England and Wales Court of Appeal (Civil Division) Decisions

Stenning v Secretary of State for the Home Office [2002] EWCA Civ 793 (31st May, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE- UPON-TYNE COUNTY COURT
Mr Recorder Bullock

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st May 2002

Lord Justice Brooke : This is the judgment of the court, to which all its members have contributed.

1. This is an appeal by the Home Office against an order of Mr Recorder Bullock sitting at the Newcastle-upon-Tyne County Court on 11th April 2001 whereby he directed that judgment be entered for the claimant David William Stenning for £12,000, together with interest. The amount of damages was agreed, and the only issue between the parties both at the trial and on this appeal related to liability.
2. The action arose out of an incident on B Wing at HM Prison Wakefield on the evening of 27th December 1996. The claimant was a prisoner serving a life sentence for serious sexual offences. At about 7.40pm that evening another prisoner, Joe Purkiss, entered Mr Stenning’s cell when he was alone in it and held him hostage there for about five hours. Prison officers then stormed the cell and Mr Purkiss inflicted serious injuries on Mr Stenning with a craft knife before he was successfully rescued. Mr Stenning also suffered from post-traumatic stress disorder.
3. It was contended on his behalf that the prison authorities had been negligent in the way they handled Mr Purkiss’s management, and that he suffered his injuries as a consequence of their negligence. We will refer in paragraph 27 below to the way in which the statement of case against the Home Office was set out before the trial started.
4. It is not necessary to say very much about the facts of the incident itself. They are set out with clarity in the judgment. Prisoners on the wing were enjoying a period of association that evening, when they were allowed to leave their cells to watch videos, play games, go to the canteen or generally have freedom from the confines of their cells without having to participate in an organised prison programme.
5. Mr Stenning and his cellmate Mr Agnew occupied a cell on the wing’s second landing (known as the Twos). They went down to the lower landing to watch a video, and when they returned to their cell Mr Stenning got the tea ready while Mr Agnew prepared cheese sandwiches for toasting. Mr Purkiss came into the cell at that stage, and they chatted for three or four minutes before Mr Stenning left the cell to toast the sandwiches. Mr Agnew then asked Mr Purkiss to leave, because he wanted to visit a friend on the upper landing, and Mr Purkiss complied with his request. No problem at all had arisen at this stage. The time was now about 7.30pm. When Mr Agnew returned from his visit to his friend about ten minutes later, he found his cell locked, and another prisoner told him he could not go in because Mr Stenning had been taken hostage. All the prisoners were then returned to their cells (in Mr Agnew’s case, to a different cell) while the prison authorities tackled the hostage emergency.
6. What had happened when Mr Stenning came back to his cell with the toasted sandwiches and a flask of tea was that he was standing with his back to the cell door, when he heard the door shut. He then became aware that Mr Purkiss had entered his cell and was holding a craft knife to his neck. He said he had just bought the knife and would use it if he had to. He made Mr Stenning sit on a chair and tied his arms up behind the chair. He also smashed a bottle, which was on the sink in the cell, and he used the broken glass as a further means of threatening him.
7. The emergency procedures were then activated, and prison officers started negotiating with Mr Purkiss to try and get him to leave the cell. When he was asked what he wanted, he said he wanted to get out of the prison. He blamed one of the wing’s principal officers, Mrs Bridgewater, for what had happened. He said that he had been to see her 30-60 minutes before taking Mr Stenning hostage. He had asked to be allowed to go to the prison’s segregation unit (otherwise known as “the block”) for a few days to get his head sorted out, but she had refused. This unit was in F wing.
8. After all the attempts to persuade Mr Purkiss to leave the cell voluntarily had failed, prison officers set about storming the cell at about 12.30am. When Mr Purkiss became aware of this, he shouted “Don’t come in. Stenning will die”. He then grabbed Mr Stenning’s head, and started cutting his neck. He had succeeded in inflicting serious wounds to Mr Stenning’s neck, chest and back before prison officers swarmed into the cell and prevented him from inflicting any more harm.
9. Since the amount of damages was agreed, it is not necessary to say very much about the subsequent history. Mr Stenning was treated for his wounds at a local hospital. He was then returned to the prison. Mr Purkiss, for his part, was moved to a different prison on 28th December. He was in due course convicted at the Crown Court on charges arising out of this incident.
10. Mr Purkiss was a Category A prisoner. He had been sentenced to life imprisonment in 1984 for attempting to murder a woman. He was a man of low intelligence, and he suffered from a personality disorder which made him behave in a childish way. In 1987-8, when he was diagnosed as having clear psychopathic characteristics, he spent six months at the secure hospital at Rampton. There was no evidence that he was having treatment for any identifiable mental disorder susceptible to treatment at the time with which this action is concerned. Because of his behaviour he was disciplined on over 50 different occasions during the course of his prison career. He was also moved from time to time within the secure prison estate, in order to relieve the staff in any particular prison from the burden of managing him for too long a period.
11. The longest time Mr Purkiss spent in any one place was a period of six years in the special unit at Parkhurst. The longest time he had ever spent in normal conditions in a mainstream prison was the period at Wakefield which started in December 1995 and ended a year later when the hostage-taking incident occurred.
12. His prison file accompanied him from prison to prison, so that it was available to the senior prison staff at Wakefield who were responsible for him during his time there. The judge read extracts from it into his judgment, and it is clear that Mr Purkiss posed very considerable problems during the first three years of his prison career. In April 1985 he threatened another inmate with a home made weapon. Two months later he was found with a razor blade in his possession. In December 1985 he cut the throat of another prisoner who was taking photographs from his drawer, using another home made weapon. And in June 1986 he was reported as having told a prison officer “When I get a blade to you, you’re dead”.
13. Since December 1985 there had been no acts of violence of the same degree of seriousness. There were a few records of physical assaults on other inmates, but nothing of an alarmist nature. This was the history of the man when he arrived in Wakefield in December 1995.
14. Like all life sentence prisoners (“lifers”), his deployment within the prison estate was managed from prison service headquarters. At the relevant time Mr Golds was the responsible officer there. Mr Purkiss was housed in B Wing, which held a total complement of 180 inmates. Lifers constituted 40% of the prison’s population, and 70% of these had committed serious sex offences. It was therefore estimated that about 72 of the inmates of B Wing were lifers, including about 50 sex offenders (otherwise known as “nonces”).
15. At the material time Mr Jones was the governor responsible for B Wing, and Mr Fawcett and Mrs Bridgewater were serving under him as principal officers. Wakefield is an old style prison with a central atrium, and three of the four wings were open at that time. Mr Jones’s office and the principal officers’ offices were all on the Twos. Mr Purkiss’s cell was on the same level.
16. The judge found that B Wing did not have a particular reputation for violence, although violent incidents occurred there from time to time. Mr Fawcett said that there was always palpable tension in the air. Although there were few actual outbreaks of violence, there was an “incredible” level of verbal abuse of staff. Mr Jones told him that he would expect about 10% of the prisoners on the wing to be particularly difficult to deal with. He added that the world of a maximum security prison was comparatively violent. Another witness, Mrs Moulden, who was at the time head of custody and throughcare at Wakefield, said that there were bound to be incidents of violence in such an environment.
17. So far as Mr Purkiss’s management at Wakefield was concerned, the judge said that this was part of an experiment, because Mr Golds (see para 14 above) wanted to integrate Mr Purkiss into the main prison system, He needed to learn how to integrate with other prisoners and staff, and it might be that he had been segregated for too long. It was typical of him that he should ask to return to Parkhurst as soon as he arrived at Wakefield.
18. The judge said that Mr Purkiss was accepted at Wakefield at a price which had to be paid in two different respects. The first was that he was effectively not made subject to the normal rules of prison discipline, because if he was repeatedly reported, he would have to go back into segregation, and this was not the intention behind the placement. The second, which followed as a direct corollary, was that he was extremely abusive to members of staff, especially to Mrs Bridgewater, and was wearing them down. He was in her office two or three times a day, and he accompanied his presence there with demands, foul language and upsetting personal comments about her.
19. There was evidence that Mr Purkiss told a psychologist in February 1996 that he felt like killing an inmate to secure a move from Wakefield, and that he wrote to the governor along these lines two months later. In the same month he was reported by a probation officer. The judge commented that it was very unusual for a probation officer to report a prisoner, and that this showed that Mr Purkiss had almost got to the stage where he believed that he could do anything he wanted without the threat of being disciplined. Of more immediate moment was some correspondence which passed between Mr Jones and Mr Golds in the autumn of that year.
20. On 23rd September Mr Jones wrote to Mr Golds in these terms:

