News Category 3
FREE CHAPTER from ‘A Practical Guide to Prison Injury Claims’ by Malcolm Johnson
04/10/19. 1.1 What this book covers
The concept of a prison in English law encompasses a whole host of different institutions, run by different organisations, both public and private. As we see below, there are places where adults or children are detained, but not all are called prisons. In this book, I have tried to cover the prison system run by HM Prison and Probation Service, which for brevity’s sake we call the Prison Service. Some mention is made of probation services, but the focus is on those who are or have been detained in prisons. I have also covered very briefly the detention system that exists for children and people whose immigration status is at issue. I have not covered injuries or death in police custody.
This book is concerned mainly with injury claims brought by both prisoners and the people who work in prisons. As we will see in Chapters Four and Five, claims by prisoners frequently rely on different causes of action, such as negligence, trespass to the person, misfeasance in public office and human rights.
The purpose of this book is to try and give practitioners an idea as to how the prison system works, and how to build a personal injury claim in circumstances that can be very challenging indeed. As a number of reports and court judgments on the prison system have shown, prisons can be highly secretive places, cut off from the outside world, where abuse and corruption can flourish unchecked. It is generally accepted by the courts that prisoners are highly vulnerable people, who require a high degree of protection.
1.2 Getting background information about prisons
and their practices
There are a number of reports and research papers published by various organisations, which whilst they are unlikely to provide corroborative evidence in a personal injury claim, can be extremely useful to read as a way of understanding how the system was working or should have worked at any particular time. They also make reference to the documents commonly used by the Prison Service to record incidents or assess risk.
The Howard League for Penal Reform’s website https://howardleague.org/ contains a huge amount of information on what is happening in prisons. The League and other charities also publish online research and reports. For instance, one recent publication by the Howard League, “ Preventing prison suicide ” contains references to the suicide prevention methods that the Prison Service uses including “ACCT” (Assessment, Care in Custody and Teamwork). We look at ACCT again in Chapter Four.
There are also the reports published by the Prisons and Probations Ombudsman (“PPO”) – https://www.ppo.gov.uk/ whose work we examine in more detail later in this book. The PPO carries out independent investigations into deaths and complaints in prison. His 2017 to 2018 Annual Report has a section entitled “ Investigating fatal incidents ” which discusses the way in which ACCT is operated in prisons, and it refers to the Guidance on ACCT procedures set out in Prison Service Instruction (PSI) 64/2011 “ Management of prisoners at risk of harm to self, to others and from others (Safer Custody) ”.
The PPO also publishes the results of his investigations into complaints that are brought by prisoner, including fatal incidents (after an inquest has taken place), as well as a series of “Learning lessons reports” on a variety of prison issues, such as segregation and sexual abuse in prison. From time to time, the PPO is invited to carry out investigations into matters that fall outside his normal remit although the most recent report on the website dates back to 2008.
The Office of the Chief Coroner section of the Courts and Tribunal Judiciary website, https://www.judiciary.uk/related-offices-and-bodies/office-chief-coroner/key-cases/ contains key cases where decisions of the Coroner have been challenged by way of judicial review. These include deaths in custody. This section of the website also contains reports made by Coroners pursuant to Regulation 28 of the Coroners (Investigations) Regulations 2013, which are in effect recommendations made to the authorities to prevent further deaths.
HM Inspectorate of Prisons (“HMIP”) is an independent inspectorate which reports on the conditions and treatment of prisoners – https://www.justiceinspectorates.gov.uk/hmiprisons/. It publishes reports and recommendations for improvement in its reports. During the inspection of prisons, HMIP can identify significant concerns and write to the Home Office providing notification of the significant concerns and the reasons for those concerns. These are published on the website as “ Urgent Notifications .”
The Independent Advisory Panel on Deaths in Custody provides independent advice and expertise to the Ministerial Board on Deaths in Custody. It covers deaths that occur in prisons, in or following police custody, immigration detention, the deaths of residents of approved premises and the deaths of those detained under the Mental Health Act 1983.
The IAP’s website can be found at :- http://iapdeathsincustody.independent.gov.uk/.
