James Marsh v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Lady Justice Thirlwall |
| Judgment Date | 21 July 2017 |
| Neutral Citation | [2017] EWHC 1040 (QB) |
| Docket Number | Case No: HQ13X01121 |
| Court | Queen's Bench Division |
| Date | 21 July 2017 |
[2017] EWHC 1040 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Thirlwall DBE
(Sitting as a Judge of the High Court)
Case No: HQ13X01121
Andrew Roy and Vanessa Cashman (instructed by Anthony Gold Solicitors) for the Claimant
Timothy Holloway (instructed by Government Legal Department) for the Defendant
Hearing dates: 15 th November to 17 th November 2016 21 st November to 25 th November 2016 28 th November to 2 nd December 2016 6 th December 2016
Further hearing: 29 th June 2017
This is a claim for damages for personal injury. The claimant is 56. From 2004 he worked as a prison officer at Downview, a prison for female offenders. He was suspended from duty by the defendant in February 2010 when the police executed a search warrant at his home in the light of allegations of sexual misconduct made by a serving prisoner. No charges were brought against him. He remained suspended on full pay until the conclusion of a disciplinary hearing. Having heard the evidence, the governor dismissed the single, remaining complaint and invited the claimant to return to work in July 2012. The claimant was suffering from depression and unable to work. On 30 th May 2013 he was dismissed on the grounds of his ill health. He began these proceedings in March 2013. It is his case that the psychiatric injury he suffered and the consequential losses were caused by the negligence and/or breach of contract of the defendant.
The defendant denies breach of contract and negligence and asserts that, notwithstanding the outcome of the defendant's disciplinary hearing in 2012, the claimant was in fact guilty of that and other misconduct which would (if known about) have led to his dismissal in any event. Much of the evidence relied on by the defendant goes to this issue.
Shortly before the trial the claimant made an application to strike out the defence as an abuse of the process of the court. I heard argument at the end of the evidence. I dismiss that application for the reasons set out in brief at the end of this judgment. I reject the submissions that the solicitor for the defendant acted with an excess of zeal when dealing with witnesses or that she was too close to the case.
Background
Surrey Police were invited into the prison by the defendant in late 2009 to investigate allegations of widespread corruption, principally that prison officers were involved in sexual misconduct with prisoners. The allegations came to light after prison officer Mr Bevan, the claimant's close friend, spoke at great length to a relatively new officer, KQ, about his own sexual misconduct within the prison. He implicated the claimant and other officers in similar behaviour.
KQ confided in another officer, Ms Gainey who advised him, quite properly, to report what he had been told to the corruption unit for the prison service. He did so by letter. The police were informed. The prison service then worked closely with the police to provide information to them. The investigation, named Operation Daimler, was a police operation but selected prison staff and managers worked with the police. The police devoted very significant resources to Operation Daimler.
Russell Thorne, a governor at the prison was arrested in December 2009 and suspended. In February 2010 the police, by agreement with the defendant but without warning to the suspects, executed a search warrant at the claimant's home and the homes of Mr Bevan and another officer, Mr Dykes. For reasons which were not explained, between 8 and 10 police officers attended to execute the warrant at the claimant's one bedroomed flat early in the morning as the neighbours were going to work. The search took several hours. The police seized the claimant's computer and mobile phone as well as some sleeping tablets. A prison governor, Ms Martin, attended with the police in order to suspend the claimant.
On 31st March 2010, by appointment, the claimant was arrested at the police station on suspicion of misconduct in public office arising out of two incidents:-
i) alleged sexual intercourse with a prisoner to whom he had previously supplied alcohol. This was alleged to have occurred on the night of Christmas Eve of 2007.
ii) an allegation that he had "grabbed or slapped" the buttocks of the same prisoner when she was lying on her bed in her cell.
Mr Bevan was said to have been present at both incidents and to have participated in the first.