“The above named inmate has been at Wakefield since 20th December 1995. For the most part he has been on normal location on B Wing which has to be considered as extreme progress when measured against this man’s history of being in segregation and special units.

However, his continued existence on normal location is not without some cost to staff who have to endure an ongoing tirade of abuse and threat which almost any other inmate would find himself on report for. We manage him on the basis of affording him a great deal of understanding and patience but we can never lose sight of the fact that one day he might just carry out one of [t]his threats.

He has made numerous requests to move prison and has said that either Full Sutton or Frankland would suffice. These requests have not been met on the grounds that he is seen as having settled at Wakefield and there are fears that he would not do so elsewhere.

I have a number of concerns. One is towards my staff who I consider have managed him extremely well. The other is towards the welfare of the inmate and his ongoing management.

For these reasons I believe Joe Purkiss should be afforded the opportunity of proving himself elsewhere but I am prepared to say that should he not settle then I would be prepared to take him back. I fear that should we fail to move him he may do something in an effort to force our hand.

I would appreciate your assistance in this matter.”

21. Mr Jones did not receive a formal response to this letter, although he spoke to Mr Golds on the telephone, and on 1st November Mr Jones wrote again in these terms:

“I wrote to you on 23.9.96 about the difficulty of managing Purkiss on a day to day basis and requested that he be moved from Wakefield, if only to give staff a break from his constant threats and difficult behaviour.