1.3 Recommended reading
Prison law is a subject of itself, and the prison system is very complicated with its own procedures and practices. To help navigate the maze, there are three excellent books on the subject of prison law, which are :-
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‘Prisoners – Law and Practice’ – Simon Creighton and Hamish Arnott – Legal Action Group 2009
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‘Prison Law – Fourth Edition’ – Stephen Livingstone, Tim Owen QC and Alison Macdonald – Oxford 2008
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‘Inquests – A Practitioner’s Guide’ – Leslie Thomas QC, Adam Straw, Daniel Machover and Danny Friedman QC – Legal Action Group 2014
Although the first two books are at least a decade old and some of the law and the prison procedures that they describe have changed, they are well worth purchasing. They are written by highly experienced and eminent practitioners and they provide an in-depth examination of the legal basis on which prisons function, the way in which they are run and the various types of legal claims that prisoners bring, including injury claims.
Chapters 18 and 19 of ‘Inquests – A Practitioners Guide’ are more up to date and incorporate a very helpful section on deaths in prison as well as deaths under restraint. It is mandatory reading for anyone contemplating representing the family of a deceased prisoner at an inquest.
Chapter Five of the ‘Immigration and Asylum Handbook’ published by the Law Society provides a short but very helpful guide to immigration detention centres.
1.4 Charities that support prisoners
There are a number of charities that work tirelessly to support prisoners and which campaign to reform prison law. They can provide very useful sources of information as well as up-to-date news on what is happening within the Prison Service. The following are four of these charities :-
The Howard League – https://howardleague.org/
The Howard League for Penal Reform is the oldest penal reform charity in the UK. It was established in 1866 and is named after John Howard, one of the first prison reformers. Over the years it has run a number of successful campaigns on behalf of both children and adults in the prison system. It publishes the Howard Journal of Crime and Justice. They also bring legal cases, sometimes in their own name or through interventions, to help shape the law.
The Prisoners’ Advice Service (“PAS”) –
http://www.prisonersadvice.org.uk/
PAS is an independent charity founded by a number of organisations including the Prison Reform Trust, and the Howard League to offer free legal advice and support to adult prisoners throughout England and Wales. They produce a quarterly Prisoners’ Legal Rights Bulletin (available by subscription), in order to share updates on key Prison Law cases with prisoners, human rights organisations and legal professionals. This Bulleting also provides information about new legislation and cases, new Prison Service Instructions and Orders, and commentary on cases that have gone before the Prisons and Probations Ombudsman.
PAS also produces a series of Self-Help Toolkits and Information Sheets on their website, which are designed to assist prisoners with various legal issues. These Toolkits provide very useful information on a variety of different issues, such as Category A prisoners and disciplinary offences committed in prison.
There is also a ‘Links’ page on their website with links to other charities.
The Prison Reform Trust – http://www.prisonreformtrust.org.uk/
This is an independent UK charity working to create a just, humane and effective penal system. They do this by inquiring into the workings of the system; informing prisoners, staff and the wider public; and by influencing Parliament, government and officials towards reform.
The Prison Advice and Care Trust (“PACT”) –
https://www.prisonadvice.org.uk/
PACT is a national charity that provides support to prisoners, people with convictions, and their families. They support people to make a fresh start, and minimise the harm that can be caused by imprisonment to people who have committed offences, to families and to communities.
INQUEST – https://www.inquest.org.uk/
INQUEST provides expertise on state related deaths and their investigation to bereaved people, lawyers, advice and support agencies, the media and parliamentarians. It publishes “Inquest Law” three times a year, which contains summaries of cases and examines various issues. It also publishes reports on deaths in prison. One example is “Stolen Lives and Missed Opportunities – The deaths of young adults and children in prison” (March 2015).
1.5 InsideTime
This is the national newspaper for prisoners and detainees. It can be found online at https://insidetime.org/insideinformation-home/ and it is a comprehensive guide covering all UK prisons and prison related issues. The service is designed and is maintained with input from former prisoners and their families. All prison information is gathered directly from each individual establishment and a range of Legal Factsheets provided by various legal specialists provide simple explanations to prison law and other legal issues. It also provides an extensive glossary to the many terms used in the Prison Service, at https://insidetime.org/glossary/.
MORE INFORMATION / PURCHASE THE BOOK ONLINE
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What is Unjust? JLE v Warrington & Halton Hospitals NHS Trust Foundation [2019] - Andrew Cousins, Counsel at DWF Advocacy Ltd
26/09/19. The appeal arose from a Detailed Assessment of costs following settlement of a claim for monetary damages. The background to the appeal was uncomplicated in that the Claimant served a bill of costs for £615,751 and subsequently made a Part 36 offer to accept £425,000.
