Thakrar v The Secretary of State for Justice [2015] EW Misc B44 (31 December 2015) [2015] EW Misc B44

EWMISC
Thakrar v The Secretary of State for Justice [2015] EW Misc B44 (31 December 2015)
[2015] EW Misc B44 · 2013-06-10
[1]This is a small claim which by the very sensible agreement of the parties has been dealt with on written representations. Although technically small claims are decided in public (see Practice Direction 27 para 4.1(1)), normally the judgment in such a case would not be put into the public domain either via BAILII or via the Judiciary website. For reasons which will become clear, it appears desirable that the details of the claim and the decision on it, and the reasons for that decision, should be readily available and in the public domain. What the claim is about.[2]This is a claim by Kevan Thakrar, who at the time the proceedings were issued was a prisoner detained at HMP Woodhill Milton Keynes. He complains that in the course of his being moved from one prison to another, his stereo was broken, a number of CDs were damaged beyond repair, and four books of his were lost. He further complains that a canteen order which he placed at Woodhill on 10th June 2013 was never fulfilled and that the money concerned was never refunded to him.[3]His claim is for £543.16 in addition to which he seeks general and aggravated or exemplary damages. What the claim is not about.[4]This is not the first time that Mr Thakrar has brought proceedings against the Ministry of Justice and its predecessors in relation to loss of or damage to his property. There was widespread misunderstanding in relation to one such claim and it is perhaps as well if I make clear certain matters that this claim is not about.[5]It is not a claim under the Human Rights Act 1998. Granted, Article 1 of the First Protocol of the European Convention provides that: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law but Mr Thakrar does not rely on that provision. He does not need to, because as is generally the case, the substantive English law, which I discuss below, is consistent with the European Convention. Given the extent to which the Convention was drafted by English lawyers and civil servants, it would be surprising if that were not the case.[6]This is not a case where Mr Thakrar has relied on legal aid to bring his claim. He appears to be intelligent and articulate and has been able to advance his claim in writing through the County Court. Indeed, some would say that the fact that a claim of this kind can be dealt with at modest cost through the County Court system is a good advertisement for the civil justice system of this country.[7]This is not a case where lawyers have been involved, on the Claimant’s side at any rate. 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. Mr Thakrar.[8]It is as well to be clear at the outset that Mr Thakrar is in the prison system for a reason. That reason is conveniently set out in paragraphs 4 to 6 of the judgment of Mr Justice Hickinbottom in the Administrative Court in Thakrar v Secretary of State [2012] EWHC 3538 (Admin): 4. On the evening of 28 August 2007, Keith Cowell and his brother Matthew and Tony Delieu were shot dead with a sub-machine gun, at the Cowells' home in Bishop's Stortford, in what appeared to be drugs related killings. Two women, who were at the property at the time, were also stabbed. In August 2008, the Claimant Kevan Thakrar was found guilty of possessing a firearm with intent to endanger life, three charges of murder and two charges of attempted murder for his part in those events, and he was sentenced to life imprisonment with a minimum period to be served of 35 years. 5. Since March 2010, he has been serving that sentence in the Close Supervision Centre (“the CSC Wing”) at HMP Woodhill, that being a category A high security prison. The CSC Wing is a segregated part of the prison, with a particular regime designed to provide for the long term detention of prisoners whose actions pose a significant threat to the safety of themselves or others, and/or to the good order and discipline of the prison establishment. 6. The Claimant's detention history prior to March 2010 was certainly troubled. From his initial detention and custody in 2007, he complained of both physical and verbal ill treatment whilst at HMP Woodhill, including an assault by uniformed officers in May 2008 which triggered in him a psychiatric condition later diagnosed as post-traumatic stress disorder. He was transferred for a time to HMP Frankland, where it was alleged that he attacked and seriously wounded three prison officers, for which he was again charged for attempted murder and causing grievous bodily harm with intent, although he was acquitted of those charges at a jury trial in 2011. During that trial, he claimed that he had acted in self defence, because of a fear for his safety following abuse and actions against him by prison officers. He has, indeed, complained from the inception of his incarceration – and he continues to complain – of what amounts to a campaign of bullying, abusive treatment and discrimination on the grounds of his race, by prison staff.[9]It is right to note that Mr Thakrar continues to protest his innocence and that his conviction in 2008 was wrong. That does not and cannot alter the fact that as things stand he has been found guilty by a jury of participation in what the Court of Appeal ( R v Thakrar (Miran) & Another [2010] EWCA Crim 1505 ) understandably described as “by any standards ruthless, brutal offences”. The law which I have to apply.[10]The first and extremely important point to note is that a convicted prisoner, in spite of his detention by the State, retains all civil rights which are not properly taken away from him expressly or by necessary implication ( Raymond v Honey [1983] 1 AC 1 , especially at page 10).[11]As Mr Justice Hickinbottom observed in the Administrative Court in the case I have mentioned, “That applies to all prisoners, under whatever regime they are detained.”[12]Raymond v Honey is a decision of the House of Lords. Even if I disagreed with it, it would simply not be permissible for me to ignore it.[13]So the law which governs the Ministry’s duties with regard to Mr Thakrar’s property is not affected by the fact that he is a serving prisoner, by the fact that he is a convicted multiple murderer or by the fact that it has been thought appropriate to confine him in the Close Supervision Centre, reserved, in Mr Justice Hickinbottom’s words, for “prisoners whose actions pose a significant threat to the safety of themselves or others, and/or to the good order and discipline of the prison establishment.”[14]While Mr Thakrar was being moved from one prison to another, it was necessary for his personal property to be packed up and moved by the Prison Service. That meant that the Ministry were, as the legal term is, bailees of his property. And the duty of a bailee is, as set out conveniently in Clerk & Lindsell on Torts (21st Edition) para 17-21, footnote 95:
“…to take reasonable care of the goods concerned, the bailee bearing the burden of proof of absence of fault. See e.g.