Regrettably I do not appear to have received an acknowledgment to this communication which in itself causes problems as Purkiss asks on an almost daily basis when he is going.

It is my view that we have made good progress with this inmate and it would be a great shame if he were to regress. If a move were to be authorised and for whatever reason he did not settle I would gladly take him back at Wakefield.

I would be grateful for your assistance in this matter and whilst I accept that to place someone such as Purkiss is not easy I would appreciate your views.”

22. On 19th November Mr Golds responded. After apologising for the delay in his reply, he said:

“You will appreciate that as Purkiss was a resident of C Wing at Parkhurst we are very familiar with the problems that he presents. I would agree that Wakefield staff have managed him effectively and this is reflected in that he has been held on normal location for 12 months, the longest period spent in a normal prison environment since his conviction.

I remain sceptical that Purkiss would achieve this at any other dispersal location, hence the reluctance to agree to a move. However, I would be prepared to consider a temporary trial period at an alternative location, with the incentive that, if he settled, the period could be extended. If not, he will return immediately to Wakefield.

Any proposed move must be carefully managed and I will ask Samantha Hughes to liaise with Wakefield to discuss the move and to finalise any arrangements. I will also suggest that she visits Wakefield to interview Purkiss so that it can be reinforced to him that any move is for a trial period and, if he fails to settle at his new location, he will return to Wakefield.

In his request/complaint he asked for accumulated visits at Leeds. Given the population pressures in local prisons it is extremely unlikely that this request can be granted. It should also be noted that given Wakefield’s close proximity to Leeds I would find it difficult to justify granting a transfer there.

The request for transfer to Full Sutton will now be considered by Miss Hughes and if you think it would be helpful, please pass a copy of this memorandum to Purkiss.”

23. The judge was told that Mr Purkiss was then assessed by a member of Mr Golds’s staff, and following this assessment Mr Jones was told that it had been decided that Mr Purkiss would indeed now be moved to another as yet unidentified prison. This news was then passed on to Mr Purkiss himself. It appears from the evidence that there was a plan to move Mr Purkiss to another prison after the Christmas holiday break.
24. The only case cited to the judge at the hearing was the unreported judgment of this court in Palmer v The Home Office (CAT 25 March 1988). In that case the claimant had been stabbed by another prisoner who had been convicted of three murders and other very serious offences of violence. The aggressor was described as a loner with a paranoid personality. He generally behaved himself, but he was usually unco-operative with staff. He was said to be an angry, bitter and very dangerous man.
25. In his judgment, with which Dillon LJ agreed, Neill LJ quoted with evident approval a passage in Halsbury’s Laws, 4th Edition, Vol 37, para 1140, which was to the following effect:

“The duty on those responsible for one of Her Majesty’s prisons is to take reasonable care for the safety of those who are within, including the prisoners. Actions will lie, for example, where a prisoner sustains injury at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and attention, to the extent that it is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.”

Neill LJ added during the course of his judgment that:

“Those in charge of prisoners have a difficult task. Clearly except in extreme cases, of which obviously there are some, those responsible for prisons cannot keep prisoners permanently locked up and segregated from other prisoners.”

26. The judge said he had to try and translate this statement of the law into the particulars of claim in this action. He prefaced his findings on liability by saying that of course one had every sympathy and admiration for the staff at Wakefield in attempting to control what was probably England’s most dangerous prison population.
27. The particulars of claim contained seven allegations of negligence. It is unnecessary to say very much about the first and last of these, because they depended on contentious issues of fact which the judge found in favour of the defendants and they have not been re-opened on this appeal. He found that Mr Purkiss had not taken individuals hostage before, and that he had not threatened another prisoner with a knife shortly before he took Mr Stenning hostage. The other five allegations were in these terms:

“(b) Failing to respond adequately or at all to the request made by Joe Purkiss to Mrs Bridgewater to allow him to go to ‘the block to get his head sorted out’:

(c) Failing to supervise Joe Purkiss adequately or at all in the light of the aforementioned request;

(d) Failing to observe Joe Purkiss adequately or at all in the light of the aforementioned request; had this occurred, Joe Purkiss would have been observed and/or intercepted when he obtained a knife prior to taking the Claimant hostage;

(e) Failing, as they were required to do pursuant to Prison Rule 18, to pay special attention to Joe Purkiss, he being a prisoner whose mental condition appeared to require such attention in the light of the aforementioned request, and further failing to make and/or consider any such arrangements which appeared necessary for his supervision or care;

(f) Failing to maintain the standard of good order and discipline required for the Claimant’s safe custody.”

