INADEQUATE WITNESS STATEMENTS, A “CULTURE OF NON-COMPLIANCE” AND THE SECRETARY OF STATE FOR JUSTICE

The decision of District Judge Hickman in the small claims case of Thakar -v- The Secretary of State for Justice [2015] EW Misc B44 is one that is likely to attract a lot of attention given that it was a successful claim by a prisoner serving a life sentence.  However here I want to concentrate on the patent inadequacy of the witness evidence that was presented on behalf of the Secretary of State. The case was heard on submissions and the the defendant’s evidence was not tested. Even so it was found wanting.

“I am not assisted by Ms Trickey’s hypothesising as to what is “possible”.”

“Where one party is represented and the other is not, it is generally considered to be the duty of the legally qualified advocate to assist the court even against his own client’s interest. I have received submissions from the Government Lawyer’s Department on behalf of the Ministry; I regret to say that I have found them of extremely limited assistance because they lacked objective discussion either of the law or of the evidence.”

KEY POINTS

  • The burden of proof was on the defendant. Evidence which consisted of hypothesis did not assist the court.
  • The witness evidence presented by the defendant was contradictory and did not meet the burden of proof that had to be met.

PRACTICE POINTS

  • This case underlines the need for first hand evidence in relation to a claim. Particularly on the part of a party that bears the burden of proof.

THE CLAIM

Part of the claim was  for damages for items damaged whilst in the control of the prison service. This was a claim for bailment.  The burden of proof is reversed. The burden was on the prison service to show that they had taken reasonable care.

THE EVIDENCE: BROKEN STEREO

  1. There was an exchange between Mr Thakrar and the prison authorities at HMP Woodhill in October 2014. He wrote:
“Officer McFarlane has told me that DST have said that my stereo is broken and therefore not for issue, and I must submit this application in order to receive confirmation that this is the case. Is my stereo going to be issued or is it broken?”
  1. He received a reply from Officer Holley:
“We received your stereo system in DST, I personally checked it on its arrival, I opened the sealed bag it was in and noticed that the hi-fi was broken. I marked it up not for issue and reception put it in stored property”.
  1. In answer to this, the Ministry adduce a witness statement from Joanna Trickey, Head of operations at HMP Woodhill. Her evidence is of extremely limited value because as she acknowledges,
I was not present during the packing or unpacking of the Claimant’s property and I have not had access to the Claimant’s property at any time. I make this statement on the basis of my knowledge of the local Prison policies…
  1. She comments that
“…it is possible that the Claimant’s stereo could have been damaged whilst in his possession…
It is possible that if the stereo was damaged whilst in the Claimant’s possession the damage was not noticed (or reported by the Claimant) prior to the stereo being placed into storage…”
  1. I also have the statement of Debby Gillman, Reception Officer at HMP Woodhill, She writes that
“As far as I can remember, the stereo had been well wrapped and had items around it, cushioning it. When I unpacked the Claimant’s stereo whilst processing his property, I found a very small loose piece of plastic (about the size of the fingernail of my little finger) but it was not clear whether it came from the stereo or the remote control or something else. I therefore looked over the stereo with the Claimant but I could not see any obvious damage.
I informed the Claimant that the stereo would be sent to the Dedicated Search Team (DST)… The Claimant seemed to think that the stereo was broken, but I am not sure how he knew this given that we had looked over the stereo together and there was no obvious damage and we had not been able to discover where the piece of loose plastic had come from”.
  1. What Mr Thakrar wrote in a complaint dated September 2014 was that
“upon receipt of my property yesterday, it became immediately apparent that items which had been kept in my stored property in reception at HMP Whitemoor had been damaged., The side panels of my stereo were no longer intact like it had been banged about…”
  1. This is a civil claim and falls to be determined on a balance of probability, that is, what is more likely than not. I bear in mind that at all material times the Claimant has been under what the Defendant itself describes as close supervision, and I am not assisted by Ms Trickey’s hypothesising as to what is “possible”.
  2. I also struggle with Ms Gillman’s evidence. If, as she suggests, there was no obvious damage other than a trivial piece of loose plastic, it is impossible to understand the response from Officer Holley in October 2014. It is also impossible to understand the annotation on the property sheet exhibited to Ms Trickey’s statement reading “Damaged – Not for Issue”.
  3. If, as now appears to be the Defendant’s case, the stereo is undamaged or has sustained only trivial damage, it is impossible to understand why it was not released to the Claimant on his arrival at HMP Woodhill in September 2014.
  4. I consider that it is more likely than not that the stereo sustained significant damage – sufficiently significant for the Defendant’s officers to decline to release it to the Claimant – whilst in the Defendant’s custody. It is for the Defendant as bailee to show that this occurred despite reasonable care on its part. The Defendant does not begin to do this. This head of the claim must in principle succeed.

