England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. MANCHESTER COUNTY
COURT HH JUDGE HOLMAN

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 8th March 2001

LORD JUSTICE MAY :

Introduction

1. In November 1996, Delroy Thompson, the claimant, was serving a custodial sentence at Swinfen Hall Young Offender Institution at Litchfield in Staffordshire. He was an inmate of B Wing. On 22^nd November 1996, he was attacked in the association area by another inmate who slashed his face. The written report of the incident recorded that he had sustained superficial cuts, but it was evidently a nasty injury and he has been left with permanent scarring. He brought proceedings in the Manchester County Court against the Home Office claiming damages for personal injury not exceeding £15,000. He alleged that his injury had been caused by the negligence of those responsible for running Swinfen Hall. The Home Office is responsible for the administration of custodial institutions including Young Offender Institutions and is thus the defendant to the claim.
2. The action was tried by His Honour Judge Holman on 24^th August 2000, who gave judgment in the claimant's favour for £7,650 inclusive of interest. This is the defendants' appeal against the judge's finding against them on liability. The judge gave permission to appeal.
3. The claimant did not give evidence to say who his attacker was nor positive evidence of the nature of the weapon used. The judge, however, found that it was an unprovoked attack by another inmate using a razor blade. This finding is not challenged. There was a possibility that one or more razor blades had been embedded in the head of a toothbrush. Since the claimant was unable to establish further details of the attack or the attacker, the claim proceeded, as it had to, essentially on the basis that the system at Swinfen Hall for providing and recovering razor blades was negligent.
4. The defendants do not dispute that they owed the claimant a duty to take reasonable care for his safety. They deny that they were in breach of that duty. Their essential case is that they followed Home Office guidelines about razors and that their system was such that, balancing all relevant considerations, they discharged their duty of care. Alternatively they say that the claimant's unfortunate injuries were not caused by any breach of duty on their part.
5. The Home Office guidelines to which I have referred date back to 1984 and state:

"Convicted prisoners may be allowed to retain razor blades or disposable razors at the Governor's discretion. When a Governor has reason to believe that a prisoner may harm himself or others, razor blades or disposable razors should be issued on a daily basis."

6. Mr Parker QC on behalf of the Home Office submitted that the lawfulness of these guidelines was not challenged and that, even if they were, they would successfully withstand an application for judicial review. He came close to submitting that the standard of care to be exercised by the prison authorities should be equated with that by which the exercise by a public authority of a discretion is judged in public law proceedings. In my view, this submission muddles public law and private law duties. There is no dispute but that, in the present case, the prison authorities owed the claimant a private law duty to take reasonable care for his safety. The fact that the Home Office issued guidelines is a relevant starting point, but no more, to the question whether the prison authorities were in breach of that duty.