28. It appeared to the defendants that apart from the last of them, these allegations were all focused on failings in the standard of care required of the defendants on the night of the incident following Mr Purkiss’s alleged request to Mrs Bridgewater to allow him to go to the segregation unit that evening. This understandable reaction was confirmed by the claimant’s replies to a request for further information about items (b)-(e). So far as item (f) is concerned, when the defendants sought information specifying each and every respect in which it was alleged that they had failed to maintain the requisite standard, they were told that this allegation had been adequately pleaded.
29. The judge, however, made it clear at the start of the trial that he considered that the language of the second part of allegation (e) was wide enough to cover complaints about the way Mr Purkiss’s management had been handled, both at Wakefield prison and in the lifers unit at the Home Office, from the time Mr Jones wrote to Mr Golds about him in September. It was not practicable for Mr Kramer, who appeared for the defendants at the trial, to appeal against that ruling, so that he and his clients had to do what they could to meet this extended aspect of the claimant’s case. Mr Kramer did not apply for an adjournment, and once he understood what had happened at the trial, Mr Burnett QC, who led Mr Kramer on the appeal, did not press his complaint that the judge had decided matters which did not form part of the claimant’s statement of case.
30. As to the first part of item (e), the judge found that Prison Rule 18 did not apply to Mr Purkiss since he did not appear to have suffered from any known psychiatric illness, even though he had what the judge described as mental problems and a low IQ. From the rest of the claimant’s case the judge identified four issues for his consideration:

(i) The question of the transfer (or otherwise) of Mr Purkiss from Wakefield Prison;

(ii) The question whether he should have been segregated before 27th December 1996;

(iii) The question whether he should have been segregated on the evening of 27th December 1996;

(iv) The question of the disciplining (or otherwise) of Mr Purkiss.

31. The judge made explicit findings, which are not challenged on this appeal, to the effect that there was an adequate level of staffing on the evening of 27th December, and that there was no evidence that Mr Purkiss posed any immediate danger to prisoners, so that it was not necessary to keep him under constant observation. He made no criticism of the practice of issuing craft knives to prisoners. He accepted the evidence of Mrs Moulden (for whom see para 16 above) that there were plenty of materials in a prison that could be used for weapons if someone wanted to construct a weapon, and that it was not possible to exclude all possibilities within the prison system.
32. Of the four issues identified by the judge for special consideration, he dealt with the last first. He commented on it in these terms:

“First of all the failure to discipline Purkiss. This was a risk assessed decision, but this constant abuse was clearly known, together with his threats. There was apparently a daily briefing of staff within the wing. Purkiss’s name was a regular – cropped up regularly in those meetings, and clearly everybody, including the heads of the administration, was aware of Purkiss’s behaviour. The staff were becoming worn down by Purkiss and this led to a request made by Mr Jones to Mr Golds for the transfer of Purkiss from the prison, and in my view, the failure to discipline Purkiss is a contributory factor to events that happened.”

33. It is not clear whether the judge’s reference to “a contributory factor” conceals within it a finding of negligence. Mr Walker QC, who appeared for Mr Stenning, endeavoured to explain to us what may have been the thinking behind the judge’s conclusion on this point, but he placed no very great weight on it in his submissions on the appeal, and it is not necessary to separate this aspect of the matter from Mr Walker’s main arguments.
34. The judge dealt at rather greater length with what he had described as “the transfer or otherwise” of Mr Purkiss from Wakefield prison. He said that by September 1996 his behaviour was becoming intolerable so far as the authorities at Wakefield were concerned, and in this context he described Mr Jones’s first letter to Mr Golds, which he recited in full in his judgment, as “very significant”. He said of the second sentence in the final substantive paragraph of that letter that it was “very prophetic”. He appears, however, to have accepted the evidence of Mr Fawcett (see para 15 above) that up to the time of this letter the authorities at Wakefield thought they had been very successful with Mr Purkiss, bearing in mind his past history.
35. The judge referred to the fact that Mr Jones made telephone calls to Mr Golds, following his first letter, to remind him of the position. He also said that at the inquiry later conducted by Mrs Moulden it was revealed that Mr Marshall, the governor in charge of the movement of prisoners at Wakefield, had also asked that Mr Purkiss be transferred. Mr Golds would not sanction such a move, since Mr Purkiss was merely displaying his normal pattern of behaviour, and he thought he ought to be managed at Wakefield on normal location. He had also expressed the view to Mr Marshall that “GOAD” (segregation in the interests of good order and discipline) was not appropriate, because Mr Purkiss was known to headquarters staff and he had never carried out his threats. The judge noted Mrs Moulden’s comment in her report that Mr Golds’s statement seemed injudicious with the benefit of hindsight.
36. The judge then want on to make the comment that he believed there was an element of complacency from Mr Golds at this stage. The evidence clearly showed that there was a very serious position on the ground at Wakefield, and the judge did not believe that Mr Golds responded adequately to Mr Jones’s requests.
37. He then referred to Mr Jones’s second letter (see para 21 above), of which he said that “this was only replied to on 19th November, when it was said that an assessment would be made by Miss Hughes”. The judge observed in passing that there was no documentary evidence that Mr Golds had ever authorised a transfer from Wakefield for Mr Purkiss, although Mrs Bridgewater had been under the impression on 27th December that a move had been authorised. The judge continued:

“I think it is also of significance that in everybody’s minds at this stage should have been the hostage taking in March 1996. This in fact was almost an exact copycat of what happened in December 1996, although apparently there was some element that there may have been collusion between the prisoners concerned. But Purkiss is making threats. Jones is saying, ‘There are serious threats being made here, don’t ignore them’. There has been a serious incident not a few months earlier, and with all this in mind, my view is that urgent action should have been taken to transfer Purkiss and it was not taken.”

