Steven Racz (Appellant (Plaintiff) v The Home Office (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE BELDAM,LORD JUSTICE KENNEDY |
| Judgment Date | 04 December 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1204-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/1206 |
| Date | 04 December 1992 |
[1992] EWCA Civ J1204-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mrs. Justice Ebsworth)
Royal Courts of Justice
Lord Justice Neill
Lord Justice Beldam
and
Lord Justice Kennedy
92/1206
MR. DAVID HARRIS QC and MR. TIM OWEN (instructed by Messrs B.M. Birnberg & Co.) appeared on behalf of the Appellant (Plaintiff).
MR. GUY SANKEY QC and MR. NEIL GARNHAM (instructed by The Treasury Solicitor) appeared on behalf of the Respondent (Defendant).
This is an appeal by Mr. Steven Racz from the order of Mrs. Justice Ebsworth dated 15th June 1992 whereby it was ordered:
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(a) that paragraph 6 of the amended statement of claim should be struck out as disclosing no cause of action against the Home Office; and
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(b) that the action be tried by a judge alone at Leeds County Court.
At all material times in March 1988 Mr. Racz was a remand prisoner detained at H.M. Prison Armley in Leeds. By a writ issued on 8th March 1991 Mr. Racz brought proceedings in the Queen's Bench Division claiming damages, including aggravated and exemplary damages, for assault, misfeasance and false imprisonment. The proceedings were brought by Mr. Racz against the Home Office as the Department of State responsible for Her Majesty's prisons and the actions of prison officers working within the prisons. In the statement of claim which was served on 25th June 1991 it was alleged that the Home Office owed a duty to take reasonable care for the safety and security of Mr. Racz while he was a prisoner on remand. It was further alleged that in the period between 9th March and 11th March 1988 Mr. Racz was assaulted and subjected to other ill-treatment by prison officers at the prison. The statement of claim was later amended and was re-served on 13th July 1992. For the purposes of this appeal it is necessary to set out the case for Mr. Racz as pleaded in the amended statement of claim. The material paragraphs were in these terms:
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"3. On or about 9th March 1988 the plaintiff was located in the hospital wing at Armley prison when he was assaulted and beaten by a number of prison officers including hospital officer Greenwood.
Particulars of Assault and Battery
4. After the assault had finished the plaintiff remained in the strip cell until 11th March 1988 when he was transferred to a cell in the segregation unit. While located in the strip cell prison officers interfered with the plaintiff's food by tipping it on the floor of the cell and ordering the plaintiff to clean it up. The plaintiff went on hunger strike in protest. During the time he was located in the strip cell the plaintiff was only given a nylon/canvass "dress" to wear and had to sleep on the floor with the covering of a single blanket. He received no medication.
5. The plaintiff will say his detention in the strip cell in the conditions and for the period of time set out in paragraph 4 herein amounted to detention in intolerable conditions and/or a cruel and unusual punishment contrary to the Bill of Rights 1688 and was caused by negligence on the part of the defendant, its servants or agents.
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(i) On about 7th March 1988 the plaintiff was moved to the hospital wing because he was unwell. The medical officer prescribed medication and excused the plaintiff from doing work. The plaintiff was initially located in an open ward on the hospital wing. On 9th March a prison officer, whom the plaintiff cannot identify, ordered the plaintiff to scrub the area around his bed. The plaintiff explained that he had been excused from work by the medical officer. The plaintiff was then moved to a cell in the hospital wing where he was forced to share with a number of disturbed prisoners;
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(ii) The plaintiff objected to being located in the cell. Hospital Officer Greenwood came to the cell and moved the plaintiff to a strip (special) cell where he was ordered to remove his clothing. The plaintiff refused and asked the officer for his name. At this Greenwood became annoyed and punched the plaintiff in the face. The plaintiff tried to push him away but a number of other officers entered the cell and proceeded forcibly to remove the plaintiff's clothes causing injury. The plaintiff was knocked to the ground and the officers then kicked the plaintiff in the head and body.
