Sheppard v Home Office
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,Lord Justice Waller,LORD JUSTICE TUCKEY,LORD JUSTICE WALLER |
| Judgment Date | 11 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1921 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 2002 |
| Docket Number | B3/2002/0934 |
[2002] EWCA Civ 1921
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE RICH QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Waller
Lord Justice Tuckey
Lord Justice Laws
B3/2002/0934
MR S SIMBLETT (instructed by Fisher Meredith, London SW4 6TA) appeared on behalf of the Appellant
MR I ASHFORD-THOM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
This is an appeal with permission granted by Brooke LJ on 28 May 2002 against the judgment of His Honour Judge Rich QC given in the Central London County Court on 19 April 2002, when he dismissed the appellant's claim against the respondent Home Office for damages for assault and misfeasance in public office. The appellant's case was that he was viciously attacked by prison officers in the afternoon of 23 April 1996 in Highdown Prison (to which he had been remanded in custody by the Bexley magistrates on that day) and in consequence that he suffered bruising to the right eye and fractures to the jaw, nose and cheekbone and is left with some reduced sensation and facial deformity.
There are three grounds of appeal which are, of course, much elaborated in the appellant's counsel's skeleton argument. Since they are very crisply expressed in the notice of appeal it is convenient to set them out now before looking at the facts somewhat more closely:
"1. The learned judge misdirected himself as to the approach where an injury has been sustained whilst in custody and failed to draw the appropriate and/or necessary inferences from the pleaded cases and the evidence called.
2. The learned judge's finding that the applicant had fractured his own jaw deliberately was perverse and could not properly be found on the parties' pleaded cases and the evidence called.
3. The learned judge's improper resolution of the facts arose in part from his bias against the applicant's case and/or legal representation. The learned judge showed, by his demeanour and approach to the case, a hostility that went outside the proper judicial rôle and amounted to bias such that the applicant's case did not receive a proper hearing."
The second of these grounds is, so to speak, specific and limited to the particular facts arising here. The other two grounds, 1 and 3, may be said to raise somewhat wider issues, as Brooke LJ may have considered when he granted permission. The first ground engages consideration of the question whether, in a case where an inmate in custody has sustained injuries while in custody, there are particular principles which ought to govern the court's approach to the proof of misconduct by State officials, not least given learning of the European Court of Human Rights in Strasbourg. The third ground engages issues concerning the standard of judicial decision-making against a background of case law here and in Strasbourg on the subject of judicial bias. While it is elementary and uncontentious that every litigant is entitled to an unbiased tribunal, there are issues touching the question whether bias is shown in any particular case. I should note that in granting permission to appeal Brooke LJ directed that if the complaints against the judge were to be pursued there would have to be a transcript of what was said in the trial which is claimed to support the case of bias. Several volumes of transcript are now before us.
I must describe the facts more closely. The account which follows is intended to be uncontentious save where I indicate the points of contention which were and are important for the issues in hand. After his remand to Highdown Prison by the magistrates' court the appellant, then being uninjured, was required to undergo the normal reception procedure at the prison and be strip-searched. He was told by Prison Officer Welford to remove a chain from around his neck. He declined do so. That was at about 4.25 pm. There was what may be described in neutral language as an altercation between the appellant and the prison officer. The whole question in the case was to what that led.
The appellant's case required the court to be satisfied to the appropriate standard that he had been wantonly attacked by prison officers. The respondent's case was that the appellant himself became aggressive and was lawfully restrained by officers who took him to the segregation unit. There is no doubt that he found himself in the segregation unit. There, at 4. 45 or 4.50 pm, he was examined by Dr Angela Williams, a prison doctor. She made a note of her examination on Form 213 as follows. I translate the acronyms in the note itself:
"Complains of pain right hand. On examination nothing abnormal detected. Nose deviated to left—old deformity he says but some bleeding."
As I have said, this note was set out on an Injury Report Form 213. Such a document is required by prison procedures to be completed when control and restraint techniques are used on a prisoner. In the same document the incident reporting officer had entered "nil" under the heading "Nature of injury". At all events, Dr Williams made no reference whatever to any injury to the jaw or cheekbone or of any complaint of pain other than in the respondent's hand.
There was a debate at trial, as one might expect, about how quickly evidence of such injuries would appear. There was also a dispute as to the thoroughness or perfunctoriness of Dr Williams' examination. The appellant said that the doctor at all times stood 6 feet or 2 metres away from him in the segregation unit, he being required to stand behind a white line. As to that, there was a written memorandum made on 24 April 1996 by Prison Officer Calvert, part of which read:
"I was present on 23.4.96 at 16.50 hrs in special cell Number one when the above mentioned prisoner was examined by Dr Williams. The examination was a proper hands on examination and was not conducted from a distance of five feet away as claimed by the prisoner."
