will revert to this problem of the interpretation of the judge’s judgment at para [71] below. For the present, I would merely observe that in his answer to issue 4 the judge appears to be contemplating that, if Group 4 had been a “person” within the 1886 Act, then in respect of any damage caused by riot before any formal handover, there might be a question of quantum by reference to section 2(1) of the 1886 Act. It is not, I think, implicit in his answer that, if there had been a formal handover, then Group 4 would for that reason have become a “person” within the 1886 Act thereafter.

The allusion to a question of quantum under section 2(1) of the 1886 Act is a reference to the proviso at the end of section 2(1), where the statute provides:

“but in fixing the amount of such compensation regard shall be had to the conduct of the said person, whether as respects the precautions taken by him or as respects his being a party or accessory to such riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise.”

It is worth pausing a moment to try to obtain an overall fix on what the judge concluded by reference to these issues. It may be said that issue 1 concentrates on Group 4 as a “public authority exercising coercive powers of the state in carrying out its public function”, whereas issue 2 concentrates on the question whether the security functions of Group 4 at Yarl’s Wood take that centre “outside the effective scope of police control”. Issue 3 concentrates on Group 4’s functions, while issue 4 concentrates on the JPA. Thus, the first issue looks to Group 4’s status as a public authority and asks whether Group 4 is outside the Act because of what it is, the second issue asks whether Yarl’s Wood is outside the Act because the police are not responsible for it, the third issue asks whether it is Group 4’s functions, and the fourth issue asks whether it is the JPA, that take its claims outside the Act. The judge answered these issues essentially by saying that the crucial matter was Group 4’s status as a public authority, albeit it appears that it may be significant that it is a public authority with functions for maintaining good order within the centre. In terms of the statutory language, however, Group 4 is not a qualifying “person”. If it were, it would not matter (quantum questions apart) that the police were not at fault, or that security was solely or primarily a matter for Group 4, or that the JPA had made arrangements between Group 4 and the police which were premised on a formal handover of control. It was not a question of Yarl’s Wood being outside the scope of police control. It was a matter, as it were, of jurisdiction. The Act did not cover the likes of Group 4.

The preliminary issues could perhaps, but did not, raise their questions by reference to the explicit language of the 1886 Act. Thus they could have asked whether Group 4 was “any person” within the Act, or whether Yarl’s Wood was a “public institution, or public building” within the Act, or whether Group 4’s responsibilities for security and good order within Yarl’s Wood were a matter within the quantum proviso of the Act. To the extent that the judge addressed such questions, he decided them, save for what was for him the critical question of “any person”, in favour of Group 4.

The material provisions of the 1886 Act, as amended, are as follows:

“2 Compensation to persons for damage by riot

(1)

Where a house, shop, or building in a police area has been injured or destroyed, or the property therein has been injured, stolen, or destroyed, by any persons riotously and tumultuously assembled together, such compensation as herein-after mentioned shall be paid out of the police fund of the area to any person who has sustained loss by such injury, stealing or destruction; but in fixing the amount of such compensation regard shall be had to the conduct of the said person, whether as respects the precautions taken by him or as respects his being a party or accessory to such riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise.

(2)

Where any person having sustained such loss as aforesaid has received, by way of insurance or otherwise, any sum to recoup him, in whole or in part, for such loss, the compensation otherwise payable to him under this Act shall, if exceeding such sum, be reduced by the amount thereof, and in any other case shall not be paid to him, and the payer of such sum shall be entitled to compensation under this Act in respect of the sum so paid in like manner as if he had sustained the said loss, and any policy of insurance given by such payer shall continue in force as if he had made no such payment, and where such person was recouped as aforesaid otherwise than by payment of a sum, this enactment shall apply as if the value of such recoupment were a sum paid.

3 Mode of awarding compensation

(1)

Claims for compensation under this Act shall be made to the compensation authority of the police area where the injury, stealing or destruction took place, and such compensation authority shall inquire into the truth thereof, and shall, if satisfied, fix such compensation as appears to them to be just.

(2)

A Secretary of State may from time to time make, and when made, revoke and vary regulations respecting the time, manner, and conditions within, in, and under which claims for compensation under this Act are to be made, and all such claims not made in accordance with such regulations may be excluded. Such regulations may also provide for the particulars to be stated in any claim, and for the verification of any claim, and of any facts incidental thereto, by statutory declarations, production of books, vouchers, and documents, entry of premises, and otherwise, and may also provide for any matter which under this act can be prescribed, and for the compensation authority obtaining information and assistance for determining the said claims.

4 Right of action to person aggrieved

(1)

Where a claim to compensation has been made in accordance with the regulations, and the claimant is aggrieved by the refusal or failure of the compensation authority to fix compensation upon such claim, or by the amount of compensation fixed, he may bring an action against the compensation authority to recover compensation in respect of all or any of the matters mentioned in such claim and to an amount not exceeding that mentioned therein, but if in such action he fails to recover any compensation or an amount exceeding that fixed by the compensation authority, he shall pay the costs of the compensation authority as between solicitor and client…

6 Application of Act to wreck and machinery

This Act shall apply…

(b)

in the case of the injury or destruction, by persons riotously and tumultuously assembled together, of any machinery, whether fixed or movable, prepared for or employed in any manufacture, or agriculture, or any branch thereof, or of any erection or fixture about or belonging to such machinery, or of any steam engine or other engine for sinking, draining, or working any mine or quarry, or of any bridge, wagon-way, or trunk for conveying minerals or other product from any mine or quarry;

in like manner as if such…injury or destruction were an injury, stealing or destruction in respect of which compensation is payable under the foregoing provisions of this Act…

7 As to claimants in the case of churches, public institutions, etc

For the purposes of this Act –

(a)

where a church or chapel has been injured or destroyed, or any property therein has been injured, stolen or destroyed, the churchwardens or chapelwardens, if any, or, if there are none, the persons having the management of such church or chapel, or the persons in whom the legal estate is vested; and

(b)

where a school, hospital, public institution, or public building, has been injured or destroyed, or any property therein has been injured, stolen, or destroyed, the persons having the control of such school, hospital, institution, or building, or the persons in whom the legal estate in the same is vested;

shall be deemed to be the persons who have sustained loss from such injury, stealing, or destruction, and claims may be made by any one or more of such persons in relation both to the building and to the property therein, and payment to any such claimant shall discharge the liability of the compensation authority to pay compensation, but shall be without prejudice to the right of any person to recover the compensation from such payee.