38. So far as this finding was concerned, it is again not completely clear that the judge was making a finding of negligence (although this is probably implicit in what he said). If indeed he was making such a finding, it was being made against Mr Golds (for whose status see para 14 above). We have already described (in para 29 above) the circumstances in which the judge permitted this issue to be argued, and nobody from Mr Golds’s office travelled up to Newcastle to give evidence at such short notice.
39. The judge then turned to his third issue (“the segregation of Purkiss”). He dealt with it quite summarily in these terms:

“Should he be segregated if not transferred in a reasonable time? Well, my view is that the experiment should have ended in September 1996, that a line should have been drawn under it. The more senior management in London should have stopped it there and then and agreed to the transfer of Purkiss from Wakefield.

Mr Jones, although he agrees that he was over egging the pudding somewhat, he cannot in fact get away from the fact that the prophecies that he made in fact came true, showing and verifying his concerns at the time.

My view is that errors were made in the management of Purkiss, which ultimately led to this hostage incident, that if he was not to be transferred in September 1996 then he should have been put into segregation.”

40. It appears that the judge was suggesting that if Mr Purkiss had been placed on a disciplinary charge every time he abused prison staff from September onwards, it would have been likely that he would have spent most of his time in segregation, and would therefore have been unlikely to pose a threat to other prisoners. Mr Walker founded his first main argument on the appeal on a defence of the judge’s amalgamated conclusions on the first three of the four issues he identified.
41. Finally, the judge addressed the question whether Mr Purkiss should have been segregated on 27th December. He said that Mr Purkiss’s own words were that he made such a request to Mrs Bridgewater and that when one of the prison officers was negotiating with him later that evening and was trying to get him out of Mr Stenning’s cell to the segregation block, he was told by Mr Purkiss that it was too late now. Mrs Bridgewater had said in her witness statement she could not remember receiving such a request. She told the judge at the trial that she definitely had no conversation with Mr Purkiss that day about his going into segregation. The judge rejected that evidence, relying on the fact that she had said in her evidence that Mr Purkiss had made such requests on previous occasions.
42. On this issue the judge commented in these terms:

“Apparently the excuse may have been that the segregation unit was full, but certainly the officers at the level of governor who have given evidence in the course of this case have said that there would not be any problem in admitting Purkiss in segregation. Room would have been found for him; more minor miscreants would have been moved out to let Purkiss in, and in my view, in view of the background to all this, in view of what was going on about his transfer, in view of the abuse that was dished out by Purkiss, that Mrs Bridgewater should have let him into segregation on the 27th.

But having said that, I do not wish blame to be heaped on Mrs Bridgewater. She has obviously suffered greatly because of this incident. The failures lie earlier in time and with higher management than her.

There is also the problem of everybody getting used to Purkiss’s indiscipline, and therein lies the danger, and I believe complacency has crept in here. I have every sympathy with all involved in this enormously difficult situation and we all have the benefit of hindsight, but the fact is there was an extraordinarily serious incident that was predicted earlier, and the warning bells were ringing and should have been take notice of. Errors of judgment were made but nothing more.”

43. He then concluded his judgment by saying:

“But in the view of all those reasons that I have given I do find for the Claimant. There is an agreed sum of damages of £12,000 and I believe that is the sum to be awarded.”

