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

Introduction 1

The Preliminary Issues 7

Facts agreed for the purposes of the preliminary issues hearing 13

The legislation

Riot and liability under the Riot Acts 33

Legislation concerning immigration detention centres 38

The parties’ cases 42

Discussion

Conclusions on the preliminary issues and overall conclusion 157

Introduction

On the night of 14 February 2002 a major disturbance occurred at the Yarl’s Wood Immigration Detention Centre at Clapham, Bedfordshire. Almost half of the premises were destroyed by fire. The issue in this case is whether the authority responsible for an immigration detention centre can make a claim under the Riot (Damages) Act 1886 (“the 1886 Act”) against the relevant police authority in respect of damage to or destruction of property in the centre caused by those detained in it during a riot. The Yarl’s Wood Immigration Detention Centre is a contracted out immigration detention centre operated by the first and second claimants, Yarl’s Wood Immigration Ltd (“YWIL”), and GSL UK Ltd (“GSL”), formerly called Group 4.

The 1886 Act imposes liability on police authorities or the statutory bodies responsible for their funds for injury to or theft or destruction of certain types of property in their areas caused by “any persons riotously and tumultuously assembled together”. That liability replaced a similar liability first imposed by the Riot Act 1714 (“the 1714 Act”) on the hundred, a Saxon concept and a subdivision of the county for administrative, judicial and military purposes, or on a city or town which was either a county of itself or was not within any hundred.

Those detained at Yarl’s Wood and other immigration detention centres are detained and held by the Home Secretary pursuant to powers contained in Schedule 2 to the Immigration Act 1971 (“the 1971 Act”). The 1971 Act empowers the Home Secretary to detain a person pending a decision to give or refuse him leave to enter the United Kingdom, or pending a decision to direct that he be removed, or his removal. The provisions for immigration detention centres to be either directly managed by the Home Secretary or to be contracted out are in the Immigration and Asylum Act 1999 (“the 1999 Act”). They are similar to the provisions in Part IV of the Criminal Justice Act 1991 empowering the contracting out of the running of prisons.

It does not appear that a claim has previously been made under the 1886 Act in respect of damage to or destruction of property during a riot at a prison or an immigration detention centre. This case does not concern the application of the 1886 Act to prisons, but the similarity between the positions of the two types of institutions is clear. It was not suggested that there is any material difference between the 1886 Act’s application to a prison, whether run by central government or “privatised” or “contracted out”, and its application to a detention centre. There is a long history of prison riots. For instance, in February 1861, twenty five years before the enactment of the 1886 Act, there was a notable riot at Chatham Prison. During the hearing reference was made to the riot and siege at HMP Strangeways in Greater Manchester in 1990. It cost some £55 million to rebuild HMP Strangeways. Fourteen years earlier, in 1976, some two-thirds of HMP Hull in Humberside was wrecked by rioting prisoners. It was accepted by Mr Gatt QC on behalf of the claimants that, on his submissions, the Home Secretary, who was then responsible for prisons, could have made such claims under the 1886 Act against the relevant police authorities and in the future the Secretary of State for Justice and Lord Chancellor will be able to bring such claims.

On 1 September 2000 YWIL entered into an agreement with the Home Office (“the Project Contract”) for the design and building of the centre, a hearing facility and associated offices, as well as for its operation and maintenance. On the same date, with the consent of the Home Office, it sub-contracted the operation and maintenance of the detention centre to GSL (the “Operating Contract”). The terms of the Operating Contract between YWIL and GSL reflected those of the Project Contract in all material respects. GSL agreed to be responsible for Yarl’s Wood on the same terms as in the agreement between YWIL and the Home Office. On 8 September 2000 the Secretary of State for Defence leased the premises to YWIL and GSL was granted a non-exclusive licence to occupy them.

In these proceedings, YWIL, GSL, and the third claimant, Creechurch Dedicated Ltd (“Creechurch”), their insurers, claim that the defendant police authority is liable to them for damage caused during the riot. They seek to recover over £42 million under the 1886 Act. Claim forms were submitted to the defendant on 28 March 2002. The defendant rejected the claims on 22 December 2005. Proceedings were issued on 9 August 2007.The case was argued on the basis that there is no difference between the position of YWIL and GSL. I generally refer to them collectively as “the claimants” and to the third claimant as “the claimants’ insurers”.

The Preliminary Issues

On 21 December 2007 Tomlinson J ordered a trial of five preliminary issues. One of these, whether the terms of a Joint Protocol Agreement (the “JPA”) between GSL and the Bedfordshire Police have the effect of waiving any liability of the defendant under the 1886 Act, no longer falls for decision since the defendant does not rely on waiver. It will be seen that the remaining issues overlap. They are:

Issue (1): Whether GSL and/or YWIL (as each defined in the particulars of claim) were acting as a public authority exercising coercive powers of the state in carrying out its public function, and, if so, whether claims in this action are outside the scope and/or intention of the 1886 Act.

Issue (2): Whether Yarl’s Wood Immigration Detention Centre was outside the effective scope of police control by reason of the fact that GSL and/or YWIL were the sole, alternatively primary, body entrusted by the state with the responsibility for maintaining security and good order within Yarl’s Wood and, if so, whether the claims in this action are outside the scope and/or intention of the 1886 Act.

Issue (3): Whether by reason of the powers, functions and responsibilities of GSL and/or YWIL for maintaining security and good order within Yarl’s Wood identified in issues (1) and (2) above, the claims in this action are outside the scope and/or intention of the 1886 Act.

Issue (4): Whether the terms of the Joint Protocol Agreement altered or displaced the statutory and common law powers and duties of the police to prevent or respond to criminal acts which occurred or were suspected to have occurred at Yarl’s Wood and, if so, whether the claims in this action are outside the scope and/or intention of the Act or would be (a) if a handover pursuant to paragraph 9 of the agreement was invoked on 14/15 February 2002 and/or (b) if a handover pursuant to paragraph 9 of the agreement was not invoked on 14/15 February 2002.

The defendant brought a Part 20 claim against Syndicate 386 at Lloyds which insured it on an excess layer, which included public liability, for amounts greater than £2 million and up to £38 million. The issue was whether and if so, to what extent, a potential liability of the defendant under the 1886 Act would give rise to a valid claim by it under the excess policy. This was ordered to proceed as a separate claim. In Bedfordshire Police Authority v Constable [2008] EWHC 1375 (Comm) Walker J held that the defendant is entitled to be indemnified under the excess policy subject to any defences and limitation provisions set out in it. In the determination of those proceedings, Walker J considered the 1886 Act and its predecessors, and the nature of liability under the 1886 Act. It will be seen that I have been materially assisted by his judgment on these matters. I have also been assisted by comprehensive and clear written and oral submissions by Mr Gatt QC and, on behalf of the defendant, by Mr Watson QC.

Facts agreed for the purposes of the preliminary issues hearing

The parties agreed the following facts for the purpose of the hearing before me and only for this purpose.

Under the terms of its Operating Contract, GSL was required to put contingency plans in place. GSL’s contingency plans for Yarl’s Wood are dated 1 June 2001. They were discussed with and approved by the immigration service and a copy was provided by GSL to Bedfordshire police officers at a joint planning meeting on 23 July 2001. Copies of a draft of the Bedfordshire police’s contingency plan for Yarl’s Wood were provided to GSL at joint planning meetings in June and July 2001. The Bedfordshire police’s contingency plan for Yarl’s Wood is dated December 2001.

On 31 August 2001 GSL and the Bedfordshire police entered into a Joint Protocol Agreement (a “JPA”) for the Yarl’s Wood detention centre. The Yarl’s Wood JPA was based upon joint protocol agreements for two other detention centres, Campsfield and Oakington (both also contracted out to GSL).

The Campsfield JPA was made after serious disorder in 1997 which resulted in the attendance of substantial police resources from the ThamesValleypolice force. The ThamesValleypolice could not deploy their personnel for more than 24 hours because that was draining their resources. It was proposed to have a formal arrangement in place between GSL and ThamesValleypolice so that, in the event of a serious incident which GSL could not control, control of the incident would be formally handed over to the police.

The intention on the part of GSL when entering into discussions with ThamesValleypolice was that this arrangement would operate over and above the police’s normal duties to control law and order. GSL would therefore pay additional policing costs to cover the police having to remain on site longer than they would under normal circumstances. The intention was also to formalise the command structure between GSL and the police when there was a formal handover of control of the incident. GSL wanted the agreement to provide for police officers to remain even after any criminal activity had, on the face of it, ceased in order to act as a deterrent and to support it until sufficient additional GSL staff arrived. Clause 14 of the Campsfield JPA provided that, if any incident became protracted and was not involving any criminal activity, that is potential escape, the ThamesValleypolice would, for a fee, remain on site for an extended period of up to 12 hours, after which time Group 4 [GSL], would assume full responsibility. GSL’s intention was that the fee related to additional policing costs over and above the costs that the ThamesValleypolice would normally incur in attending and dealing with such an incident pursuant to their common law and statutory duties.

Following correspondence between the Acting Chief Constable of the ThamesValleypolice and a representative of the immigration service (UKIS), an addition was made to the Campsfield JPA to make it clear that there are circumstances under which the Home Secretary can appoint a controller to take over the management and control of the detention centre in which case the JPA would no longer apply. In one of the letters leading to that addition, dated 29 April 1998, Mr Boon of the immigration service observed that presumably any charges falling to GSL (Group 4) would only be for those services which were over and above those which would fall to the ThamesValleypolice as part of their normal policing role. The Campsfield JPA was entered into on 16 September 1999. After GSL successfully tendered to manage Oakington Immigration Detention Centre, the Oakington JPA, dated 28 March 2000, was put in place with the Cambridgeshire police on similar terms to the Campsfield JPA.

GSL offered to put in place a joint protocol agreement with the Bedfordshire police about Yarl’s Wood on similar terms to the JPAs made in relation to the other two detention centres. John Jasper of GSL entered into negotiations with operational planning officers from the Bedfordshire police. He explained to them GSL’s understanding of the background and purpose of these joint protocol agreements. The claimants’ case is that he explained to the Bedfordshire police that the joint protocol agreements were not intended to affect the overriding common law and statutory duties of the police to attend and deal with serious incidents at public or private property including immigration detention centres. The defendant does not accept that this understanding was relayed to the Bedfordshire police. Mr Jasper provided the Bedfordshire police with copies of the Campsfield and Oakington JPAs. The Bedfordshire police visited their counterparts at ThamesValleypolice to discuss the Campsfield JPA.

It was the intention of the Bedfordshire police that the Yarl’s Wood JPA would be incorporated into the police Operational Order as an appendix to that order. GSL was aware of this intention during the negotiations. On 31 August 2001 the Bedfordshire police and GSL entered into the Yarl’s Wood JPA. The agreement was signed on behalf of GSL by David Dickinson, and on behalf of the Bedfordshire police by Alan Williams, Director of Finance and Administration. The parties had in mind that a purpose of the Yarl’s Wood JPA was to provide a basis for an agreement in the event that the Bedfordshire police provided “special services” under section 25 of the Police Act 1966. The only material differences between the Yarl’s Wood JPA and the Campsfield and Oakington JPAs were that, under the other JPAs, the charges for police officers’ services were to be in accordance with Home Office guidelines, whereas under the Yarl’s Wood JPA such charges were to be those approved by the defendant police authority. The material provisions of the Yarl’s Wood JPA, and the contingency plans made by GSL and the Bedfordshire police are set out in an appendix to this judgment.

I turn to the facts about the sequence of events at Yarl’s Wood on the night of 14 February and the early hours of 15 February 2002. Again, these facts are agreed only for the purposes of the preliminary issues hearing.

A riot commenced at Yarl’s Wood at around 19.30 hours on 14 February 2002. Riotous and tumultuous behaviour continued and order was not restored at Yarl’s Wood until a number of hours later. It is in dispute between the parties, and to be deferred to the main trial, whether such behaviour ended by no later than 23.30 hours on 14 February 2002 or by 02.00 hours on 15 February at the earliest.

A command structure referred to as the “gold, silver and bronze” command structure is used nationally to co-ordinate management of incidents. During the incident on 14 and 15 February 2002, GSL, Bedfordshire police, and the prison service each used separate gold, silver and bronze command structures. The roles of the gold and silver commanders for each of GSL, Bedfordshire police and the prison service are set out in appendix A to Mr David Watson’s witness statement. Mr Watson was the manager of the detention centre and GSL’s Silver Commander. GSL considered that since GSL, the Bedfordshire police and the prison service would each put in place separate Gold and Silver Commanders in the event of a serious incident, it was necessary that only one Gold Commander be in overall command of the incident. GSL considered that unless the Secretary of State appointed a "Controller" under section 151 of the 1999 Act, the prison service’s Gold Commander did not have power to veto plans and strategies formulated by a GSL Silver Commander.  It was, however, GSL's view that the prison service Gold Commander was in fact in command of the incident. This is not accepted by the Bedfordshire police.

The Bedfordshire police were called at about 20.06 hours and the ambulance and fire services at about 20.17 hours. GSL contacted the prison service at 20.26 hours and “Operation Tornado” was instigated. The agreed facts do not contain an explanation of “Operation Tornado”. It is my understanding that it is a term used to refer to the assembly of advanced control and restraint personnel from the prison service who are deployed in units by the prison service to trouble spots, but the claimants also operated “Tornado units” and envisaged their deployment from other establishments operated by them. The prison gold command centre was opened at 21.00 hours. The prison service Gold Commander was David Shaw. He was supported by Jim Milsom, Jim Hampton of the immigration service, and Commander Martin Gerrard, a police prison liaison officer.