The Judge's judgment

7. Swinfen Hall is a closed institution with on average about 180 inmates housed in three wings. Young men in custody have to be enabled to shave and therefore need razors. The judge found that, on B Wing, the system was that an inmate was issued with a safety razor on arrival. We are told that these were modern disposable razors with one (or perhaps two) small single-edged blades which are integrally part of the razor head or cartridge. This would need to be destructively taken apart to be converted into a weapon. The inmate would retain the razor with his washing things until the time came to change it. He would then go to the office on the wing where he was supposed to show the razor to an officer on duty so that the officer could check that the blade was still in place. It was then put in a receptacle and he would receive a new one. The judge found that the kind of receptacle used at the time was a plastic container about 5 litres in size with a slit in it through which the old razor blade could be dropped. There was a question whether this system was adequate. There was some evidence from two other inmates about the details of the operation which the judge discarded as being incredible. The claimant's own evidence was more credible. The claimant accepted that a prison officer would always be in the office when razors were exchanged and that it was always the officer who took the new razor out of the desk. His evidence was that there were occasions when the officer might not specifically check the old razor blade before it was disposed of. The defendants called general evidence as to what the system was. They could not exclude the possibility that not everyone was conscientious about their job or that they might not on occasions be distracted.
8. The judge referred to evidence of six incidents between 20^th November 1995 and the date of the attack on the claimant almost exactly a year later in which inmates of Swinfen Hall were cut or otherwise injured with sharp instruments. The details come from incident report forms which are not always explicit. Mr Parker accepted that up to four of these may have included injury inflicted with a razor blade, although in only one of them is the use of a razor blade specifically recorded and that when the serious injury was multiple bruising. The defendants say that the judge made a mistake in attributing these incidents to a period as short as a year, although that was their actual time span. They were however, according to the defendants, the only recorded incidents at Swinfen Hall within a period of 23 months before the claimant was attacked. Mr Parker drew our attention to evidence of prison officers at Swinfen Hall to the effect that the incidence of razor attacks there was low.
9. The judge acknowledged that the Prison Service cannot prevent violence altogether. They also have an obligation to provide those in custody with a reasonably decent and humane environment and to prepare them for their eventual release. The judge took account of the obvious fact that those in custody might be cunning and might resort to devices, and that no system could possibly be foolproof. He said that the Home Office guidelines gave the Governor a discretion which was to be exercised in the context of the degree of risk and the foreseeability of risk of injury.
10. The judge held that the claimant had established that the defendants were in breach of their duty of care. He did so for an accumulation of six reasons. First, Swinfen Hall was a Young Offender Institution which housed long term inmates, many of whom would have committed serious offences including offences of serious violence. Second, he accepted the claimant's evidence that there was the potential for lapses in the system. Third, the evidence established that there were occasions when razors were not returned when they were worn out. This permitted razor blades to circulate within the wing. Fourth, the judge accepted evidence from the claimant and his witnesses that different systems operated in other Young Offender Institutions. The defendants had not sought to challenge this evidence. The essential difference was that razors were not left in the possession of inmates until they were worn out. Instead, they were handed out each day for shaving and collected each day after they had been used. Fifth, there was a rather more controlled system for collecting razors in C Wing at Swinfen Hall, in that there was a specific time in the morning for exchanging razors when the officers would know that that was their primary task and when they would not, or should not, have been distracted. The system on B Wing was rather more flexible and less controlled. Sixth, there was a better controlled system in operation in the workshop at Swinfen Hall if, for example, a sharp instrument went missing. This was viewed with concern and steps were taken immediately to make a search.
11. For these six reasons taken together, the judge came to the conclusion that the defendants were in breach of their duty of care. He said that it was a balancing exercise, but he considered that, without incurring enormous expense or substantially affecting the lifestyle of the inmates, the risk inherent in razors being available could be very substantially reduced. It was not necessary for the claimant to show that it could have been eliminated altogether.
12. The judge found in a brief paragraph of his judgment that the defendants' breach of duty caused the claimant's injury. He considered that the system created an opportunity for razors to be available and that it was readily foreseeable that this kind of attack could occur. The logic of his decision has to be that, in the circumstances which he described, if the system for razors at Swinfen Hall had been more restrictive and better controlled, the claimant's injury would probably not have occurred.

Application for additional evidence

13. The defendants in this court apply to adduce additional evidence. They want first to rely on a single page schedule giving brief statistics of assaults in Young Offender Institutions in the year 1996 to 1997. They wanted to put this before the judge, but he refused to admit it. They only produced it on the day of the hearing. The defendants say that they were unaware that the claimant would rely on what went on in other institutions until his witness statements were served about 3 weeks before the hearing before the judge. This was in August and the person mainly involved was on holiday during most of the period. The schedule shows that the incidence of assaults at Swinfen Hall in the year in question was comparatively low as an average of the number of inmates. Mr Elliott on behalf of the claimant successfully objected to this evidence being admitted before the judge and objects to it being admitted in this court. He submits that the judge was correct to exclude it on the basis that it was tendered too late and was largely meaningless in the absence of much greater detail.
14. The defendants also apply to adduce in this court additional evidence not available before the judge because, it is said, of lack of time to prepare it. This would give details for the year 1996 of some Young Offender Institutions which operated the same system for distributing razors as that which operated at Swinfen Hall; and of others where razors were issued for daily use and collected each day after the inmates had shaved. The defendants also wish to rely on additional detailed statistics for the period 1994 to 1997 intended to show that the incidence of assaults at Swinfen Hall was comparatively low and that there are generally fewer assaults on inmates at institutions in which the time spent out of cells and on what is referred to as "purposeful activity" is greater.
15. For my part, I would refuse to admit the additional evidence. I do not think that the statistical material would be much help to the court in determining this appeal. I agree with Mr Elliott that, without much greater detail about each of the institutions, there is little or nothing to be derived from the figures or other additional material. The material has not been tested in evidence and the claimant has had no opportunity to apply for disclosure of any documentary material that might be relevant.

