McCreaner v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 07 March 2014 |
| Neutral Citation | [2014] EWHC 569 (QB) |
| Date | 07 March 2014 |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/13/0974 |
[2014] EWHC 569 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No: TLQ/13/0974
Philip Rule (instructed by Mark Williams Associates) for the Claimant
Cathryn McGahey (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 27–29 January 2014
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
This is a claim for damages by a former prisoner. He contends that following the Supreme Court judgment in Noone [2010] UKSC 30; [2010] 1 WLR 1743, he was not released under home detention curfew ("HDC") as he should have been, through the fault of the Ministry of Justice. HDC is a scheme whereby prisoners are released early on curfew, which is monitored by the prisoner wearing an electronic device (a tag). He contends that he spent almost 4 months longer in prison than he should have and that he should be compensated for this. The claimant has pleaded his case as false imprisonment, negligence, misfeasance in public office and breach of the Human Rights Act 1998. In my view the claims in false imprisonment, misfeasance and breach of Convention rights go nowhere. Nor does the attempt to make the Ministry of Justice liable in negligence for the development and adoption of policy in the light of Noone and for the process of identifying him as a beneficiary of the Supreme Court judgment. However, there was a subsequent period of 6 weeks where in my view he was unlawfully detained as the result of the negligence of the prison in failing to ensure that his case received the priority required by the Ministry of Justice's policy.
At the hearing of the claim most of the time was occupied by legal submissions. The evidence of the claimant and his daughter was unchallenged. But short oral evidence was given by the claimant's solicitor, Penelope Hunter. I also heard evidence from Chris Potter, who is responsible for HDC policy in the Sentencing Policy and Penalties Unit of the Ministry of Justice, and from Deborah Martin, who was employed by HM Prison Service for many years and at the relevant time worked as the offender management manager in the custody office at HMP Wayland, where the claimant was detained.
Background
On 10 December 2009, at the Crown Court at Blackfriars, the claimant was sentenced for burglary, breach of a suspended sentence order of 12 months and shoplifting committed to the Crown Court by the Magistrates' Court. HH Judge Worsley imposed 12 months imprisonment for the burglary, activated the suspended sentence in full, and imposed 2 months' imprisonment for the shoplifting, all the sentences to run consecutively. In the ordinary course of events that would be the order in which the judge pronounced sentence, with the burglary first and the shoplifting last. The aggregate sentence was 26 months' imprisonment. The claimant was credited with 57 days which he had spent in custody on remand. With that reduction his sentence thus expired on 13 December 2011. His statutory release date on licence was 13 November 2010, the half way point of the sentence.
The claimant was initially imprisoned at HMP Wormwood Scrubs. He was naturally interested in HDC, which would mean release earlier than the half way point. On inquiry he was told that his HDC eligibility date was 1 June 2010 and that is what he told his family. In April 2010 he was transferred to HMP Wayland. He was informed that his sentence had been recalculated and he was not eligible for HDC. That was because of the way calculations for HDC were then being made. Prisoners were assumed to serve their sentences in the order in which they were pronounced; short sentences could not be aggregated, or "single-termed", with longer sentences; and his last sentence (for the shoplifting) was too short to be eligible for HDC. The claimant lodged an internal complaint. He was especially concerned about his HDC eligibility date because of what he had told his family and his fear that they would think his own behaviour in prison had led to any delay in his release.
The Supreme Court decision in Noone [2010] UKSC 30; [2010] 1 WLR 1743 (of which more below) was handed down on 30 June 2010. In short the Supreme Court overturned the Court of Appeal and held that Miss Noone – and hence this claimant – was entitled to HDC. Permission for Miss Noone to appeal the Court of Appeal judgment to the Supreme Court had been given over six months earlier. No contingency planning had been undertaken in the Ministry of Justice should the Supreme Court find against it. The explanation Mr Chris Potter of the Ministry of Justice gave in his evidence was that although it would have been possible to identify in advance all prisoners who may have been affected, resource pressures precluded it. It was a complex area and it was better to wait for a definitive answer from the Supreme Court. Mr Potter added that the Supreme Court decision, reading words into the legislation, was unexpected. Once the Supreme Court had given judgment in Noone, however, its importance was immediately obvious and it was clear recalculations of prisoners' sentences would be necessary.