The agreed facts imply that Chief Superintendent Comb, the Bedfordshire police Silver Commander, arrived before 21.00 hours. They state that at about 21.00 hours he was asked by Yarl’s Wood’s Centre Manager “to instigate police containment on the relevant areas of the perimeter fence”. I have taken this to mean that the police were asked to secure the relevant areas of the perimeter fence. The agreed facts state that Chief Superintendent Comb complied with the request made to him.

At about 21.30 hours a group of about 30 detainees broke down the gates. Police officers were engaged in trying to apprehend them. There were further attempted breakouts by detainees which the police sought to prevent. GSL, the Bedfordshire police and the prison service retained gold and silver command roles for the incident. GSL viewed the prison service Gold Commander as being ultimately in control of the incident. Agreed fact 14 states that the prison service retained the advisory role of gold command over the incident as a whole.

At around 22.15 hours a prison service intervention officer, Mel Kirtley, was instructed by GSL’s Silver Commander to draw up an intervention plan. This task had been held in abeyance pending the arrival of Mr Kirtley and additional resources.

At about 22.20 hours the silver command suite within the detention centre was evacuated by David Watson, GSL’s Silver Commander, Chief Inspector Comb and the prison service. The silver command suite was retaken at about 22.45 hours and the silver commanders of GSL, the Bedfordshire police and the prison service returned. At about 22.33 hours Mr Kirtley informed Chief Superintendent Comb, the police Silver Commander that he was formulating an intervention plan to retake the centre. He had developed the plan by about 23.05 hours. The claimants contend: (a) this had been discussed by the GSL and police Silver Commanders, (b) at that time resources were not sufficient to implement it, (c) Mr Kirtley wanted to implement the plan with prison service staff and David Watson, GSL’s Silver Commander, was content with that. Agreed fact 18 states that the defendant denies this, although it is not clear whether the denial only relates to (a), or to (a) and (b).

The silver command suite within the detention centre was again evacuated at about 23.45 hours. It is in contention between the parties whether the silver commanders of the Bedfordshire police, the prison service and GSL met and liaised between 22.15 hours and about 00.50 hours with a view to implementing an intervention plan to retake control of the centre. The claimants contend there was a meeting and such liaison. The defendant denies this.

At a time between about 00.50 and 00.59 hours the prison service Gold Commander, David Shaw, gave what David Watson, GSL’s Silver Commander, regarded as an instruction to hand over control of the detention centre to the police. GSL’s Gold Commander, Mr Jasper, concurred and command was then handed over to Chief Superintendent Comb, the police Silver Commander. The police Gold and Silver Commanders deployed police resources for the containment of the perimeter fence until 00.59 hours. The claimants contend, but defendant denies, that, as support progressively arrived, the Bedfordshire police mustered their resources in preparation for an intervention plan.

Agreed fact 23 concerns ‘primacy’. The claimants contend that primacy means command of the incident in question. The defendant maintains that primacy means responsibility for the maintenance of law and order in the detention centre. During the period between 21.00 hours and 00.59 hours it is asserted by the defendant that requests were made by the police for the issue of primacy (that is, on the defendant’s case, the responsibility for the maintenance of law and order in the detention centre) to be reconsidered with a view to the police being given command within the detention centre. The claimants deny that any such request was made.

Approximately 44% of the overall floor area of the premises at Yarl’s Wood comprising Charlie and Delta wings with associated service areas and facilities, together with the administration block, was destroyed by fire. There is no agreement as to whether the fires were started during the period of riotous and tumultuous behaviour. There is no agreement as to when the period of riotous and tumultuous behaviour ended. The defendant’s case is that it ended at about 23.30 hours on 14 February, before the fires which destroyed C and D blocks were started.

The legislation

Riot and liability under the Riot Acts:

The ingredients of riot are now contained in section 1 of the Public Order Act 1986. There must be 12 or more persons present who together use or threaten unlawful violence for a common purpose and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. The common purpose of those present may be inferred from their conduct; no person of reasonable firmness need actually be present at the scene, and riot may be committed in private as well as in public places.

I have stated that the liability for injury to or theft or destruction of certain types of property imposed by the 1886 Act was first imposed by the Riot Act 1714. The 1714 Act enacted the proclamation to be read by a justice of the peace commanding those assembled to disperse, and made riot a felony punishable by the death penalty. It also made the hundred liable. The liability was confirmed with certain revisions in the Remedies against the Hundred Act 1827 (“the 1827 Act”). The 1827 Act was replaced by two statutes in 1886. The first was the Metropolitan Police (Compensation) Act 1886 (“the Metropolitan Act 1886”), which dealt with compensation for damage done during a riot on 8 February 1885 to “certain houses and shops in the Metropolitan District and in the City of London”. The second was the more general liability imposed on police authorities by the Riot (Damages) Act 1886 (“the 1886 Act”). In Bedfordshire Police Authority v Constable [2008] EWHC 1375 (Comm) Walker J stated of the legislative predecessors to the 1886 Act:

“ 8. A common feature of relevant provisions in the 1714, 1827 and 1886 Acts is that liability is strict. In that regard they adopt an approach found in much older statutes. Mr Colin Edelman QC, who appeared with Mr Andrew Burns for BPA, cited two examples. The first was the Statute of Winchester of 1285, which made the hundred where a robbery was committed answerable for any such robbery unless the bodies of the robbers were produced. The second was the Statute of Hue and Cry of 1585 which - in addition to providing machinery for enforcement against residents of a hundred liable under the Statute of 1285 - entitled such a hundred to claim over against an adjoining hundred after hue and cry was made in that adjoining hundred.”

“9.

The liability is strict in the sense that it arises whether or not the claim is made for something which could or should have been prevented. It gives those potentially liable a strong incentive to do what they can to prevent the relevant circumstances from arising. There are differences, however, in the way that the liability is expressed in each of the 1714, 1827 and 1886 Acts.

“10.

Under the 1714 Act the provisions imposing liability on the hundred, repeated in similar terms for cities or towns which either formed counties of themselves or did not form part of a hundred, were as follows:

…the inhabitants of the hundred in which such damage shall be done, shall be liable to yield damages to the person or persons injured and damnified by such demolishing or pulling down wholly or in part; and such damages shall and may be recovered by action to be brought in any of his Majesty's courts of record at Westminster …”

“11.

Under the 1827 Act laws relative to remedies against the hundred were consolidated and amended. As regards relevant types of injury to property caused by persons riotously and tumultuously assembled together the 1827 Act stated in s 2 (with similar provision in s 12 for localities not in the nature of a hundred):

… the Inhabitants of the Hundred, Wapentake, Ward, or other District in the nature of a Hundred, by whatever name it be denominated, … shall be liable to yield full Compensation to the Person or Persons damnified by the Offence …”

“12.

In cases where “… the Damage alleged to have been sustained … shall not exceed the Sum of Thirty Pounds …” ss 8 and 9 of the 1827 Act provided a summary remedy under which Justices at Petty Sessions, if they found that a claimant had sustained relevant damage,

“… shall make an Order for Payment of the Amount of such Damage …”

“13.

The long title of the 1886 Act in its original form was “An Act to provide Compensation for Losses by Riots.” This preceded a preamble in the following terms:

“Whereas by law the inhabitants of the hundred or other area in which property is damaged by persons riotously and tumultuously assembled together are liable in certain cases to pay compensation for such damage, and it is expedient to make other provision respecting such compensation and the mode of recovering the same.”

The preamble to the 1886 Act was repealed by the Statute Law (Repeals) Act 1893. The material provisions of the 1886 Act, as amended, are:

“Compensation to persons for damage by riot

2.

—(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.

Mode of awarding compensation

3.

—(1.) Claims for compensation under this Act shall be made to the compensation authority of the police area in which 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 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 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.

Right of action to person aggrieved

4.

—(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.

Application of Act to wreck and machinery

6.

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 staith or erection used in conducting the business of any mine or quarry, or of any bridge, waggon-way, or trunk for conveying minerals or other product from any mine or quarry;

in like manner as if such plundering, damage, injury, or destruction were an injury, stealing, or destruction in respect of which compensation is payable under the foregoing provisions of this Act, and as if, in the case of such ship, boat, or cargo not being in any police district, such plundering, damage, or destruction took place in the nearest police district.

As to claimants in the case of churches, public institutions, &c

7.

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 in the same 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 police authority to pay compensation, but shall be without prejudice to the right of any person to recover the compensation from such payee.

Definitions

9.

In this Act, unless the context otherwise requires—

The expression ‘person’ includes a body of persons, corporate or unincorporate.”

At the time the 1886 Act was enacted, there was little if any separation of police, prosecutorial, and judicial powers and responsibilities. The justices of the peace were the “police authority” which appointed constables “sufficient for the preservation of the peace and for the protection of the inhabitants” and was responsible for levying the police rate. They were under a parallel duty to the hundred to maintain order, as well as having administrative and judicial functions. In 1888 the justices ceased being the police authority. The Local Government Act 1888 provided that quarter sessions and county councils should jointly be the police authority, and exercise the function by a standing joint committee, but, in section 9(3), preserved the powers and duties of the justices as conservators of the peace with authority in that regard over the chief constable and other constables. Section 6 of the Police Act 1996 provides that every police authority shall secure the maintenance of an effective and efficient police force for its area, and that in discharging its functions, shall have regard to inter alia any objectives determined by the Secretary of State.

Sections 2(1), 3(1) and 4(1) of the 1886 Act had referred to buildings in any “police district”, and to “the police authority” for the district. The references in section 2(1) to “police fund”, in section 2(1) and 3(1) to “police area”, and in section 3(1) and 4(1) to “compensation authority” were substituted by the Police Acts of 1964 and 1996. Regulations as to claims for compensation under the 1886 Act were made by the Secretary of State on 28 July 1886. These were revoked and replaced in 1894 and the 1894 regulations were replaced by the 1921 regulations: SI 1921 No 1536. Regulation 2 of the 1921 regulations provides:

“All claims shall be so delivered within fourteen clear days after the day when such injury, stealing, or destruction took place.

Provided that the police authority, on application to be made before the expiration of the fourteen days, may, for special cause shown, enlarge the period of fourteen days to forty-two days, and in the event of such application being refused, the applicant may, within seven days after such refusal, appeal to the Secretary of State, whose decision shall be conclusive as to whether the claim shall be received.”

The provisions in the 1886 and the 1894 regulations also made provision for an appeal to the Secretary of State against a refusal to extend time: see Wise, The Law on Riots and Unlawful Assemblies 3^rd ed., 1889, and 4^th ed., 1907. The provision in the earlier versions of the regulations is in substantially similar terms to that in the 1921 Regulations.

Legislation concerning immigration detention centres:

The Immigration Act 1971 makes general provision for the regulation and control of the entry of immigrants to this country. Leave is required to enter and to remain. I have referred to the Home Secretary’s power to detain a person pending a decision to give or refuse him leave to enter or pending a decision to direct that he be removed or his removal in Schedule 2 to the 1971 Act. Detention centres are either directly managed by the Home Secretary or contracted out. The provisions concerning detention centres are contained in the Immigration and Asylum Act 1999 (“the 1999 Act”) and the Detention Centre Rules 2001 SI 2001 No 238 (“the 2001 Rules”). The regime of detention and removal is coercive but those held in detention centres are not criminals. The legal regime governing them seeks to reflect this. The material provisions of the 1999 Act are:

“Contracting out of certain detention centres

149.

—(1) The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any detention centre or part of a detention centre.

(2)

While a detention centre contract for the running of a detention centre or part of a detention centre is in force—

(a)

the detention centre or part is to be run subject to and in accordance with the provisions of or made under this Part;

(4)

The Secretary of State must appoint a contract monitor for every contracted out detention centre.

(6)

The contract monitor is to have—

(a)

such functions as may be conferred on him by detention centre rules;

(b)

the status of a Crown servant.

Intervention by Secretary of State

151.

—(1) The Secretary of State may exercise the powers conferred by this section if it appears to him that—

(a)

the manager of a contracted out detention centre has lost, or is likely to lose, effective control of the centre or of any part of it; or

(b)

it is necessary to do so in the interests of preserving the safety of any person, or of preventing serious damage to any property.

(2)

The Secretary of State may appoint a person (to be known as the Controller) to act as manager of the detention centre for the period—

(a)

beginning with the time specified in the appointment; and

(b)

ending with the time specified in the notice of termination under subsection (5).

(3)

During that period—

(a)

all the functions which would otherwise be exercisable by the manager or the contract monitor are to be exercisable by the Controller;

(b)

the contractor and any sub-contractor of his must do all that he reasonably can to facilitate the exercise by the Controller of his functions; and

(c)

the staff of the detention centre must comply with any directions given by the Controller in the exercise of his functions.

…

(4)

The Controller is to have the status of a Crown servant.

Detainee custody officers

154.

— (1) On an application made to him under this section, the Secretary of State may certify that the applicant—

(a)

is authorised to perform escort functions; or

(b)

is authorised to perform both escort functions and custodial functions.

(2)

The Secretary of State may not issue a certificate of authorisation unless he is satisfied that the applicant—

(a)

is a fit and proper person to perform the functions to be authorised; and

(b)

has received training to such standard as the Secretary of State considers appropriate for the performance of those functions.

….

(5)

If the Secretary of State considers that it is necessary for the functions of detainee custody officers to be conferred on prison officers or prisoner custody officers, he may make arrangements for that purpose.

(6)

A prison officer acting under arrangements made under subsection (5) has all the powers, authority, protection and privileges of a constable.

(7)

Schedule 11 makes further provision about detainee custody officers.

Custodial functions and discipline etc. at detention centers

155.

—(1) Custodial functions may be discharged at a detention centre only by—

(a)

a detainee custody officer authorised, in accordance with section 154(1), to perform such functions; or

(b)

a prison officer, or a certified prisoner custody officer, exercising functions in relation to the detention centre—

(i)

in accordance with arrangements made under section 154(5); or

(ii)

as a result of a contract entered into under section 150(1)(b).”

