Leslie Malcolm v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SWEENEY,Mr Justice Sweeney |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWHC 3389 (QB) |
| Date | 21 December 2010 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ08X01539 |
[2010] EWHC 3389 (QB)
IN THE HIGH COURT OF JUSTICE
Swansea Guildhall Crown Court
St Helens Road, Swansea, SA1 4PE
Before: Mr Justice Sweeney
Case No: HQ08X01539
Miss P. Kaufmann (instructed by Bhatt Murphy) for the Claimant
Mr O. Sanders (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 3 & 4 November 2009
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.
Mr Justice Sweeney:
Introduction
1. On 4 June 1996 the Claimant (now aged 46) was sentenced, for an offence of rape, to life imprisonment with a minimum term of 8 years. Whilst serving that sentence he has been held in a number of high security prisons. He has yet to be released.
2. On 26 April 2007 the Claimant was transferred from HMP Long Lartin (where he had been held in the Segregation Unit for around 12 months) to HMP Frankland. On arrival at HMP Frankland he refused to locate onto a Wing, and insisted on going to the Segregation Unit. He remained there for some 159 days until 2 October 2007, on which date he was transferred to HMP Whitemoor. On arrival there he chose to be placed on a normal location Wing.
3. The Defendant accepts that, for the purposes of section 17 of the Crown Proceedings Act 1947, it is responsible for HM Prison Service.
4. Paragraph 2(ii) of Prison Service Order (“PSO”) 4275 requires that governors and directors “must ensure” that prisoners who are subject to a severely restricted regime (such as a Segregation Unit) are provided with the opportunity to spend a minimum of 1 hour in the open air each day.
5. It is common ground between the parties that, whilst he was held in the Segregation Unit at HMP Frankland, the Claimant was only provided with an average of around 30 minutes in the open air each day. Indeed, it is agreed that 11 days before he was transferred to HMP Whitemoor, the Acting Deputy Prisons and Probation Ombudsman upheld the Claimant's complaint that he was not being given enough time in the fresh air.
6. Against that broad background, the Claimant seeks damages, including aggravated and exemplary damages, for misfeasance in public office. The Claimant also seeks damages for a breach of the Defendant's duty under section 6 of the Human Rights Act 1998 (“the 1998 Act”), on the ground that the Defendant's servants or agents acted incompatibly with his rights under Article 8 of the European Convention on Human Rights (“the ECHR”). The Claimant asserts that he suffered material damage, namely loss of residual liberty, and other loss – namely significantly increased stress arising from lack of purposeful activity, access to sunlight and exercise, together with physical discomfort and a general feeling of unfitness, and also disrespect of his human right to respect for his private life.
7. The Defendant accepts, in relation to misfeasance in public office, that it is capable of being held vicariously liable for the acts and/or omissions of members of HMP Frankland staff. Otherwise, it disputes the legal issues in the case, which arise under the following broad headings (the first four of which relate to misfeasance in public office, and the remainder to the 1998 Act):—
(i) Unlawful act or omission
(ii) Bad faith
(iii) Loss
(iv) Aggravated and exemplary damages
(v) Article 8(1) ECHR
(vi) Article 8(2) ECHR
(vii) Just satisfaction.
8.
I propose first to deal with the factual issues (other than my findings in relation to bad faith), then to set out the broad legal framework, then to go on to examine the resultant legal issues (using the broad headings that I have already identified immediately above, and dealing with my findings of fact in relation to bad faith), and then to set out my conclusions.
The Evidence.
9.
I heard evidence from the Claimant, and from six witnesses from HMP Frankland called on behalf of the Defendant. The six witnesses were, in order of rank, Robert Russell (Governor Grade E – Head of Residential from December 2008); Lee Drummond (Governor Grade F – in charge of the Segregation Unit from about the early summer of 2007); Lance Wilson (Manager C and D Wings); Colin Harris (Principal Officer in the Segregation Unit); John Brown (Senior Officer in the Segregation Unit); David Tempest (Senior Officer in the Segregation Unit). The statement of the Defendant's seventh witness David Wilkinson (Manager A and B Wings) was taken as read.