9 Definitions

In this Act, unless the context otherwise requires –

The expression “person” includes a body of persons, corporate or incorporate…”

Group 4 relies on the width of the expression “any person” and of its definition, on the inclusion within the ambit of the 1886 Act of schools, hospitals, churches and public buildings or public institutions as a whole, and on the absence of any sign throughout the 1886 Act of any intention to restrict its scope so as to negate the possibility that the state might be entitled to claim under its terms. Group 4 also relies on the proviso at the end of section 2(1) as providing the mechanism which enables a compensation authority, or the courts, to take account of factors personal to the claimant which might be said to have mitigated or undermined his claim, such as his responsibility for taking “precautions”. Ultimately, the assessment of quantum will take into account all such factors, so as to arrive at the fixing of an equitable compensation, viz “such compensation as appears to them just”. Since the liability to compensate is strict, and not dependent on any breach or failure of duty on the part of the police, it is unnecessary to limit the, as it were, jurisdiction to award compensation by some artificial interpretation of the statute. Nor is there any reason to adopt a purposive construction so as to avoid any absurdity. Although the state may have declined to avail itself of the 1886 Act so as to recover the costs of riot damage from local police funds, the reason why it has done so has never been made plain, but may simply be due to a reluctance to generate claims or litigation between different organs of the state. Police funds may depend in part on local taxation, but they also depend on central government expenditure. So run the submissions of Group 4.

The Authority on the other hand submits that a purposive approach to the interpretation of the Act is necessary to limit the broad language of the statute and thus avoid absurdity, so as to yield a sensible result which reflects the absence of any similar claim in the past whereby the local police fund has been made responsible for riots at institutions such as prisons where central government is charged with good order and the maintenance of security. The clue to such limitation is said to be found in the notional duty, albeit strict and not dependent on fault, which lies on the police force, as successors to the residents of the old hundreds, to prevent tumultuous riots (“riotously and tumultuously”) taking place in their locality of which they ought to be aware. Where, however, the persons who suffer loss are themselves representatives of the state and responsible for law and order in the locality in question, it would be anomalous to allow such persons to claim compensation. The judge was therefore right, for the reasons which he gave, to limit the meaning of “any person” accordingly. Alternatively, the same result can be achieved by limiting “any person” to those persons to whom the notional duty of the police is owed: such persons do not include representatives of the state who are themselves charged with the duty of maintaining law and order.

In such circumstances, and where it is acknowledged that there is no direct precedent for such a claim by the operator of a prison, it is necessary to follow the judge in considering earlier decisions on the 1886 Act and its predecessors for any clues as to the underlying rationale of the statute.

In Radcliffe v. Eden (1776) 2 Cowp 486, a decision on the Riot Act 1714, the owners of furniture destroyed by rioters who entered a house and damaged it recovered compensation, even though the 1714 Act did not expressly mention furniture. Lord Mansfield gave the statute an expansive application, to encourage resistance to rioters. He said (at 488):

“To encourage people to resist persons thus riotously assembled, and to reward those, who, by doing their duty, shall have incurred their resentment, the same law has made a further provision, that as the trespassers are to be hanged, the country shall pay the damages; and this, by way of inducement to the inhabitants to be active in suppressing such riots, which it is their duty to do; and which being made their interest too, they are more likely to execute. This is the great principle of the law, that the inhabitants shall be in the nature of sureties for one another. It is a very ancient principle; as old as the decennaries by Alfred…”

Beatson J discerned the enunciation of two principles: the responsibility and duty of the local inhabitants, and mutual suretyship for each other. He regarded the former as consistent with the Authority’s case, the latter with Group 4’s. It seems to me, however, that it is somewhat artificial to make such distinctions. It might be said that no distinction is to be made between those whose duty it is to suppress riots and those who benefit from the mutual support of the body of inhabitants as a whole. That is not consistent with a rationalisation whereby those whose duty it is to be responsible for good order are not entitled to be compensated by the general public. On the contrary, everyone who suffers damage is entitled to be compensated in part because everyone is responsible for good order.

The 1714 Act was considered again in Mason v. Sainsbury (1782) 3 Doug 61. The issue was whether a property owner who had been paid by his insurer could recover compensation. It was held that the insurer could maintain an action in the name of his insured, an instance of what would now be regarded as the principle of subrogation. The 1714 Act, unlike the 1886 Act, had no express provision regarding the effect of insurance taken out by a claimant entitled to compensation under the statute (see now section 2(2) of the 1886 Act). The latter provision is rather anomalous, for the principle of subrogation is pervasive and usually needs no express provision. Perhaps it was thought that where the statute itself was informed by a principle of mutual underwriting of individual losses, it was necessary or at least fitting for express provision to underline the fact that an individual claimant’s own insurance protection is no bar to recovery. Lord Mansfield said (at 64):

“The question, then, comes to this, can the owners, being insured, sue the hundred? Who is first liable? If the hundred, it makes no difference; if the insurer, then it is a satisfaction, and the hundred is not liable. But the contrary is evident from the nature of the contract of insurance. It is an indemnity. Every day the insurer is put in the place of the insured. In every abandonment it is so. The insurer uses the name of the insured. The case is clear: the Act puts the hundred, for civil purposes, in the place of the trespassers; and, upon principles of policy, as in the case of other remedies against the hundred, I am satisfied that it is to be considered as if the insurers had not paid a farthing.”

Willes J said:

“I am of the same opinion…The hundred is not answerable criminally, but they cannot be considered as free from blame. They may have been negligent, which is partly the principle of the Act.”

Buller J said (at 65):

“It has been admitted, and rightly, that the hundred is put in the place of the trespassers.”

Beatson J considered that Willes J’s remark about blame and negligence is the language of breach of duty. Perhaps so, but it seems to me rather anomalous and beside the point. The claimant, although indemnified by his insurer, is entitled to recover for the reasons given by Lord Mansfield, with which Willes J agrees. In any event, the hundred’s liability is strict, and does not turn on blame or negligence. As Buller J put it, they answer for the trespassers, not for their own fault. Or as Lord Mansfield put it, the hundred is put “in the place of the trespassers”.