The powers and duties of detainee custody officers are contained in paragraph 2 of Schedule 11 to the 1999 Act:-

“2.—(1) A detainee custody officer exercising custodial functions has power—

(a)

to search (in accordance with rules made by the Secretary of State) any detained person in relation to whom the officer is exercising custodial functions; and

(b)

to search any other person who is in, or is seeking to enter, any place where any such detained person is or is to be held, and any article in the possession of such a person.

(2)

The power conferred by sub-paragraph (1)(b) does not authorise requiring a person to remove any of his clothing other than an outer coat, jacket or glove.

(3)

As respects a detained person in relation to whom he is exercising custodial functions, it is the duty of a detainee custody officer—

(a)

to prevent that person's escape from lawful custody;

(b)

to prevent, or detect and report on, the commission or attempted commission by him of other unlawful acts;

(c)

to ensure good order and discipline on his part; and

(d)

to attend to his wellbeing.

(4)

The powers conferred by sub-paragraph (1), and the powers arising by virtue of sub-paragraph (3), include power to use reasonable force where necessary.

I turn to the 2001 Rules. Rule 45(1), headed “General duty of officers”, provides that every officer at a detention centre is under a duty to conform to the 2001 Rules. Rule 3 provides that “the purpose of detention centres shall be 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…” Rule 11(1) provides that “detained family members shall be entitled to enjoy family life at the detention centre save to the extent necessary in the interests of security and safety”, including (regulations 26 and 28) by way of visits from, or communications with, family members living outside the detention centre, save to the extent necessary in the interests of security or safety. Rule 39 requires security and good order be maintained with no more restriction than is required for safe custody and well ordered community life. Regulations 40, 42 and 43 respectively empower removal from association, temporary confinement of a refractory or violent detainee, and special control or restraint. They distinguish the position of contracted out and directly managed centres. Thus, regulation 40 provides:

“(1)

Where it appears necessary in the interests of security or safety that a detained person should not associate with other detained persons, either generally or for particular purposes, the Secretary of State (in the case of a contracted out detention centre) or the manager (in the case of a directly managed detention centre) may arrange for the detained person's removal from association accordingly.

(2)

In cases of urgency, the manager of a contracted out detention centre may assume the responsibility of the Secretary of State under paragraph (1) but shall notify the Secretary of State as soon as possible after making the necessary arrangements.

(3)

A detained person shall not be removed under this rule for a period of more than 24 hours without the authority of the Secretary of State.

(4)

An authority under paragraph (3) shall be for a period not exceeding 14 days.

(7)

The manager may arrange at his discretion for such a detained person as aforesaid to resume association with other detained persons, and shall do so if in any case the medical practitioner so advises on medical grounds.

(8)

Particulars of every case of removal from association shall be recorded by the manager in a manner to be directed by the Secretary of State.

Rules 42 and 43 contain similar provisions in respect of temporary confinement of a refractory or violent detained person, and special control or restraint of a detained person. Thus, the power lies with the Secretary of State and the manager of a contracted out detention centre is only authorised to act in cases of urgency and, then only for 24 hours. It is clear from rule 41 the necessary use of force is permitted. It provides:

“41.

- (1) A detainee custody officer dealing with a detained person shall not use force unnecessarily and, when the application of force to a detained person is necessary, no more force than is necessary shall be used.”

Rule 53 provides that “no person shall have access to a detention centre unless authorised by statute or the manager or the Secretary of State”.

The parties’ cases

The claimants’ case is based on the 1886 Act being designed to be a no-fault compensation system for riot damage; on giving the word “building” in the Act its natural meaning; and on accepting that the prisons and detention centres fall within the term “public institution” so that the position of the claimants as public authorities within the Human Rights Act (and the judicial review jurisdiction) with regard to its operation of the detention centre do not bar them from claiming under the Act. The scheme of the Act shows that it is not an objection to making a claim that the claimants have statutory and contractual responsibilities for ensuring good order within the detention centre and may thus have some responsibility for the losses. This is because section 2(1) of the Act provides that “in fixing the amount” of the compensation “regard shall be had to the conduct” of the claimant. This shows that those with some responsibility for the losses are not excluded from the statutory scheme.

Mr Gatt placed considerable reliance on the decision of the Court of Appeal in Pitchers v Surrey County Council [1923] KB 57. He concluded his written submissions with the statement of Warrington LJ (at 73) that:

“The Act of Parliament makes no exceptions 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.”

Mr Gatt also relied on the duty of the defendant to maintain law and order within the detention centre and the nature of the powers given to those working in contracted out detention centres by the statutory scheme. The statutory scheme does not make the claimants’ employees constables or give the claimants or their employees the power and duty to maintain law and order in the detention centre. He relied on the contrast between the provisions governing detention centres and other organisations given a policing power, such as those in the Universities Act 1825, section 1, the Harbours Docks and Piers Act 1847, section 79, the Public Health Amendment Act 1907, section 77, the Ministry of Defence Act 1967, sections 1-2, the Civil Aviation Act 1982, section 57, the Railways and Transport Safety Act 2003, sections 18 and 24, and the Energy Act 2004, sections 52 and 56. Those statutes give those authorised to act the powers of a constable, albeit, in some cases within a defined area or for limited purposes. Examples of both limits are to be found in the Energy Act which empowers members of the civil nuclear constabulary in and within 5 kilometres of a relevant nuclear site regardless of purpose, at every trans-shipment site where it appears to him expedient to be in order to safeguard nuclear material on the site or in transit, and throughout the United Kingdom for purposes connected with a relevant nuclear site.

The claimants also rely on the contrast between the position of their employees and prison officers who pursuant to the Prison Act 1952, section 8, while acting as such, have all the powers of a constable, including a constable’s power of arrest.

In summary, leaving aside the terms of the Yarl’s Wood JPA, although contracted out detention centre officers (and employees of companies operating contracted out prisons) have certain powers to use force and to detain persons against their will, the claimants’ case is that they only have the same powers of arrest as any citizen has and that this means the responsibility for maintaining law and order within the detention centre remains with the police. It was also submitted on behalf of the claimants that nothing in the Yarl’s Wood JPA or the contingency plans made by the claimants and by the defendant removes the defendant’s responsibility and thus the defendant’s liability under the 1886 Act.

The defendant’s case is that the 1886 Act does not create a no-fault compensation scheme but imposes a duty on those responsible for law and order and that a purposive interpretation of the 1886 Act leads to the conclusion that this claim is outside its intended and actual scope. As to the first limb, Mr Watson submitted that the decisions in J W Dwyer Ltd v Metropolitan Police Receiver [1967] 2 QB 970 and Edmonds Ltd v East Sussex Police Authority Court of Appeal, 6 July 1988 show that riot is a special case because it is obvious to the forces of law and order and it is their duty to prevent a crowd becoming a riot. As to the second limb, he submitted that, as public authorities with statutory duties and responsibilities in relation to the premises and the detainees, the first and second claimants are not entitled to claim under the Act in respect of damage suffered as a result of a riot by those detainees. This submission relies both on a purposive interpretation of the 1886 Act and its predecessors and on a distinct principle that a party upon whom a public responsibility lies should not be entitled to rely on a statutory cause of action such as that under the 1886 Act where the loss claimed arises out of that public responsibility. It is also submitted that “buildings” within the 1886 Act do not include premises which are being used by and for the purposes of a public authority of this kind and which excludes public access and that the designation of the property as being within the “police area” means not only within the geographical area but also within the ambit of the responsibility which that area normally identifies.

Discussion

The status, powers and responsibilities of the parties:

The status of the first and second claimants:

It has been seen (paragraph 38 above) that a contracted out detention centre is operated under a contract with the Home Office within the scheme of and subject to the 1999 Act and the Detention the 2001 Rules. It is managed by a “manager” who is a detention custody officer whose appointment must be approved by the Home Secretary under section 154 of the 1999 Act. It is staffed by employees, some of whom will also be detention custody officers, similarly approved by the Home Secretary under section 154 to perform either escort functions, custody functions, or both functions.

Paragraph 2 of Schedule 11 to the 1999 Act contains the duties and powers of detention custody officers exercising custodial functions. They are under duties inter alia to prevent escape (paragraph 2(3)(a)) and the commission of unlawful acts (paragraph 2(3)(b)), and to ensure good order and discipline (paragraph 2(3)(b)). The majority of their duties and powers relate to the position within a detention centre although rule 8(2) of the 2001 Rules requires detainees to be kept in custody when outside the detention centre. Their powers include the power to search (paragraph 2(1)) and to use reasonable force in exercising their powers and duties (paragraph 2(4)). Where authorised, they may test for drugs or alcohol, and require a detainee to submit to a medical examination: Schedule 12 of the 1999 Act. Rule 39(1) of the 2001 Rules requires security in detention centres to be maintained.

The manager of a contracted out detention centre may authorise access to the centre (rule 53) but (rule 56) may not authorise an “outside person” (this appears to be someone other than a person visiting a detainee, on which see rules 26, 28) to view inside a centre. In cases of urgency the manager is also empowered to remove a detained person from association, temporarily confine him in special accommodation or apply special control or restraint (apart from handcuffs), but unless authorised by the Secretary of State, may only do so for 24 hours: 1999 Act, section 149 and 2001 Rules, rules 40, 42 and 43. Even when authorised by the Secretary of State, these powers can only be exercised for limited periods; 14 days in the case of removal from association (rule 40(4)), the time specified but not exceeding 3 days in the case of temporary confinement (rule 42(4)), and the time specified in the case of special control or restraint, (rule 43(6)). In these respects the powers of the manager of a contracted out detention centre are narrower than those of the manager of a directly managed detention centre.

It is clear from the powers given to the manager of a contracted out detention centre and the employees of the contractor who are detention custody officers by the 1999 Act and the 2001 Rules that in operating the Yarl’s Wood detention centre the first and second claimants are acting as public authorities for the purposes of the judicial review jurisdiction and as functional or hybrid public authorities within section 6(3)(b) of the Human Rights Act: see D & K v Secretary of State for the Home Department [2006] EWHC 980 (Admin) at [59] and [99] (in relation to Oakington Detention Centre); Aston Cantlow PCC v Wallbank [2004] 1 AC 546 at [7]; YL v Birmingham CC [2008] 1 AC 95 at [7], [28], [63], [91], [104] and [166]. In the latter two cases the comments related to privately run prisons operated pursuant to Part IV of the Criminal Justice Act 1991, but the statutory framework enabling the contracting out the running of detention centres in the 1999 Act and the 2001 Rules is similar. There is no difference between the status of the operator of a privately run prison and a privately run detention centre.

In the present case the first claimant sub-contracted the operation and maintenance of the detention centre to the second claimant. The position of a sub-contractor may be different to that of the head contractor where, for example, the head-contractor, but not the sub-contractor, is subject to a particular obligation under statute or the applicable regulations, or possibly the contract. For example, D & K v Secretary of State for the Home Department was concerned with rule 34 of the 2001 Rules which required that detainees be given a physical and medical examination within 24 hours of admission to a detention centre. GSL had sub-contracted healthcare services at Oakington detention centre to another company. It was held (see [2006] EWHC 980 (Admin) at [59] and [101] – [102]) that the sub-contractor was not amenable to judicial review for want of compliance with rule 34 because, by rule 45, only “officers” of a detention centre were required to conform to the 2001 Rules, the sub-contractor’s staff were not “officers” within the rule, and (see [62] and [65]) the sub-contractor had not contracted to provide a 24 hour examination in all cases. Davis J stated that the obligations of the sub-contractor were delineated by its contractual obligations. In the present case, it was not argued that there was any difference between the positions of the first and second claimants. Nor could there be. Section 149(1) enables a detention centre to be run by a sub-contractor. It was the second claimant which (with the consent of the Home Office) was in fact operating and maintaining Yarl’s Wood detention centre and some of whose staff were “officers” of the detention centre. It was thus subject to the public law duties under the 1999 Act and the 2001 Rules. The first claimant was not absolved of the public law responsibilities it assumed by virtue of the obligations in its contract with the Home Office because it had sub-contracted its responsibility to operate and maintain the centre: see clause 7.6 of the Project Contract.

The relationship of the first and second claimants and the Home Secretary:

It can be seen from the statutory scheme in the 1999 Act and the 2001 Rules that the Home Secretary retains considerable control over the operation of a contracted out detention centre. By section 149(2)(a) of the 1999 Act the detention centre must be run in accordance with the provisions of the Act and any rules made under it. The contract monitor is required (see 1999 Act, section 149(7)) to keep the running of the centre under review, to report to the Home Secretary, and (ibid and 2001 Rules, rule 48) to investigate allegations against persons performing custodial functions.

The 2001 Rules require the Home Secretary to certify that there is sufficient and adequate accommodation in a detention centre (rule 15) and enable or require him to make directions and impose conditions. See for example, rules 17(8) (access to libraries), 28(1) (general or particular conditions for visits), 40(8) and 41(3) (manner of recording cases of removal from association and use of force). The Home Secretary is also required to approve or authorise certain matters. See for example rules 17(4) (rate of pay for paid activities), 19(1) (system of privileges), 28(4) (photographing a detainee), 47(1) (involvement of officer in business of pecuniary transaction with or on behalf of detainee), 51(1) (contact by officer with former detainee), 56 (view inside a detention centre by an “outside person”).

Save in cases of urgency, only the Home Secretary can remove a detained person from association, temporarily confine him in special accommodation or apply special control or restraint. Section 151 of the 1999 Act empowers the Home Secretary to intervene where the manager has lost, or is likely to lose, effective control of the detention centre or of any part of it or it is necessary to do so in the interests of preserving the safety of any person, or of preventing serious damage to any property. Where such intervention takes place a Controller is appointed to act as the manager of the centre, the contractor and any sub-contractor must do all that they reasonably can to facilitate the exercise by the Controller of his functions, and staff must comply with his directions.

