Daniel Cummings and Others v The Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat,THE HONOURABLE MR JUSTICE TUGENDHAT |
| Judgment Date | 17 January 2013 |
| Neutral Citation | [2013] EWHC 33 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X02608 |
| Date | 17 January 2013 |
[2013] EWHC 33 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ09X02608
Alison Macdonald (instructed by Birnberg Peirce) for the Claimants
Jeremy Johnson QC and Francesca Whitelaw (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 11 December 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimants are serving prisoners. They all seek damages (including aggravated and exemplary damages) in assault. The First Claimant (Mr Cummings) also alleges misfeasance in public office and malicious prosecution. All the claims arise out of events in HMP Frankland on the night of 27–28 June, and 3 and 4 August 2008. Mr Cummings claims that he was assaulted by racist prison officers and prisoners; falsely accused of assaulting white prisoners; and unfairly punished by being placed on report and in segregation. While in segregation, the Claimants claim that they were assaulted by prison officers following their spontaneous protest against the conditions of their segregation. A criminal prosecution was pursued against Mr Cummings in relation to the events of the night of 27–28 June, and was discontinued before trial.
The claims are denied. The Defendant ("MoJ") contends that Mr Cummings assaulted other prisoners and was lawfully restrained by prison officers, and lawfully placed in the segregation unit, and prosecuted by the police/CPS on the basis of truthful accounts given by prison officers, and that all Claimants were lawfully removed from their cells when they damaged them.
Assault claim —Mr Cummings on 27 June 2008
At about 5pm on 27 June 2008, there was a violent incident between prisoners on F wing. Prison officers intervened and used force. The facts of the incident are in dispute, both as to the circumstances and whether the force used was lawful.
The Claimants contend that a prisoner, Mr Rahman, was being attacked by other prisoners, that Mr Cummings went to assist him, that Mr Cummings was then attacked by five or six prisoners, that prison officers initially did nothing to stop the attack but officers then gratuitously assaulted Mr Rahman, and restrained Mr Cummings whilst prisoners ran up and punched him (and did not seek to prevent the prisoners from assaulting Mr Cummings). Prison officers then gratuitously assaulted Mr Cummings.
The MoJ contends that Mr Rahman and Mr Cummings had gratuitously assaulted another prisoner, Mr Hartley, and that Mr Cummings had used a bladed weapon to inflict an injury to Mr Hartley's face. Mr Rahman and Mr Cummings were restrained. Mr Cummings was taken to the segregation unit, where he was examined but no injuries were recorded. The MoJ admits that force was used to restrain Mr Cummings, but contends that the force was reasonable and lawful and denies any gratuitous violence and denies that any injuries were caused.
Misfeasance claim —Mr Cummings
Following the incident outlined above, Mr Cummings was placed in the segregation unit. He contends that this amounted to misfeasance because it was on the basis of allegations that were known to be false. The MoJ contends that the allegations were true.
Malicious prosecution claim— Mr Cummings
Following the incident outlined above, Mr Cummings was charged by the police with an offence of wounding. The CPS subsequently discontinued the prosecution. Mr Cummings contends that the charge was based on false evidence given by prison officers and that the MoJ is liable for malicious prosecution. The MoJ contends that the allegations were true, that it was for the police (and subsequently the CPS) to form their own judgment as to whether to prosecute, and that the MoJ is not liable for malicious prosecution.
Assault claims —all Claimants —3/ 4 August 2008
All the Claimants were in the segregation unit on the night of 3–4 August 2008.They each smashed up their cells (the Claimants say this was spontaneous, the MOJ says it was orchestrated). The Claimants were forcibly removed from their cells.
The Claimants contend that they were assaulted: Mr Cummings hit with fists and shields, forced to the ground, nose pulled, punched and kicked, racially abused; Mr Bashir punched, forced to the ground, head smashed into the ground, face scraped against broken glass, racially abused; Mr Boyoh pushed up against the window, forced to the ground, punched to head, kicked, racially abused.