Kaufmann Brothers v. Liverpool Corporation [1916] 1 KB 860 is a decision of the divisional court on the 1886 Act. A question of limitation arose: the Act did not provide a period within which an action for compensation had to be brought in the courts (although regulations made pursuant to section 3(2) of the Act said that claims had to be brought within 14 days, and the police authority could enlarge that to 42 days: but those provisions were not adverted to, nor in point). The defendant authority relied on the Public Authorities Protection Act 1893, which provided a six months limitation period for an action against a public authority in respect of any “alleged neglect or default in the execution of any…act, duty or authority”. The divisional court held that the 1893 Act did not apply. Lush J said (at 862, and Rowlatt J agreed):

“In this case the police authority failed to fix the compensation to the satisfaction of the plaintiffs and they brought this action. It was an action to recover compensation under the statute; it was not brought to recover damages for any default on the part of the police authority; it was simply an action to recover such an amount as the county court judge might think right to allow as compensation for the damage done to the plaintiffs’ property.”

Pitchers v. Surrey County Council [1923] KB 57, a decision of this court, is the one authority whose facts come closest to those of the instant case. The plaintiff owned a shop on the London/Portsmouth road in an area where a military camp, Witley Camp, had been set up during the First World War. The camp straddled the road. It was under military control, and not under the control of the local Surrey police. A riot by soldiers led to damage to the plaintiff’s shop and the theft of its contents. The plaintiff sued the County Council under the 1886 Act as administrators of the local police fund. At first instance, Swift J explained the defence of the County Council in these terms (at 60):

“The defendants contend that although it is true that a house, shop or building has been destroyed it is not a house, shop or building in any police district, as the police had no jurisdiction over Witley Camp, the action of the military having taken Witley Camp completely out of the police district.”

However, Swift J rejected this defence. He considered that “the police had the right of control directly a felony was committed in their presence” and that remained the case even though “Of course they had not the power of exercising control” and “It is quite clear that it would have been physically impossible for all the police in Surrey…to have taken control of that camp without the assistance and support of the military authorities” (at 64). However, the right of compensation did not depend on what the police did or did not do or on any principle of blame:

“But the Act of Parliament does not give a citizen a right to compensation for damage by riot on any principle of blaming the police over the matter. The fact that the damage has been done in spite of the care and protection of the police or because of the negligence of the police does not affect the right of the claimant to have compensation. It is a right which is given to the individual who is hurt by a riot to have his damages shared by the whole of the community, and the community for the purpose of this sharing is the police district within which the building injured or destroyed is situated. The plaintiff is entitled to have the wrong which was done to her shared by all the contributors to the police fund in the police district of Surrey” (at 65).

The appeal took place before Lord Sterndale MR, Warrington and Atkin LJJ. Lord Sterndale put the matter thus (at 70):

“…it is said that this camp under the circumstances ceased to be within the police district. The circumstances are that this camp was inhabited by soldiers who were under military discipline and control by military police. It was more convenient and very much wiser that soldiers…should be controlled by their own police than by the civilian police in the district…But that is a long way from saying that the camp and the soldiers are to be taken out of the jurisdiction, if I may call it so, of the civilian police, and that the civilian police are in law to be deprived of the rights they would otherwise have within that part of the police district. There is no foundation, in my opinion, for saying anything of that sort. For convenience the officers wisely employed pickets and military police to look after the soldiers, and for convenience the police do not interfere, as a rule, but they still maintain their rights in that part of the police district just the same as they do in other parts of it. There may be difficulties in their way in exercising those rights because of the necessarily superior forces possessed by the military powers in time of war; but that does not affect the legal position in the least. Therefore it seems to me quite clear that this camp was within the police district, and the first requisite to bring the matter within the act is satisfied.”

Warrington LJ said this (at 72/73):

“Then it is said that the act must be so construed, whether by rule of commonsense or otherwise, as to exclude for the purposes of the Act from the expression “Police District” any district in which a body, not the ordinary civilian police, is by law charged with the maintenance of law and order, and is itself empowered to maintain a police force; and it is said that this area is such a district because the military authorities were charged with the maintenance of law and order, I suppose so far as those who were under their jurisdiction were concerned, and were empowered to maintain a police force. In my opinion that proposition is quite unsustainable; there is no authority for it; nor can I in reason see any ground for contending that, because the particular individuals who formed the military body were subject to military discipline, the area in which they lived should be withdrawn from the ordinary police protection of the rest of the county…But it is said that because they were soldiers and because their offence had the added gravity of being a mutiny, therefore they were not in civil law riotously and tumultuously assembled together. Really I fail to follow that. The Act of Parliament makes no exception at all – it provides simply that if injury is done by any persons riotously and tumultuously assembled together, then compensation is to be paid by the police authority in whose district that riot takes place.”

Atkin LJ agreed and also stated this (at 74/76):

“The area is part of the county of Surrey, but it is said that by virtue of the powers which the military authorities possess, having taken possession of it as I have mentioned, that area ceased to be part of the police district as defined under the Act and was taken out of it…No authority has been suggested for that proposition, and it cannot be contended that military barracks are an Alsatia. The law runs there. Everybody in the military barracks is subject to the criminal law and to the civil law, and the police authorities have the ordinary rights to enforce process there, subject to such limitations as may be imposed by the fact that the premises are premises of the Crown…The argument to the contrary consisted of a combination of two circumstances – namely that they were both soldiers and acting within the area of the camp. It can hardly be doubted but that if they were soldiers, that is to say subject to military law, and this offence were committed outside the camp, it would be within the Act. I can see no reason why it should not be. The possibility of a disturbance by three or four soldiers, which is enough to constitute a riot, must have been well within the contemplation of the Legislature at the time when they made this provision, and if in fact a riot took place within a camp or within barracks and damage is done, I see no reason why a person so damaged should not recover compensation. In an ordinary case if damage is done in barracks, the damage for the most part would be done to Crown property. I am far from saying that the Crown would not be entitled under those circumstances to recover compensation. Of course questions would arise which under the Act with regard to damage would make it difficult in some cases, at any rate, to recover compensation. For the above reasons it appears to me that the case is made out.”