The provisions in the 1999 Act and the 2001 Rules were reflected in and underpinned by the terms of the Project Contract, which, as I have said, was in all material respects reflected in the Operating Contract. For example, clause 38 requires the claimants to operate the Centre in accordance with relevant legislation including the 1999 Act and the 2001 Regulations. Again, clause 40.1 requires persons carrying out custodial functions at the centre to be certified as detention custody officers by the Home Secretary and clauses 42.2 and 46.1 require the Home Secretary’s Contract Monitor to be given unrestricted access to the centre. The operating specifications are contained in Schedule D to the Project Contract. Clause 7.2 of Schedule D requires the claimants to maintain security and good order at the Centre at all times, clause 7.6 provides for the use of “reasonable force” when necessary inter alia to keep a detainee in custody, to prevent violence, and to prevent the destruction of property of the Detention Centre or others, and clause 7.8 requires the claimants to implement contingency planning, to be approved by the Home Secretary, including liaison with local emergency services in the event of inter alia demonstrations and concerted indiscipline.

The contracts also made additional provision for control by the Home Secretary. For instance, clause 41.2 requires the Home Secretary to approve the function and duty of members of staff who were not certified as detention custody officers before they commenced work. Clause 1 requires the claimants to admit all detainees as directed by the Home Secretary. Detainees could only be discharged under instructions from the Home Secretary or the Court.

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 or on behalf of the Home Secretary. In the context of planning, it has been accepted by the Court of Appeal that a privatised facility of this kind is a facility “by or on behalf of the Crown”: see R. (Cherwell District Council) v First Secretary of State [2005] 1 WLR 1128 at [56] (accommodation centre for asylum seekers). The position in the present context is analogous and the Home Secretary should be regarded as carrying out her statutory powers and duties through the medium of the contracts made with the first and second claimants.

Moreover, the powers reserved to the Home Secretary mean that, in assessing the position in relation to responsibility for maintaining order within the centre, the powers of the first and second claimants and the detention centre manager and detention custody officers employed by them should not be considered in isolation. Those powers are part of a statutory scheme in which powers are divided between the first and second claimants and their employees and the Home Secretary. The powers of the Home Secretary to remove a detainee from association, to confine him temporarily in special accommodation, to apply special control or restraint are of particular significance in this context, and, subject to the conditions in section 151 of the 1999 Act, to appoint a Controller to act as the manager of a detention centre.

The responsibility of the Bedfordshire police force:

The fundamental obligation on the police is to preserve the Queen’s peace. Before considering what this meant in the case of the Bedfordshire police force in respect of the incident at Yarl’s Wood detention centre, it is important to make two observations about the position of police forces and police officers.

The first is that police forces and police officers have a status and responsibility that is independent of both central government (R v Metropolitan Police Commissioner, ex p Blackburn [1968] QB 118, 135) and their police authorities (Fisher v Oldham Corporation [1930] 2 QB 384). The Bedfordshire police force is thus an independent body separate and distinct from the defendant, the Bedfordshire Police Authority.

Secondly, chief constables and police officers hold office under the Crown but are not servants of the Crown: Attorney-General of New South Wales v Perpetual Trustee Co. Ltd. [1955] AC 457, 480. This follows from the status of the office of constable at common law, which remains relevant today despite the many statutory provisions governing their powers and (see now the Police Act 1996, sections 1-3) the organisation of police forces and police areas.

The fundamental obligation to preserve the Queen’s peace is also expressed as an obligation to keep law and order, or to enforce the law of the land: see West Yorkshire Police Authority v Reading Festival Ltd. [2006] 1 WLR 2005 at [16], per Scott Baker LJ, citing Viscount Cave LC in Glasbrook Bros Ltd. v Glamorgan CC [1925] AC 270, and R v Chief Constable of Sussex, ex p. International Trader’s Ferry Ltd. [1999] 2 AC 418, at 441, per Lord Hoffmann, referring to R v Metropolitan Police Commissioner, ex p Blackburn [1968] QB 118, at 135. In Glamorgan Coal Co. v Glamorgan Joint Standing Committee [1915] 1 KB 483 Bankes J referred to the duties of police forces as including the preservation of the peace, the protection of the inhabitants, and the safeguarding of property within their area, and Pickford LJ ([1916] 2 KB 206, 229) stated that proper police arrangements must be made to maintain the peace. This duty is reflected in the declaration every member of a police force makes a before a justice of the peace, to “… well and truly serve … the Queen in the office of constable, without favour or affection, malice or ill will; and … to the best of [his or her] power [to] cause the peace to be kept and preserved, and prevent all offences against the persons and properties of Her Majesty's subjects”.

Once disorder had started in the detention centre the Bedfordshire police had both common law and statutory power to enter it: see Police and Criminal Evidence Act 1984, sections 17(1)(b) & (e), 17(6), Public Order Act 1986, section 40(4), and McLeod v Metropolitan Police Commissioner [1994] 4 All ER 553 (power of entry if constable reasonably believes breach of the peace is likely). Were they also under a duty to do so as part of their fundamental obligation to preserve the Queen’s peace and to keep law and order?

During the twentieth century the issue of what the duty to keep law and order involves in a particular situation tended to arise in two contexts. The first is whether the police are entitled to charge for specific services which have been requested or provided because of an event or an incident. The second is whether a decision by the police as to the way they will handle an incident or the resources they will deploy to do so has put them in breach of their duty to keep law and order.

Glasbrook Bros Ltd. v Glamorgan CC and West Yorkshire Police Authority v Reading Festival Ltd. concerned the ability of the police to charge for specific services. In Glasbrook Bros Ltd. v Glamorgan CC, where some 500-600 strikers had picketed a colliery (see [1924] 1 KB at 880 and [1925] AC at 301), the charge was for billeting constables in the colliery pursuant to a request by the owners where the police considered that a mobile force would suffice to protect the colliery. It was held that the police were entitled to charge for the billeting because they were not under an obligation to provide billeted officers. In West Yorkshire Police Authority v Reading Festival Ltd. the police sought to charge for deploying officers in the area near the site of a music festival but not, as the organisers had requested, on the site. It was held that the police were not entitled to charge because the organisers had not requested or wanted the deployment provided and had not agreed to pay for it.

R v Chief Constable of Sussex, ex p. International Trader’s Ferry Ltd. concerned a challenge by a livestock exporter to the chief constable’s decision, in the face of large and often violent protests against the transport of live animals to continental Europe, to restrict the policing of a port to two days a week. It was held that the chief constable’s decision was a proper exercise of his discretion in the light of the manpower and financial resources available, and other demands on the police in the area. The chief constable was not therefore in breach of his duty to preserve the peace and maintain order. R v Metropolitan Police Commissioner, ex p Blackburn did not concern public order. It was a challenge to the Commissioner’s policy not to enforce section 32(1) of the Betting, Gaming and Lotteries Act 1963. The court recognised the width of police discretion in decisions whether to prosecute (see [1968] QB 118, at 139 and 136) but criticised the policy, although no relief was given because the policy had been revoked. A similar approach was taken in R v Chief Constable of the Devon and Cornwall Constabulary, ex p. Central Electricity Generating Board [1982] QB 458, which did concern public order. The CEGB had been prevented from surveying a site near Luxulyan to assess its suitability for a nuclear power station by protesters who were obstructing the site and access to it. It argued that the refusal of the chief constable to remove the protesters was unlawful and sought an order of mandamus to direct him to do so. The Court of Appeal held that it was for the police at the site and not for the court to decide when and how to exercise their power to remove the protesters.

The formulations of the duty in these cases are, of course of assistance, but, as will be seen, the different context of the present case must be recognised. In Glasbrook Bros Ltd. v Glamorgan CC [1925] AC 270, at 277 Viscount Cave LC stated:

“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; ….”

Mr Gatt placed considerable reliance on the statement that the obligation is “absolute and unconditional”.

Lord Denning’s statement in R v Metropolitan Police Commissioner, ex p Blackburn [1968] QB 118, at 135 that chief constables “must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace” also appears to be unqualified. It is, however, clear from the rest of Lord Denning’s judgment that a chief constable has discretion as to what is to be done in response to an incident or an apprehended incident, and that the courts will be reluctant to interfere with his decision. He stated (at 136) that it is for the chief constable to decide on the disposition of his force and the concentration of his resources on any particular crime or area and that “no court can or should give him direction on such a matter”. Where a discretionary decision to respond to an incident in a particular way or not to respond to it is lawful, the police cannot be said to be in breach of their duty to enforce the law or to maintain order. In ex p. Central Electricity Generating Board Lord Denning referred to his judgment in ex p Blackburn and Templeman LJ stated that the police are not bound to act every time there is a breach of the law.

It is also clear that Viscount Cave LC recognised the existence of this discretion. First, the “absolute and unconditional obligation” to which he referred only arose in respect of steps which appear to the police themselves to be necessary for keeping the peace. The context of the case was entitlement to charge, and the Lord Chancellor may have been referring to the inability to make the performance of steps the police consider to be necessary conditional on payment. Secondly, his recognition of the discretion in police forces as to what is to be done is seen from the result in the case. The police authorities considered that it was not necessary for the efficient protection of the colliery from the strikers to billet officers there, and that a mobile force would suffice. Viscount Cave (at 281-2) stated that “while not desiring for a moment to suggest that it was not the bounden duty of the county council to protect [the] colliery”, and while not suggesting that performing a legal duty will support a promise to pay, but accepted that the colliery owner in that case was obliged to pay. He therefore accepted that the police’s decision to protect the colliery in a different way was valid and that they were not under an obligation to billet officers at the colliery.

Viscount Finlay’s formulation in Glasbrook Bros Ltd. v Glamorgan CC also recognises the discretion left to the police. He stated (at 285) that:

“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 that protection should be afforded.”

The third member of the majority, Lord Shaw, did not expressly refer to the discretion. He simply approved the words of Pickford LJ in Glamorgan Coal Co. v Glamorgan Joint Standing Committee [1916] 2 KB 206, 229 that the police “have to make proper arrangements to maintain the peace”.

Mr Watson relied on R v Chief Constable of Sussex, ex p. International Trader’s Ferry Ltd. to show that the discretion left to a police force is a wide one. In that case Lord Slynn (with whom Lord Nolan agreed) stated ([1999] 2 AC at 430) that the courts will “respect the margin of appreciation or discretion which a chief constable has”. He approved the statement of Balcombe LJ in Harris v Sheffield United FC Ltd. [1988] QB 77, 95, a case concerned with charges by police for special services, that:

“in deciding how to exercise his public duty of enforcing the law and keeping the peace, a chief constable has a discretion, which he must exercise even-handedly. Provided he acted within his discretion the courts would not interfere … in exercising that discretion a chief constable must clearly have regard to the resources available to him”.

Lord Slynn also (at 434) approved the comment by Barnard and Hare ((1997) 60 MLR 394, 409) that “there may be important and sound reasons for a chief constable’s decision not to commit all his force’s resources to, nor to exercise his full legal powers in, a given dispute or demonstration”. Lord Hoffmann (at 441) cited Lord Denning’s judgment in ex p Blackburn with approval and (at 444) recognised that the mere fact that a chief constable considers that certain resources would be needed to prevent some kind of criminal behaviour “does not entail that he is obliged to provide them”.

Courts are particularly reluctant to review the exercise of resource-allocation decisions (see, for example, R v Cambridge Health Authority, ex p B [1995] 1 WLR 898) and ex p. International Trader’s Ferry Ltd. may not be a sure guide to the width of the discretion in cases not involving resource allocation. There are, however, also indications of a wide margin being left to the police in the exercise of their obligations in relation to public order; see for example, R v Devon and Cornwall Chief Constable, ex p. Central Electricity Generating Board [1982] QB 458, and Glasbrook Bros Ltd. v Glamorgan CC may also be explicable on this basis. In none of these cases, however, did the court consider there was a riot.

R v Pinney (1832) 5 C. & P. 254 suggests a more stringent approach in the case of a riot. The case concerned the criminal responsibility of Pinney, the Mayor of Bristol, for neglect of his duty during the Reform Riots of 1831. Summing up to the jury, Littledale J stated that a party entrusted with the duty of putting down a riot was bound to hit the exact line between excess and failure of duty, and the difficulty of doing so, though it might be some ground for a lenient consideration of his conduct on the part of the jury, was no legal defence to a charge of criminal neglect in the discharge of duty. The question was:

“Has the defendant done all that he knew was in his power to suppress the riots, that could reasonably be expected from a man of honesty and of ordinary prudence, firmness, and activity, under the circumstances in which he was placed?”

The jury found Mayor Pinney not guilty. See also R v Kennett (1781) 5 C & P 282n and Tindal CJ’s charge to the Bristol Grand Jury (1832) 5 C. & P. 261. In the context of criminal proceedings the question whether a defendant with responsibility for order had done all that he could reasonably do and thus the margin left to such a person was left to the jury. However, Littledale J’s formulation suggests that where a riot has broken out the person with the responsibility for maintaining the peace has little margin left to him.

The criminal cases must, however, be considered in the light of the modern statements of the duty and discretion of chief constables and police forces. Ex p. Blackburn did not concern public order and ex p. Central Electricity Generating Board concerned only passive resistance and obstruction. However, Glasbrook Bros Ltd. v Glamorgan CC and ex p. International Trader’s Ferry Ltd., although not involving riots, did involve large scale and prolonged disorder: see [1924] 1 KB at 880 and [1925] AC at 301 and [1999] 2 AC at 425D-E. Most importantly, neither those cases nor R v Pinney and R v Kennett concerned the position where another public body has been given specific responsibilities by statute and statutory instrument over order and security in the particular situation.