The claimant was interviewed at length on two occasions by experienced police officers. He answered all questions and denied the allegations. By May 2010 the police assessed the evidence against him as weak and informed the defendant of this. The position did not change and on 16 th September 2010 the police wrote to the claimant to say that he would not face any charges. That was the end of police involvement with the claimant. A governor from Canterbury Prison was asked by the defendant to carry out a disciplinary investigation into the claimant's conduct. In November he informed the governor of Downview that the police had asked him to suspend his investigation because of the ongoing criminal proceedings against other officers.
Ultimately three prison officers were prosecuted for misconduct in public office arising out of consensual sexual relationships with prisoners. One (Mr Bevan) took his own life the night before the trial on 11 th June 2011. Mr Thorne was convicted of one count and sentenced to 5 years' imprisonment in July 2011. He was acquitted of a second count. A third, Mr Dykes, was tried on the same indictment as Mr Thorne in June 2011. The jury could not agree on three counts. Mr Dykes' retrial took place in November 2011 by which stage there were four counts as another complainant had been identified. The jury could not agree. In accordance with convention, there was no third trial. In his case the subsequent disciplinary process led to dismissal. A fourth officer, Mr Cummings, was investigated but not charged. He did not face trial. He was subsequently disciplined and downgraded.
In October 2011 Ms Pearce, a different governor from another prison, was appointed to carry out the disciplinary investigation into the claimant's alleged misconduct. After several months she advised that there was a case to answer in respect of one incident ie the 'slapping allegation'. At the end of the disciplinary hearing in June 2012 when the charge was dismissed, the claimant was invited to resume his post.
Stripped to its essentials it is the claimant's case that:-
i) it is well known by all, and certainly by the defendant, that the work of a prison officer is stressful.
ii) notwithstanding the existence of policies to manage stress, none had been implemented at Downview
iii) knowing a) that he was being subjected to a campaign of harassment by a prisoner (the complainant in the two matters investigated by the police) and b) that this was affecting his mental health, the defendant took no steps to stop the harassment or remove the complainant from the prison.
The defendant negligently and in breach of contract:
iv) failed properly to investigate the malicious complaint against him in 2009
v) failed to remove the complainant from the prison when it was plain that her complaint was malicious
vi) failed to inform the police that an investigation of the slapping incident had found it to be malicious
vii) failed to inform the police that the complainant had been harassing him in a number of ways, including seeking to coerce other prisoners to make false statements against him and failed to provide other exculpatory material to the police before a decision was taken to search his home.
viii) The claimant contends that had the slapping allegation been investigated when it was first made, in early 2009, the defendant would have found it to be false and removed the complainant from the prison, thereby protecting the claimant from further false allegations. In those circumstances, even if she had later made a false allegation of sexual intercourse he would not have been subjected to an early morning search of his home, in the context of Operation Daimler.
ix) In any event, the defendant should have arranged with the police a less intrusive search. Its failure to do so was a breach of contract/negligent. The circumstances of the search were traumatic, as the defendant must have foreseen and caused him foreseeable injury.
x) The suspension was in breach of contract and negligent.
xi) The defendant was further negligent and in breach of contract in failing to complete the disciplinary process within a reasonable time of the police decision not to charge. This prolonged and aggravated the injury as the defendant should have foreseen, knowing, as it did, that he was suffering from depression as a result of his circumstances.
xii) Carrying out a disciplinary investigation once the police had decided not to charge the claimant.
xiii) As a result of his illness the claimant was unfit for work for a prolonged period and was unable to return to the prison service with consequential financial losses.
It is not disputed that the defendant owed to the claimant, an employee, a duty to take reasonable care not to expose him to the risk of personal injury. All allegations of breach of contract and breach of duty are disputed. It is not disputed that the execution of the warrant was traumatic but the defendant submits that the execution of the warrant was inevitable and in any event it was outside the defendant's control. The suspension was not in breach of contract, nor was it negligent. The prolongation of the suspension was neither negligent nor in breach of contract. Causation is disputed. Quantum is disputed. The...
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