Cummings & Ors v The Ministry of Justice

Evidence of a general culture of racism is not relevant merely because it may show that racism existed at a prison. In a claim based on the acts of particular prison officers, evidence must relate sufficiently to the officers, events and issues in dispute. Vague, remote or uninvestigable allegations may be excluded. The relevance of contextual evidence depends on the cause of action and the state of mind in issue. A statutory right to trial by jury for malicious prosecution may justify trying closely linked assault and misfeasance claims with the same jury. Prisoner claimants should ordinarily be present when giving their own evidence and hearing the defendant’s evidence, subject to security and resource considerations.

Three serving prisoners claimed damages against the Ministry of Justice arising from alleged assaults and related events at HMP Frankland. The first claimant also alleged misfeasance in public office and malicious prosecution after a prosecution was discontinued. Before trial, the court determined the admissibility and scope of evidence concerning alleged racism at the prison, the mode of trial, and the claimants’ attendance.

The issues included whether evidence about incidents involving other prisoners or officers was relevant, whether all claims should be tried with a jury, and whether the claimants should attend in person or by video link.

1. Scope of evidence. The court ordered that evidence concerning acts, omissions or other matters outside 27–28 June and 3–4 August 2008 be struck out. Witnesses whose statements contained no evidence about those incidents could not be called. Other witnesses could testify only about those dates.
2. The claim alleged vicarious liability for particular prison officers, without personal fault by the Ministry. As explained by Lord Morton of Henryton in Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627, vicarious liability is distinct from an employer’s personal liability. Evidence that another officer had committed a racist assault, expressed racist views, or behaved improperly could not fairly prove that different officers had acted similarly on different occasions.
3. The evidence was also too vague and remote to be investigated or contradicted. R v Thakrar was distinguishable. There, contextual evidence could bear on the defendant’s state of mind and the reasonableness of self-defence. Here, the claimants did not rely on acting violently in self-defence, and their states of mind were not material to the pleaded claims. The evidence was therefore irrelevant.
4. Mode of trial. Under the Senior Courts Act 1981, section 69(1), the first claimant had a statutory right to trial by jury on malicious prosecution, subject to the statutory exception. The assault, battery and misfeasance claims were closely linked. In the circumstances, no interest of justice favoured severing them or trying some issues without a jury. All issues were accordingly to be tried by a judge sitting with a jury.
5. Attendance. Fairness required the claimants to give evidence in person and to be present when the defendant’s witnesses gave evidence. The court deferred final arrangements and required any further security and resource report to reflect the restricted scope of trial. The Royal Courts of Justice were unlikely to be a suitable venue, but no final venue decision was made.

First-instance pre-trial judgment. No appellate history is stated in the judgment.