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 recognized in paragraph 2 of the Yarl’s Wood JPA. The Yarl’s Wood JPA also refers (in paragraph 3) to its purpose being to ensure a speedy response by police officers to serious incidents, and “which does not adversely affect their other operational duties”. Although not made in the context of an existing incident, the reference to the “other operational duties” of the police force reflects similar considerations to those taken into account in ex p. International Trader’s Ferry Ltd..

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 e.g. Ayr Harbour Trustees v Oswald (1883) 8 App. Cas. 623; Commissioners of Crown Lands v Page [1960] 2 Q.B. 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 in 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.

In my judgment, the first and second claimants’ specific public law responsibilities in respect of order and security within the detention centre have an impact on the discretion the police force had in deciding how to exercise its public duty of enforcing the law and keeping the peace, and thus whether they were in breach of their duty to keep law and order within the detention centre. They were, after all dealing with other entities with public law responsibilities for order within the detention centre, responsibilities conferred on them by or through the Home Secretary pursuant to statutory powers. Moreover, the claimants’ contingency plans and the arrangements with the prison service provided that the claimants were first to look to another public authority, the prison service, for assistance with “a serious threat to the overall control of the centre”: see the Protocol for the Provision of Prison Service Assistance to immigration service detention centres, and the section dealing with the incident command system and command structure in the contingency plans section of the claimants’ Yarl’s Wood Procedure Plan. This is what, on the assumed facts, happened in this case. Whereas, at about 2100 hours the police were asked to secure the detention centre’s perimeter fence, the task of drawing up an intervention plan had been held in abeyance pending the arrival of Mel Kirtley, a prison service intervention officer, and it was Mr Kirtley who, at about 2215 hours, was instructed by Mr Watson, GSL’s Silver Commander, to draw up an intervention plan.

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. Paragraphs 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.

It is argued on behalf of the claimants that the incident command structure is not indicative of an assignment of responsibility, but only sets out the roles contemplated for the different bodies. However, the effect of these provisions is an acknowledgment by the claimants that they would maintain responsibility for managing an incident within the centre until they formally requested help from the police. As far as the dispute as to the meaning of “primacy” is concerned, the fundamental duty of the police to maintain order, the terms of the documentation, and in particular the acknowledgment in paragraph 2 of the JPA that the police force has a legal duty to act in certain circumstances, indicate that the term relates to responsibility for the incident. This is also consistent with the principle to which I have referred that a contractual arrangement by a public authority may not fetter the authority in the exercise of its powers and duties.

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 procedures entered into by the claimants and the police, remain responsible for an incident, the police may not be in breach of that duty while the claimants remain so responsible for the incident.

These arrangements are also reflected in the police force’s contingency operational order which summarised the understanding of the police to be that in the event of violent disorder/riot thus:

“Group 4 are responsible for the maintenance of order inside the complex. If the situation deteriorates then Group 4 can call on additional personnel both locally and regionally some of whom are control and restrain trained. If the situation is such that they cannot on their own deal with it effectively then Group 4 will after consultation with the Silver Commander … hand over the control of the Centre to the police as per the agreed protocol”

The situation at Yarl’s Wood on the night of 14 February was undoubtedly serious. Notwithstanding this, the scope of the police’s public law duty to maintain order, and the legitimacy of the police’s decisions as to how to exercise it, has to be assessed in the light of the first and second claimants’ public law responsibilities and, to a secondary degree, by the contractual and other arrangements and understandings between the claimants and the defendant police force as to how serious disorder within the detention centre would be handled.

Did the first and second claimants have a responsibility in respect of the risk of riot and disorder in the detention centre?

The claimants submit that, notwithstanding their public duties, they were not responsible for protecting the public from the risk of riot and disorder in the detention centre for two reasons. The first is that while they are responsible for safety and security within the centre, they do not have a general responsibility for maintaining law and order within it. Detention custody officers are not constables and, compared to constables, their powers are limited. Their powers do not include a constable’s anticipatory power of arrest and rights of entry and search under statute and at common law.

The second reason for the claimants’ submission that they are not responsible for protecting the public from the risk of riot and disorder in the detention centre is that the power and duty of the relevant police force to maintain law and order has not been removed in respect of the detention centre. Accordingly, the responsibility for maintaining law and order and the general duty to preserve the Queen’s peace and enforce the law in the detention centre remains with the Bedfordshire police force.

As far as the second reason is concerned, the position of the claimants does not necessarily depend on the police force no longer having that general responsibility. The police force’s general duty and responsibility to preserve the peace (in the terms discussed above) may remain, but the first and second claimants may also have relevant responsibilities as public authorities for order within the detention centre. For the reasons I have given, the public law responsibilities of the claimants have an impact on the discretion of the police force as to what to do in respect of an incident in the detention centre, and thus on the question whether the police force is in breach of its duty to preserve the peace and maintain order. Moreover, and more fundamentally, it will be seen (paragraphs 142 – 147 below) that I consider the claimants’ public law responsibilities to be important in determining their eligibility to make a claim under the 1886 Act.

As for the first reason, the limitations on the powers of the claimants’ employees as compared with those of police officers, it is important to remember that this case is only concerned with responsibilities within the detention centre in which the detainees are confined. The claimants’ position in relation to detainees within the centre differs from their position in relation to the activities of people outside the centre. Accordingly, detention custody officers, who have authority by virtue of their employment to enter and be in all parts of the centre, do not need powers of entry. Their powers under the 1999 Act and the 2001 Rules include: to prevent escapes and the commission of unlawful acts, to ensure good order and discipline, and to search detainees. They are empowered to use reasonable force in exercising these powers. The scope of their powers reflects the fact that, save for their functions when transferring detainees, the powers are to be exercised within the confines of the detention centre. They do not have a power of arrest, which prison officers acting as detention custody officers in directly managed detention centres have in their capacity as constables. However, they have power to use reasonable force and, in cases of urgency, to remove detainees from association, to confine them temporarily in special accommodation, and to apply special control or restraint for 24 hours or, if authorised by the Home Secretary, for longer.

In view of their duties under the 1999 Act and the 2001 Rules to maintain security and order, and in the light of the coercive powers given to them, the first and second claimants, through their managers and detention custody officers, have considerable responsibility for order within the centre. They were given this responsibility by the Home Secretary, who for these purposes retains the Crown’s power in respect of the preservation of order: see Coomber v Berkshire Justices (1883) 9 App Cas 61, at 67 per Lord Blackburn (albeit in a different context) and R v Secretary of State for the Home Department, ex p. Northumbria Police Authority [1989] QB 26. They were given this responsibility pursuant to specific statutory powers. They are not in the same position vis a vis detainees as a school (whether a state school or an independent one) is in respect of its pupils or a company is in respect of employees working at its premises because the school and the company are not under specific statutory duties regarding order within the premises and are not given coercive powers by statute or another public law source. The position of the claimants may have more similarity to the position of those running secure mental hospitals but the legal regime governing such persons was not before me and neither party sought to rely on it by way of analogy.

Finally, the claimants’ contractual obligations, ultimately owed to the Home Secretary, but consistent with and underpinning the statutory scheme for contracted out detention centres, also required them: (a) to maintain security and good order at the Centre at all times (clause 7.2 of Schedule D to the Project Contract), and (b) to have a specified minimum members of staff trained in advanced control and restraint techniques with powers to use reasonable force and measures where necessary to prevent violence and to prevent the destruction of property (clause 7.6 of Schedule D to the Project Contract).

Thus, irrespective of the JPA and the contingency plans, the claimants’ responsibility for security and order within the centre, the coercive powers given to them with the additional powers of the Home Secretary, mean that they 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.

Conclusion:

The difference between this case and the cases such as R v Pinney, Glasbrook Bros Ltd. v Glamorgan CC and ex p. International Trader’s Ferry Ltd. is that in those cases the only relevant public authorities with responsibility for maintaining order were respectively Mayor Pinney, Glamorgan County Council as the police authority, and the Chief Constable of the Sussex police force. Here the first and second claimants also had a public law responsibility for order and security in the detention centre. That responsibility was specific and limited to the centre, and to order within it.

I have stated that, although the claimants’ public law responsibility does not remove the powers and duties of the Bedfordshire police force to maintain law and order in the centre, it has an impact on discretion the force had in deciding how to exercise its public duty of enforcing the law and keeping the peace. It thus has an impact on whether, in a given situation, the police force was in breach of its duty to keep law and order within the centre. The claimants’ specific responsibilities under the 1999 Act and the 2001 Regulations mean that their responsibilities can be described as “primary” when compared to the general responsibility of the police for maintaining order; although that responsibility is regarded as a fundamental one.

On the facts agreed for the purposes of the preliminary hearing, the riot commenced at about 19.30 hours on 14 February and the police were called at about 20.06 hours. At about 21.00 hours the centre’s manager asked the police to secure relevant areas of the perimeter fence. At this stage the police were not asked to go into the centre. The prison service had instigated Operation Tornado shortly after 20.26 hours, and the claimants viewed the prison service Gold Commander as being in command of the incident. Thus, at 22.15 hours GSL asked the prison service to draw up an intervention plan. The police at that stage had only been asked to secure the perimeter.

The command suite within the detention centre was evacuated at about 22.20 hours, retaken at 22.45 hours, and evacuated again at 23.45 hours. There is a dispute as to whether, by 23.05 hours, the claimants had discussed a prison service plan to retake the centre with the police but that resources were not sufficient to implement it. It is not clear from the agreed facts whether the reference to “resources” is to police resources. The defendant maintains that between 21.00 hours and 00.59 hours the police requested “primacy” to be reconsidered with a view to the police being given command of the incident. The claimants deny that any such request was made. But whether or not such a request was made by the police, on the facts agreed for the hearing, until command of the incident was handed over to the police between 00.50 hours and 00.59 hours, it lay with either the claimants or the prison service.

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 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 prison service and 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.

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.

The scope and intent of the 1886 Act.

The general approach:

The starting point in determining the scope of the 1886 Act is to give its words their ordinary meaning in the general context of the statute, in the words of Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Cas. 743 at 764, their “ordinary application”. See also Lord Nicholls in R v Environment Secretary, Ex p Spath Holme Ltd [2001] 2 AC 349 at 397. In determining the ordinary meaning of a provision the courts may use internal aids, such as other provisions in the statute, and external aids including the background setting of the statute, its legislative history, and its legislative antecedents which are used as part of a purposive approach to interpretation.

In ex p Spath Holme Ltd Lord Nicholls said (at 397) that it is important to bear in mind that “[e]xternal aids differ significantly from internal aids. Unlike internal aids, external aids are not found within the statute within which Parliament has expressed its intention in the words in question.” After referring to the constitutional importance of the difference that results from the need for citizens to be able to rely upon what they read in an Act of Parliament, and the consequent tension between the need for legal certainty and the need to give effect to the intention of Parliament, from whatever source that (objectively assessed) intention can be gleaned, his Lordship continued:-

“This constitutional consideration does not mean that, when deciding whether statutory language is clear and unambiguous and not productive of absurdity, the courts are confined to looking solely at the language in question in its context within the statute. That would impose on the courts much too restrictive an approach. No legislation is enacted in a vacuum. Regard may also be had to extraneous material, such as the setting in which the legislation was enacted. This is a matter of everyday occurrence.”

Ex p Spath Holme Ltd concerned the statutory predecessors of provisions in a consolidation statute. Lord Bingham of Cornhill (at 388) stated that it is plain from the authorities that “courts should not routinely investigate” the statutory predecessors of such a provision, but that, “if, even in the absence of overt ambiguity, the court finds itself unable, in construing the later provision in isolation, to place itself in the draftsman’s chair and interpret the provision in the social and factual context which originally led to its enactment” it is legitimate and even (see Lord Simon of Glaisdale in Johnson v Moreton [1980] AC 37, 62-63) incumbent on it “to consider the earlier, consolidated, provision in its social and factual context for such help as it may give”, on the assumption that no change in the law was intended.

Regard may also be had to the underlying common law. For example, the duty of a highway authority to “maintain the highway” under the Highways Act 1959 was construed to exclude a duty to prevent the formation of ice or remove snow on the road, in part by having regard to the fact that the 1959 Act was built upon centuries of highway law and the common law duty of the “inhabitants at large” of a parish to keep its highways in repair: Goodes v East Sussex County Council [2001] 1 WLR 1356, per Lord Hoffmann at 1360-63, 1365, and see also Lord Slynn and Lord Clyde at 1358, 1368-69.

It has been stated that a purposive construction can only justify a departure from the ordinary language of a statute in limited cases. In Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231 Lord Simon of Glaisdale stated:

“A court would only be justified in departing from the plain words of the statute were it satisfied that: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly, could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such legislative objective; (4) the language of the statute is susceptible of the modification required to obviate the anomaly.”

Lord Nicholls adopted this statement in Canterbury CC v Colley [1993] AC 401.

For these reasons, in considering section 2(1) of the 1886 Act I give primacy to the internal aids to its construction, in particular section 7, but also (for the reason given in paragraph [145]) consider the external aids. Section 2(1) provides that “where a house, shop, or building in any police district” or the property in it “has been injured or destroyed” “by any persons riotously and tumultuously assembled together”, compensation “shall be paid out of the police rate of such district to any person who has sustained loss”. The claimants’ buildings and property in Yarl’s Wood detention centre were destroyed by fires, although it is disputed whether the fires were started during the course of the riot or afterwards. That issue cannot be resolved at this stage of the proceedings.

Do the detention centre’s buildings qualify as “buildings” under the 1886 Act?

