Neutral Citation Number: [2013] EWHC 33 (QB)
Case No: HQ09X02608

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/01/2013

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
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Between :

	(1) DANIEL CUMMINGS (2) ZAHID BASHIR (3) GENO BOYOH 	Claimants	
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	THE MINISTRY OF JUSTICE	Defendant	

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Alison Macdonald (instructed by Birnberg Peirce) for the Claimants
Jeremy Johnson QC and Francesca Whitelaw (instructed by Treasury Solicitors) for the Defendant

Hearing dates: 11 December 2012
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Judgment

Mr Justice Tugendhat : 

Introduction 
1.	The Claimants are serving prisoners. They all seek damages (including aggravated and exemplary damages) in assault. The First Claimant (Mr Cummings) also alleges misfeasance in public office and malicious prosecution. All the claims arise out of events in HMP Frankland on the night of 27-28 June, and 3 and 4 August 2008. Mr Cummings claims that he was assaulted by racist prison officers and prisoners; falsely accused of assaulting white prisoners; and unfairly punished by being placed on report and in segregation. While in segregation, the Claimants claim that they were assaulted by prison officers following their spontaneous protest against the conditions of their segregation. A criminal prosecution was pursued against Mr Cummings in relation to the events of the night of 27-28 June, and was discontinued before trial. 
2.	The claims are denied. The Defendant (“MoJ”) contends that Mr Cummings assaulted other prisoners and was lawfully restrained by prison officers, and lawfully placed in the segregation unit, and prosecuted by the police/CPS on the basis of truthful accounts given by prison officers, and that all Claimants were lawfully removed from their cells when they damaged them. 
Assault claim - Mr Cummings on 27 June 2008 
3.	At about 5pm on 27 June 2008, there was a violent incident between prisoners on F wing. Prison officers intervened and used force. The facts of the incident are in dispute, both as to the circumstances and whether the force used was lawful. 
4.	The Claimants contend that a prisoner, Mr Rahman, was being attacked by other prisoners, that Mr Cummings went to assist him, that Mr Cummings was then attacked by five or six prisoners, that prison officers initially did nothing to stop the attack but officers then gratuitously assaulted Mr Rahman, and restrained Mr Cummings whilst prisoners ran up and punched him (and did not seek to prevent the prisoners from assaulting Mr Cummings). Prison officers then gratuitously assaulted Mr Cummings. 
5.	The MoJ contends that Mr Rahman and Mr Cummings had gratuitously assaulted another prisoner, Mr Hartley, and that Mr Cummings had used a bladed weapon to inflict an injury to Mr Hartley's face. Mr Rahman and Mr Cummings were restrained. Mr Cummings was taken to the segregation unit, where he was examined but no injuries were recorded. The MoJ admits that force was used to restrain Mr Cummings, but contends that the force was reasonable and lawful and denies any gratuitous violence and denies that any injuries were caused. 
Misfeasance claim - Mr Cummings 
6.	Following the incident outlined above, Mr Cummings was placed in the segregation unit. He contends that this amounted to misfeasance because it was on the basis of allegations that were known to be false. The MoJ contends that the allegations were true. 
Malicious prosecution claim - Mr Cummings 
7.	Following the incident outlined above, Mr Cummings was charged by the police with an offence of wounding. The CPS subsequently discontinued the prosecution. Mr Cummings contends that the charge was based on false evidence given by prison officers and that the MoJ is liable for malicious prosecution. The MoJ contends that the allegations were true, that it was for the police (and subsequently the CPS) to form their own judgment as to whether to prosecute, and that the MoJ is not liable for malicious prosecution. 
Assault claims - all Claimants - 3/ 4 August 2008 
8.	All the Claimants were in the segregation unit on the night of 3-4 August 2008. They each smashed up their cells (the Claimants say this was spontaneous, the MOJ says it was orchestrated). The Claimants were forcibly removed from their cells. 
9.	The Claimants  contend that they were assaulted: Mr Cummings hit with fists and shields, forced to the ground, nose pulled, punched and kicked, racially abused; Mr Bashir punched, forced to the ground, head smashed into the ground, face scraped against broken glass, racially abused; Mr Boyoh pushed up against the window, forced to the ground, punched to head, kicked, racially abused. 
10.	The MoJ admits that force was used to move the Claimants, but contends that the force was reasonable and lawful and denies any gratuitous violence and denies that any injuries were caused (save that it is accepted that Mr Bashir sustained a bloody nose). 
Counterclaim 
11.	The MoJ counterclaimed for damage deliberately caused by the Claimants to their cells. The Defence to Counterclaim has been struck out and judgment has been entered in the MoJ's favour on the Counterclaim. 
PRE-TRIAL REVIEW ISSUES 
12.	There are issues as to scope of trial, mode of trial, manner of attendance and venue which are to be resolved at a pre-trial review. 
Scope of trial - culture of racism
13.	As set out above, all Claimants contend that they were racially abused by prison officers in the course of the assaults. The Claimants also contend that there was a culture of racism at HMP Frankland. They have served a large amount of evidence which the Claimants contend supports their allegations that the prison officers acted in a racist manner during the index events. The Claimants allege that only Muslim prisoners were sent to segregation following the incident on F Wing. The MoJ contends that much of the Claimants’ evidence is irrelevant to the question of how the prison officers acted during the index events (it does not in any event relate to those prison officers), is not relevant to the claims, and that it would be disproportionate to investigate them (see para 5 of the Amended Defence). The Master has arranged for an early pre-trial review before the trial Judge to determine the scope of the trial and for the need for supplementary statements. 
Mode of trial - Judge or Judge and jury 
14.	The Claimants seek trial by jury. Mr Cummings contends that he has a prima facie right to trial by jury in respect of the malicious prosecution allegation. Mr Cummings further contends that the factual basis for his claims for assault and misfeasance, as well as those claims brought by Mr Bashir and Mr Boyoh, are inextricably linked with the facts that support his claim for malicious prosecution, and that it would not be feasible or cost-effective to separate the two. This would lead to two trials dealing with substantially overlapping issues, with significant duplication of evidence and costs. 
15.	The MoJ contends that there is no right to trial by jury in respect of the assault and misfeasance allegations (which comprise the entire claim brought by Mr Bashir and Mr Boyoh). The MoJ recognises that there is a prima facie right to trial by jury in respect of the malicious prosecution claim brought by Mr Cummings, but contends that it would be disproportionate, contrary to the overriding objective and inconvenient if a jury were summoned to hear the entire case. The MoJ therefore contends that if the Court considers that Mr Cummings is entitled to a jury for the malicious prosecution claim, then the other claims should proceed first without a jury. 