Submissions

16. There are extensive grounds of appeal. These were originally supported by written submissions by Mr Poole on behalf of the defendants. Mr Poole divided these submissions into three sections under the headings foreseeability, breach of duty and causation. When Mr Parker QC was instructed, he produced a further written submission which rather changed the focus of the appeal. Mr Parker submits that the Home Office guidelines indicate that each governor must exercise the discretion conferred by the guidelines, taking due account of the particular circumstances of the institution in question. The governor ought to have regard to the nature of the institution; the incidence generally of serious assaults at the institution, both absolutely and in relation to institutions of a similar description; the incidence of serious assaults specifically caused by razor blades; the extent to which particular steps are likely to reduce the risk of assault using a razor, bearing in mind that serious assaults of this nature are likely to be planned and determined; and the need to maintain humane conditions in the institution that are likely to promote the rehabilitation of offenders. Mr Parker accepted that the nature of Swinfen Hall included that it had longer term inmates, some of whom had records of violence. He submitted that there was no evidence that the incidence of serious assaults was high and that, on the evidence, the incidence of serious assaults caused by razor blades was in fact low. There was evidence that any determined inmate who planned to inflict serious injury could in any event improvise a weapon for that purpose. This applied, not only to the possible use of razor blades, but also to numerous other objects which might be used or adapted to cause injury. Mr Parker submitted that the governor at Swinfen Hall had to balance risks of this kind with a policy that gave inmates a certain degree of trust with a view to developing a sense of responsibility aimed at rehabilitating them and equipping them for their release. There was a policy to provide purposeful activity and to reduce so far as possible the time when inmates are locked up in their cell. Mr Parker submits that it is obvious that the longer the time that inmates are locked up the greater may be the tension in the institution. He also submits that it is obvious that a policy of issuing razors daily and recovering them after the inmates have shaved will increase the time that they are locked up in their cells.
17. Mr Parker submitted that, having regard to these considerations, the governor of Swinfen Hall should not be held to have been in breach of duty to the claimant in having a discretionary policy which did not recover razors on a daily basis. He referred to the evidence of Mr Hogg, the Health and Safety Officer at Swinfen Hall, as justifying this policy. I shall refer to this evidence in more detail later in this judgment. Mr Parker submitted that the claimant's case on causation cannot succeed other than on a finding that the prison authorities were in breach of duty to the claimant in not adopting a restrictive policy under which razors were withdrawn daily after use. The claimant's assailant and the detailed nature of the attack were not established, so that incidental possible lapses in the system which was in operation cannot be shown to have caused his injury. The claim should only succeed if the discretionary decision to adopt the system was shown to be negligent. That was a finding which the judge either did not make, or, if he did, he was wrong to do so.
18. Mr Elliott on behalf of the claimant submits that the judge's decision is sustainable on the particular facts which he found and that it is not a decision which should be seen as applying to the Prison Service generally. He submits that there is a difference between a policy that is relaxed and one that is lax. The judge concluded that the system for distributing and collecting razors in B Wing at Swinfen Hall was lax in its execution, and the judgment is sustainable on the ground that the regime in C Wing was tighter and more secure. The decision was, as the judge said, a balancing exercise. In striking that balance, the judge was entitled to conclude that the risk inherent in razors being at large in the prison could be very substantially reduced without incurring enormous expense or substantially affecting the lifestyle of the inmates. Mr Elliott submits that that finding was properly derived from the six factors to which the judge referred. Mr Elliott submits that the decision is equally sustainable, if it is to be seen as a decision that it was negligent to have a system which did not collect the razors from the inmates daily after they had shaved. There was evidence that other Young Offender Institutions operate that more restrictive system. Mr Elliott suggests that the main thrust of this appeal is that the choice of the basic system should not be regarded as negligent. But four of the judge's six findings were directed at deficiencies in the detailed operation of the chosen system, and the risks to which those deficiencies exposed the claimant were sufficient for the decision. He submits that the inherent risk of allowing 180 razors to remain in circulation required a high degree of close supervision of razor exchange. The judge found that this was lacking for the reasons which he gave.
19. Mr Elliott submits that the judge was entitled to take into account the fact that Swinfen Hall housed long term offenders some of whom were likely to have a propensity for violence. In so far as the judge concluded that the basic system was at fault, Mr Elliott draws attention to the evidence of Mr Maycock, the Senior Officer at Swinfen Hall, who accepted that there was nothing at all wrong with collecting razor blades each day; that he did not think that there were good operational reasons why there should be a different policy; and that such a system would impose a greater degree of control, although it might be a bit demeaning. This, with the evidence that other institutions operated a more restrictive system, would justify a conclusion that the choice of system was negligent.
20. As to causation, Mr Elliott submits that the judge applied a correct test in concluding that it was not necessary for the claimant to show that the risk could be eliminated altogether, merely that it could have been substantially reduced. Mr Elliott submits that the lax policy materially contributed to the claimant's injury in that it permitted razors to be purloined and made into dangerous weapons. Comparing the system in operation in B Wing with another more secure system indicates a breach of duty which materially caused the claimant's injury.

