THE SUPREME COURT PETER CREIGHTON AND

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1 THE SUPREME COURT APPEAL NUMBER 230/2009 HIGH COURT RECORD NUMBER 2003/13989p Fennelly J. O Donnell J. McKechnie J. BETWEEN PETER CREIGHTON PLAINTIFF/RESPONDENT AND IRELAND, THE ATTORNEY GENERAL, THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM AND THE GOVERNOR OF WHEATFIELD PRISON DEFENDANTS/APPELLANTS JUDGMENT of Mr. Justice Fennelly delivered the 27th day of October, The plaintiff/respondent was a prisoner in Wheatfield Prison on 19th January While he was in a confined area with others awaiting delivery of his needed supply of Methadone, he was the victim of a sudden, violent and unprovoked knife attack by a fellow prisoner. The plaintiff described the knife used in a way suggesting that it was similar to a proprietary type commonly known as a Stanley knife. He suffered serious wounds to his face, stomach and flank. He secured an award of 40,000 by the judgment of the High Court (White J) in respect of part only of his injuries. I will refer to him as the plaintiff. No question arises as to which of the various defendant/appellants was responsible for the care of the plaintiff in prison: I will describe them simply as the defendants. 2. The plaintiff presented his claim in the High Court with the support of the expert testimony of a former governor of a number of English prisons, Mr Roger Outram. Mr Outram made a number of criticisms of the care of prisoners in Wheatfield, principally that the system of control to prevent entry of dangerous knives into the prison was lax and that the area in which the prisoners were confined while awaiting delivery of Methadone was unduly crowded. The learned trial judge found it unnecessary to determine either the nature of the knife used or the extent of the overcrowding, if any. He concluded that the prison authorities could not reasonably have been expected to have been in a position to prevent an attack on the plaintiff. However, the learned judge had, on his own initiative, recalled Mr Outram following the conclusion of the evidence for both parties. He suggested to the witness that there should have been an additional prison officer within the area where the plaintiff was attacked. The witness agreed and the learned judge held that, if there had been such an additional supervising officer, there would probably have been an earlier intervention which would have lessened the extent of the injuries suffered. In short, the plaintiff would have suffered his head and facial injuries

2 but would probably have been saved the injuries to his flank and abdomen. He awarded damages on that basis. 3. These are the circumstances in which there is an appeal by the defendants against the award of 40,000 and a cross-appeal by the plaintiff against the rejection of the claim as he had presented it. 4. A sentence of imprisonment deprives a person of his right to personal liberty. Costello J explained in Murray v Ireland [1985] I.R. 532 at 542 that [w]hen the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept. Nonetheless, the prisoner may continue to exercise rights which do not depend on the continuance of his personal liberty. I would say that among these rights is the right to personal autonomy and bodily integrity. Thus, it is common case that the state owes a duty to take reasonable care of the safety of prisoners detained in its prisons for the service of sentences lawfully imposed on them by the courts. This does not amount, however, to a guarantee that a prisoner will not be injured. (see Muldoon v Ireland [1988] I.L.R.M. 367 approved by the this Court in Bates v Minister for Justice and others [1998]). Prisons may, as an inevitable consequence of the character of persons detained, be dangerous places. Prisoners are entitled to expect that the authorities will take reasonable care to protect them from attack by fellow prisoners. What is reasonable will, as always, depend on the circumstances. As the cases recognise, prison authorities may have to tread a delicate line between the achievement of the objective of protecting the safety of prisoners and the risks of adopting unduly repressive and inhumane measures. They must balance the protective function and possible demand for intrusive searches against the need to permit prisoners an appropriate degree of freedom of movement and human dignity. Counsel for the plaintiff cited the following helpful passage from the judgment of Singleton L.J. in Ellis v Home Office [1953] 2 All ER 149 at 154: 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, and that includes those who are within against their wish or will, of whom the plaintiff was one. If it is proved that supervision is lacking, and that accused persons have access to instruments, and that an incident occurs of a kind such as might be anticipated, I think it might well be said that those who are responsible for the good government of the prison have failed to take reasonable care for the safety of those under their care. 5. That passage raises quite directly the principal issue which arises in the present case, namely whether the attack on the plaintiff was the result of a lack of care by the prison authorities insofar as a dangerous knife came into the possession of the plaintiff s assailant. 6. It is necessary, at this point, to return to consider the facts of the case in a little more detail.