Attendance - video link 
16.	The Claimants seek to call 33 witnesses. The MoJ seeks to call 25 witnesses. The Claimants contend that they should be allowed to attend the trial in person in order to be able fully to participate in their trial by giving evidence in person, hearing the MoJ's witnesses, and also, critically, being able to give their legal representatives timely instructions on the evidence which they hear. They also contend that it would be unfair for the Claimants, and their witnesses, not to be present if the MoJ's witnesses were able to give evidence in person. The Claimants raise for discussion the possibility of locating them and their witnesses in a high security prison adjacent to a Crown Court (for example HMP Belmarsh / Woolwich Crown Court) for the duration of the trial, which the Claimants say could remove the need for costly transportation and other security measures. The MoJ says that would still cause very considerable costs and logistical difficulties. 
17.	The MoJ says that transporting Cs witnesses, all of whom are prisoners, individually to a known court over a 4-6 week period would give rise to very significant security concerns. The MoJ says that there is no reason why they (and, for that matter the Claimants) could not attend by video-link and that it would be contrary to the overriding objective for all witnesses to attend in person. This issue should be resolved at the pre-trial review (in conjunction with the issues as to scope, mode of trial and venue). 

Venue
18.	The MoJ say that if the Claimants and witnesses are to attend by video link then the trial could be heard in the RCJ in one of the courts equipped with video-link technology. Otherwise the case could not be heard in the RCJ and the venue will have to be determined at the pre-trial review.
WHAT EVIDENCE IS RELEVANT AND ADMISSIBLE?
19.	Ms Macdonald submits that the Particulars of Claim includes an allegation that the regime at Frankland was such that racism on the part of prisoners was actively condoned by staff. She refers to a report, which is not pleaded, by Her Majesty’s Inspector of Prisons relating to an inspection on 4-8 February 2008 (some months before the incidents which are  the subject of this claim). She submits that the evidence of witnesses about the behaviour of inmates and prison officers is relevant, notwithstanding that it is not similar fact evidence. It is not similar fact evidence because it does not purport to relate to the actions of any of the prison officers (named or unnamed) whose acts or omissions are complained of in this action. The disputed evidence is proposed to be given by the Claimants and by other witnesses, some of whom were witnesses of the alleged assaults, and some of whom were not. The gist of this disputed evidence is pleaded in the Particulars of Claim.
20.	In the Particulars of Claim at para 5 the Claimants plead what they refer to as “a general culture of racism and race related violence towards Muslim prisoners”. They identify a number of victims (none of them claimants) of incidents said to have occurred on 12 and 17 June 2007, January 2008 and 27 June 2008, together with racist behaviour on unspecified dates towards unidentified black and Asian prisoners, which is said to have been unchallenged by unidentified prison officers.
21.	Mr Eric Allison is a journalist who states that in the past he was sentenced to a number of terms of imprisonment in and between 1957 and 1996. He describes his experience in those years without identifying any prison or prison officer. His evidence as to HMP Frankland relates to letters he has received as a journalist from inmates reporting abuse. He refers to an inquest he attended in 2005 into the death of Paul Day, who had died in the segregation unit at HMP Frankland, and to a report in The Independent entitled “HMP Frankland’s Brutal Regime – the Inside Story”. He has never met or spoken to any of the Claimants.
22.	Mr David Bieber, who describes himself as white, states that he is currently a serving prisoner at HMP Belmarsh, but was at HMP Frankland in 2007. He refers to very serious assaults. He names some of the victims. He also describes conversations he had with unnamed prison officers who expressed racist views which he sets out in quotation marks.
23.	Mr David Baker, who describes himself as black, states that he was an inmate of HMP Frankland between November 2007 and May 2008 and from November 2009 until the present time. Although he did not witness the incidents the subject of this action, he states that he has witnessed many other forms of racism. He names two prison officers who he states “are particularly racist”, although he does not give particulars of any act or omission of either of them. He makes a number of complaints about his treatment in the segregation unit, in which he does not name the officers concerned.
24.	Mr Shevron Smith states that he was at HMP Frankland in February 2007-2008. He names three Muslim prisoners whose cells he states were burnt out, but he does not name any prisoner or prison officer involved. He makes general allegations of racism against unnamed officers.