On 1 July 2010 the Ministry of Justice wrote to prison governors that the Supreme Court judgment in Noone had implications for HDC eligibility dates and sentence and licence expiry dates in cases where a prisoner had been sentenced to a term of less than 12 months for an offence, which was to run consecutively to, or concurrently with, a term of 12 months or more for another offence. The full implications of the judgment were being worked through, and a revised Prison Service Instruction would be issued shortly, but in the meantime:
"Governors should identify current prisoners and any prisoners sentenced following the issue of this note who are subject to a term of less than 12 months (or a single term comprising multiple under 12 month sentences) which is to run consecutively to, or concurrently with, a term of 12 months or more (or vice versa) so each establishment will be in a position to quickly recalculate [sentence and licence expiry dates] and HDC [eligibility dates] as soon as the new guidance is issued."
At HMP Wayland, where the claimant was imprisoned, work began to identify relevant prisoners. The evidence of Mrs Deborah Martin, who had overall responsibilities at HMP Wayland, including prisoner sentence planning and management, risk reduction, resettlement and the custody process, was that the custody office there did this by examining the files of newly arrived prisoners, and of those being considered for other reasons, to see if HDC eligibility re-calculation was needed. The work of identifying prisoners was fitted around the other work of the custody office which included calculating release dates for prisoners generally. She said that she understood the vital importance of exercising great care in calculating sentences correctly to avoid unlawful imprisonment and delaying prisoners their proper release. Mrs Martin accepted that the obvious risk to prisoners from a failure to calculate their lawful sentence was a loss of liberty, and that it was foreseeable that a delay in recalculating sentence dates could lead to a delay in their release. As regards HDC eligibility dates, and the Noone judgment, parts of which she read, Mrs Martin said that she quickly recognised the impact that delay could have on the release of those eligible for HDC, but who had previously been wrongly said to be ineligible as having one unduly short sentence, which had not been aggregated with longer sentences. However, she accepted that at that stage in July and early August there was no momentum at HMP Wayland in addressing the issue. In the course of her evidence she referred to HDC as being a privilege.
On 13 August 2010 the Ministry of Justice issued a draft of Prison Service Instruction 55/2010 for urgent dissemination. It was to give guidance to staff calculating sentences in the light of Noone. In his evidence Mr Potter explained that 6 weeks elapsed from when that judgment was handed down to issue of the draft because of the complexities of the issues. He said that there was always a danger of making matters worse by acting precipitately. Data collected at the time showed that over 5000 prisoners were potentially affected by the judgment, including more than 3000 requiring a recalculation of their HDC eligibility date. The other categories of prisoners affected by the Supreme Court judgment included those liable to removal from the United Kingdom, those recalled to prison for breach of licence conditions and those subject to a detention and training order. Mr Potter added that consideration also needed to be given to the transitional arrangements necessary for those found as a result of Noone to be serving more than 4 years and therefore presumed unsuitable for HDC. In fact it is a notable feature that one effect of the Noone decision was that some recalled prisoners had their sentence expiry date extended. Mrs Martin gave an example at HMP Wayland of a prisoner who had his sentence extended by 27 months. She explained the difficulties that her team faced in breaking that type of message to prisoners.
The draft Prison Service Instruction stated that, for some, Noone would immediately result in a new HDC eligibility date which had already passed, or was imminent, "so those cases would need to be prioritised and processed as quickly as possible". Where HDC eligibility dates had passed offender managers had to ensure that home circumstances requests were prioritised to...
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