3 7. Between 10 am and 11 am on 19th January 2003, a number of prisoners were awaiting delivery to them of Methadone from the prison pharmacy. The waiting area was some 50 to 55 long and 7 feet wide and was separated from the main adjoining corridor by a wall surmounted by bars or rails placed so as to permit observation by a prison officer in the corridor of prisoners within that area. The separated area was divided in turn into four successive rectangular areas, called A, B, C and D, which came to be called "cages," probably because they were separated by barred gates. The pharmacy adjoined area A. Prisoners were admitted to area D and moved through to area B, prior to admission, one by one, to area A, which adjoined the pharmacy. 8. There was controversy about whether prisoners were confined to area B (approximately 7 feet by fourteen feet) or had the entire of areas B, C and D available. This was not resolved. There was also some disagreement about the total number of prisoners who were in the area. The plaintiff said there were about twenty. The prison officers said there were ten to fifteen. 9. Within area A were two prison officers: Mr David Hughes had the task of admitting one prisoner at a time from area B to area A; Ms Sharon Murray was to verify identity, see that the prisoner received his Methadone through a hatch from one of the prison nurses in the pharmacy and that he took it and then to allow him back to the main corridor before the next prisoner was admitted. In the corridor was Prison Officer Hickey. 10. The plaintiff gave evidence that he was sitting or crouching on a bench in area B. There were about twenty prisoners there; it was packed and the gate from area C was locked. He felt something coming from behind. He fell on the ground and his attacker, whom he identified as Jeffrey Mitchel, a fellow prisoner, cut and slit his face from his nose and behind his ear into the scalp; he then cut his stomach: he just kept sliding the blade along my skin. Following his scream for help, Officer Hughes opened the gate to area A and Officer Hickey came in and dragged the plaintiff out. The plaintiff said that it all took a matter of seconds. He described the knife at first as a long blade, kind of Stanley blade; he agreed to it being described as having a retractable blade and later said it was a long skinny blade, a plastic handle on it and the blade flicks out so you can break the bits off it. He said it was of the type used for cutting cardboard boxes open. 11. In effect, the defence appears to have accepted at the High Court hearing that it had been established that a knife akin to a Stanley blade was used. This was distinguished from the sort of improvised weapons that prisoners devise from such normal material as can be found in the prison kitchen or bathrooms. An example would be a razor blade melted into the end of a toothbrush. No evidence was called to contradict the plaintiff on the nature of the knife used. The severity of the lacerations sustained by the plaintiff seems at least consistent with the use of an extremely sharp blade. No weapon was found on search after the incident, a fact which struck Mr Outram and the learned trial judge as extraordinary.

4 12. Mr Outram, both in his report and his evidence, made a number of criticisms of the security regime at Wheatfield prison. It is fair to say that he also found much to praise. However, so far as the present appeal is concerned, his central criticisms were that: The system of security both at entry and within the prison was, in his view, inadequate. Based on his single inspection visit in 2006, the system of searching at entry was inappropriately lax; he made a number of criticisms; a knife such as that described by the plaintiff must have come from outside the prison. In addition, prisoners moving from the residential area to another area of the prison should be searched both by hand and by metal detection. The holding area where prisoners had to wait prior to entry to area A was, on the plaintiff s account, overcrowded; there should not have been more than four prisoners in the area at one time. Prisoners awaiting their dose of Methadone are likely to be volatile and disruptive. 13. Mr Outram also thought there should have been CCTV covering the area as well as some means of raising the alarm. 14. I propose to deal, in the first instance, with the appeal by the defendants. The decision by the learned trial judge to award damages to the plaintiff was based entirely on the evidence given, at the judge s invitation, by Mr Outram, when he had recalled him to the witness box. The witness reiterated, in the first place, that he would not have started from the point where there were many people present in area B. His direct evidence had been to the effect that there should not have been more than four. Pressed to deal with a situation where there were so many, he said that one officer would be the minimum and that he would have expected two officers to be there. He was not asked and did not comment on the possibility that part of the injuries those to the plaintiff s lower body might have been avoided. 15. The learned trial judge found that there had been a breach of duty of care in failing to place a prison officer or officers within the three central units of the Medical Centre and among the prisoners but only to the extent that such a presence would have resulted in an earlier intervention, and break up, of the assault. This statement seems to imply that the prisoners were in the three central units, and not confined to one. The judge did not consider that the presence of such officers would have prevented the plaintiff's head and facial injuries but would have been likely to prevent the injuries which the plaintiff sustained to his flank and to his abdomen. This conclusion did not arise from any evidence given by Mr Outram. The plaintiff, in his direct evidence had criticised the prison officers on the following basis: they were looking, standing at the gate, so they could have stopped it before they got to my stomach, they could have stopped it. This evidence, however, relates to a personal criticism directed at the particular prison officers and not to the absence of an additional officer inside area B, as postulated by Mr Outram on recall. I cannot find any basis in the evidence upon which the judge could have reached the conclusion he did.