25.	Ms Macdonald relies on the summing-up of Simon J in R v Thakrar on 8 November 2011. Mr Thakrar was an inmate of HMP Frankland where he attacked two prison officers on 13 March 2010. He was charged with, and acquitted of, attempted murder and wounding with intent to cause grievous bodily harm. His defence was self-defence, but Simon J records that it was no part of the defence case that the two officers in any way brought their injuries upon themselves. The evidence before the jury included what Simon J referred to as “the regime at Frankland”. This included evidence from members of the Independent Monitoring Board and the February 2008 Report of HMIP, and from a number of inmates who had not witnessed he attack, but spoke of racist incidents. Mr Allison states that he gave evidence at that trial.
26.	Mr Johnson submits that the parts of the Particulars of Claim in which these allegations are made should be struck out because the disputed evidence is not similar fact evidence and is not relevant on any other basis. He accepts that those witnesses for the Claimants who can give direct evidence of the incidents the subject of this action may also give evidence concerning alleged racism at the prison in so far as it is relevant to the assaults in question. But he submits that evidence from persons who cannot give direct evidence of the alleged assaults, who were not at the prison at the time (and in the case of Mr Allison, not at the prison at any time) is not relevant.
27.	As to R v Thakrar Mr Johnson submits that where the defendant in a criminal trial charged with offences of violence relies on self-defence, the court is likely to take a wide view of relevance. And even in that case Simon J, while leaving the evidence to the jury, directed them that they might take the view that the evidence about race did not throw very much light on the issues they had to decide.
28.	Mr Johnson also notes that the counterclaims have been disposed of by the judgments entered against the Claimants. There is no longer any issue in the counterclaims to which any evidence could be relevant.
Discussion
29.	The starting point is that the MoJ is alleged to be vicariously liable for the acts or omissions of a number of prison officers, some named, some not named. What has to be recalled is that the vicarious liability in question is one which is not alleged to involve any fault on the part of the MoJ. As Lord Morton of Henryton stated in Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627 at p639:
"Cases such as this, where an employer's liability is vicarious, are wholly distinct from cases where an employer is under a personal liability to carry out a duty imposed upon him as an employer by common law or statute."
30.	In my judgment the submissions of Mr Johnson are clearly correct. The evidence sought to be adduced is irrelevant on a number of grounds. The first is that it does not purport to relate to any of the officers (named or unnamed) whose acts or omissions are complained of in this action. That alone is fatal. The fact (if it be such) that one prison officer committed a racist assault on one prisoner cannot fairly be relied on to prove that another prison officer committed a racist assault on a different occasion upon one or other of the Claimants. Similarly, the fact (if it be such) that one or more prison officers had expressed racist views, and demonstrated racist conduct, in relation to Muslim prisoners cannot fairly be relied on to prove that on a different occasion one or more other prison officers had a motive to make, or was more likely to make, a malicious allegation against Mr Cummings that it was he who had attacked Mr Hartley.
31.	The second ground for concluding that the evidence is irrelevant is that it is in most instances so vague that it would be impossible for the MoJ to investigate it or attempt to contradict it. In some cases, most notably that of Mr Allison, it is far removed from HMP Frankland at the dates of the incidents in question in this action: it relates to times which are in some cases far removed, and in the case of Mr Allison it does not even relate to the same prison.
32.	This case is the opposite of R v Thakrar. In that case the defendant relied on the evidence in support of his defence. His state of mind was relevant to whether or not he had acted reasonably (even if mistakenly) in self defence. In the present case the Claimants are seeking to rely upon the evidence to prove that the prison officers committed acts which amount to criminal offences (albeit that this is not a criminal case, so they are not at risk of losing their liberty, but they are at risk of losing their reputations and money). 