(M) Sdn Bhd [1979] AC 580 …”

The canteen order.[15]Mr Thakrar complained that in June 2013 he was charged £31.81 for a canteen order which was not processed prior to his transfer from Woodhill. When he commenced the present proceedings, he said that he had never received the items concerned and that the Prison Service had retained his money.[16]When a defence was filed by the Ministry on 19th January 2015 it was stated that £31.81 was refunded to the Claimant’s prisoner spends account on 14th January 2015. While, assuming that that is correct, the matter of the canteen order is now academic, save for the court having the power to award interest, no explanation whatsoever has ever been given for this taking eighteen months after his transfer from Woodhill in June 2013.[17]For reasons which will become clear, I do not propose to spend time on assessing an award of interest which would in any event be very modest, about four pounds or so. The stereo – my findings.[18]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?”
[19]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”.[20]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…”[21]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…”[22]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”.[23]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…”[24]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”.[25]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”.[26]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.[27]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. The stereo – my ruling on quantum.[28]The Claimant tells me that the stereo he had was a model which is now obsolete. He does not state the specific model. It would of course have been easy for the Defendant to supply this information as well, but this has not happened.[29]The Claimant seeks the cost of a Sony CMT-SBT100B which he says has a list price of £199.99, though I note that this is currently advertised on Amazon at £169.99.[30]Ms Trickey states that her accounts department informs her that a stereo costing £99.99 was ordered by the Claimant in August 2011. That seems to me to be the best evidence I actually have of the replacement cost of the stereo concerned.[31]The defence asserts that the Claimant is not entitled to recover betterment on any item of property; but it seems to me that the measure of his loss is what it would cost him to replace the damaged property, and I am not furnished with any information as to the availability and price of second hand items.[32]The appropriate compensatory award in relation to the stereo would in my judgment be £99.99. The CDs – my findings.[33]The Claimant complains that some 21 CDs belonging to him were damaged beyond use by shampoo being squirted on them.[34]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.[35]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...”[36]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…”[37]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.[38]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”.[39]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.[40]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. The CDs – my ruling on quantum.[41]The Claimant asserts that the cost of replacing the CDs would be £247.77.[42]He states that “CDs are only able to be purchased from GEMA Records at this prison which is not the cheapest supplier”.[43]Charlotte Capes of the Government Legal Department has gone to the trouble of ascertaining what she says is the cost of replacing these items via Amazon and says that she has been informed by Ms Trickey that CDs may be purchased from this supplier. On that basis, she arrives at a total of £175.20. I am somewhat troubled by her statement that “When it is not clear which album the claimant is referring to within the list annexed to his particulars of claim I have searched for the relevant CD listed on his property card or found a similar title ” – either she has found the appropriate item or she has not. But it seems that the damaged CDs could be replaced with, at the least, acceptable substitutes, at that price.[44]So the appropriate compensatory award under this head would appear to be £175.20. The books – my findings.[45]The Claimant claims for the loss of four specific books. Their subject matter is unsurprising. They are: A Life Inside: A Prisoner’s Notebook by James Erwin ( sic – the author is in fact the Guardian writer and former life-sentence prisoner Erwin James); Inside: One man’s experience of prison by John Hoskison; Dispatches from the Dark Side by Gareth Peirce; Live from Death Row by Mumia Abu-Jamal.[46]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”.[47]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.[48]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 books – my ruling on quantum.[49]The situation regarding the books has of course changed since the proceedings commenced, in that the restriction on prisoners possessing or receiving books was removed in May 2015 after being struck down by the High Court. Prior to that change, I entirely fail to understand how it could be asserted by the Defendant as in paragraph 10e of the Defence that “it is denied that the Claimant is or has at any time been unable to replace any of the books, whether by any action taken by the Defendant or at all.”[50]Ms Capes claims to have sourced these items on Amazon at a total cost of £20.97 as against the £60 claimed by the Claimant. I accept that Live from Death Row could be sourced at the price Ms Capes asserts, £3.47, but have been unable to repeat her results in relation to the other books.[51]In my judgment therefore the appropriate compensatory award under this head of the claim would be £53.47. The claim for loss of use.[52]As well as complaining of the loss of his property Mr Thakrar complains of being deprived of its use. It appears plain beyond argument that this claim is in principle entitled to succeed. I test the matter in this way. I take an item of your property. You demand that I return it, but I refuse to do so. A year or more later, I choose to hand the item back to you. Can it seriously be argued that I have committed no actionable wrong which potentially sounds in damages?[53]In my view the Claimant would be entitled in principle to a modest sum for the loss of the use of the items in question in addition to the reasonable cost of replacing them. For a reason which will appear, however, I do not propose to devote time to assessing such a sum. The claim for aggravated or exemplary damages.[54]The Claimant in terms alleges that the Defendant Ministry by its servants “keeps acting in an oppressive, arbitrary and unconstitutional fashion…”[55]The words are chosen with care. They are the words of Lord Devlin in Rookes v Barnard (No 1) [1964] UKHL 1 . Lord Devlin said this:
“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter….”