DAMAGE TO CDS

  1. The Claimant complains that some 21 CDs belonging to him were damaged beyond use by shampoo being squirted on them.
  2. Quite understandably, the CDs were not packed in their rigid plastic cases. Given the events which occurred at HMP Frankland, it would be most imprudent for the Prison Service to issue Mr Thakrar with such items.
  3. What I am told by the Claimant is that he packed the stereo and the CDs in June 2013.
“When I packed them… they were in a bag within another bag containing the stereo which was sealed. When I received my property they were in a different bag without a seal which was inside another different bag containing various toiletries which was sealed…”
  1. He also observes in his original complaint of September 2014 that
“If [HMP] Whitemoor had have issued me my property to pack myself, this could never have happened as I would not have put liquids in a bag with CDs…”
  1. Ms Gillman writes that some shampoo had leaked on to the outside of the bag containing the CDs; but the original observation that the CDs appear to have been moved from being packed with the stereo to being put in a bag with the shampoo is not addressed.
  2. One thing which is conspicuously not said is that the CDs are undamaged and work satisfactorily. The furthest Ms Gillman goes is to say
“I do not recall any of the Claimant’s CDs being damaged”.
  1. The Claimant asserts that the booklets and inserts were irreparably damaged; were this not the case, it would have been straightforward for the Defendant to produce them and show that they were undamaged.
  2. As is commonly the case in the Small Claims Track, the evidence is incomplete and less than satisfactory; but I am afraid that it appears to me to be more likely than not that:
The CDs were packed by the Claimant along with his stereo;
The CDs were moved from there into a bag which contained the shampoo;
That can only have been done by the Defendant’s officers;
Nobody taking reasonable care of his own property (which is the standard of care properly to be expected of the Defendant) would pack CDs and leaflets and inserts in the same place as liquids;
Indeed the only apparent reason why one would re-pack CDs in that way would be a wish that they should suffer damage;
The CDs were indeed damaged by the shampoo;
The booklets and inserts which accompanied the CDs were damaged beyond repair by the shampoo.

LOST BOOKS

  1. What is said about the these items appears from Ms Trickey’s witness statement, where she suggests that
“it is completely possible that… they were lost whilst in his own possession”.
  1. I regret to say that I find this deeply implausible. At all material times the Claimant has been under close supervision, effectively in solitary confinement.
“It is not uncommon for prisoners to lose property that is in their possession or for this to be lent to other prisoners and not be returned”
states Ms Trickey. Again, I fail to see how this is likely to have happened in the case of a prisoner under close supervision. And what I have to decide is what is likely, in the sense of more likely than not, rather than what is possible.
  1. What appears more likely than not, I regret to say, is that the books in question have disappeared whilst in the custody of the Defendant. Again, no meaningful explanation for their disappearance is forthcoming.

THE INFERENCE THAT THE DAMAGE TO THE CDS WAS DELIBERATE

  1. I am satisfied that the damage to the CDs must have been caused by the deliberate act of one or more prison officers. The circumstances surrounding the damage to the stereo and the “disappearance” of the books are extremely suspicious, but suspicion is not proof and is not a permissible foundation for a court’s decision – compare the House of Lords in re B rejecting the idea that a “real possibility” that a child has suffered harm in the past could be a permissible basis for holding it to be likely that another child will suffer similar harm in the future.
  2. So I consider only the damage to the CDs, which, as I say, I am satisfied must have been caused deliberately. Now, in human terms it would be wholly understandable that in the light of what happened to their colleagues at HMP Frankland other prison officers may have wanted to teach Mr Thakrar something of a lesson. But legally it cannot be any sort of justification.
  3. Mr Thakrar complains that after his previous claim against the Ministry he was “smeared” by the then Secretary of State for Justice with the intention of discouraging him from making any claim in future. The Ministry’s lawyers respond to this in indignant terms suggesting that the allegation is “scandalous and an abuse of process”. A more measured response would perhaps have been to observe firstly that it is difficult to “smear” a person who is a convicted multiple murderer and secondly that the allegation is beside the point because not even Mr Thakrar suggests that what has happened to his property, then or now, took place with the personal approval of the then Minister.

THE CULTURE OF NON-COMPLIANCE (ON THE PART OF THE MINISTRY OF JUSTICE!).

  1. Mr Thakrar might have been on stronger ground had he drawn attention to the apparent culture of non-compliance on the part of the Ministry. The following is a matter of record in relation to the earlier proceedings:
August 2011                     Prison Service Ombudsman recommends payment of compensation and an apology;
14th February 2013           Neither of those things having occurred, Mr Thakrar issues proceedings;
26th September 2013        Judgment in Mr Thakrar’s favour;
10th October 2013            Judgment payable;
17th October 2013            Time for seeking permission to appeal expires, with no application being made;
19th November 2013        Bailiff’s warrant issued. It is of course the case that under the Rules, a warrant cannot be issued against a Government department, the Civil Procedure Rule Committee no doubt considering it unthinkable that in the land of Magna Carta any Government department, let alone the Ministry of Justice, would simply ignore a court judgment which it did not like;
7th March 2014                 Payment made.
And in the course of these proceedings:
10th June 2013                  Canteen order placed, paid for and not fulfilled;
14th January 2015             According to the Ministry, refund made.
  1. It is not, however, necessary to go beyond the bare fact of a finding that deliberate damage has been caused to a prisoner’s property by those who had the responsibility of looking after it to justify a conclusion that an award of exemplary damages is warranted. Even if I am wrong about that, a similar sized award of aggravated damages would be appropriate.
  2. That award has to be modest. The finding of deliberate damage being inflicted relates to the CDs only. I may be, and indeed I am, distinctly suspicious regarding the stereo and the books, but as I repeat, suspicion is not the same thing as proof.
  3. In my judgment the minimum award which will adequately mark the court’s disapproval of what has happened is £1,000.

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