Beatson J was not impressed by Pitchers: see his comments on it at paras 133/139. He analysed it almost entirely by reference to whether the Act’s rationale was a no-fault compensation scheme (Group 4’s contention) or a strict duty to prevent riots (the Authority’s contention based on subsequent authority to which I shall come presently). He observed that it had not been argued that the police were not under a duty to the plaintiff. In my judgment, however, Pitchers is of particular interest as the case which comes closest of all to the facts and issues of this appeal. It is plain that this court there considered the matter from the point of view that the police’s ordinary powers and duties in the area of the military camp continued despite the legal and practical control exercised over it by the military authorities. Although the language of the judgments is generally in terms of the police’s rights, it is to my mind impossible and artificial to divorce such rights from their duties. As Atkin LJ said, “The law runs there”.

Moreover, the Pitchers court had to consider the specific argument that the control of the camp by the military authorities, which although not legally exclusive, was accepted as being exclusive in practice and effect, took that case outside the scope of the 1886 Act. That argument is to all intents and purposes very similar to the essential argument raised by the Authority in this case. I do not accept the Authority’s submission to us that Pitchers was simply concerned with the geographical argument that the military camp was outside the police area. That was I would accept a strand in the argument, but of course geographically speaking that argument was a forlorn one: that strand lacked all strength. What gave the Council’s submissions such bite as they possessed was the reliance placed on the exclusive control of the military authorities and the absence of control on the part of the police. The argument there, as here, is that the statute must be construed as being limited by a functional rationale which stresses the fact that control of the premises in question is in the hands of the Crown, not the local police. There, it was said that it followed that the barracks must be viewed as being outside the police area. Here it is said that it follows that the operators of Yarl’s Wood do not qualify as “any person” within the statute.

Atkin LJ as part of his reasoning was led to consider the case, analogous to ours, of military barracks and of damage caused by rioting soldiers to property in them. Of course such property was very likely to be Crown property, and Atkin LJ clearly contemplated that the Crown, in one or other of its manifestations, would be entitled to claim compensation under the 1886 Act in respect of such damage in or to such premises. Atkin LJ did not have to decide such a case, and I acknowledge that Miss Pitchers was not a representative of the Crown and her lost or damaged property was her own. I recognise therefore that Atkin LJ’s observations in this respect should be regarded as obiter. Nevertheless they enter into his reasoning (“For the above reasons it appears to me that the case is made out”), not only because he says so, but because he was plainly considering whether the counter-example of a claim by the Crown in respect of its own property in barracks where its own personnel were charged with maintaining law and order undermined Ms Pitchers’ claim and gave support to the Council’s argument. There is nothing in all the jurisprudence which comes as close as this to the pitch of our case, and it must go without saying, although I say it here, that any observation of Atkin LJ merits the highest regard.

The modern authorities on which Beatson J preferred to rely start more than 40 years later with J W Dwyer Ltd v. Metropolitan Police Receiver [1967] 2 QB 970. The issue there was whether a shop robbery by four armed robbers was within the 1886 Act. It was claimed to amount to a riot (for which three rioters would at that time have been sufficient: the Public Order Act 1986 now requires twelve), but the defence was that, even if it amounted to such, it had not been carried out “tumultuously” (the 1886 Act says “riotously and tumultuously”) because it had attracted no attention outside the shop. The defence succeeded, for Lyell J agreed that this adverb had to be given its own separate weight, connoting an assembly of considerable size and agitated movement, and generally, even if not necessarily, accompanied by noise. He continued (at 980) by considering the historical underpinnings of the 1886 Act:

“Compensation for loss caused by riot was a special case. This raises the question: Why was it made a special case? If a crowd of people collect in angry and threatening fashion this should become obvious to the local forces of order, and it would then become their duty to prevent the crowd from becoming a riot. This is a duty which has been recognised for centuries, and which until the 19th century was put upon the local administrative area, the hundred or wapentape, or whatever name it might be called; and there was a duty upon them to compensate for damage which was done by persons assembled riotously and tumultuously. The Act of 1886, in fact, did no more than modernise the mode of obtaining compensation and transferred the burden from the inhabitants of the hundred or wapentape to the local police authority. There is nothing secret or furtive about a crowd of people who are acting riotously and tumultuously. It seems to me that the right to compensation from public funds was given because public authority had failed to protect the public who were menaced by a threat which was, or ought to have been, obvious to the forces of law and order as they existed from time to time. In my judgment the word “tumultuously” was added to “riotously” for the specific purpose that it was intended to limit the liability of compensation to cases where the rioters were in such numbers and in such a state of agitated commotion, and were generally so acting, that the forces of law and order should have been well aware of the threat which existed, and, if they had done their duty, should have taken steps to prevent the rioters from causing damage.”

DH Edmonds Ltd v. East Sussex Police Authority (CA, 6 July 1988, unreported) concerned another such robbery, with the same result for the victim’s claim for compensation under the Act. Dwyer was approved and followed, and Lyell J’s judgment was described as “admirable”.

Bedfordshire Police Authority v. Constable (arising out of the riot at Yarl’s Wood) continues the modern authorities. There the issue was whether the Authority’s obligation under the 1886 Act to compensate property owners for riot damage was covered by its liability insurance policy which insured it in respect of sums which it “may become legally liable to pay as damages for accidental damage to property” (emphasis added). The decision at first instance by Walker J to the effect that cover existed was considered by Beatson J, but this court’s decision upholding Walker J had not yet then occurred. This court referred (at paras 11/14) to the concept of the “notional responsibility of the police to preserve law and order in their locality”, as stated in Dwyer and approved in Edmonds and as agreed by the defendant insurers , and then proceeded to what was in essence a matter of construction of the contractual words “legally liable to pay as damages”. This court concluded that the statute’s strict notional responsibility could be regarded as a liability to pay damages, by analogy with either the obligation of insurers to indemnify, which lies for breach of contract, or with torts of strict liability (at paras 24/27).

In my judgment, the decision of this court is not in the least surprising, indeed it is not altogether easy to understand the insurers’ contrary argument (advanced as it happens by reference to an English authority as to the effect of a French law: see at paras 21/24). It appears to be based on the concept that the proper analogy for the liability to compensate under the 1886 Act is that it is in the nature of an expense or dues.

Beatson J considered that this jurisprudence settled the nice distinction drawn between the parties as to whether the 1886 Act and its predecessors was to be rationalised as a “no-fault compensation scheme” or as a strict or notional duty to prevent riot, and that it did so in favour of the latter, for which the Authority contended. The judge also considered that his decision on this issue in favour of the Authority was critical on the fundamental question of interpretation on issue 1. He put the matter in this way:

“142.