5 16. Furthermore, the evidence of Mr Outram appears to have been based upon two assumptions underlying the plaintiff's evidence namely: firstly, that there were about 20 prisoners within the area; secondly, that they were all within area B, the gate between B and C having been locked. However, the conflicts of evidence on these points had not been resolved and, as I have said, the judge himself spoke of three central units. 17. Finally, this crucial and decisive evidence was given following the conclusion of all of the evidence; it had never been part of the plaintiff's case. In all the circumstances, I consider the decision of the learned trial judge on this point to be unsatisfactory and unsupported by the evidence and I would set it aside. 18. On the other hand, it would not be fair to the plaintiff to dispose of the case without full and proper consideration of the case which he had advanced. The High Court decision amounted to a compromise. For the reasons I have given, I do not think it was a satisfactory one. It seems to me, from a reading of the judgment as a whole and from the perusal of the transcript of the evidence that the learned judge was by no means unsympathetic to the plaintiff's case and, in some respects at least, was critical of the management of the prison. 19. The learned judge noted that there had been conflicts, in the evidence with regard to the number of prisoners present in the Medical Centre, the length of time the plaintiff was in the centre and as to whether or not the separating gates between the central units were open or locked. These conflicts were, however, highly material to the complaints advanced by Mr Outram regarding overcrowding. The failure to resolve them meant that the plaintiff's complaint had not been considered on its merits. 20. The learned trial judge also said that he did not consider it necessary to determine the nature of the weapon involved. The nature of the weapon was central to the plaintiff's complaint. On his evidence, it was of a type similar at least to a Stanley knife; on the evidence of Mr Outram, it was appalling that such a knife should be in a prison. The learned judge said that it would be unreasonable to expect, or require, the prison authorities to search each and every prisoner every time he exited his cell. Mr Outram had not suggested that they should. I have referred to his evidence above: his view was that there should have been a thorough search of each prisoner on move from one area to another. In this case, the prisoners had moved from their cells to the caged area for administration of Methadone. The judge, in this way, led himself to the conclusion of that the prison authorities could not have been reasonably expected to have been in a position to prevent an attack on the plaintiff. 21. I do not say that the court was compelled to find that the blade was a of a Stanley knife type, but where the evidence seemed to point only one way, it would have been reasonable to expect the judge to give a reason for rejecting the evidence of the plaintiff. Nor do I say that the court was obliged to accept the evidence of Mr Outram. For the purposes of the present appeal, I merely say that, in order for the plaintiff s case to have been considered properly, it was appropriate to resolve conflicts of evidence which were relevant. Finally, I do not say either that the plaintiff should be disentitled from advancing

6 the case ultimately founded upon the evidence of Mr Outram, when recalled, though it was not always clear what precise criticisms he was making. I would emphasise that, if the plaintiff is to succeed in his claim, it is obvious that he must be able to identify the precise respects in which the defendants were in breach of their duty of care and what standards they failed to meet. Any criticism of the standards operated in the prison should be related to the facts. That, in turn, may give rise to the need to resolve conflicts in the evidence. 22. In all of the circumstances, I am of the view that the High Court decision did not correctly address the issues. For that reason, I would allow the appeal of the defendants and the cross appeal of the plaintiff. I would set aside the order made in the High Court and remit the case to that court for further hearing.