Discussion and conclusion

21. In my judgment, there is substance in a criticism of the judge's decision originally advanced in Mr Poole's written submission on behalf of the appellants. In concluding that the claimant had satisfied him that the defendants were in breach of their duty of care, the judge did not clearly identify the essential failure which constituted the breach. He found six factors which cumulatively brought him to his conclusion. He then said that the risks inherent in razors being available could have been very substantially reduced without incurring enormous expense or substantially affecting the lifestyle of the inmates. The judge does not, I think, make clear whether the breach of duty which he found comprised detailed deficiencies in the system which was in operation or a failure to adopt a system under which razors were withdrawn each day after they had been used. There is then further force, in my view, in Mr Poole's point that, since the judge did not clearly identify the breach of duty, his decision on causation was also imprecise. Indeed, in saying, as he did, that the system in operation created an opportunity for razors to be used for a violent attack, so that it was readily foreseeable that this sort of attack could occur, the judge was wrongly applying questions of foreseeability to the issue of causation. Mr Elliott's submissions in support of the judge's conclusion implicitly recognised that the breach of duty which the judge found was imprecisely defined. Mr Elliott also recognised in his oral submissions that causation in this case could not depend on an assessment of risk alone, let alone on a risk which materially contributed to the claimant's injury. In the end, the claimant has to define the breach of duty and establish that it caused his injury.
22. In my view, the essential question in this appeal is whether the defendants were in breach of duty in operating a system for razors at Swinfen Hall which left inmates in possession of their current razor. The details of any system of collection and exchange of razors seem to me to be of marginal relevance, when each inmate was in any event able to have in his possession a razor throughout. Irrespective of the details of collection and distribution or the care with which this was undertaken, there was the opportunity for determined inmates intent on causing injury to adapt a razor so that it might do so. If the defendants were in breach of duty because they should have operated a system of removing the razors after shaving each day, I think that the judge was entitled to conclude that, under such a system, the claimant's injuries would probably not have been inflicted, and that the breach of duty therefore caused the injury. On the other hand, I consider that detailed possible deficiencies in the system which was in operation cannot support the necessary case on causation. For instance, the difference in detail between the systems in operation in B and C Wings could not be shown to have caused the claimant's injury when the identity of the attacker and the detailed means of attack were not positively established and when, under the basic system under operation in both wings, all 180 inmates had a razor in their possession throughout.
23. Accordingly, in my judgment, the claim can only succeed if it is established that it was negligent to adopt the basic system. As I have said, I do not think that the judge clearly identified the breach of duty which he found On one view, his decision may be seen as having depended in the main on detailed failings of the system which was in operation. On another, the detailed failings were merely mentioned as background to a conclusion that only a restrictive system under which razors were withdrawn after shaving each day could be appropriate. In his submissions before us, Mr Elliott sought to support the judgment on each of these alternative bases: the basic system was wrong and a restrictive system ought to have been adopted; alternatively, an open system could only be appropriate, if it was organised and operated to a higher standard than that present at Swinfen Hall. For the reasons which I have indicated, I do not think that the second of these would sustain the necessary causation. It therefore becomes necessary for this Court to determine whether the evidence established that the prison authorities were negligent in deciding to adopt the basic system. The relevant evidence is not as full as it might have been, but there is some force in the point that a main thrust of the claimant's case at the hearing was an attempt to establish detailed deficiencies of the system that was in operation. Much of the defendants' evidence was directed to rebut that case and they were substantially successful. On this part of the case, the judge found no more in the claimant's favour than that there was the potential for lapses in the system and that there was a somewhat more controlled system on C Wing.
