In R(Brooks) v Independent Adjudicator, Secretary of State for Justice Intervening [2016] EWCA Civ 1033, handed down 28.10.16, McCombe LJ, with whom Jackson LJ agreed, found in favour of submissions by Simon Murray, counsel for the successful appellant, the Secretary of State. He allowed the appeal on the basis inter alia that, as with Martin Luther before the Diet of Worms in 1521, the Prison Governor could only say ‘Here I stand, I can do no other. God help me! ’ in the face of allegations that he had acted unlawfully in HRA terms in detaining B because the Governor was obliged to detain him by reason of provisions of primary legislation (see paragraphs 14, 18 and 23 of the judgment). This point concerned the hitherto rarely used provisions of section 6(2)(a) of the Human Rights Act 1998 which provide that an act cannot be unlawful in HRA terms if the public authority could “could not have acted differently”. McComb thus accepted “the Luther Point”.

The Court of Appeal also found in favour of the SSJ’s submissions there was here no violation of Article 5(1) of the ECHR, in any event and, obiter, that it would notwithstanding the first two points have probably found that the Governor was a “second actor” and the case was one of the category where a decision quashed in judicial review proceedings was not void ab initio.