44. It appears that the judge was making a substantive finding of negligence against Mrs Bridgewater, although he expressed himself in a very peculiar way. Mr Walker invited us to treat this aspect of the case as a discrete issue, and once again he sought to defend the judge’s conclusions, however ineptly they were expressed.
45. Now that we have set out the judge’s conclusions and the circumstances in which they came to be made, we believe that it would be helpful if we said a little more about the law to be applied in a case like this. This will give us the opportunity of illustrating, with reference to the facts of the present case, the principles set out by Neill LJ in Palmer v The Home Office (see paras 24 and 25 above), with which we agree. If Mr Stenning were able to prove that his injuries had been caused by negligence on the part of the prison officers at Wakefield in the way they managed or supervised Mr Purkiss, or by the negligence of those in charge of his overall management at the Home Office, then his claim for damages would succeed.
46. As we have said (see para 10 above), Mr Purkiss was a Category A prisoner who had been sentenced to a discretionary sentence of life imprisonment for attempted murder. The majority of Category A prisoners are serving either mandatory or discretionary life sentences, or very long sentences of imprisonment for offences of violence or other grave crimes. Many are extremely difficult to handle. Different considerations will apply to the management of particular prisoners. Punishments imposed by the Governor for disciplinary offences, the most serious of which are a short period of solitary confinement or loss of remission, are not likely to be very effective as a deterrent, particularly for the “lifer”.
47. Lifers have no automatic right to release, and may be released by the Home Secretary after consideration of each individual case by the Parole Board. Save in very exceptional circumstances, such as those convicted of the most serious crimes, or those who it is known will always pose an unacceptable risk to the public, the objective of the prison authorities, and of any humane system of penal policy, must be to work with the prisoner with a view to enabling him or her to be released as soon after the expiration of his tariff period as it is judged that he no longer presents any serious risk to the public.
48. Working towards the eventual release of the life prisoner is, of course, only one factor that has to be considered in relation to his management by the prison authorities. There are many others, for example maintaining prison discipline and protecting prison staff and other inmates from violence. In relation to life prisoners, the prison department in the Home Office work to a plan which will involve from time to time making decisions. Long term planning decisions are made by the Home Office, and short term decisions within the prison. These decisions are made by experienced people who, in making the decisions, have to balance all the competing factors, including attempting in the long term to prepare the prisoner for release. This applies particularly, of course, to those such as Mr Golds in this case, who was involved in planning decisions relating to Mr Purkiss. At the time of the incident with which we are concerned Mr Purkiss had already served 12 years in prison in respect of the offence of attempted murder.
49. We now turn to the issues that arise on this appeal. The first main issue turns on the viability of the judge’s finding that by the end of September both the senior staff at Wakefield and the lifers unit at headquarters ought to have appreciated that the safety of other prisoners at Wakefield (and sex offenders in particular) would be at risk unless a decision was made to transfer Mr Purkiss to another prison, or if this was not done, the Wakefield authorities should have placed him on a disciplinary charge every time he conducted himself in a way which would put any ordinary prisoner at risk of being so charged.
50. The high water mark of the claimant’s case in this respect lay in the passages in Mr Jones’s first letter (which the judge himself described as “over egging the situation somewhat”) in which he said:

“We can never lose sight of the fact that one day he might just carry out one of his threats”

and, later,

“I fear that should we fail to move him he may do something in an effort to force our hand.”