On assessment, the Claimant beat her Part 36 offer by £7,000. At first instance, Master McCloud awarded the Claimant the benefits provided for in CPR 36.17(4)(a)-(c) ie. enhanced interest and costs on the indemnity basis, but held that it would be unjust to award the 'additional amount' under CPR 36.17(4)(d).
In reaching her Judgment the Master found that (1) the very small margin by which the offer was beaten, relative to the size of the bill; (2) the fact that the bill was reduced by a significant amount leaving it difficult for the Defendant to know where to pitch its offer; (3) the size of the 10% additional amount relative to the margin by which the offer was beaten, meant that it was disproportionate and unjust to award the Claimant the additional amount.
The Claimant appealed the decision not to award the additional amount in respect of the decision not to award the Claimant the additional amount pursuant to CPR 36.17(4)(d).
Issues and Judgment
The appeal was allowed by Stewart J who found that none of the Master's reasons were admissible. Whilst Stewart J agreed with Master McCloud that the Court has jurisdiction to find it unjust to award some, but not necessarily all of the benefits of CPR 36.17(4), he did not consider that the Claimant should be deprived of the additional amount in this case. Adding that it would be unusual for the circumstances to yield a different result for only some of the orders envisaged in sub-paragraph (4) of CPR 36.17.
The appeal judge held that it was not open to judges to take into account the amount by which a Part 36 offer was beaten when determining whether to award the additional amount. The additional award was not a...
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Summary of Recent Cases, September 2019
15/10/19. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Substantive Law
Buster Angus Stark v Tabitha Lyddon [2019] EWHC 2076 (QB)
On 29th August 2016, a road traffic accident occurred when the Defendant turned right, out of a car park, across the path of the Claimant's motorcycle. The Claiman...
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Case Report: B v Murtezi - Helen Reynolds, Spencers Solicitors
03/09/19. Case Name
:
B v Murtezi
Accident Date
:
21/04/2016
Settlement Date
:
29/03/2019
TOTAL GROSS SETTLEMENT : £80,000.00
Background
The Claimant aged 53 at the time, was involved in a road traffic accident. He had a long history of neck and low back pain, having undergone extensive anterior lumbar spine and cervical spine surgery.
The Claimant sustained, neck pain, mid back pain and low back pain as a result of the accident. He also suffered bilateral lower limb pain and numbness, genitourinary dysfunction and right shoulder pain. The Claimant's treating consultant considered that the accident had moved the existing cervical fixation and hence the Claimant underwent revision surgery.
At the time of the accident the Claimant was employed as a project manager. He was absent from work and around 8 months post-accident his employment was terminated. In May 2017, the Claimant began alternative employment, in a similar role, with a similar salary although a less favourable benefits package.
The Claimant's expert evidence suggested that the accident had caused a worsening of the Claimant's underlying degenerative condition, which would require pain management and physical therapy for the foreseeable future. He also supported that the accident would cause the Claimant to retire from work 3 to 5 years earlier than he would otherwise have.
The Defendant obtained their own expert evidence which suggested that the accident was responsible for an acute exacerbation of neck pain for 3 to 6 months only, the surgery would have been required in any event and that the trajectory of the natural history of the Claimant's condition had not been altered.
Liability
The Claimant was driving his vehicle and slowed in traffic. The Defendant, who was the driver of the vehicle behind the Claimant, failed to brake in time and collided with the rear of the Claimant's vehicle.
Liability was admitted by the Defendant's insurers.
Quantum
Total settlement £80,000.00 (Claimant age 56 years old)
Estimated breakdown as PSLA £20,000.00 and special damages £60,000.00
Solicitors for the Claimant : Helen Reynolds of Spencers Solicitors Limited
Solicitors for the Defendant:
Weightmans Solicitors, Manchester
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How outdoor activities can support individuals in their recovery from brain injury - Bill Braithwaite QC
27/08/19. For many years practising as a brain injury specialist, I've seen people who, following severe brain injury, have found salvation in outdoor activities.
The outdoors offers such a wide range of therapeutic options, from the peace and quiet of fell walking and fishing, to the excitement and drama of white water, kayaks, competitive sailing, and much, much more. So, when the Lake District Calvert Trust decided to open a brain injury rehabilitation unit, centred round its wonderful outdoor facilities on Bassenthwaite Lake, I was thrilled. In fact, I thought that the launch of what will be the UK’s first intensive Acquired Brain Injury (ABI) rehabilitation centre focused on outdoor activities is the most exciting development in brain injury rehabilitation for the last twenty years.
