Karagozlu v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 2006 |
| Neutral Citation | [2006] EWCA Civ 16911691 |
| Docket Number | Case No: B2/2005/0915 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 2006 |
[2006] EWCA Civ 1691
The Master of The Rolls
Lord Justice Scott Baker and
Lord Justice Thomas
Case No: B2/2005/0915
4CL00019
Colin Challenger (instructed by Saunders & Co) for the Appellant
Jason Beer (instructed by Directorate of Legal Services, Metropolitan Police Service) for the Respondent
Sir Anthony Clarke MR:
This is the judgment of the court.
Introduction:
This appeal raises an interesting question as to the ingredients of the tort of misfeasance in public office, which we will call 'misfeasance' for short. It is common ground that the claimant must prove damage, sometimes called material or special damage. The question is whether loss of liberty is damage and, if so, what amounts to loss of liberty for this purpose.
It is an appeal from part of an order of District Judge Avent made at the Central London County Court on 24 September 2004 in which he struck out the claimant's claim against both defendants. The first defendant was the Commissioner of Police of the Metropolis whom we will call 'the Commissioner'. The second defendant was the Secretary of State for the Home Department, although it appears that the intended defendant was the Home Office. For convenience we will call the second defendant 'the Home Office'. The claimant, whom we will call 'the appellant', did not appeal against the order striking out his claim against the Home Office. His application for permission to appeal against the order striking out his claim against the Commissioner was refused by the district judge. Permission was subsequently granted by his Honour Judge Collins on 22 March 2005 and the appeal was transferred to this court under CPR Part 52.14. As appears below, the grounds of appeal now advanced are not the same as the grounds which persuaded Judge Collins to grant permission to appeal.
The facts
On 8 November 2001 the appellant was sentenced at Woolwich Crown Court to 6 years imprisonment for conspiring to defraud Her Majesty's Customs & Excise. It was a VAT fraud. He was also sentenced to 3-12; years imprisonment for perverting the course of justice. The sentences were ordered to run consecutively, so that the total period of imprisonment was 9-12; years.
The appellant had been held on remand pending his trial. While on remand he was held in Category A conditions. By the time of his conviction he had been on remand for about 3 years. After conviction he was given the status of a Category B prisoner. On 15 February 2002 he was given the status of a Category D prisoner and consequently moved to HMP Ford in Sussex. HMP Ford is an open prison.
On 19 March 2002 the appellant was segregated in HMP Ford under rule 45 of the Prison Rules 1999. The reason given on Form F1299D, which is entitled "Segregation under Prison Rule 45" and which was signed on that day by Nigel Foote, was as follows:
"Following information received, it is believed to be unsafe for you to remain at Ford. To remain in the segregation unit for your own safety until a move is arranged from HMP Ford."
On the same day Mr Foote completed a Re-Categorisation/Re-Allocation Form (known as an RC/1) . Under the heading "comments" he said this:
"Information received from PLO (Police Liaison Officer) that this prisoner's life might be in danger if he remains at HMP Ford. Should return to closed conditions in the interest of prisoner's safety. Any move back to open conditions must be in liaison with Police Liaison Officer."
The RC/1 stated that the appellant was to remain a Category D prisoner, although on the same day he was moved from HMP Ford to HMP Winchester. It is alleged in the particulars of claim that HMP Winchester is a closed Category B prison and that it does not cater for prisoners with a Category D status.
On 21 March 2002 the appellant completed a complaints form. The top half of the form is completed by prison staff and shows that the appellant was still considered a Category D prisoner on that date. The appellant said that he was not aware that he was in any danger and asked that his case be investigated. He also said:
"… on the afternoon of 17 March 2002 I was escorted by 2 prison officers to HMP Winchester, once again to secure conditions. I was told it was for my safety, I could not understand how or why my own safety suddenly became an issue. After arriving here at HMP Winchester, the staff were as surprised as me and were anxious to help me get to the bottom of my plight. After looking into my problem, I was told that the only further information they could come up with was, not only was my safety an issue, but also my wife was in danger. … I am aware that a police liaison officer has passed this information on to a higher authority who had little chance but to respond. This is where my suspicions lie. … I do not wish to sound cynical, however from the very start there has been a great deal of animosity and hostility between the police and those of us charged by them. … I believe without any doubt that the police are victimizing me even though my case is over. It seems very odd the police have not approached me to discuss this threat…"
The date of 17 March seems to be a mistake for 19 March.
