Houchin v Lincolnshire Probation Trust

JurisdictionEngland & Wales
JudgeLady Justice Sharp,Lord Justice Lewison,Lord Justice Patten
Judgment Date18 June 2014
Neutral Citation[2014] EWCA Civ 823
CourtCourt of Appeal (Civil Division)
Date18 June 2014
Docket NumberCase No: A2/2013/1145

[2014] EWCA Civ 823

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN's BENCH DIVISION

SUPPERSTONE J

[2013] EWHC 794 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Patten

Lord Justice Lewison

Lady Justice Sharp

Case No: A2/2013/1145

Between:
Houchin
Appellant
and
Lincolnshire Probation Trust
Respondent

Ms Heather Williams QC and Ms Quincy Whitaker (instructed by Atter Mackenzie) for the Appellant

Iain Daniels (instructed by Hill Dickinson) for the Respondent

Hearing dates: 19 th and 20 th February 2014

Lady Justice Sharp

Introduction

1

This is an appeal against the order of Supperstone J of 9 April 2013, granting summary judgment to the respondent pursuant to CPR 24(2)(a) and (b) on the ground that the appellant had no real prospect of succeeding in his claim at trial and there was no other compelling reason why the case should be tried.

2

The appellant is now 76 years old and was at the material time a serving life sentence prisoner. The respondent is responsible for the provision of probation services within the Lincolnshire area. The claim is for misfeasance in public office; and it is brought against the respondent on the ground that it is vicariously liable for the actions of one of its employees, Michael Gilbert. In January 2008 Mr Gilbert took up the position of Lifer Manager at HMP North Sea Camp, where the appellant was a serving category D prisoner.

3

The claim centres on the circumstances in which the appellant was removed from open conditions at HMP North Sea Camp on 8 May 2008 and returned to closed conditions.

4

In summary, the Particulars of Claim allege that Mr Gilbert created a false and deliberately distorted case in an "Open Conditions Failure Report" called an 'LISP4' (the LISP4 Report) recommending the appellant's removal from open conditions to closed conditions, without regard to the appellant's actual risk to the public; and in instigating the appellant's removal on the basis of the LISP4 Report, knowingly or recklessly acted beyond his powers in circumstances in which he knew that such an act would probably cause injury to the appellant. The injury alleged is the restriction of the appellant's liberty consequent on his removal to closed conditions.

5

It is also pleaded that Mr Gilbert's conduct was motivated by the improper purpose of diverting criticism on the mishandling of the appellant's case and/or by Mr Gilbert's view that the Parole Board was about to order the appellant's release or confirm that he be kept in open conditions.

6

Although motive is pleaded, the appellant maintains his case, as advanced in the Particulars of Claim is one of "untargeted malice", that is the second form of liability for misfeasance in public office referred to by Lord Millet in Three Rivers District Council v Governor and Company Bank of England (No 3) [2003] 2 AC 1 where at page 191 E-F, in a passage cited by both sides to this appeal, he said this:

"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."

7

For the reasons that follow I have concluded that the appellant's appeal should be allowed. In summary, in my judgment the judge was wrong to conclude that the relevant threshold for summary judgment had been surmounted in this case.

The factual background

8

On 22 August 1965 the appellant murdered a 16 year-old girl. The murder contained a significant sexual element to it. The victim was taken to a park for the purpose of having sexual intercourse and strangled there. On 16 November 1965 he was sentenced to life imprisonment. On 15 April 1976 he was released on life licence and in 1977 he met and began to live with a woman who became his second wife. Two years after his release he was convicted of a burglary, and received a 15-month suspended sentence of imprisonment. On 7 March 1979 his wife was granted an ex parte injunction against him under the Domestic Violence and Matrimonial Proceedings Act 1976 based on allegations of rape, assault and serious threats. On the 12 March 1979 the appellant violently raped a 19 year-old girl. She was a student unknown to the appellant and was raped at a guest home he owned, to where he had invited her for what purported to be a job interview. On 3 rd April 1979 his life licence was revoked and he was remanded in custody. Following his trial for rape, in July 1979 the appellant was sentenced to a total of 10 years and 3 months' imprisonment, including 9 years' imprisonment for the rape. The remainder of his sentence was for possessing a firearm whilst a disqualified person, assault occasioning actual bodily harm, theft, and in addition, his suspended sentence for burglary was activated. On 7 April 1993, the appellant did not return from compassionate leave, granted so he could visit his father in a Hospice. He was recaptured two weeks later.