51. Those comments must not, of course, be interpreted in isolation from the rest of the letter. Nowhere in the letter does Mr Jones express any concern about any immediate risk to other prisoners. His concern is about his staff, and the ongoing tirade of abuse and threat they had to endure, and about Mr Purkiss himself, who should be given the opportunity of proving himself in another prison among new prison staff who had not endured a fairly exhausting nine months of him. Mr Jones was not saying that Mr Purkiss presented an immediate threat to anybody. He was expressing the fear that if he was not moved, he might just carry out one of his threats.
52. Mr Jones’s letter, and his explanation of it, must also be seen in the context of all the other evidence which the judge received from him and from the other experienced prison officers who were responsible for Mr Purkiss’s management at Wakefield.
53. Mr Fawcett gave evidence first. He said that Mr Purkiss was not unique. There were a number of other prisoners of an equal ilk who were equally demanding and would also offer all sorts of threats to try and ensure they were moved from Wakefield. He said he used to try and humour them. They would then go off and come back again quite soon. He believed that Mr Purkiss had been able to spend so long on normal location at Wakefield because of the way he was handled there. He did not believe that he should have been segregated because they did not believe at the time that he posed any threat to anybody.
54. His behaviour did not deteriorate while he was there. Although he would be quite agitated when he came into their office and delivered his threats and abuse, he would be calmed down and would often be laughing as he went out. Mr Fawcett did not personally witness him being threatening towards any other prisoner. He used obscene language towards women officers like Mrs Bridgewater. It was true that he did not like women, but he did not like anybody. In the office he would offer threats towards everybody, and not sex offenders in particular. Experienced prison officers dealt with difficult prisoners on an individual basis, and managed each one in the way that was appropriate for him. The idea with any prisoner was to keep him on normal location for as long as possible so that he could integrate with other prisoners, and not to put him in a segregation unit where he was kept on his own.
55. Mrs Bridgewater said that Mr Purkiss was a little bit like a child. His personality disorder led him to repeat himself all the time. She confirmed Mr Fawcett’s evidence about the way he was handled. If she had ever thought there was a risk that he was going to be involved in assault or a hostage-taking, she would have spoken to the duty governor and got him moved straight away. She could have placed him on report many times each day, but whereas other prisoners would learn from the experience of being given a governor’s award, Mr Purkiss would have gained nothing from that. He was therefore managed differently.
56. She did not regard the treatment of Mr Purkiss as an experiment. She believed they were actually making progress with him. He was not deteriorating. Prisoners regularly wished to go into segregation. There was nothing suspicious about it. He was not becoming more demanding or aggressive. There were quite a few other inmates who were being treated in the same manner. Mr Purkiss never threatened her, and she did not know he had made any actual threats to anyone, although he was a very threatening man, and people could be intimidated by him. It was not practical to lock up everybody in segregation who talked in an abusive or an aggressive manner. If they had thought that somebody was going to pose a problem, then he would be locked up.
57. Mr Jones, for his part, praised the way Mrs Bridgewater had handled Mr Purkiss. She had built up a rapport with him, and he had never felt she was under any sort of threat. He would receive reports from his staff about the way Mr Purkiss was behaving towards them, and in due course he thought his staff deserved a break from him. He described a concept called “shared misery” whereby other high security establishments could share some of the pain. He wrote to Mr Golds in September to bring about a move. If he had thought Mr Purkiss was about to attack another prisoner, or that there was a significant risk that he was about to target somebody he would have moved him into segregation immediately.
58. He said that Mr Purkiss was a nuisance more than anything. If they had put him into segregation it would have knocked him back and they would probably never have got him out again. He said that the hostage-taking was a surprise to him. He thought it was out of character.
59. It was commonplace for prisoners to say “get me out of here otherwise I will do something to a nonce”. He treated the 1985 episode as a spent conviction. He accepted that Mr Purkiss sometimes threatened to kill people, but he never heard him making threats to inmates. He regarded him as a loner. He felt that his staff knew how to deal with him and did not let him get his own way when he acted in a childlike manner.
60. He wrote his letter in September after he had heard Mr Purkiss make a threat to kill a sex offender if he was not moved. Although he still felt Wakefield could deal with him, this was what had prompted him to write to Mr Golds. He had wanted to hold onto the excellent progress they had made with him, and if it was going to help him to have some time at another prison, he would support the move. He was conducting a balancing act. As he never at any time felt anyone else was in danger, he did not find it necessary to regress by putting him in segregation. He was making a judgment, based on the facts as he knew them, in keeping him on normal location. He had to make judgments like this with all the prisoners on his wing.
61. Mrs Moulden was the governor of a different prison when she was called to give evidence. Although she did not interview Mr Purkiss during her inquiry she said he was making threats and complaints all the time. At Wakefield he was a fairly small fish in a big pool. His record showed a history of threats which were not carried out. She thought it would have been appropriate to move him following Mr Jones’s letter in the context of his management, or to give the staff a break, but not because he kept shouting that he wanted to move.
62. The judge made no real attempt to analyse the effect of this evidence, which was all one way. Even though he heard no evidence from anyone at the lifers unit, for reasons we have explained, he received evidence from experienced prison officers whose special skills were in the handling and management of prisoners who had committed very serious offences. As we have made clear, decisions about Mr Purkiss’s future management involved a delicate exercise in risk assessment. Mr Jones could see advantages to Mr Purkiss and to his staff if he were moved to another prison. Mr Golds made the judgment, at any rate initially, that it would be better to keep him for the time being in the one prison where he had been able to live a fairly normal life on normal location. There was no evidence at all that anyone thought he posed an immediate threat to a fellow inmate. The highest Mr Jones put it was that if in due course he became frustrated because he was not moved he might just carry out one of this threats.
63. We accept Mr Walker’s submissions that there may be cases where a judge can properly make a finding that experienced prison officers were negligent in carrying out a risk assessment because the evidence overwhelmingly called for action on their part which they did not take. This was not such a case. Although we must remember that the judge had the opportunity of seeing the witnesses, which we did not, and we must always beware of retrying a case on the transcripts, there really was no evidence which entitled the judge to hold that either the lifers unit or the senior staff at Wakefield were negligent in the decisions they took about Mr Purkiss in the autumn of 1996. It would have been quite wrong for any judge to make a finding of negligence in this case without the help of a witness expert in the difficult discipline of risk assessment, and in our judgment the judge was wrong to make such a finding in this case.
64. We now turn to the events of the night of 27th December. They gave rise to two issues. (i) Did Mr Purkiss ask Mrs Bridgewater that evening to move him into segregation? (ii) If he did, was Mrs Bridgewater negligent in not complying with his request?
65. Mr Purkiss did not give evidence at the trial. We have already set out (at para 7 above) Mr Stenning’s account of what Mr Purkiss told the prison officers outside the cell. In her inquiry Mrs Moulden found that a prison officer named Scott confirmed this evidence, because she recorded that “Purkiss told Mr Scott that if he had been taken to F wing during the afternoon, as he had demanded, this incident would not have happened”.
66. Mrs Moulden did not interview Mrs Bridgewater during the course of her inquiry because she was away on sick leave. Mrs Bridgewater subsequently retired from the prison service. In her witness statement dated 2nd February 2000 she said that she recalled Mr Purkiss coming into her office that evening and asking her about his transfer request. She continued:

“I do not now specifically recall him asking to be transferred to the segregation unit at this time as I have stated my recollection is primarily that he was asking about his transfer request. I would dispute that Purkiss made a demand to be taken to the segregation unit and although this was recorded by Madeline Moulden who prepared a report on the incident I do not know to whom any such demand was made nor do I know the source of the report.”