For present purposes, the first question is whether the detention centre’s buildings qualify within section 2(1). Prima facie the answer is “yes”. They are within the ordinary meaning of the word “building”, the definition of which does not exclude a prison or place of detention. It was submitted on behalf of the defendant that, apart from dwelling houses, the scope of buildings intended to fall within section 2(1) are buildings which are in general public use by ordinary citizens and that the term “building” does not include buildings which the public may not enter, and in particular closed access buildings in the nature of a prison. Having regard only to the meaning of the word “building” and disregarding the position of the claimants (which I consider in paragraphs [140] – [144]), this submission is unsustainable even without looking at the statutory predecessors of section 2(1).

It is clear (see for example Gunter v Receiver of Metropolitan Police (1888) 53 JP 249) that compensation can be paid in respect of a riot that occurs on private premises. Section 2 applies to “a house, shop or building”, and it is difficult to see why a distinction should be drawn between dwelling houses, which the defendant accepts are not open to the public, and other “buildings”. Why, for example, should the 1886 Act not apply if a demonstration by local inhabitants against a prison or detention centre turns into a riot and the rioters damage or destroy one of the buildings of the prison or centre? The core of the defendant’s submissions relate to the fact that the rioters in the present case were those detained within the buildings of the centre and over whom the claimants had public law powers and duties.

Unlike its predecessors, the 1886 Act contains no list of the types of buildings within section 2, but the width of section 2 is seen from sections 6 and 7. Section 6(b) provides that the Act shall apply to inter alia machinery and erections used in the conduct of the business of a mine or a quarry. Sections 7(a) and (b) respectively deal with who the claimants should be where a church or chapel has been injured, and where a “school, hospital, public institution, or public building has been injured or destroyed”. Section 7(b) clearly presupposes that the 1886 Act includes damage to a “public building” and a "public institution".

In the light of Moses v Marsland [1901] 1 QB 668 a detention centre is not a “public building” because the public are not invited to enter and cannot demand admission. Is a detention centre within the phrase “public institution”? It is submitted on behalf of the defendant that it is not. Mr Watson relied on Mayor of Manchester v McAdam [1896] AC 500, 507, 511. That case concerned whether a public library was a “literary institution” and thus exempt from tax. Mr Watson argued the phrase “institution” is confined to buildings relating to charitable organisations and that the phrases “public institution or public building” in the context of the 1886 Act are to be understood as relating to charitable organisations in general use by, and accessible to, the public. He argued that the word “public” should be given the same meaning whether it qualifies the word “building” or “institution”, and should be construed ejusdem generis to “school” and “hospital”.

I reject these submissions. A decision on the meaning of the term “literary institution” can only be a very slender guide to the meaning of the term “public institution” in a very different context, and the industry of Mr Gatt and his team has revealed a number of cases, also in different contexts, in which places of detention have been described as “public institutions”: see Royse v Birley (1869) LR 4 CP 296 (Broadmoor Asylum established under the Royal sign-manual as a public institution for the reception of criminal lunatics); R v Lydford [1914] 2 KB 378 (under section 108(4) of the Children Act 1908 the places of detention of children may be public institutions supported out of public funds); Evans v University of Cambridge [2002] EWHC 1382 (Admin) at [19] (reference to a prison officer as working in a public institution); and the Births and Deaths Registration Act 1953 provides that “‘public institution’ means a prison, lock-up or hospital…”. As to Mr Watson’s ejusdem generis argument, it is difficult to see what the genus is. Moreover, while schools and hospitals are in general use by ordinary citizens who need to do so, in particular in the case of schools and many mental hospitals, the public are not invited to enter and cannot demand admission to them. Again, although section 6 is not concerned with buildings, the fact that it applies to machinery and erections used in mines and quarries suggests that the scope of the Act is not limited to places that are open to the public.

It is also evident from the immediate statutory predecessor of section 2(1), the 1827 Act, that the term “buildings” is not confined to buildings which are in general public use by ordinary citizens. Section VI of the 1714 Act referred only to a “church or chapel or any such building for religious worship, or any such dwelling-house, barn, stable, or other outhouse”. But section II of the 1827 Act extended the entitlement to compensation in respect of damage to a broader range of buildings, including a warehouse, office, shop, mill, malt house, or any building or erection used in carrying on any trade or manufacture, or any building used in conducting the business of any mine. These buildings include types of building that are not in general use by, and accessible to, the general public.

Accordingly, the claimants cannot be excluded from the purview of the Act solely because the buildings in the detention centre are not in general use by, or accessible to, the general public.

Are the claimants qualifying persons under the 1886 Act?

The next question is whether the claimants are qualifying persons under the 1886 Act. In order to answer this question it is first necessary to consider whether, as is submitted on behalf of the claimants, the Act is designed to be a no-fault compensation scheme for riot damage, or whether, as is submitted on behalf of the defendant, it imposes a duty, a strict duty, on those responsible for law and order in a given situation and that this claim is outside the scope of the Act. This requires consideration of the predecessor statutes, the 1714 and the 1827 Acts, and the cases on those Acts and the 1886 Act. It is convenient to do this chronologically.

The legislative predecessors to the 1886 Act

The preamble to the 1714 Act states that it is “An Act for preventing tumults and riotous assemblies and for the more speedy and effectual punishing the Rioters”. Sections I –V are concerned with the powers and duties of the Justices and other law enforcement officers to declare a state of riot to apprehend and prosecute the rioters, including, in section II, the proclamation to be read commanding those assembled to disperse. The provision of compensation for damage done is contained in section VI, which placed the responsibility for compensation on the local hundred. On behalf of the defendant it is submitted that the provision for compensation was a subsidiary purpose of the Act.

The 1714 Act was considered in Ratcliffe v Eden (1776) 2 Cowp 486. It was held that the Act applied to furniture destroyed by rioters who demolished part of a house even though it did not mention the destruction of furniture. Lord Mansfield stated (at 488) that riots are not only injurious to individuals, but dangerous to the State and the fact that the act is done by rioters alters the nature of the offence from being a trespass to being a felony:

“ If the Act had never been made the trespassers would have been liable to answer for the whole injury in damages. 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 thus 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.” (emphasis added)

Lord Mansfield thus enunciated two principles: the responsibility and duty of the local inhabitants, and mutual suretyship for each other. The former is consistent with the defendant’s case, the latter with the claimants’ case.

The 1714 Act was considered six years later in Mason v Sainsbury (1782) 3 Doug 61. The court was concerned with the liability of the hundred where the property owner had been paid by his insurer, there being no provision concerning the effect of insurance in the 1714 Act. It was held that the insurance was a contract of indemnity and the hundred remained liable to the property owner. Lord Mansfield stated (at 64):

“The case is clear: the Act puts the hundred, for civil purposes, in the place of the trespassers …”

Willes J stated:

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

Mr Gatt submitted that this case shows the compensatory focus of the Act and the irrelevance of the status of the claimant on the right to claim. But all the case does is to treat an insured claimant under the Act in the same way as an insured victim of a tort. Lord Mansfield’s words do no more than this, and Willes J’s judgment, referring as it does to “blame” and “negligence” is in terms of responsibility and fault; that is the language of breach of duty.

The 1827 Act amended and consolidated the statutes concerning remedies against the hundred for the damage occasioned by rioters. It retained the same purpose as the 1714 Act but (section II) extended the range of buildings which could give rise to a claim in the way I have described in paragraph [111], made explicit provision for damage to furniture and goods in such buildings, and contained detailed procedural provisions (sections IV-IX), and a three month limitation period (section III). The responsibility for compensation remained in the hundred (section II), and similar provision was made (section XII) for localities not in the nature of a hundred.

Sir Leon Radzinowicz states that the liability of the inhabitants to pay persons whose property had suffered damage by rioters was to compel all the inhabitants of a district to interest themselves in repressing the offences against which the Riot Act was levelled: History of English Criminal Law, volume 2, (1956), 164. In a case concerning the Nottingham Riots in 1831, Lord Denman CJ stated that the object of the 1827 Act was to make it the interest of all the inhabitants to exert themselves to prevent the loss riotous assemblies cause to particular individuals who are their first victims: see Wise, The Law on Riots and Unlawful Assemblies, 1^st ed., 1848, p 97.

There is little to be said about the Metropolitan Act 1886. I have noted that it made provision for injuries suffered during one riot in London, and that its provisions influenced the more general 1886 Act enacted later that year. The 1886 Act, as noted, does not contain the lists of qualifying buildings that were in the 1827 Act. It also does not contain the procedural provisions and the short limitation period, but section 3(2) gives the Secretary of State, that is the Home Secretary, the power to make regulations respecting these matters.

Case law on the 1886 Act:

Kaufmann Bros. v Liverpool Corporation [1916] 1 KB 860 concerned damage sustained during a riot in May 1915. The plaintiffs commenced proceedings under the 1886 Act in December 1915. The Public Authorities Protection Act 1893, section 1(1) provided that an action against a public authority in respect inter alia of any “alleged neglect or default in the execution of any … Act, duty, or authority” shall be instituted within six months. The defendant alleged that the plaintiff’s action was barred because it had not been commenced within the six month period. It also argued that although the 1886 Act did not contain a limitation provision such as the three month period in the 1827 Act the position was still the same. No consideration was given to the provision in the regulations made pursuant to section 3(2) of the 1886 Act for claims to be brought within fourteen days, or, if the police authority enlarge the period, forty two days.

It was held by the Divisional Court that section 1 of the 1930 Act did not apply. Lush J stated (at 863) that section 3 of the 1886 Act imposed a duty upon the police authority to fix the compensation and section 4 provided that a claimant may sue the authority if it does not do so or if he is dissatisfied with the amount. Section 1 of the 1930 Act did not apply because the plaintiff’s action 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.”

The next decision is Pitchers v Surrey County Council [1923] KB 57, on which the claimants placed considerable reliance. The case concerned a riot on Whitley Common, which the war department had taken possession of and turned into a military camp. The main London to Portsmouth road went through Whitley Common and the military authorities did not interfere with the road. The plaintiff and others obtained permission from the authorities to encroach on the land in possession of the war department and to erect shops or stores along the Portsmouth road but inside the lines of the camp. At the end of the First World War the camp was occupied by a large number of Canadian soldiers waiting to be demobilised. They rioted and damaged a number of shops in the camp including the plaintiff’s. Although the police had previously exercised jurisdiction in the area the County Council’s defence to the plaintiff’s claim under the 1886 Act was that the plaintiff’s shop was not within the police district because it was within Whitley Camp, an area under military control. It was also argued that the police were not the forces of law and order within the camp because it was subject to military control. These arguments were rejected. Swift J (at 63-64) stated:

“…the fact that this camp was a private place does not, in my opinion, prevent it being a place in which a riot could take place and in which damage by riot might take place. But it is said that the police had no control over the soldiers and that they were helpless to do anything. I do not think that contention is right. I think the police had the right of control directly a felony was committed in their presence. Of course they had not the power of exercising control. … [T]he fact that it might not be physically possible for the police to quell a disturbance does not affect the question of their legal rights. I am far from being satisfied that if the police in the neighbourhood of a military camp see the soldiers breaking it up they have not a legal right to apprehend them for the breach of the peace or for the felony which they are committing.”

Swift J later (at 65) stated:

“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.”

In the Court of Appeal Lord Sterndale MR said (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 taken out of the jurisdiction, if I may call it so, of the civilian police, and that the civilian police are in law 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 the sort. For convenience the officers wisely employed pickets and military police to look after the soldiers, and for convenience the civilian 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 stated (at 72-73):

“…It is said that the Act must be… construed, whether by rule of common sense 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 was such a district because the military authorities were charged with the maintenance of law and order, I suppose so far as those who are 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 live should be withdrawn from the ordinary police protection of the rest of the county. That proposition therefore seems to me to fail.”

Atkin LJ stated (at 74):

“… It is said that by virtue of the powers with which the military authorities possess, having taken possession of [Whitley Common] 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. That appears to be a complete misapprehension of the facts. The area of the camp was, and still is, within the police district, although it was exclusively occupied by soldiers, and there seems to me to be no reason at all for suggesting that the ordinary barracks in any county occupied by the forces of the Crown and owned by the Crown are not within the police district in which they are situated. 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 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. I think that this area quite plainly was within the police district; … I have no doubt at all that this district continued to be part of the police district.”

Atkin LJ also stated at page 75:

“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.”

The next case for consideration is J W Dwyer Ltd v Metropolitan Police Receiver [1967] 2 QB 970. Pitchers v Surrey County Council was cited by the defendant in Dwyer’s case but not referred to in Lyell J’s judgment. Dwyer’s case was primarily concerned with whether threats of violence and noise and commotion within a shop which was being robbed by four hooded men armed with iron bars fell within the terms “riotously and tumultuously”. Lyell J concluded that they did not. In considering those words, he asked why compensation for loss caused by a riot was made a special case. He stated (at page 980) that:

“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 19^th century was put upon the local administrative area, the hundred or wapentake, 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 that modernise the mode of obtaining compensation and transferred the burden from the inhabitants of the hundred or wapentake 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 reason that it was intended to limit the liability of compensation to cases where the rioters were in such numbers and in such 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.”

The decision in Dwyer’s case was approved and adopted by the Court of Appeal in Edmonds Ltd v East Sussex Police Authority CA 6 July 1988, The Times 15 July 1988. Edmonds’ case was also about “riotously and tumultuously”. Kerr LJ described Lyell J’s judgment as “admirable”. Pitchers v Surrey County Council was referred to in Kerr LJ’s judgment, but only in relation to Atkin LJ’s suggestion that the word “tumultuous” adds nothing in terms of size to “riot”, of which Kerr LJ said that Pitchers’ case was concerned with a riotous and tumultuous assembly of very considerable size.