The fundamental point which flows from the basis of the 1886 Act being a duty on the relevant police authority is that the purpose of the 1886 Act was to make provision for claims against the public authority with responsibility for order. The Act and its predecessors show an intention that local property owners should be entitled to seek compensation from the body with responsibility for protecting them from the risk of riot. To permit the claimants to seek compensation would be to permit a claim by one public authority with responsibility for order within the centre against another public authority with responsibility for order within it. While those responsibilities are not identical and those of a police force are more general, in relation to order on the part of the detainees within the detention centre they are broadly equivalent.”

In my judgment, however, the distinction which has been argued, and the stress which has been placed by the parties’ submissions on the choice between the rationalisations, are not particularly helpful to the process of statutory interpretation which has to be undertaken. I can see no useful distinction for present purposes whether the 1886 Act is described as providing for no-fault compensation or as providing for liability premised on the notional responsibility of the police to maintain law and order. The police undoubtedly have a real and not merely notional responsibility for law and order (and within that responsibility a duty to deal with and if they can prevent riot) and there is no need for the 1886 Act to acknowledge that. What it seems to me is more significant for present purposes is that such a responsibility in terms of the 1886 Act is a strict one, however that is described: strict, notional, or not dependent on fault, blame or breach. What is the rationalisation of such a liability, obligation or duty? It seems to me that what Lord Mansfield had to say about that question, so much closer to the origin of the first Riot Act 1714, still retains pertinence, expressing as it does the common sense of the matter. It is for the sake of the party whose property has been damaged, it is to encourage the inhabitants (now the police force) of the locality, but including the party injured himself, all to assist in the preservation of the peace, it is to share the burden both of keeping the peace and of the misfortune of loss or injury. Moreover, as is so often the case with strict liability, it is because those who are liable to compensate are also regarded by the law as standing in the shoes of the wrongdoers themselves (as, for instance, in the case of the vicariously liable), in part because their obligation, their strict obligation, is to prevent what has happened happening.

There is another reason why the distinction argued seems to me not to be helpful, and perhaps not to be relevant, to the issue before us. On any view the police had an obligation for law and order within the detention centre, and Beatson J so found. That is no longer in dispute on this appeal. So also did Group 4. How that duty of the police, that real and not merely notional responsibility, might fare in the face of any complaint that the police failed in their duty that night is a question of fact which is not before us. It is not before us because the claim is not based on fault or breach, and because we are in any event only concerned with preliminary issues of law in circumstances where the “agreed facts” are to a significant degree a matter of separate statements of conflicting positions. The judge’s conclusion, which I have discussed above and which is not under appeal, is that both Group 4 and the police (and for good measure the Secretary of State and the prison service) had responsibilities for law and order within Yarl’s Wood. (The judge also finds, in dealing with issue 3 above, that the police were not in breach of their duty prior to any formal handover of the centre to them. I am not sure how the judge was able to reach that factual conclusion on these preliminary issues, but that finding has not been under attack and it does not seem to me to matter for present purposes.) In these circumstances I do not see how it is possible to use a rationalisation of the 1886 Act as involving an entirely notional responsibility for order and the prevention or suppression of riot as a critical component in a purposive interpretation of the Act with the effect of excluding Group 4 as a “qualifying person”, at any rate in the absence of some strong linguistic pointers. It might perhaps be otherwise if one could state that no duty was owed to Group 4 by the police: but the judge reasoned otherwise. In my judgment these fine distinctions between no-fault compensation and no-fault responsibility (however important they were to the contractual issue in Constable) are liable here to be a red herring unless they tie in with the language of the Act, but that has not been the Authority’s approach.

In sum, with regard to this jurisprudence, Dwyer and Edmonds were concerned with the need to give effect to the words “and tumultuously”, and Constable ultimately with a question of contractual interpretation. This court in Edmonds and Constable (where Pitchers was cited) did not see any inconsistency between Pitchers and the solutions which they arrived at in those cases. In my judgment, the jurisprudence has to be looked at as a whole, and Pitchers remains the closest pointer to a solution for the present dispute. Although the claimant there was not the Crown, Atkin LJ expressly contemplated that it might have been. In any event Group 4 is not the Crown either.

Beatson J nevertheless reasoned that what disqualified Group 4 as “any person” within the Act was that it was a “public authority” exercising coercive powers of the state. I therefore turn to the concept of Group 4 as a public authority.

I have cited (at para 4 above) the critical para 159 from the judgment of Beatson J where he reasons that the fact that Group 4 was acting as a public authority exercising coercive powers of the state “does not per se put them outside the scope of the 1886 Act”. However, he immediately goes on to say that Group 4’s public law powers and duties for order within the detention centre mean that it is not a qualifying person within the Act. It is not clear how this conclusion is arrived at as a matter of statutory interpretation, but the reason for this conclusion is there advanced to the effect that the intention of the Act “was not to enable a public authority with a particular responsibility for order within a defined area to seek compensation from another public authority with a broadly equivalent, but not identical, responsibility for order in that area.”

The judge (at para 51) took his concept of a “public authority” from section 6 of the Human Rights Act 1998, where that statute seeks to define when and where a body which is not part of “core” government may be drawn into the responsibilities of the 1998 Act by reason of being, for the purpose of a particular act, a functional or hybrid public authority within the meaning of section 6(3)(b): see Aston Cantlow PCC v. Wallbank [2004] 1 AC 546 and YL v. Birmingham County Council [2008] 1 AC 95. It may be assumed that Group 4 is such a functional public authority in many circumstances, but it does not seem to me that that throws much light on the interpretation of the 1886 Act. If it matters, it is plain to me that Group 4 is not the Crown: on the contrary it has contracted with the Crown. In dealing with detainees it may well have to be treated as a functional public authority, but it may also be a matter of dispute whether its human rights law status as a functional public authority in some circumstances is relevant at all to a claim in respect of damage to its property by reason of riot.

