Malcolm v Ministry of Justice

A failure by a prison to comply with an internal mandatory direction does not, without more, establish the unlawfulness required for misfeasance in public office by individual prison staff. The tort requires an unlawful exercise of public power, bad faith in the form of targeted malice or subjective reckless indifference to illegality and probable injury, and material damage.

Honest incompetence is not reckless indifference. A prisoner’s Article 8 rights may apply to detention conditions, but the alleged interference must attain a sufficient level of seriousness and be justified under Article 8(2). A finding by an ombudsman and a transfer to suitable accommodation may provide just satisfaction under the Human Rights Act 1998.

The claimant, a serving life prisoner, was held for 159 days in the segregation unit at HMP Frankland. He generally received about 30 minutes, rather than one hour, of outdoor exercise daily, contrary to paragraph 2(ii) of Prison Service Order 4275.

He claimed damages against the Ministry of Justice for misfeasance in public office and breach of section 6 of the Human Rights Act 1998, alleging interference with his Article 8 rights. The defendant accepted vicarious responsibility for prison staff but disputed unlawfulness, bad faith, loss, Article 8 engagement, justification and damages.

1. Misfeasance. The claim failed because the acts and omissions relied upon were not unlawful acts capable of founding misfeasance against individual prison staff. Prison Service Order 4275 structured the operation of the relevant prison rule, but non-compliance with that internal policy did not itself establish that the staff had exceeded their powers or acted for an improper purpose.
2. The tort required a public official, acting in that capacity, deliberately to exercise or omit to exercise public power; targeted malice or subjective knowledge, or reckless indifference, as to illegality and probable injury; and material damage. The claimant abandoned targeted malice. The staff honestly believed that operational and security reasons prevented a full hour’s exercise and honestly believed that they were acting lawfully. Their conduct was therefore not bad faith. Honest incompetence could not be equated with reckless indifference.
3. The court found that the claimant suffered no physical or mental injury, distress or other adverse health consequence. It considered that, had unlawfulness and bad faith been established, the loss of outdoor exercise might have amounted to material loss of residual liberty, with a broad hypothetical award of no more than £1,080. No award of aggravated or exemplary damages could properly be assessed on the facts found.
4. Article 8. Article 8 did not provide an automatic rule requiring 60 minutes’ outdoor exercise in segregation. On the facts, including the claimant’s lack of adverse health effects and his choice to remain in segregation despite available alternative accommodation, the impact on private life did not attain the required level of seriousness. Alternatively, any interference was proportionately justified by operational and security considerations.
5. Just satisfaction. If there had been a violation, the finding by the Acting Deputy Prisons and Probation Ombudsman upholding the complaint, followed by the claimant’s transfer to another establishment, would have afforded just satisfaction. A judgment in the claimant’s favour would alternatively have been sufficient.

The claims were dismissed.

This was a first-instance claim in the High Court. No appellate history was stated in the judgment.