As regards the question when the injuries suffered by the appellant might show themselves, there was an agreed view expressed in writing by two experts (who were not called to give oral testimony). That is to be found in a letter dated 12 December 2001 to the appellant's solicitors from Mr Stewart, the consultant oral and maxillofacial surgeon who had been instructed for the appellant. He had held a discussion with the respondent's expert, Dr Rouse. The letter contains this passage, referring to a paragraph in an earlier report which had been prepared by Dr Rouse:
"Paragraph 5 [that is a reference to Dr Rouse's report]: the first sentence states that one would expect the bruising to the right eye to be present immediately, ie within a few minutes, following the impact to the side of the face because of the comminuted nature of the fracture of the zygoma. Following discussion we agree that the bruising could come up within a few minutes or may take up to an hour to occur in this setting."
As I have said, Dr Williams examined the appellant at 4. 45 or 4.50 pm, which was just under half an hour from the time of his admission to the prison. The judge in his judgment was to say this (transcript 5F):
"The experts did not attend court to comment on whether the emergence of bruising would, if not immediate, be a gradual process. Doctor Williams told me, however, and I accept, that some discolouration of the cheek would be observable, at least normally, within the period of 20 to 25 minutes after a blow which eventually caused a black eye such as is observable on the photographs of the claimant on the next day."
It was not I think in dispute that at about 9.30 pm on 23 April the appellant was seen in his cell by, amongst others, Nursing Officer McGinley, who had been called by Officer Tancred. Mr McGinley examined the appellant. In his statement he says this:
"I entered the cell and examined the Claimant. I saw there was a right peri orbital bruising. His right jaw was [asymmetrical]. I saw that his nose was out of alignment but when asked he told me this was an old injury. During the examination I palpated his jaw and cheeks. He was in discomfort. I informed Governor Burton that I suspected a fractured jaw and fractured cheekbone on his right side.
The Claimant said to he me that he had been assaulted by prison staff."
Nursing Officer McGinley, as I understand it, spoke to the truth of the statement when he gave evidence. He was shown it in chief and it was not suggested that this testimony was false.
There was evidence before the judge that a document called the "Inmate medical record", which would have documented all of the medical examinations undergone by the appellant in prison, had been destroyed although the appellant's solicitors had asked for it (or at least asked generally for copies of the appellant's medical records) at a time when it was still available. The judge described the loss of this document as "reprehensible" (transcript 6C) and so it was. But I do not think there is any scope for suggesting that the document would have shown the appellant's injuries appearing earlier than 9.30 pm on 23 April; and in that case the judge was right to treat its disappearance as ultimately being of no significance.
Nursing Officer McGinley gave evidence in cross-examination that on the evening of 23 April he left it up to the doctor, who would be seeing the appellant the next morning, to make any necessary arrangements for an X-ray. On the next day at 9.00 am the appellant was again seen by Dr Williams. She...
To continue reading
Request your trial
-
Kelly Minio-Paluello v The Commissioner of Police of the Metropolis
...an arm would plainly amount to inhuman and degrading treatment if arising out of a deliberate and unjustified use of force: see e.g. Sheppard v Home Office [2002] EWCA Civ 1921. c) As to proof, following Re B (minors) [2009] 1 AC 17 the position with regard to evidence is relatively straigh......
-
Michael Alleyne v The Commissioner of Police of the Metropolis
...that the force used was reasonable in accordance with either legislative provision. Counsel draws my attention to the observations in Sheppard v Home Office [2002] EWCA Civ 1921 at paragraphs 13 to 14, where it is held that "… There will be a powerful evidential burden resting upon the Auth......
-
James Browne v The Commissioner of Police of the Metropolis
...there is an obligation upon the Defendant to provide an explanation (see Sheppard v The Secretary of State for the Home Department [ 2002 EWCA Civ 1921 at paragraph 13). The explanation provided is that it must have happened by accident when Mr Browne was being forced to the floor after he......
-
Sheppard v Secretary of State for the Home Department
...to find that a prisoner who alleged an assault by prison officers had fractured his own jaw; whether the judge's Neutral Citation [2002] EWCA Civ 1921 Court and Reference:Court of Appeal; B3/2002/0934 Judge Waller, Tuckey and Laws LJJ Sheppard and Home Secretary Appearances:S Simblett (ins......