The MoJ admits that force was used to move the Claimants, but contends that the force was reasonable and lawful and denies any gratuitous violence and denies that any injuries were caused (save that it is accepted that Mr Bashir sustained a bloody nose).
Counterclaim
The MoJ counterclaimed for damage deliberately caused by the Claimants to their cells. The Defence to Counterclaim has been struck out and judgment has been entered in the MoJ's favour on the Counterclaim.
PRE-TRIAL REVIEW ISSUES
There are issues as to scope of trial, mode of trial, manner of attendance and venue which are to be resolved at a pre-trial review.
Scope of trial —culture of racism
As set out above, all Claimants contend that they were racially abused by prison officers in the course of the assaults. The Claimants also contend that there was a culture of racism at HMP Frankland. They have served a large amount of evidence which the Claimants contend supports their allegations that the prison officers acted in a racist manner during the index events. The Claimants allege that only Muslim prisoners were sent to segregation following the incident on F Wing. The MoJ contends that much of the Claimants' evidence is irrelevant to the question of how the prison officers acted during the index events (it does not in any event relate to those prison officers), is not relevant to the claims, and that it would be disproportionate to investigate them (see para 5 of the Amended Defence). The Master has arranged for an early pre-trial review before the trial Judge to determine the scope of the trial and for the need for supplementary statements.
Mode of trial —Judge or Judge and jury
The Claimants seek trial by jury. Mr Cummings contends that he has a prima facie right to trial by jury in respect of the malicious prosecution allegation. Mr Cummings further contends that the factual basis for his claims for assault and misfeasance, as well as those claims brought by Mr Bashir and Mr Boyoh, are inextricably linked with the facts that support his claim for malicious prosecution, and that it would not be feasible or cost-effective to separate the two. This would lead to two trials dealing with substantially overlapping issues, with significant duplication of evidence and costs.
The MoJ contends that there is no right to trial by jury in respect of the assault and misfeasance allegations (which comprise the entire claim brought by Mr Bashir and Mr Boyoh). The MoJ recognises that there is a prima facie right to trial by jury in respect of the malicious prosecution claim brought by Mr Cummings, but contends that it would be disproportionate, contrary to the overriding objective and inconvenient if a jury were summoned to hear the entire case. The MoJ therefore contends that if the Court considers that Mr Cummings is entitled to a jury for the malicious prosecution claim, then the other claims should proceed first without a jury.
Attendance —video link
The Claimants seek to call 33 witnesses. The MoJ seeks to call 25 witnesses. The Claimants contend that they should be allowed to attend the trial in person in order to be able fully to participate in their trial by giving evidence in person, hearing the MoJ's witnesses, and also, critically, being able to give their legal representatives timely instructions on the evidence which they hear. They also contend that it would be unfair for the Claimants, and their witnesses, not to be present if the MoJ's witnesses were able to give evidence in person. The Claimants raise for discussion the possibility of locating them and their witnesses in a high security prison adjacent to a Crown Court (for example HMP Belmarsh / Woolwich Crown Court) for the duration of the trial, which the Claimants say could remove the need for costly transportation and other security measures. The MoJ says that would still cause very considerable costs and logistical difficulties.
The MoJ says that transporting Cs witnesses, all of whom are prisoners, individually to a known court over a 4–6 week period would give rise to very significant security concerns. The MoJ says that there is no reason why they (and, for that matter the Claimants) could not attend by video-link and that it would be contrary to the overriding objective for all witnesses to attend in person. This issue should be resolved at the pre-trial review (in conjunction with the issues as to scope, mode of trial and venue).
Venue
The MoJ say that if the Claimants and witnesses are to attend by video link then the trial could be heard in the RCJ in one of the courts equipped with video-link technology. Otherwise the case could not be heard in the RCJ and the venue will have to be determined at the pre-trial review.
WHAT EVIDENCE IS RELEVANT AND ADMISSIBLE?
Ms Macdonald submits that the Particulars of Claim includes an allegation that the regime at Frankland was such that racism on the part of prisoners was actively condoned by staff. She refers to a report, which is not pleaded, by Her...
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