Turning from the theoretically problematical concept of a functional public authority to the specific powers and duties given or imposed on Group 4 under statute, regulations or contract, I ask whether the undoubted fact that Group 4 had a public responsibility for good order within Yarl’s Wood entails that it cannot qualify as “any person” within the 1886 Act. The assertion that it does entail that result is not perhaps counter-intuitive, where it might be said that Yarl’s Wood was for that reason outside the geographical area or sphere of responsibility of the local police force. However, such a rationalisation cannot in my judgment be made good. It is not suggested that Yarl’s Wood was outside the geographical local police district, and the submission that it was outside the sphere of responsibility of the local police force cannot survive the judge’s detailed and unchallenged analysis as to the police duty. In effect, a similar argument was advanced in Pitchers by reason of the complete control exercised by the military authorities (there indeed by the Crown) and the complete absence of any possible practical involvement in keeping order within Witley Camp on the part of the local police. However, the argument failed.

Moreover, the potential clash between the responsibilities of a claimant and the police can be dealt with under the proviso to section 2(1) of the 1886 Act, so that it is in any event unnecessary to exclude Group 4 as a qualifying person under the Act as a whole in order to take account, as one would intuitively wish to do, of the ramifications of any failure by Group 4 to perform their responsibilities.

In these circumstances I turn to the problem of interpretation by reference to the wording of the 1886 Act itself.

It seems to me that a solution of the problem in this case has to take account of the following matters.

The judge declined to adopt as an external aid to the interpretation of the Act what was said by the Home Secretary and the Attorney-General during Parliamentary consideration of the bill that became the 1886 Act (at paras 154/5). Nevertheless he said that they are consistent with the conclusion at which he had arrived. He cited in particular what Sir Charles Russell, the Attorney General, had said at the bill’s second reading (HC Debs 20 May 1886 col 1613), that “The principle of the Bill is to recognise liability for defective police protection resulting in damage by riot” (at para 156). However, it is not possible to see how this was ever a rationale of the 1886 Act or any of its predecessors.

In these circumstances, I would regard the language of the Act as not being conducive to the Authority’s submissions or the judge’s conclusions.

Nevertheless, the Authority submits that the judge was right to adopt a purposive approach to the interpretation of the statute, and that such an approach should lead to the judge’s conclusion that Group 4 is not a qualifying person, or to the Authority’s gloss that Group 4 is not within the Act because the police owed it no duty.

In my judgment, however, on authority, principle, and the reason of the thing, the circumstances of this case do not support such an approach.

As for authority and principle, in River Wear Commissioners v. Adamson (1877) 2 App Cas 743, Lord Blackburn said, in a classic passage (at 764):

“But it is to be borne in mind that the office of Judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the Court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification which, though less proper, is one which the Court thinks the words will bear.”

In the present case there would to my mind be no overbearing inconsistency, absurdity or inconvenience such as to require the court to depart from the plain meaning of the text of the statute. Nor is there any obscurity about that meaning such as might lead a court to prefer one of two alternative meanings in the interests of promoting rather than disappointing the purpose of the statute. Neither is this the typical case which might arise on detailed and complex statutory provisions where the existence of an anomaly might put pressure on the meaning of the text (see in such cases the wise advice of Lord Simon of Glaisdale in Stock v. Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 237F). On the contrary, the critical provisions of the 1886 Act are broad and straightforward and there is no obvious sign that there is any problem about a possible limitation on those who would qualify for compensation, jurisdictionally speaking, by reference to a notional responsibility which, even if it lies in the background as part of the rationale of the statute, is no where mentioned in it. The impression therefore is that the result in this case for which the Authority contends is derived not so much from an interpretation of the language of the statute, even if that language had to be pressed (as Lord Blackburn suggests) to avoid absurdity and the like, but from an a priori view of what the answer is to be.

Moreover, there are two clues which strongly suggest that the Authority’s purposive approach to the problem in this case is misguided. One is Atkin LJ’s dictum in Pitchers: whatever its authoritative weight, that certainly does not suggest that there is here some absurdity, inconsistency or inconvenience which has to be overcome. The other is the proviso to section 2(1). There simply is no need for a purposive approach to gain a solution which is considered desirable when the statute itself contains language which would achieve, with much greater subtlety and attention to the facts and merits of a particular claim, everything which could be desired in order to mediate between the duties and behaviour of the claimant on the one hand and the notional responsibility of the police on the other. It is undesirable in principle to adopt an interpretation with regard to the, as it were, jurisdiction of the statute, which is likely to be a blunt tool likely to give rise to difficult cases, when the statute itself contains language, not relating to jurisdiction but to the assessment of the quantum of a claim, which is capable of delivering justice on the facts of each case.

As to the reason of the thing, the Authority’s solution is unable to do justice in accordance with the alleged purpose of the statute when certain variations of facts are assumed. Thus suppose Group 4 to have been without fault in the conduct of its responsibilities in Yarl’s Wood, but the police to have been at fault, because, for instance, their assistance was requested but found wanting? Why should Group 4 be without a remedy under the statute? If, however, Group 4 is not a qualifying person, it can have no remedy under the statute, and that is so even though the police’s responsibility under the statute is acknowledged to be strict. Or suppose there has been a handover of control to the police (whether formal or not, and whether contemplated by prior contingency or not, and whether reflected in an instrument like the JPA or not): why should Group 4 be excluded from any remedy? Yet, if it is not a qualifying person, it cannot claim. The Authority submits that even if there had been a formal handover of control to the police, even so Group 4 remains a non-qualifying person, because that is a matter of status. The judge did not deal expressly with that argument, nor with Group 4’s counter-argument that on any view after formal handover there must be the possibility of compensation within the statute. It is not clear why the judge did not deal with these submissions, but if he had dealt with them, he would either have had to adopt the Authority’s point of view, which would not seem to be consistent with the statute’s purpose however defined, or he would have had to conclude that a person qualifies within the statute as a possible claimant depending on concepts of shifting control and responsibilities. That seems to me to make a large demand on the wording of the statute, and to be an inconvenient analysis.

There is indeed a reflection of these problems in the judgment, where Beatson J reasons that if damage in the detention centre had been caused by persons from outside the centre, then Group 4 would have been a qualifying person for these purposes. Thus at para 148 he says:

“This decision concerns only damage inflicted during a riot by those detained within a detention centre. Although the claimants’ responsibilities under the 1999 Act, the 2001 Regulations and their contract with the Home Office include the security of the detention centre, where the destruction of or damage to its buildings and their contents is inflicted by outsiders who have gained entry the considerations differ.”

And in his final paragraph (headed “Overall conclusion”), he puts it in this way:

“168.