Pitchers v Surrey County Council was also considered by Walker J in Bedfordshire Police Authority v Constable [2008] EWHC 1375 (Comm). The insurers in that case had argued (at [49] and [67]), in the light of Pitchers’ case and Kaufmann’s case, that the right to compensation under the 1886 Act is independent of any conduct or misconduct on the part of the police. The insurers’ arguments were similar to those made by the claimants in the present case. Walker J stated (at [99]) that “the analysis of Lyell J in Dwyer, approved by the Court of Appeal in the DH Edmonds case, clearly shows that the approach taken by Parliament was to impose a duty on the police authority to ensure that riotous and tumultuous assemblies do not cause the damage in question”. His Lordship said (at [104]) that it did not matter whether the liability is described as a “tortious liability” or a liability “akin to tort”; it is a statutory liability with similar features to the Animals Act, which is generally regarded as creating a tortious liability. That was relevant because the insurance was to indemnify the assured in respect of sums which the assured may “become legally liable to pay as damages for accidental damage to property…”. He stated (at [100]) that Kaufmann’s case was not concerned with this question. He also stated that (at [105]):

“There is a statutory duty on [the Bedfordshire Police Authority] to maintain an efficient and effective police force” and the 1886 Act “imposes a strict liability on [the Bedfordshire Police Authority] for a failure to prevent tumultuous and riotous assemblies causing injury to or theft of or destruction of certain types of property. If as part of the activity of maintaining an efficient and effective police force in Bedfordshire [the Bedfordshire Police Authority] fails to prevent such assemblies from doing this, then it is liable.”

Walker J saw this liability as directly flowing from the police authority’s activities as a provider of an efficient and effective police force. He was considering the position where the police authority is liable under the 1886 Act and what the nature of that liability is. He did not, however, consider whether the police authority is liable under the 1886 Act if another body has the responsibility for maintaining order in a particular situation, or the position where the person claiming under the 1886 Act is a person with a public law responsibility for maintaining order in the particular situation.

What emerges from this survey of the authorities? The approval of Lyell J’s analysis in Dwyer’s case in Edmonds v East Sussex Police Authority means that there is Court of Appeal authority that the basis of the 1886 Act is a duty on the relevant police authority and is not a no-fault compensatory scheme. The duty is strict because, in the words of Lyell J in Dwyer’s case, a “public authority has 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”, and has not done its duty. Dwyer’s case and Edmonds v East Sussex Police Authority were relied on by Walker J in Bedfordshire Police Authority v Constable in preference to Kaufmann’s case and what was said in Pitchers’ case. Those decisions are consistent with the cases under the 1714 Act, Ratcliffe v Eden (1776) 2 Cowp 486 and Mason v Sainsbury (1782) 3 Doug 61 (paragraphs [115] and [117] above). Although Lord Mansfield referred to the principle of mutual suretyship in Ratcliffe v Eden, his emphasis was on the principle of the hundred’s responsibility and duty. In Mason v Sainsbury there is no reference to mutual suretyship, and Willes J’s judgment refers to “blame” and “fault”.

Mr Gatt argued that Lyell J’s statements in J W Dwyer Ltd v Metropolitan Police Receiver and the approval of his judgment by the Court of Appeal in Edmonds v East Sussex Police Authority are obiter. Both those cases were concerned with the significance of the phrase “riotously and tumultuously”. It was necessary for the purpose of the 1886 Act to be considered in order to assess the significance of the phrase. Strictly the ratio of Dwyer’s case is as to the meaning of “tumultuously”. But Lyell J’s analysis and view of the purpose of the Act was an important part of his reasoning as to the meaning of the word. It is difficult to regard what he said as obiter dicta or to regard the approval of his judgment by the Court of Appeal in Edmonds’ case (in which Pitchers’ case was considered) as such. Walker J did not do so in Bedfordshire Police Authority v Constable.

There is, however, undoubtedly, support to be found for the claimants’ submissions in the cases of Kaufmann and Pitchers. But Kaufmann’s case did not consider the background to the 1886 Act or of the cases on the 1714 Act, in particular Wiles J’s judgment in Mason v Sainsbury. It appears to have overlooked the limitation period in the regulations made pursuant to section 3(2) of the Act. Its authority is also affected by the absence of any consideration of cases concerned with the meaning of “default”. For example, in Re Young & Harston’s Contract (1885) 31 Ch D 168 (albeit in a different context) Bowen LJ stated that default “means nothing more, nothing less, than not doing what is reasonable under the circumstances - not doing something which you ought to do, having regard to the relations which you occupy towards the other persons interested in the transaction”. Walker J did not regard Kaufmann’s case as inconsistent with his view that compensation payable under the 1886 Act was payable in respect of a duty on the police authority.

What of Pitchers’ case? At first instance, Swift J stated (see paragraph [124] above) that the Act provides a statutory no-fault compensation scheme and, in the Court of Appeal Atkin LJ said (see paragraph [128] above) that he was “far from saying that the Crown would not be entitled to recover compensation” for damage to Crown property in barracks. Atkin LJ’s statement is not relevant to whether the Act is duty based or creates a no-fault compensatory scheme. It is primarily of relevance to the question whether the first and second claimants, as companies with public law responsibilities for order in the detention centre, were entitled to bring claims under the 1886 Act and I consider it later in this judgment.

Swift J, like the Divisional Court in Kaufmann’s case, did not analyse the background to the Act or the cases on the 1714 Act, and the Court of Appeal did not comment on his view. Neither Swift J nor the Court of Appeal was asked to construe the words of the 1886 Act. In the Court of Appeal, although (see for example Lord Sterndale in the passage set out in paragraph [125]) there was reference to the difficulties in the police exercising their rights because of the “superior forces” possessed by the military powers, the main issue concerned the geographical ambit of a police area. It was argued that it was the presence of military authorities in the camp that meant it was outside the police area. So Lord Sterndale MR stated ([1923] 2 KB at 68) “the locus in quo of this disturbance is said not to be within the police district, and in order to deal with that argument, it is necessary to consider what this locus is”. The police had, however, exercised jurisdiction within the area of the camp on other occasions (see [1923] 2 KB at 69-70) and it was not argued that they did not owe a duty to the plaintiff or her shop which was alongside the Portsmouth road.

Swift J, Lord Sterndale MR and Atkin LJ referred to the legal right of the police to quell a disturbance in the barracks but did not refer to the nature of their duty to do so in the circumstances, perhaps because it had not been argued that the police were not under a duty to the plaintiff. Swift J and Lord Sterndale referred to the practical difficulties in the way of the police exercising their rights but Atkin LJ stated that the rights of the police to enforce process in the barracks were subject to “such limitations as may be imposed by the fact that the premises are premises of the Crown”.

For these reasons, I do not regard the decision of the Court of Appeal in Pitchers’ case as supporting the view that the 1886 Act imposes a no-fault compensatory scheme or providing a reason for not following the analysis of Lyell J in Dwyer’s case, approved in Edmonds v East Sussex Police Authority.

Conclusion:

I now return to the question of the eligibility of the claimants to bring a claim under the 1886 Act. I have concluded that a duty to maintain order within the detention centre was imposed on the claimants by virtue of their status as the operators of a contracted out detention centre on behalf of the Home Secretary. Although this did not remove the duty of the Bedfordshire police force to maintain law and order in the centre, for the reasons I have given, the status of the claimants as public authorities with statutory responsibilities for order and security within the centre did affect the discretion the police had in deciding how to exercise that duty. The police were entitled to take into account the claimants’ public law responsibilities and the contractual and other arrangements and understandings as to how serious disorder in the centre would be handled, and thus not to enter the centre until requested to do so by the claimants.

I have stated that the fact that a decision by the police not to enter the centre until requested to do so by the claimants (whether pursuant to paragraph 9 of the JPA or otherwise) was lawful does not address the issue of the scope of the 1886 Act. As was recognised in Pitchers’ case, the fact that it might not be physically possible for the police to quell a disturbance or that there are practical difficulties in them doing so does not of itself preclude a claim under the Act. If the claims in this action are otherwise within the scope and intention of the 1886 Act, the strict basis of the police authority’s responsibility under the 1886 Act means that the claims in this action in respect of damage and injury suffered as a result of riotous and tumultuous behaviour would in principle be maintainable irrespective of whether a handover pursuant to paragraph 9 of the JPA was invoked on 14 and 15 February 2002. If the claims were otherwise within the Act and the claimants did not hand over control of the incident to the police pursuant to paragraph 9 of the JPA or otherwise during the riot, that fact would, however, be relevant to the assessment of the amount of compensation under section 2(1), as part of the consideration of the conduct of the claimants. The public responsibilities of the claimants would be of particular relevance to that assessment.

The fundamental point that 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. In this case a public law duty to maintain order within the detention centre was imposed on the claimants by virtue of their status and in that sense on behalf of the public. 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 the police force are more general, in relation to order on the part of the detainees within the detention centre they are broadly equivalent.

The claimants have a different status to ordinary citizens, such as the plaintiff in Pitchers’ case. The only support in the cases for Mr Gatt’s submission that the claimants’ public law status, and even (which he did not accept) responsibility for law and order within the centre did not bar them from claiming was what Atkin LJ said (see paragraph [128] above) in Pitchers’ case about the position of the Crown. Atkin LJ said he was “far from saying that the Crown would not be entitled to recover compensation” for damage to Crown property in barracks. This does, as Mr Gatt submitted, indicate that he did not contemplate an absolute bar on a body with responsibilities for law and order in a particular case (such as the Crown in the form of the military authorities) being entitled to make a claim for compensation if a riot occurred.

The position of the Crown was, however, not before the court and Atkin LJ’s statement was neither necessary for the decision nor unqualified. Moreover, earlier in his judgment (see paragraph [127] above), he recognised that the ordinary rights of the police to enforce process in the barracks are subject to “such limitations as may be imposed by the fact that the premises are premises of the Crown”. The focus of his judgment was, as was the focus of the other judgments in the Court of Appeal, the question whether the area of the camp was within the police district. Atkin LJ had no doubt that it was. Sir David Williams, in Keeping the Peace: The Police and Public Order (1967) 38 states that “it was held that the action lay despite the fact that the property was in a military camp and the rioters were soldiers” and does not refer to the possibility of a claim by the Crown. By way of a footnote, I add that Atkin LJ did not consider the Regulations as to claims for compensation under the Act which, while not in themselves affecting the interpretation of the 1886 Act, for the reasons I shall give (paragraph [153]), suggest that it was not contemplated that government, i.e. the Crown, could claim under the Act.

I also have regard to the statutory predecessors to the 1886 Act. I do so because it is not altogether clear from the body of the Act whether its purpose was a no-fault compensation scheme or a scheme based on responsibility and duty and its statutory predecessors assist in interpreting its provisions in the social and factual context which originally led to their enactment. This includes the preamble to the 1886 Act, set out in paragraph [34] above. The appropriateness of taking the preamble into account is unaffected by its repeal in 1893: see Statute Law Revision Act 1898, section 1 and Powell v Kempton Racecourse Co. Ltd. [1897] 2 QB 242, affirmed [1899] AC 143. The statement in the preamble that “it is expedient to make other provision respecting” the compensation the hundred or other area is liable to pay “and the mode of recovering the same” shows the expressed intention of the 1886 Act was not to change fundamentally the nature of the compensation duty but merely to modernise the mechanism of compensation. This was done to reflect the fact that, by 1886, both the role and identity of the hundreds had diminished and the police had now emerged as the primary public authority with the relevant responsibility.

Prisons had become the responsibility of central government before the enactment of the 1886 Act. The relevant government department decides where to build a prison, and may do so for national reasons and against the wishes of the local government authorities and local inhabitants. The claimants’ submissions involve accepting that historically the hundred would have been responsible for the consequences of disorder within a prison in its area and that today the government department responsible for prisons is entitled to make a claim under the 1886 Act. Although today police authorities receive a substantial grant in aid of the cost of police services from central government, the effect of the claimants’ submissions would be to enable central government (or those acting on its behalf) to transfer the financial burden of riot damage to one of its prisons by rioting prisoners to local taxpayers.

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 for 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.

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.

Matters not taken into account

Analogy with alleged common law “source of their own loss” principle

I have referred to the defendant’s reliance on a distinct principle that a party upon whom a public responsibility lies should not be entitled to rely on a statutory cause of action such as that under the 1886 Act where the loss claimed arises out of that public responsibility. Mr Watson’s written submissions describe the third of the preliminary issues as the “source of their own loss” issue although, as that issue is formulated, it is wider. In view of my decision on the scope of the 1886 Act, it is not necessary to deal with the “source of their own loss” issue. Moreover, I do not consider that it is susceptible of determination at the preliminary stage on the basis of the facts assumed for the hearing before me.

Mr Watson relied in particular on the observation of Lord Reid in Boyle v Kodak Ltd. [1961] 1 WLR 661 at 666, when rejecting a claim for breach of safety regulations by an employee who was to blame for his accident. Lord Reid stated

“The doctrine of absolute liability, which was invented by the courts, can lead to absurd results when coupled with the employer's vicarious liability. .... So the courts have quite properly introduced a qualification of the employer's absolute liability. A principle of law has been established that, although in general the employer is under absolute liability in respect of such a breach, the employer may have a defence to an action against him by an employee who is also in breach.”

He submitted that the same principle applied, either directly or by analogy to liability under the 1886 Act. He also relied on; Fletcher v Rylands (1868) LR 3 HL 265, Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co. Ltd. [1985] AC 210, and Reeves v Metropolitan Police Commissioner [2000] 1 AC360. While a statute must be understood in the light of the underlying common law position, Mr Watson’s proposition involves using a number of specific principles qualifying liability in different contexts into a general principle. The analogical force of those principles to the present case varies. It is weakest in the case of the principle discussed in Peabody Donation Fund v Sir Lindsay Parkinson, whether it was “just and reasonable” to impose a duty of care on a local authority. It is stronger in the case of that stated in Boyle v Kodak Ltd..