Calvert Reconnections, run by the Lake District Calvert Trust, will open its doors shortly after a £1 million fundraising programme. They have converted a wonderful, old, restful, listed barn into a residential unit for up to a dozen participants, and are going to use all the fantastic facilities which they have built up over many years, coupled with dedicated and knowledgeable staff with vast experience of disability, and corresponding and developing ability.
Working with leading clinicians and academics, the new centre will combine traditional multi-disciplinary clinical therapies with physical and sporting activity in the outdoors to support individuals in their recovery from brain injury, and in their return to an enjoyable life.
Activities included in the programme include canoeing, hand biking, cycling, rock climbing, orienteering, sailing and horse riding. The focus is on ‘learning through doing’ in the outdoors, supported by a multi-disciplinary team in a purpose-built residential centre. I am very hopeful that they will gradually widen the range of activities, to include for example gardening, vegetable growing, and many other restorative pastimes. For those with severe brain injury, for whom competitive employment is not an option, time can hang heavy on their hands, and so activities such as these may be a lifetime blessing.
Various studies suggest that outdoor activities can help individuals in their recovery from brain injury.
For example, one paper found that physical exercise has the potential not only to improve physical health but also to have a positive effect on mental alertness and mood in the general population. Exercise can result in an increase in self-esteem and self-worth in all age groups from children to older adults (Baumeister RF., Campbell JD., Krueger JI., and Vohs KD., Does high self-esteem cause better performance, interpersonal success, happiness, or healthier lifestyles? Psychological Science in the Public Interest 2003; 4: 1-44).
Studies on the benefits of outdoor activity in addressing problems associated with Traumatic Brain Injury (TBI) also point to improvements in self-esteem, self-confidence, increased control, memory and planning.
A one-year outcome study of a three-day Outward-Bound Experience (Lemmon J., LaTourrette D., and Hauver S., One Year Outcome Study of Outward-Bound Experience on the Psychosocial Functioning of Women with Mild Traumatic Brain Injury) recorded a range of positive outcomes.
At the one-year evaluation, 83% of the participants ranked themselves above their pre-course rating in an understanding of their strengths and limitations. Other positive changes over the same time span included: ability to rely on others (50%), higher self-esteem (58%) and improvement in problem solving (50%). It was commented that the outdoor challenge course allowed therapists to help the participants recognise and acknowledge their thoughts, feelings and behaviours during the course and that one year later the participants were calling on this understanding to improve their daily functioning.
Another UK pilot programme (Walker A., Onus M., Doyle M., et al., Cognitive rehabilitation after severe traumatic brain injury: A pilot programme of goal planning and outdoor adventure course participation), incorporated a context-sensitive approach to cognitive rehabilitation with a focus on goal planning with goal attainment as an outcome measure. The results revealed a high level of achievement (over 80%) on selected, identified, specific and mainly practical goals. In discussing the results, the authors considered the strength of the project appeared to lie in partly in the motivation provided by the outdoor activity course, which appeared to later encourage participants to work towards broader goals.
The Calvert Reconnections Process
Step 1: Pre-Admission Clinical Assessment and Screening
A clinical assessment, based on medical history, reports and progress, will be undertaken by qualified senior staff to confirm that the programme will be of benefit to the participant. The assessment will underpin an individualised care and rehabilitation plan that will be formally agreed with the participant and their advisors. This plan will identify both the course duration, their start date, any additional support required and the cost of the programme.
Step 2: Admission & Assessment
A two-week period of ongoing assessment as part of the admissions process to support the participant in transitioning to the new environment and rehabilitation programme. The clinical assessment will be reviewed and the programme further tailored to ensure that individual needs are being met and suitable rehabilitation goals are being set.
Step 3: Ongoing Rehabilitation Provision
Typically, a 10 to 24 week programme of residential rehabilitation tailored to the individual’s needs and focusing on developing cognitive and executive skills. Participants, clinical staff and the Trust’s specialist team of coaches will work together to plan, undertake and maximise the benefits of challenging activities in the unique environment of the Lake District. The focus will be on achieving personal goals and enhancing cognitive and executive skills. Regular reviews and assessment of progress are completed with the senior staff team.
It will be very exciting when it opens!
Bill Braithwaite QC is a trustee of the Lake District Calvert Trust (LDCT).
Bill sits on the LDCT Board and advises on a number of key initiatives, including the launch and development of Calvert Reconnections, the UK’s first intensive Acquired Brain Injury rehabilitation centre focused on outdoor activities.
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