33.	The Claimants’ states of mind might arguably be relevant to their claims if it were their cases that they acted violently in self-defence. But that is not how they put their cases. Their cases are that they were compliant towards the prison officers throughout. In one respect Mr Cummings relies on defence of another. He pleads that on 27 June 2008 he saw Mr Rahman being punched and kicked by white prisoners and ran to assist by pulling off his attackers. He claims that it was during that incident that the prison officers restrained him and struck him, once before he was restrained, and a number of times when he was already restrained. Mr Cummings’ case on the attack on Mr Hartley is that he had nothing to do with it: he knows who the attackers were, but declines to identify them out of fear.
34.	The Claimants’ states of mind might arguably have been relevant to their defences to the counterclaims for the damage they did to their cells on 8 August 2008. But they have not defended those counterclaims, and judgment has been entered against them.
35.	It follows that there should be struck out of the witness statements all evidence relating to acts or omissions or other matters alleged to have occurred at any time other than the dates of 27-28 June and 3-4 August 2008. In the case of those statements which contain nothing about the incidents on those dates in June and August, the witnesses may not be called at all. The other witnesses may be called, but only to give evidence about the incidents on those dates in June and August.
MODE OF TRIAL
36.	The Claimants gave notice on 19 April 2011 that they applied for trial of the action to be by a judge sitting with a jury. It is common ground that, pursuant to the Senior Courts Act 1981 s.69(1) and the CPRr.26.11 the Claimants are entitled to trial with a jury in respect of the claim for malicious prosecution. The issue between the parties is as to whether the other claims (for assault and battery and misfeasance in public office) should also be tried with a jury.
37.	The Senior Courts Act 1981 provides:
“(1) Where, on the application of any party to an action to be tried in the Queen’s Bench Division, the court is satisfied that there is in issue— … (b) a claim in respect of… malicious prosecution the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.
(2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed.
(3) An action to be tried in the Queen’s Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.
(4) Nothing in subsections (1) to (3) shall affect the power of the court to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial; and where any such order is made, subsection (1) shall have effect only as respects questions relating to any such charge, claim, question or issue as is mentioned in that subsection.”
38.	Mr Johnson submits that the claims other than malicious prosecution should be tried separately from, and before, the claim for malicious prosecution. If that is done, then whatever the outcome on the other claims may be, it is likely that, either, the parties will not proceed to a trial of the claim for malicious prosecution, or, if they do, that it will be very short, since they will be bound the decision of the court on the issues tried separately.
39.	 Mr Johnson identifies the issues as being: as to the alleged assaults (1) what force was used by the prison officers, (2) whether that force was justified, and as to the malicious prosecution, (3) whether the prosecution was brought without reasonable and probable cause, and (4) whether it was brought maliciously. He identified no separate issue in relation to misfeasance in public office. The time estimate of the trial he gave in his skeleton argument was 4-6 weeks, but that was subject to the ruling that I have just given, which has had the effect of restricting the scope of the trial substantially.
40.	Mr Johnson submits that, if all claims are tried together, only a very small part of the trial will be taken up by the malicious prosecution claim, that that claim adds little if anything to such benefit as Mr Cummings might expect to obtain from this litigation, and that the real issues are in relation to the assaults.
41.	Ms Macdonald submits that the issues are inextricably linked. If the events of 27 June took place as Mr Cummings alleges, then he was assaulted by the officers, and their reports to the contrary are untruthful. And these events form the backdrop to the events of 3-4 August, since they provided the reason why the Claimants were in the segregation unit at that time. If the trials are severed, then there will be duplication of evidence. The claims are in any event all ones that are suitable for determination by jury since they involve claims of abuse of power by public officials.
42.	Further, Ms Macdonald submits that there is much more at stake in this action than any damages, namely Mr Cummings’ reputation. Mr Cummings will have to make an application to the Parole Board if he is to be released on licence. If he can prove his claim in malicious prosecution and assault, then he is more likely to be released, than if he does not prove his claims, or if his claims are not adjudicated upon at all.