The reason I do not consider that the question whether the principles in the cases relied on by Mr Watson have any analogical application in the present case is susceptible of determination at this preliminary stage is because the issue whether the claimants were in fact in breach of their duties under the 1999 Act and the 2001 Regulations is a fact-specific one. The facts agreed for the purposes of the present hearing do not include agreement about facts which are important in the determination whether the claimants are, in fact, in breach of their duties. For instance, there is no agreement as to whether during the period between 21.00 hours and 00.59 hours the parties met and liaised with a view to implementing an intervention plan to regain control of the centre and whether the police asked to be given “primacy” of the incident. There is also no agreement as to whether the claimants’ duties to maintain security and order in the detention centre were strict or qualified in some way by, for example, a “reasonableness” criterion, and no submissions were made on this matter.

The role of the Home Secretary under the Regulations made pursuant to section 3(2)

My conclusion as to the scope and purpose of the 1886 Act is consistent with the provision in section 3(2) of the Act for the Secretary of State to make regulations as to the time, manner and conditions under which claims for compensation under the Act are to be made and the provision in the Regulations as to claims for compensation for the Secretary of State to hear appeals from refusals of a police authority to enlarge the fourteen day period within which claims are to be made, and for the decision of the Secretary of State to be conclusive. The relevant Secretary of State for the purposes of the Regulations is the Home Secretary, who, until recently was responsible for prisons and still is responsible for detention centres. Giving the Secretary of State an appellate role and making his decision conclusive is a factor that tends to suggest that it was not contemplated that the Secretary of State could be a claimant under the Act but I accept Mr Gatt’s submission that the terms of the Regulations cannot drive the interpretation of the Act.

Statements made during the Parliamentary consideration of the Bill that became the 1886 Act:

I have also not relied on the statements made by the Home Secretary and the Attorney-General during the Parliamentary consideration of the Bill that became the 1886 Act or the bald and completely unsupported statement that the assumption underlying the 1886 Act is that riots are a culpable failure to provide adequate policing contained in the July 2003 Home Office Consultation on options for review of the history and operation of the Act.

The latter is entirely irrelevant. As to the former, clear and unambiguous ministerial statements are part of the background to legislation and can be used to identify the mischief which led to its enactment and to prevent the government placing a different meaning of words used in a legislative provision than that which it attributed to the words when promoting the legislation in Parliament. But “they cannot control the meaning of an Act of Parliament”: Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, at [58] per Lord Nicholls. See also Lord Hope in R v A (No 2) (Rape Shield) [2002] 1 A.C. 45 at [69] and Anderson v Scottish Ministers [2003] 2 A.C. 602 at [6-7]. Moreover, it is conceptually and constitutionally impermissible to treat “the intentions of the Government revealed in debates as reflecting the will of Parliament”: Wilson v First County Trust Ltd (No 2) at [59] per Lord Nicholls, see also Lord Hope at [113-116] and Lord Hobhouse at [139-140]; Aston Cantlow and Wilmott with Billersley PCC v Wallbank [2004] 1 A.C. 546 at [37] per Lord Nicholls. These cases reflect the retreat from Pepper v Hart [1993] A.C. 593 which was started by Lord Steyn’s Hart lecture, (2001) 21 OJLS 59.

Having reached my conclusion as to the scope and purpose of the 1886 Act by a different route and, without regard to the statements made in Parliament, it is nonetheless interesting to note that they are consistent with it. The Home Secretary, on introducing the Bill, described the explicit inclusion of insurers as claimants and the change in area to the police district as “one or two of the leading features” of the Bill (HC Debs 11 May 1886 cols 806-805) and concluded “that is really the whole scope of the Bill”. At its second reading, Sir Charles Russell, the Attorney General, (HC Debs 20 May 1886 col. 1613) said “The principle of the Bill is to recognise liability for defective police protection resulting in damage by riot. It has been thought better to make the area of liability correspond with the area of separate police districts...”.

Conclusions on the preliminary issues and overall conclusion

Issue (1): This issue falls into two parts. The first is whether GSL and YWIL were acting as public authorities exercising coercive powers of the state in carrying out its public function in respectively having the responsibility for operating and operating the Yarl’s Wood immigration detention centre. The second arises if they were acting as such. It is whether the claims brought by them in this action are outside the scope and intention of the1886 Act.

YWIL and GSL were acting as public authorities exercising coercive powers of the state in carrying out its public function in respectively having the responsibility for operating and maintaining the Yarl’s Wood immigration detention centre. My reasons for this conclusion are given earlier in this judgment, but I summarise them here. The state, through the Home Secretary and pursuant to statutory power, gave YWIL and GSL responsibility for maintaining security and order within the detention centre. The sub-contracting of the operation of the centre by YWIL to GSL in the manner contemplated by the 1999 Act and with the consent of the Home Secretary did not relieve YWIL of its responsibilities. The fact that GSL was a sub-contractor does not preclude it from acquiring those responsibilities. Sub-contracting was contemplated by the 1999 Act which required a sub-contractor such as GSL to operate the centre in accordance with its provisions and the rules made under it: see section 149(2)(a). The arrangements for the operation of the detention centre meant that it was being operated on behalf of the Home Secretary.

The fact that YWIL and GSL 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.

Issue (2): This issue also falls into two parts. The first part is whether Yarl’s Wood Immigration Detention Centre was outside the effective scope of police control by reason of the fact that either GSL or YWIL or both of them were the sole, or alternatively the primary, body entrusted by the state with the responsibility for maintaining security and good order within Yarl’s Wood. The second part is whether, if the detention centre was outside the effective scope of police control for this reason, whether the claims in this action are outside the scope of the 1886 Act.

The specific responsibility given by the state to YWIL and GSL for order and security within the detention centre pursuant to statute and rules can be described as “primary” when compared with the responsibility of the police force. Notwithstanding this the police force remained under its fundamental duty to maintain order within its area, including within the detention centre, and retained its powers, including its powers of entry, to do so. Accordingly, the detention centre was not outside the effective scope of police control by reason of the claimants’ public law responsibilities. However, for the reasons given in paragraphs [81] – [86] of this judgment, YWIL and GSL’s specific public law responsibilities in respect of order and security had an impact on the discretion the police force had in deciding how to exercise its duty to maintain order within the centre. In view of my conclusion that the claimants’ public law powers and responsibilities within the detention centre did not mean it was outside the effective scope of police control, the second part of this issue does not arise.

I have concluded that the claim falls outside the scope of the 1886 Act because the claimants’ loss was suffered as a result of riot damage caused by detainees within the centre for which they had public law responsibility for order and security. In respect of the time before the police force was asked to take over control of the detention centre is there an additional reason for the claim falling outside the scope of the 1886 Act? I have concluded (see paragraphs 140 –148) that the basis of the 1886 Act is a duty on the relevant police authority and that the purpose of the 1886 Act was to make provision for claims against the public authority with responsibility for order.

If the public law powers and duties of the claimants meant that the decision by the police not to take over or to enter the centre until the claimants requested them to do so was lawful, does that mean that before that time (at the earliest, 0050) no claim lies because the police were not in breach of their public duty of enforcing the law and keeping the peace? Since I have held that a claim by an entity which is a functional public authority with specific responsibilities under the 1999 Act and the regulations made under it for security and order within the detention centre is outside the scope of the 1886 Act, this question does not fall for decision. The question only arises if (contrary to my decision) a claim by a public authority with specific responsibility for security and order in a given situation, whether in a prison or a detention centre or elsewhere, does not fall outside the scope of the Act. In that case, notwithstanding the duty basis of the Act, in the light of the decision in Pitchers v Surrey CC and the strict liability imposed on the police authority, whether or not the police force was at fault in not preventing the damage or injury it would appear that a claim for compensation by the other public authority would lie against the police authority.

Issue (3): The third preliminary issue is whether by reason of the powers, functions and responsibilities of GSL and/or YWIL for maintaining security and good order within Yarl’s Wood identified in issues (1) and (2) above, the claims in this action are outside the scope and intention of the 1886 Act. This issue is wider than what Mr Watson referred to as the “source of their own loss” issue. For the reasons I have given in dealing with issues (1) and (2) the claims in this action are outside the scope and intention of the 1886 Act. In relation to the submission that the claimants cannot recover because they are the source of their own loss, for the reason given in paragraph [152], I do not consider this issue to be susceptible of determination at this preliminary stage.

Issue (4): This issue concerns the effect of the terms of the Yarl’s Wood JPA on the statutory and common law powers and duties of the defendant to prevent or respond to criminal acts which occurred or were suspected to have occurred at Yarl’s Wood. Paragraph 2 of the Yarl’s Wood JPA recognises that the JPA does not displace the powers and duties of the police to prevent or to respond to criminal acts or to maintain order. A provision which expressly sought to do so would, for the reason given in paragraphs [80] and [83] probably have amounted to an improper fetter on the police’s duty to maintain order.

However, for the reasons given in paragraphs [81] – [86], the first and second claimants’ specific public law responsibilities in respect of order and security within the detention centre have an impact on the discretion the police force had in deciding how to exercise its public duty of enforcing the law and keeping the peace in the circumstances that arose on the night of 14 and 15 February 2002, and thus whether they were in breach of their duty. Those responsibilities and the arrangements made by the claimants and the prison service, and by the claimants and the police (in the JPA) mean that in the circumstances a decision by the police not to take over or to enter the centre until requested to do so by the claimants was lawful.

If (contrary to my decision) the claims in this action were otherwise within the scope and intention of the 1886 Act, the strict basis of the police authority’s responsibility under the 1886 Act means that the claims in this action in respect of damage and injury suffered as a result of riotous and tumultuous behaviour would in principle be maintainable irrespective of whether a handover pursuant to paragraph 9 of the JPA was invoked on 14 and 15 February 2002. However, 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 conduct of the claimants.

Overall conclusion: 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. The intention behind 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. If the first and second claimants fall outwith the scope of the 1886 Act, so do the third claimants, their insurers.

Joint Protocol Agreement Between Bedfordshire Police and Group 4 Immigration Services in Respect of Resolving Disturbances/Incidents at Yarl’s Wood, Clapham, Bedford

Group 4 is contractually bound by the Secretary of State to run the Immigration Detention Centre known as Yarl’s Wood (the “Detention Centre”). Nothing contained within this document alters that. 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”).

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.

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.

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

Likewise, the command and control of Group 4 employees always remains with Group 4 management.

Nothing at 4 or 5 above prevents joint operations, the free flow of information and joint control within an agreed silver command structure giving primacy of command to Bedfordshire Police in the event that the assistance of Bedfordshire Police is requested by Group 4 in accordance with the Contract.

Staffing levels of Group 4 in support of the Contract will not in any way be altered as a result of this Agreement. It is the duty of Group 4 to manage all minor or protracted incidents within the Detention Centre under the terms and conditions of the Contract.

In the event of one of the following criteria being met, and only on the authority of an officer not below the rank of Superintendent, Bedfordshire Police undertake to assist Group 4 in resolving or containing the incident. The level of response will depend on the view of the authorising officer as to the severity of the incident.

Criteria:

Serious incident requiring Group 4 to establish an Incident Command and supporting structure pursuant to the Contract beyond the control of Group 4; or

Threats of escape by large number; or

The commission of a serious criminal offence where there is a threat to life or serious damage to property;

A full Gold/Silver/Bronze command structure will be implemented. Command of the operation will be with the senior police officer for the duration of the operation. Group 4 will undertake to provide appropriate staff for the various levels of command and will provide a communications base.

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, their numbers and deployment being the sole responsibility of the Bedfordshire Police.

Nothing within this Agreement guarantees any police response beyond their statutory duties.

If any incident became protracted and was not involving any criminal activity, i.e. potential escape, then Bedfordshire Police will only support Group 4 for a period not exceeding 12 hours, beyond which time Group 4 will assume full responsibility.

Yarl’s Wood Immigration Centre

Incident Command Structure

Incident Briefing

All incoming internal/external Group 4 staff

All incoming external agency support staff i.e. Prison Service

All incoming operation ‘Tornado’ teams

Relief Silver Command Team members

All responding emergency services i.e. Police, Fire, and Ambulence

Bedfordshire Police Contingency Plan No 149 Yarl’s Wood

Risk Assessments

Operational

Health and Safety

There are a number of scenarios and Police responses to consider. Officers engaged in any operation at the Centre must be mindful of the need for scene preservation for any subsequent criminal investigation.

Escape/Attempted Escape of a Detainee.

Demonstration outside the Centre.

Serious Incidents within the complex which could include:

Death of a Detainee.

Partial/Full Evacuation of Premises.

Industrial Dispute.

The Police response to any incident at the Yarl’s Wood I.D.C. will be dependant on the seriousness of the incident. To assist the ‘B’ Division Chief Inspector or the Duty Inspector ‘B’ Division, Call Handling Centre must dispatch a double crewed uniformed mobile to the Centre to make contact with the Duty Officer Group 4 and obtain a situation report. This unit will act at the Control vehicle until further notice or the arrival of the Duty Inspector who will assume the role of Bronze Commander. The Duty Superintendent must also be briefed in relation to any incidents at the Centre.

If a large scale Police response is required it will be co-ordinated by Operational & Contingency Planning, G Division.

PROTOCOL – A joint protocol between Group 4 and Bedfordshire Police has been agreed in respect of resolving disturbances/incidents within Yarl’s Wood I.D.C., a copy of the agreement is attached at Appendix D.

PRIMACY – Group 4 are contracted by the Home Office to deal with safety and security of their personnel and those detained within Yarl’s Wood I.D.C.. However, in the event of the following criteria being met, and only on the authority of an Officer not below the rank of Superintendent, Bedfordshire Police will assume control of the Centre.

Serious incident that Group 4 on their own cannot safely resolve or

Threat of escape by a large number or

The commission of a serious criminal offence where there is a threat to life or serious damage to property

Police Response Options

Serious Incident Within the Complex