Particulars of Negligence
6. Further or in the alternative the plaintiff will say that the officers who ordered the plaintiff's removal/location in the strip cell knew they had no lawful power under the Prison Rules for such removal/location and/or were motivated by malice and their actions thereby amounted to misfeasance in public office.
7. By reason of the matters aforesaid the plaintiff suffered humiliation, injury, pain, loss and damage.
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(i) Causing the plaintiff to be locked up in the strip cell in circumstances where there was no reason or justification for so doing;
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(ii) stripping the plaintiff of his clothing for no good or proper reason;
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(iii) deliberately interfering with the plaintiff's food.
Particulars of injury
8. The actions of the officers were arbitrary, oppressive and unconstitutional and the plaintiff is entitled to exemplary damages."
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(i) Bruising to the groin, arms and body. A black right eye. Cuts and abrasions. Three teeth dislodged.
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(ii) The plaintiff is unable to serve a medical report until he has access to his prison medical records.
I need not refer to the other parts of the amended statement of claim. The original statement of claim contained a further allegation against the Home Office of false imprisonment. Following the decision of the House of Lords in Weldon v. The Home Office [1992] 1 AC 58, however, the allegation of false imprisonment has been abandoned and the relevant paragraphs have now been removed from the amended pleading.
In its amended form the claim by Mr. Racz for damages falls under three headings:
(a) Assault. The allegation of assault relates to the occasion when, it is said, the plaintiff was punched in the face and his clothes were then forcibly removed and he was knocked to the ground and kicked in the head and body.
(b) Negligence. The plaintiff alleges that the Home Office were in breach of the duty they owed him to take reasonable care for his safety and security while he was a prisoner. The allegations of negligence are particularised in paragraph 5 of the amended statement of claim.
(c) Misfeasance by holders of public office. This claim is based on the matters set out in paragraph 6 of the amended statement of claim.
In this appeal we are concerned with the third claim, that is, the claim for damages for misfeasance in a public office.
Counsel for Mr. Racz submitted that this claim was of great importance on the facts of the present case because there was some doubt whether any damages, or at any rate any substantial damages, could be recovered on his claim in negligence. It was true that in Weldon's case at 166D Lord Bridge expressed the view that if a person were kept in conditions "which caused him for the time being physical pain or a degree of discomfort which can properly be described as intolerable" he could and should be able to recover damages for breach of the custodian's duty of care. The plaintiff's main complaint, however, was in respect of the period of 48 hours or so after the assaults had taken place. The injury suffered during that period was the humiliation and mental distress caused by the conditions in which he was kept in the special cell. It was uncertain whether such injury was sufficient to sustain a claim for damages for negligence.
Before I turn to consider the misfeasance claim in detail, however, I must first refer to the relevant provisions of the Prison Act 1952 (the 1952 Act) and of the Prison Rules 1964 (as amended) (the 1964 Rules).
Section 12(1) of the 1952 Act provides as follows:
"A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison."
Section 13(1) of the 1952 Act provides:
"Every prisoner shall be deemed to be in the legal custody of the governor of the prison."
In Weldon's case Lord Bridge at 162H explained the effect of section 12(1):
"This provides lawful authority for the restraint of the prisoner within the defined bounds of the prison by the governor of the prison, who has the legal custody of the prisoner under section 13, or by any prison officer acting with the governor's authority. Can the prisoner then complain that his legal rights are infringed by a restraint which confines him at any particular time within a particular part of the prison? It seems to me that the reality of prison life demands a negative answer to this question."
Section 47 of the 1952 Act (as amended) empowers the Secretary of State to make rules for the management of prisons. Section 47(1) is in these terms:
"The Secretary of State may make rules for the regulation and management of prisons…, and for the classification, treatment, employment, discipline and control of persons required to be detained therein."
The present rules made under section 47 of the 1952 Act are the 1964 Rules (as amended). The following Rules were drawn to our attention.
Rule 2 (which is headed "Maintenance of Order and Discipline"):
"(1) Order and discipline shall be maintained with firmness, but with no more restriction than is required for safe custody and well ordered community life.
(2) In the control of prisoners, officers shall seek to influence them through...
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