Lee Newell v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Peter Marquand |
| Judgment Date | 31 March 2021 |
| Neutral Citation | [2021] EWHC 810 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2016-003809 |
| Date | 31 March 2021 |
[2021] EWHC 810 (QB)
Peter Marquand
(Sitting as a Deputy High Court Judge)
Case No: QB-2016-003809
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Nick Armstrong (instructed by ITN Solicitors) for the Claimant
Jack Holborn (instructed by Government Legal Department) for the Defendant
Hearing dates: 8 th, 9 th and 10 th February 2021
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 Claimant, Lee Newell, is a convicted murderer serving a whole life term. On 27 November 2014, he was attacked by Gary Vinter, another prisoner serving a whole life term, whilst they were in the exercise yard of the Close Supervision Centre (CSC) at HMP Woodhill, which is a prison for which the Defendant is responsible. The Claimant suffered significant injuries as a result of this attack, including brain damage and the loss of sight in his right eye. He makes a claim in negligence and for a breach of Article 3 of the European Convention on Human Rights (ECHR) against the Defendant. He seeks damages and/or a declaration of the breach of his Article 3 rights for the failure of the Defendant, so he says, to prevent him from being harmed by others in custody, specifically, Mr Vinter. The Defendant does not dispute that it owed a duty to the Claimant to keep him reasonably safe and not to breach his Article 3 rights, but it is said on the facts, those obligations were met. Furthermore, the Defendant states the Claimant is out of time to bring a claim under Article 3 and the time limit should not be extended.
The issues
The issues I have to determine are as follows:
i) on the facts, did the Defendant keep the Claimant reasonably safe and if not, what are the causal consequences;
ii) should the Claimant be granted an extension of time under section 7(5)(b) of the Human Rights Act 1998, the claim having been issued after the expiry of the time limit prescribed in that Act;
iii) was there a breach of the operational duty under Article 3 of the ECHR by the Defendant;
iv) if the Claimant is successful under issue (i) above, what is the level of compensation (quantum) to which he is entitled; and
v) if the Claimant is successful under (iii), what is the quantum to which he is entitled and should a there be a declaration of the breach of Article 3?
The relevant legal principles to be applied
The burden of proof is on the Claimant to prove negligence and a breach of his Article 3 rights. The standard of proof is on the balance of probabilities.
The parties agreed the relevant law was set out in Stenning v Secretary of State for the Home Office [2002] EWCA Civ 793 where Brooke LJ at paragraph 45 endorsed the principles quoted at paragraphs 24 and 25 as follows:
“24. The only case cited to the judge at the hearing was the unreported judgment of this court in Palmer v The Home Office (CAT 25 March 1988). In that case the claimant had been stabbed by another prisoner who had been convicted of three murders and other very serious offences of violence. The aggressor was described as a loner with a paranoid personality. He generally behaved himself, but he was usually unco-operative with staff. He was said to be an angry, bitter and very dangerous man.
25. In his judgment, with which Dillon LJ agreed, Neill LJ quoted with evident approval a passage in Halsbury's Laws, 4th Edition, Vol 37, para 1140, which was to the following effect:
“The duty on those responsible for one of Her Majesty's prisons is to take reasonable care for the safety of those who are within, including the prisoners. Actions will lie, for example, where a prisoner sustains injury at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and attention, to the extent that it is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.”
Neill LJ added during the course of his judgment that:
“Those in charge of prisoners have a difficult task. Clearly except in extreme cases, of which obviously there are some, those responsible for prisons cannot keep prisoners permanently locked up and segregated from other prisoners.””
A claim for a breach of Article 3 ECHR is brought under section 6(1) of the Human Rights Act 1998 (‘the HRA’). There is a time limit for such claims in section 7(5) as follows:
“Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.”
There is no ‘stricter time limit’ in this case. The Defendant says this claim is brought outside the time limit of 1 year and the discretion to extend time should not be exercised. The Claimant seeks that extension of time. In relation to the exercise of my discretion to extend the time limit, Mr Armstrong referred me to the review of the relevant authorities on section 7(5)(b) in Solaria Energy UK Limited v Department for Business, Energy and Industrial Strategy [2020] EWCA Civ 1625 and paragraphs 42 to 53 in particular. Mr Holborn drew my attention to Kimathi v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) which deals with section 33 Limitation Act 1980 and in particular to paragraphs 115, 125, 134 and 135.
Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The allegations pursued by the Claimant relate only to the operational duty under Article 3. The parties agreed that the relevant test for that operational duty was the same as the operational duty under Article 2. This is quoted at paragraph 12 of the Supreme Court judgment in Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2. In this case there will be a breach of the positive obligation where the authorities knew or ought to have known at the time of the existence of a real and immediate risk of a breach of Article 3 to an identified individual or individuals from the acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. There is no dispute between the parties that what happened to the Claimant was sufficient to amount to a breach of Article 3.
In Rabone, Lord Dyson stated at paragraph 37:
“I accept that it is more difficult to establish a breach of the operational duty than mere negligence. This is not least because, in order to prove negligence, it is sufficient to show that the risk of damage was reasonably foreseeable; it is not necessary to show that the risk was real and immediate. But to say that the test is a high one or more stringent than the test for negligence does not shed light on the meaning of “real and immediate” or on the question whether there was a real and immediate risk on the facts of any particular case.”
As to a ‘real risk’ at paragraph 38 Lord Dyson rejected a submission that the risk had to be a ‘likelihood or fairly high degree of risk’ and referred to the evidence as establishing that ‘it was a substantial or significant risk and not a remote or fanciful one’. At paragraph 39 the judgment continues:
“…In the case of In re Officer L [2007] 1 WLR 2135, para 20, Lord Carswell stated that an apt summary of the meaning of an “immediate” risk is one that is “present and continuing”. In my view, one must guard against the dangers of using other words to explain the meaning of an ordinary word like “immediate”. But I think that the phrase “present and continuing” captures the essence of its meaning. The idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future.”
The standard demanded for the performance of the operational duty is reasonableness, as per Rabone paragraph 43. Whether or not the reasonable performance would have made a difference is relevant to damages under Article 3, see Lord Dyson MR as he was at paragraph 29 of Sarjantson v Chief Constable of Humberside Police [2013] EWCA Civ 1252. It is also not necessary for a Claimant to succeed to show that their identity was known. It is sufficient that the authority knew or ought to have known that there were victims (paragraph 25 Sarjantson).
Background
The CSC System
Within the prison population, there are a relatively small number of prisoners who are highly disruptive and represent a high risk. Rule 46 of the Prison Rules 1999 (SI 1999/78) gives the Secretary of State for Justice power (delegated to the CSC Management Committee) to place such prisoners in a CSC. The procedure for operating the CSC system is set out in the ‘Close Supervision Centres Operating Manual’ dated January 2014 (‘the Manual’).
The Claimant and Mr Vinter were both such prisoners and placed in the CSC at HMP Woodhill. The CSC at HMP Woodhill has 3 wings: housing unit 6A (HU6A), housing unit 6B (HU6B) and 6C wing, which comes under...
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