[56]Lord Devlin discussed authorities such as Wilkes v. Wood (1763) where £1,000 (worth about £130,000 today) was awarded following an unlawful search of the offices of the North Briton, and Huckle v. Money , a case arising out of the same incident where a journeyman printer earning a guinea a week who had been unlawfully detained for six hours and had been “used very civilly by treating him with beefsteaks and beer” was awarded £300. He went on:
“These authorities clearly justify the use of the exemplary principle; and for my part I should not wish, even if I felt at liberty to do so, to diminish its use in this type of case where it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power... …there are certain categories of cases in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law and thus affording a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal. I propose to state what these two categories are; and I propose also to state three general considerations which in my opinion should always be borne in mind when awards of exemplary damages are being made… The first category is oppressive, arbitrary or unconstitutional action by the servants of the government…”
[57]One of the “general considerations” to which Lord Devlin referred was that:
“…a case for exemplary damages must be presented quite differently from one for compensatory damages… the fact that the two sorts of damage differ essentially does not necessarily mean that there should be two awards. In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may of course be a sum aggravated by the way in which the Defendant has behaved to the Plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum.”
[58]More recent guidance on the subject was given by the Court of Appeal in Thompson & Hsu v Commissioner of Police of the Metropolis [1998] QB 498 . A jury had awarded an enormous sum, over £200,000, by way of exemplary damages against the Metropolitan Police following outrageous behaviour which involved serious physical assaults. Drastically reducing the award, the Court of Appeal said among things:
“Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all…”
[59]That, however, was said in relation to a case of physical assault where the compensatory damages (including where appropriate aggravated damages) are in the nature of things likely to be substantial. I do not see it as excluding a more modest award of exemplary damages in a case where the compensatory damages (including if appropriate aggravated damages) do not adequately mark the court’s disapproval of the defendant’s conduct.[60]Is this, then, a case which justifies an award of exemplary damages?[61]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.[62]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.[63]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.[64]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.[65]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.[66]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.[67]In my judgment the minimum award which will adequately mark the court’s disapproval of what has happened is £1,000.[68]As pointed out by the Court of Appeal in Thompson that must be inclusive of any compensatory award, not in addition to it. That is the reason why I do not spend time on such matters as the claim for loss of use or the claim for interest. Conclusion.[69]There will therefore be judgment for the Claimant for £1,000.[70]The judgment is being sent out to the parties rather than being handed down in their presence. Normally the time for seeking permission to appeal runs from the date that the judgment is handed down.[71]There is a limited right of appeal against a judgment on a small claim. An appeal will be allowed only if the original decision was clearly wrong, or unjust because of a serious irregularity in the original hearing. Normally the appeal will not be a rehearing but a review of the decision at the original hearing, and it is not usual for the judge hearing an appeal to hear evidence. He will normally consider the evidence that was before the judge at the original hearing.[72]A party who wishes to appeal must seek permission from the Circuit Judge in his appeal notice. The appeal notice, which is County Court Form N164, must be lodged with Oxford County Court, St Aldates, Oxford (which is the appeal centre for Milton Keynes), accompanied by a sealed copy of the order being appealed from, and must set out the grounds for the appeal. Unless the party seeking to appeal is exempt from paying court fees, there is a fee of £115.[73]It is possible that the Ministry may wish to challenge on appeal the conclusion that deliberate damage to a prisoner’s property warrants an award of exemplary (or aggravated) damages. It is, I suppose, possible that the Claimant may wish to challenge my reading of Thompson and say that while exemplary damages are warranted, the award of exemplary damages is impermissibly low. Either way, the parties need to know the time within which they must seek permission to appeal. Normally an appeal must be lodged within twenty one days of the original decision, but the Circuit Judge can be asked to extend that time. Accordingly I shall state that any application for permission must be made to a Circuit Judge sitting at Oxford County Court by 4 pm on 28th January 2016.[74]For simplicity’s sake I shall also stipulate that the judgment is payable by that date. District Judge Hickman The County Court at Milton Keynes 31st December 2015.