The fact that the first and second claimants are entities with public law powers and duties for order within the detention centre means that, in respect of injury or destruction to property from riot damage caused by detainees within the centre, they are not qualifying persons within the 1886 Act and cannot make a claim under it in respect of such loss” (emphasis added).

It seems to me that this illustrates the difficult and uncertain terrain of trying to discover from the presumed purpose of the 1886 Act guidance as to who are or are not “qualifying persons”, a concept not mentioned in the statute. It appears that Group 4 may be a qualifying person in differing circumstances, not because of any change in their status or responsibilities, but possibly (although the judge does not say) because the police’s responsibility to control the entry of persons from outside the centre may at least equal the responsibility of Group 4 to keep the detention centre secure.

Finally, I revert to a point I made in the section above where I deal with the judge’s analysis concerning Group 4’s and the police’s shared responsibilities with respect to Yarl’s Wood. In my judgment it strikes me as inconsistent with the judge’s own rationale of the 1886 Act (and its predecessors), namely that it is (and they were) premised fundamentally on the police’s duty to prevent riot, that Group 4’s responsibilities for law and order within the centre, such as they were, should be regarded as preventing Group 4 from even qualifying as an aspiring claimant, although the very duty of the police to prevent riot is regarded as of such importance that the duty is made a strict one, not dependent in any way on the police’s fault. That is also an answer to the Authority’s gloss on the judge’s reasoning: it is difficult to see why the statute provides that there is no duty owed to a claimant such as Group 4, when the common law provides for such a duty, the judge confirmed that the common law so provides, and the statute is premised on a duty which is both notional and strict, and thus unavoidable.

For these reasons, I would allow this appeal and declare that Group 4 (ie YWIL and GSL) are entitled to bring a claim under the 1886 Act in respect of riot damage within the Yarl’s Wood detention centre. How such a claim fares on its facts is not a matter for this court on this appeal.

I have had the opportunity of reading in draft the judgments of both Rix and Aikens LJJ in this case. I agree with them, and for the reasons they give, I too, would allow the appeal. Despite the judge's careful reasoning and manifest erudition, I cannot, like them, see any compelling reason to exclude Group 4 from the term "any person" contained in section 2(1) of the 1886 Act.

I agree that this appeal should be allowed and for the reasons that have been given by Rix LJ. However, I wish to express my own conclusions briefly for two reasons. First, because we are differing from the judge, who clearly gave great thought to the whole matter and particularly the principal issue raised, which concerns the correct construction of the words “any person” in section 2(1) of the Riot (Damage) Act 1886 (“the 1886 Act”). Secondly, there are few decisions on the ambit generally of the 1886 Act and apparently there have never before been any claims under that Act in respect of damage or destruction to property during a riot at a detention centre or a prison. I will adopt the abbreviations used by Rix LJ in his judgment. I need not repeat any of the facts set out in his judgment nor the relevant provisions of the 1886 Act or the other statutes, regulations and rules to which he has referred.

I hope I can fairly summarise the judge’s steps towards his conclusion on the construction of section 2(1) of the 1886 Act as follows: (i) Yarl’s Wood is a contracted out immigration detention centre, which is operated under a contract with the Home Office within the scheme of the 1999 Act and the 2001 Rules. (ii) Under the 1999 Act and the 2001 Rules, custody officers exercising custodial functions have powers and duties, in particular to prevent escape and the commission of unlawful acts and to ensure good order and discipline within the detention centre. (iii) The manager of a contracted out detention centre also has powers and duties under the 2001 Rules. (iv) Given these powers and duties, the first and second claimants are acting as public authorities for the purposes of the judicial review jurisdiction of the English courts; they are “functional” or “hybrid” public authorities within section 6(3)(b) of the Human Rights Act 1998. No distinction is to be made between the position of the first and second claimants. (v) Because of the degree of control given to the Home Secretary under the 1999 Act and the 2001 Rules, a contracted out detention centre such as Yarl’s Wood is to be regarded as operated on behalf of the Home Secretary. (vi) However, the claimants’ responsibility for security and order within the detention centre and the coercive powers given to them with the additional powers of the Home Secretary meant that the claimants had a public law responsibility for order within the centre, including a responsibility to prevent riotous disorder and “in this sense a responsibility to the public”. (Footnote: ¹) (vii) The Bedfordshire police force is independent of both the Bedford Police Authority and of central government. Constables in that force are obliged to keep law and order and enforce the law of the land. (viii) The Bedfordshire police force remained under its fundamental duty to maintain law and order in the detention centre. Moreover, it has both a common law and statutory power to enter the detention centre once disorder has started there. (ix) However, the manner in which the Bedfordshire police force exercised this fundamental duty is affected by the claimants’ public law responsibilities in relation to the detention centre and by the contractual and administrative arrangements between them and the police force. (Footnote: ²) Therefore, as between the police force and the claimants, the effect of the claimants’ specific responsibilities under the 1999 Act and the 2001 Rules meant that their responsibilities for law and order in the centre were “primary”. (x) The authorities that have considered the 1886 Act (Footnote: ³) have held that the basis of the Act is that there is a strict duty on the relevant police authority to prevent “tumultuous rioting”, rather than its basis being a no – fault compensatory scheme. (Footnote: ⁴) (xi) Because the basis of the 1886 Act was to make provision for claims against the public authority with responsibility for order, so that “local property owners” should be entitled to seek compensation from the body with strict responsibility for protecting them from the risk of riot, if the claimants were entitled to claim under the Act it would (on the facts of this case) permit a claim by “one public authority with responsibility for order within the centre against another public authority with responsibility for order within the centre”. (Footnote: ⁵)

The judge accordingly concluded, at [147] of his judgment:

“I have concluded that Parliament did not intend to include a person or entity with public law duties for order within a building or buildings containing detained persons within the scope of the 1886 Act. I accept the defendant’s submission that an intention to permit the word “person” in section 2(1) of the 1886 Act to include and entitle a party with these duties to claim compensation for a riot arising within its own sphere of duty and control cannot reasonably be attributed to the legislature. Its purpose was to make provision of claims by ordinary citizens against the public authority with responsibility for order. There is nothing in the 1886 Act to indicate that it was concerned to re-allocate losses suffered by a public authority with a responsibility to maintain order within the premises of a custodial institution and custodial duties for the detainees and to impose them on the police authority”.