67. She explained at the trial that when he came into the office and asked about his move, she told him that it was imminent and they were just waiting for a date. Because of his security category she could not tell him which prison would be the next to receive him. She explained that she knew that Mr Purkiss did not ask her for a move to F wing that evening because she had been told that he had taken a hostage ten minutes after she left the office, and she then went back through her mind about what he had said when he came to her office. She said his conversation about his transfer request had been extremely brief. She accepted that she did not make this clear in her witness statement.
68. When Mrs Moulden was cross-examined about the facts which emerged in her inquiry it was put to her that Mr Purkiss had wanted Mrs Bridgewater investigated, as if it had been Mrs Bridgewater’s conduct which had triggered off the hostage-taking. She replied that Mr Purkiss was not strong on logic and that what came out of his mouth was fairly random. She said he had also demanded three tins of lager and a helicopter during the course of that evening.
69. In our judgment Mr Purkiss’s statements during the course of that evening (unsupported by any evidence from him at the trial), coupled with the fact that he had made such requests on previous occasions, provided too slender a basis on which the judge could properly reject Mrs Bridgewater’s clear evidence at the trial that he did not ask to be segregated that night. There is no sign in the judgment that the judge regarded her as a witness on whom he could not safely rely. Although he said that in her witness statement she had said she could not recollect, in fact she made it clear in that statement that Mr Purkiss made no demand to her of this kind. Mr Walker tried to make a distinction between a request and a demand, but this appeared to us to be mere logic-chopping. In our judgment the judge should not have found on the balance of probabilities that any such request or demand was made.
70. This does not of course end the matter, because even if such a request had been made the claimant would have to show that Mrs Bridgewater fell below the standard of care reasonably to be expected of her when she did not comply with it. We have already given our reasons for holding that the prison authorities were not negligent in continuing to manage Mr Purkiss in the way they had managed him successfully all year. There was no evidence that he was behaving in any different way on the evening of 27th December so as to alarm anyone about his conduct. Indeed the judge expressly found that the level of staffing that night was satisfactory, that there was no evidence that he posed any immediate threat to prisoners, and that it was unnecessary to keep him under constant observation.
71. Given these findings it is not easy to understand why the judge attached any importance to the fact that in March 1996 there had been what the authorities regarded as a collusive incident of hostage-taking at this prison, involving two inmates who had once been at the same secure hospital together. In that incident, which ended when the “hostage-taker” surrendered, the “victim” had been tied to a chair and threatened with a craft-knife and his cell door barricaded. It may be that a description of this incident put ideas into Mr Purkiss’s mind, but unless there was evidence on which the prison authorities should have relied to the effect that he posed a risk to other inmates, the fact that the incident had happened adds nothing to the case against them.
72. In our judgment the judge was quite wrong to make findings of negligence against Mrs Bridgewater (if indeed he did). On the evidence she behaved with appropriate professional skill that evening, and there was no reason why she should have arranged for Mr Purkiss to go to F wing. Although it is understandable why the judge should have felt great sympathy for Mr Stenning, the simple fact is that the prison authorities had no reason to believe it likely that Mr Purkiss would attack another prisoner or behave in the way he in fact behaved.
73. Looking at the matter in the round, it is clear that the decision to manage Mr Purkiss in the manner we have described was one which was thought through, planned and logical. It may be possible to attack a decision such as this if it is shown to have been made negligently, but there was no evidence whatsoever in this case that it was. It is simply not open to a judge, as Mr Recorder Bullock did in this case, to apply his own judgment with the benefit of hindsight, or to second guess the decision maker. The same considerations apply to the decisions made within Wakefield Prison on 27th December 1996. In our view it is unlikely that such decisions would be open to attack if they are ones which were reasonably open to the decision maker. Each of the decisions made in respect of Mr Purkiss’s management were sound and logical.
74. For these reasons we would allow this appeal.
75. There is one further matter we must add. This was no ordinary county court action. Mr Stenning was claiming aggravated and exemplary damages against the Home Office, and although damages were agreed on the day of the trial at £12,000 it was not a fast track action. It should not have been assigned to a deputy judge unless the designated civil judge was satisfied that the judge had sufficient judicial experience to try a case of this degree of complexity and sensitivity. In the event it was difficult to discern from the judgment whether and when the judge made findings of negligence and what standard of care he was applying for the purpose. The final page of his judgment (see paras 42 and 43 above) makes strange reading.
76. We mention this because Mr Stenning will no doubt be very sorry that the award of £12,000 has been taken away from him. We share his sorrow that he should have this disappointment on top of all he suffered at Mr Purkiss’s hands that evening when he was in the prison’s care. Mrs Moulden told the judge that although he was offered counselling, she doubted that he ever received a formal letter of apology from the prison authorities. We were not told whether he qualified for compensation under the Criminal Injuries Compensation Scheme. It is an unhappy saga, culminating in our allowing this appeal, and we feel very sorry for him. However, the person responsible for his injury was Mr Purkiss, and Mr Stenning cannot recover damages from the Home Office unless he can prove that its servants or agents were negligent. He patently failed to do so.
77. The only pleasant matter to record is that when the Home Office instructed leading counsel on the appeal, the Legal Services Commission authorised Mr Stenning’s solicitors to instruct leading counsel on his behalf. This secured equality of arms in this court, and in his spirited submissions Mr Walker said everything that could possibly have been said on Mr Stenning’s behalf.
78. As previously stated, we have sympathy with the claimant.