9

The appellant has always denied the rape, contending the sexual intercourse that took place was consensual. His denial of the rape meant for many years, between 1979 and 1997 he could not undertake any "targeted offender behaviour" work. Such work is aimed at lowering the level of risk an offender poses to members of the public; it is relevant to whether the prisoner can progress from closed conditions to open conditions, and ultimately be released on licence. However in a report in 2004, a forensic psychologist at HMP Albany, Ms Capelin, addressed both the murder and rape offences, and supported the appellant's transfer to open conditions. She said that the appellant had shown a willingness to challenge and modify behaviours associated with areas of risk. The appellant's tenth statutory parole review considered that recommendation and other oral evidence and on 11 March 2005 recommended he be transferred to open conditions. On 24 April 2006, the appellant was duly transferred to open conditions at HMP North Sea Camp. By then, he had completed a number of offending behaviour courses including a Sex Offender Treatment Programme (SOTP) and a Better Lives Booster Programme (BLP).

10

The assessment of the needs of offenders and the measurement of the level of risk they pose to members of the public is made by the Probation Service through the Offender Assessment System (OASys for short). At the time of the appellant's transfer to HMP North Sea Camp his risk level i.e. the level of risk he posed to members of the public, was assessed as medium, but in an OASys assessment dated 22 June 2006, by Ms Rawlings, a clinical psychologist, his risk level was increased from medium to high for both the public at large and known adult categories. Ms Rawlings said the psychopathy assessment or risk matrix assessment individually would give cause for the expressed concern. A further OASys assessment by Mr Glenn Spencer dated 13 October 2006 also assessed the appellant's risk as high. As a result of his raised risk level, the appellant was no longer eligible for unescorted leave, though he was permitted to take escorted town visits with his personal officer, Officer Baker.

11

Release on Temporary Leave or ROTL, on days out and home leave enables an assessment to be made about whether a prisoner would be a danger to the public were he to be released. A progress report (called an LSP3E report) by Mr Baker dated 27 January 2007 said due to the assessment of his risk level as high the appellant could not prove himself under licence conditions for days out and home leave. This was not the appellant's fault but it meant that he was unable to progress in open conditions, and therefore release could not be recommended. Multi-Agency Public Protection Arrangement (MAPPA) meetings take place between those agencies responsible for the management of violent and other offenders who pose a serious risk of harm to members of the public. Mr Baker's view that the appellant was unable to progress was echoed in a number of MAPPA meetings about the appellant that took place before Mr Gilbert was in post. In a MAPPA meeting of 26 July 2007 concerns were raised as to his suitability for open conditions. In a MAPPA meeting of 4 October 2007 it was noted that the appellant's risk was assessed as high: and that a move to closed conditions had clearly been considered but seemed unlikely due to good behaviour.

12

On 1 January 2008 Mr Gilbert took up the position of Lifer Manager at HMP North Sea Camp. He had a brief introductory meeting with the appellant on 3 January 2008.On 8 February 2008 Mr Gilbert emailed Sarah Skett, the Area Psychologist for the East Midlands region about the appellant saying: we must not sit on him any longer, but don't feel we can regress him. He asked for advice on what would be sufficient to trigger a regressive move. On 28 February 2008 the appellant and Mr Gilbert attended a sentencing planning meeting. On 29 February 2009 Mr Gilbert began to prepare the LISP4 Report. Mr Simon Hudson, a security analyst, provided a report (or security gist as it was later referred to) to Mr Gilbert the same day, which examined reports on the appellant during his time in custody, his adjudication record, and...

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