Discussion
43.	On this issue I prefer the submissions of Ms Macdonald. The claims in this action against officers of the state are all ones of a kind which juries commonly do determine, and which, for well known reasons, it is in the public interest that there be trial by jury. The issues are all closely linked.
44.	While it is a matter of discretion under s.69(3), since I have decided that the evidence is to be limited in the manner explained above, I see no interest of justice that would be served by a split trial, or by some of the issues being tried by judge alone. Mr Cumming has a statutory right to trial with a jury on the malicious prosecution claim. It would not be in the interests of justice if that claim were to be severed from his other claims.
ATTENDANCE AT TRIAL
45.	The Claimants were all Category A prisoners serving terms of life imprisonment, and Mr Cummings and Mr Bashir still are. These two were convicted of murder, and Mr Boyoh of aggravated burglary.
46.	Mr Cummings was found guilty of the murder of Adrian Crawford which took place on 4 December 2002. He was sentenced to life imprisonment. The murder was by shooting in a public place. Two males were involved, using semi-automatic hand guns, and fired repeatedly, so that the deceased was found to have 10 bullets in his body. A youth was shot in the leg by a stray bullet. Mr Cummings was said to be the leader of a gang at the time. 
47.	I have been shown a Situation Report dated October 2003 which was prepared following his trial. That commenced on 21 July 2003 at the Central Criminal Court and was moved to Southwark Crown Court on account of building works. During the trial there were problems with threats to members of the jury from a group of 30 to 40 aggressive males who attended the court. 
48.	Mr Johnson submits that the Claimants and their witnesses can, and should, all attend by video link, and if they do, then the trial can be held at the Royal Courts of Justice. Alternatively, Mr Johnson submits that if any of the Claimants or any prisoner witness is to attend, then the venue of any trial should not be the Royal Courts of Justice, but Woolwich Crown Court. This would enable those responsible for security to take appropriate measures, whereas another venue might expose the public to serious risk, and would certainly involve the deployment of more resources in maintaining security. 
49.	Ms Macdonald submits that fairness requires that each Claimant give evidence in person, and that they should be present with their legal representatives in court throughout the trial, so that they can give instructions in the usual way, when they and the Defendant’s witnesses are giving evidence. At other times (when their own witnesses are giving evidence) she accepts that they can be present by video link. The claim is against the MoJ, and if the Claimants are throughout in the custody of the MoJ and not in court there will be a perception of unfairness. 
50.	She submits that the Situation Report is now very out of date, and that the difficulties to which it refers in 2003 should not be expected to recur in 2013, unless an up to date report gives reasons for believing otherwise.
Discussion 
51.	In my judgment fairness does require that the Claimants give evidence in person, and that they be present in court when the Defendant’s witnesses are giving evidence.
52.	The court should, however, pay careful regard to the implications in terms both of security and resources, if that is to happen.  It is not necessary that I should make any further decision about this issue at this stage. Unless an agreement is reached between the parties, a fresh report should be prepared on matters of security and resources, in the light of the scope of the trial as I have now decided in this judgment that it should be. While I make no decision at this stage, I accept in principle that the Royal Courts of Justice are unlikely to be a suitable venue. Regard must be had not only to the interests of the Claimants but also to other users of this building. Security arrangements for a number of prisoners such as these Claimants would be likely to give rise to serious disruption.
 SUMMARY
53.	For the reasons set out above the scope of the evidence shall be limited as set out in para 35 above, the trial of all issues shall be by a judge sitting with a jury, the Claimants shall be produced in court (if they so request) for the purpose of giving their own evidence and for hearing the evidence of the Defendant’s witnesses. Further directions will be given as may be appropriate.