24. The defendants did, however, adduce evidence from Mr Hogg, the Health and Safety Officer at Swinfen Hall. His evidence included that the Prison Service has a commitment to provide a humane and decent environment for inmates. He referred to the Home Office guidelines. He described the system in fact in operation at Swinfen Hall. He stated that there were occasions when inmates wanting a new razor claimed that their razor had been stolen. The staff would then use their judgment whether to issue a new one. He explained that Prison Service policy is that inmates should be allowed to keep razors with them unless there is a good reason why they should be withheld. The governor then has a discretion not to allow razors to be kept. There was no reason for Swinfen Hall to depart from the general policy of allowing inmates to keep razors. He referred to the recorded incidents between 1994 and 1996 of attacks involving sharp implements. I have already referred to these. He stated that the incidence of such assaults was low for an institution with approximately 180 inmates and that not all the recorded incidents constituted attacks with razors. His evidence was that Swinfen Hall is committed to providing purposeful activity for all inmates. As part of a regime for progressive rehabilitation, inmates have access all day to screwdrivers, pool cues, meal trays, hammers, chairs, boiling water and a variety of sharp objects. All of these are capable of inflicting injury, and a determined inmate intent on causing physical harm may occasionally find the means of doing so. But the staff are very aware of their responsibilities to provide as safe an environment as possible. The policies are kept under review and security systems are in place to control the unsupervised possession of objects which might be used to cause injury. This evidence was not challenged in cross-examination.
25. On the basis of this evidence, it is to my mind obvious that prison governors, and especially those in charge of Young Offender Institutions, have to make balancing judgments between tight security and a regime aimed at rehabilitation in which the inmates are required to exercise responsibility. Mr Moreland, a principal security officer at Swinfen Hall, illustrated this in answer to a question from the judge to the effect that a system of withdrawing razors each day would provide a greater degree of control. Mr Moreland agreed but said that it would be at a cost to something else in the regime. They have to try to maintain a balance. If they had a problem with razor attacks, he would advocate doing something about it, but he would say they did not have a problem. His written evidence was that razor blade weapons were not common at all.
26. In my judgment, in the light of this evidence, the claimant's evidence did not establish that the basic system for razors in operation at Swinfen Hall was negligently adopted. I think that Mr Hogg's evidence sufficiently showed that the adoption of this basic system was a considered decision in the exercise of a balancing discretion. The fact that a more restrictive system operates in other institutions does not, in my view, establish that the system in operation in Swinfen Hall was negligent. Nor do I think that Mr Maycock's evidence, to which I have referred and which Mr Elliott relied on, was saying more than that operationally a more restrictive system was feasible. A regime for razors cannot, in my view, be judged by reference to the system for missing tools in the workshop for which substantially different considerations apply. There was, in my view, no proper basis for rejecting the prison officers' evidence that razor attacks at Swinfen Hall were uncommon and essentially not a problem. The claimant's written evidence on this topic was limited to a belief that a number of razor blade weapons were in circulation at Swinfen Hall while he was there. In his oral evidence, he mentioned 10 attacks in two years, but the judge rightly observed that this was gossip and it does not accord with the records. Further, on the evidence, the restrictive system operated at some other institutions was not a complete answer to the problem of missing razors and it is unrealistic to focus on razor blades as if their elimination would by itself remove all similar risk. The incident reports refer to the use of stabbing instruments and the evidence described inmates' ability to adapt plastic rulers and tuna tin lids into weapons capable of inflicting serious injury.
27. For these reasons, I would allow this appeal. I would, however, emphasise that what I have said derives from the evidence called in this case and relates to Swinfen Hall in November 1996. It should not be taken as necessarily applying to prisons or Young Offender Institutions generally where different considerations may apply. Since on any view the possibility of a razor attack in a custodial institution is foreseeable, the balance of a policy relating to razors may change both generally and in relation to particular institutions. It is obvious, therefore, that these policies require regular review.
28. LORD JUSTICE MANCE: I agree.
29. THE LORD CHIEF JUSTICE: I also agree.
ORDER: Appeal allowed.
30. The appellant's application to adduce additional evidence be dismissed.
31. The appeal against the judgment of His Honour Judge Holman be allowed.
32. The appellant do pay the Respondent's costs of the application to adduce additional evidence and the Respondent's costs of responding to the skeleton argument of Kenneth Parker Q.C., such costs to be the subject of detailed assessment if not agreed.
33. The Respondent do pay the Appellant's costs of the appeal and of the court below, such costs to be the subject of a detailed assessment if not agreed, the determination of the amount of the Respondent's liability to pay such costs under Section 17 of the Legal Aid Act 1988 be postponed generally pursuant to Regulation 127 of the Civil Legal Aid (General) Regulations 1989.
34. The Appellant's liability to pay the Respondent's costs shall be offset against the Respondent's liability to the Appellant as set out in paragraph 4 above.
35. The Respondent's costs be subject to a detailed assessment in accordance with regulation 107A of the Civil Legal Aid (General) Regulations 1989.
(Order does not form part of approved Judgment)