On 10 April 2002 the appellant was categorised as a Category C prisoner. On a Form ICA 1, which was completed by one IK Lawson and produced by the Prison Service, the following handwritten note appears:
"Instructed by HQ to categorise this inmate as CAT D. Thought inappropriate as he was a potential CAT A until 21/11/01. There is no old categorisation form in his F2050 and page 1 states CAT B."
On 15 May 2002 Caroline Dale, of the Deputy Director General's Briefing and Casework Unit at Prison Service HQ, replied as follows:
"…from our telephone conversations you have stated that you are aware the reasons for your removal were not due to the initial explanation that threats had been made against your life but rather issues surrounding public safety.
Belmarsh considered you to be a model prisoner and re-categorised you to open conditions. It was also noted whilst at Ford you successfully completed an unescorted visit to hospital. However, evidence had been given in the Crown Court as late as 1 May 02, stating that you have access to firearms over and above those held in possession by your brother. Evidence has also shown that you have threatened police and customs officers.
This behaviour is not conducive to being held in Cat D conditions and therefore the decision to transfer you. I offer you my apologies for the initial confusion regarding the reason for your removal from Ford. I understand this may have been distressing to yourself and your family…"
It is the appellant's case that the reason given in this letter for the appellant's removal to Winchester is entirely different from that given originally.
In June 2002 the appellant complained to the Prison and Probation Ombudsman about his transfer. On 23 August 2002 he commenced proceedings for judicial review against the Home Office. On 14 or 16 October 2002 he was returned to HMP Ford and apparently re-categorised as a Category D prisoner. On 2 January 2003 the judicial review proceedings were compromised; he withdrew his claim and the Home Office paid the costs of the proceedings. The complaints procedure concluded with a letter from the Ombudsman dated 22 October 2002 saying, among other things, that having regard to the judicial proceedings and the appellant's re-categorisation as a Category D prisoner, there was nothing more the Ombudsman could do.
The claim
On 6 January 2004 the appellant issued these proceedings seeking damages, including aggravated and exemplary damages, against the Commissioner and the Home Office. The proceedings maintained claims in misfeasance against the Commissioner and in both misfeasance and negligence against the Home Office.
As against the Commissioner, it was alleged that
i) the appellant's transfer from HMP Ford to HMP Winchester was carried out on the basis of information provided by DS Hill to officers at HMP Ford stating that he would be in personal danger if he remained at HMP Ford;
ii) that information was false and known by DS Hill to be false, alternatively was known by other officers to be false but passed to DS Hill; and
iii) the information was passed to the Prison Service maliciously and with the intention of causing the appellant damage.
The appellant's case is that DS Hill told his solicitors on the telephone that, shortly before his transfer from Ford, DS Hill wrote to Ford saying that he was in personal danger.
The Commissioner filed a defence which
i) admitted that "DS Hill and DCI Cousins sent a letter to the prison authorities";
ii) denied that the letter "alleged that the claimant was in personal danger"; and
iii) averred that "the information conveyed by DS Hill to the prison authorities related to persons other than the claimant and was true".
The allegations against the Home Office were somewhat different. They included a claim in negligence, whereas the allegations against the Commissioner did not, and the pleaded particulars of misfeasance were markedly different. It is not, however, necessary to set out the allegations in detail in order to determine the issues in this appeal, to which the Home Office is not a party. Suffice to say that the Home Office did not file a defence but on 18...
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