10. There is also a large quantity of contemporaneous documentation in evidence -dealing principally with events during the period that the Claimant was at HMP Frankland.
11. The Claimant gave evidence over a video link. He is plainly intelligent and articulate. However, having seen him give evidence and be cross-examined, as well as answering some questions that I posed, and notwithstanding his counsel's submissions to the contrary, I am sure that he was generally intent on ensuring that he gave answers which supported and/or did not undermine his case, rather than trying to tell the truth, the whole truth and nothing but the truth at all times. Accordingly, I did not find him to be a credible or reliable witness, unless supported by other evidence.
12. I reached these conclusions about the Claimant against the following broad background:—
(i) In paragraph 14 of the Defence, the Defendant asserted that the Claimant was located in the Segregation Unit at his own request. In its Opening Speech, circulated before trial, the Defendant attached significance to the Claimant's refusal to move from the Segregation Unit to a normal location.
(ii) During his evidence the Claimant asserted in terms, for the first time, that from the moment that he set foot in HMP Frankland to the moment that he left he wanted to go back to normal location via a phased return (in accordance with PSO 1700), albeit that he had gone straight to normal location on arrival at HMP Whitemoor, where (he said) the relevant Wing was smaller.
(iii) Whilst PSO 1700 had been relied upon by his then solicitors as the defence to a disciplinary charge that had been brought against him after his refusal to locate to normal location on arrival at HMP Frankland, in cross-examination the Claimant was forced to accept that:—
(a) Apart from a passing reference to the policy of gradual re-integration in paragraph 3 of his witness statement in these proceedings, he had otherwise failed in that statement to make any mention of any wish, throughout, to return to normal location via a phased return.
(b) He could give no explanation as to why that was so, beyond that he did not know why.
(c) Although, most of the time, he was an assertive complainer, he had made no representations or complaints, whilst at HMP Frankland, articulating his wish for a phased return to normal location – which he sought to explain, variously, by asserting that the onus was on the prison to arrange a phased transfer so that there was no need for him to mention it; that he did not think that it would bear fruit if he mentioned it; that mentioning a phased transfer would have made him look weak, so that he was too uncomfortable to mention it; and that he was confused and strained.
(d) He could see that it was “odd” that he had failed to mention his wish at a number of points in the contemporaneous documentation that he had completed.
(e) When, by way of example, he had stated in written representations to the Segregation Review Board on 16 July 2007 (well over two months after his arrival) “…I am not really interested in going on any wing at all but I will consider going on to either A Wing or C Wing if there is a clean cell available. .”, he claimed that what he actually meant (echoing his evidence in chief) was that he did want to go onto a wing, but that he did not feel able to do it.
(iv) On another topic, in paragraphs 9 and 10 of his witness statement, the Claimant asserted that there was very little free space in his cell, and that with such a small amount of outside exercise he found that he became very stressed. However, during cross-examination:—
(a)
The Claimant accepted at the outset that his cell measured approximately 12 feet long by 7 feet wide by 8 feet high, and that there was enough room to exercise. He claimed, however, that exercise in the cell was impractical, and asserted in clear terms that he did not, on occasion, exercise in his cell.
(b)
The Claimant's attention was then drawn to his Daily Wing Record for 19 May 2007 where there is the following entry (timed at 17.35) “Became irate when unlocked for tea meal. Stated that he was exercising and did not want his tea until later. Was told this wasn't possible and took his tea but glared at staff whilst doing so”. The Daily Occurrence Log for the same date shows that the Claimant was in the exercise yard for about half an hour from 09.55, and that the service of the tea meal did not begin until 15.45.
(c)
In response, the Claimant asserted that the entry did not refer to exercise in his cell, but rather that he had been exercising in the yard, and was upset because he had to curtail that exercise for tea.
(v) I returned to this topic at the end of cross-examination. Despite the content of the contemporaneous entries on the 19 May documents, the Claimant told me that he recalled being brought in on one occasion to get his tea, and being annoyed. Then, quite contrary to his earlier evidence, he said that there was the odd occasion when he did do press-ups in his cell.
(vi) On a further topic, the extent to which the Claimant did, or did not, suffer any physical or mental health consequences from the limitation of his time in the fresh air is a significant issue in the...
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