At [159], the judge put his conclusion slightly differently in providing his answer to Issue 1. He said that the fact that the claimants were acting as public authorities exercising coercive powers of the state in carrying out their public function in respect of the Yarl’s Wood immigration detention centre did not per se put them outside the scope of the 1886 Act. But “the fact that they are entities with public law powers and duties for order within the detention centre means that in respect of loss suffered from riot damage caused by detainees in the centre, they are not qualifying persons within the 1886 Act”.

For my part I would be prepared to accept each of the eleven stages in the judge’s reasoning that I have set out above. The question, however, is whether it follows from that reasoning that the words “any person” in section 2(1) of the 1886 Act must therefore be limited so as to exclude the appellants from within their scope. As Rix LJ points out at [63] above, the words “any person” in section 2(1) are without restriction. The breadth of the words is emphasised in the definitions in section 9, where it states that the expression “person” includes “a body of persons, corporate or unincorporated”. The inclusive nature of that definition shows how broad the concept “any person” was intended to be.

Moreover, Section 7(b) refers to a “public institution” and indicates that the “person” having control of the public institution or in whom the legal estate is vested shall be deemed to be the person who has sustained injury from injury, loss or destruction of the public institution. As Rix LJ has stated, the judge accepted (as he had to on authority) that a prison or a place of detention is a public institution. The Yarl’s Wood Immigration Detention Centre must be a “public institution” for the purposes of the 1886 Act. There is nothing in section 7 of the 1886 Act to suggest that any entity with public law duties for order in a public institution, who is in control or who is the owner of the legal estate of a public institution cannot be a “person” who sustains loss as a result of injury to, stealing from or destruction of that public institution or property therein. Section 7 contemplates that any “person” who is in control of that public institution or is the owner of the legal estate is entitled to claim under the 1886 Act for injury to, stealing from or destruction of that public institution or property therein.

So, using Lord Blackburn’s famous phraseology in River Wear Commissioners v Adamson (Footnote: ⁶) the “ordinary signification” of the words “any person” in the 1886 Act is exactly that. Thus a person or entity with public law duties for order in a public institution can claim under the 1886 Act for injury or destruction to the public institution or injury, stealing or damage to property in it. If that conclusion is to be avoided one has to ask: what is there, either in the 1886 Act itself, or in its history or rationale or in the cases that must lead to the conclusion that this “ordinary signification” was not the intention of Parliament?

I can find nothing in the 1886 Act itself which leads to a contrary conclusion. Like Rix LJ, I cannot agree with the judge that because the underlying rationale of the 1886 Act and its predecessors was to impose a strict liability on the police authority (or its predecessor, the Hundred), that assists in reaching the conclusion that the definition of “any person” is limited in the way the judge suggested.

None of the cases to which we were referred, with the possible exception of the Pitchers case, deals with the present issue. Even in that case, it is only the obiter comments of Atkin LJ in the passage that Rix LJ has quoted at [45] above, that are relevant. They were made in the course of an ex tempore judgment. At the lowest, it must be said that those comments give no support to the proposition that the scope of the words “any person” has to be limited in some way. Atkin LJ was prepared to entertain the possibility that the Crown, if in control of or the owner of the legal estate of a public building or public institution, could claim under the 1886 Act for injury or destruction to such a building or institution.

With great respect to the judge, I am therefore driven to the conclusion that there is nothing to support his view that Parliament did not intend to include within the definition of “any persons” in section 2(1) of the 1886 Act a person or entity with public law duties for order within a building or buildings containing detained persons. Moreover, like Rix LJ, I think that it is clear from the statutory wording that the difficulties that the judge thought might arise if the words “any person” did include such a person or entity can all be accommodated.

At [142] of his judgment, Beatson J identified the problem, as he saw it, as being that of permitting a claim by one public authority with responsibility for order within the centre against another public authority with responsibility for order within it. In my view, agreeing with Rix LJ, this is not a problem. Any tension is dealt with by the wording of section 2(1) itself and also the provisions of sections 3(1) and 4(1).

The second half of section 2(1) states that in fixing the compensation to be paid to the person claiming:

“..regard shall be had to the conduct of the said person, whether as respects the precautions taken by him or as respects his being a party or accessory to such riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise”.

To my mind, that provision makes it clear that, when compensation is claimed against the police authority, then it is entitled to take into account that the “person” claiming it was a public authority and had responsibility (whether sole or shared) for law and order in the public building or public institution where the riotous assembly occurred and which resulted in injury, destruction or damage to the building or property within it. This view is reinforced by the terms of section 3(1), because that provides that when a claim is made to the compensation authority, it has to inquire into the truth of the injury, stealing or destruction. The compensation authority has, if satisfied, to “…fix such compensation as appears to them to be just”. That gives a broad discretion, although it must doubtless be exercised in a quasi – judicial manner. But the “just” result may be that the compensation is reduced to nil, because the “person” claiming is a public authority with responsibility for law and order in the public building or public institution where the injury, stealing, or destruction took place.

Lastly, section 4(1) provides that for a right of action if the “person” who has made a claim to the compensation authority is aggrieved by the refusal or failure of the compensation authority to fix compensation or the amount of the compensation fixed. There was a debate in the course of the hearing before us as to the nature of this right of action. Did the court have the power to fix the compensation free of anything the compensation authority had decided; or was its power limited to reviewing the reasonableness of the compensation authority’s decision? We do not need to decide the issue here. But the point is that all arguments about whether and to what extent a public authority with responsibilities for law and order in the public building or institution in which the injury, stealing or destruction occurred can claim under the 1886 Act can be dealt with in any action brought pursuant to section 4(1).

Thus at each stage there is no need to adopt the construction of “any persons” put forward by the judge in order to deal with the problem of one public authority with responsibility for law and order claiming under the 1886 Act against another public authority with responsibility for law and order in the same place. All issues on whether such a claim is “just” or proper can be dealt with under the terms of sections 2(1), 3(1) and 4(1) of the 1886 Act.

Therefore, with respect to the judge’s contrary view, I can find no reason, whether within the wording of the 1886 Act itself, its history, its rationale or the cases, to restrict the meaning of “any person” in section 2(1) in the way suggested by him. I have concluded that there is every reason to give the words their “ordinary signification”.

For those reasons, as well as those given by Rix LJ, I would allow this appeal.