Rashford v Secretary of State for the Home Department

Andrew Roy Rashford, the Claimant, is a Jamaican national and at the outset of these proceedings was the subject of a deportation order. During the course of the proceedings he was removed from the United Kingdom and when proceedings were resumed the hearing continued through a telephone link with the Claimant in Jamaica. The Claimant had been arrested and admitted to Colnbrook Detention Centre on 3 July 2007 and was subsequently transferred to HMP Brixton on 2 October 2007 and to HMP Wandsworth on 3 December 2007.

The Claimant brought this action against the Secretary of State for the Home Department. However the identity of the Defendant was changed properly to reflect the current position and the Secretary of State for Justice was substituted.

The Claimant claims damages for false imprisonment, a breach of Articles 5 and 14 of the European Convention on Human Rights (“ECHR”), a breach of the Data Protection Act, assault and battery, and loss of possessions arising out of events which he alleges took place between 2 October 2007 and 22 January 2008.

The factual background is as follows. The Claimant, a Jamaican national, arrived in the United Kingdom in March 1998 and was given leave to remain until 17 March 1999. His leave to remain expired on 17 March 1999 but on 9 March 2000 the Claimant was convicted of rape of a child and sentenced to 6 years’ imprisonment. When the Claimant gave evidence at the hearing of the present claim he maintained that the rape victim had consented to sexual intercourse with him and that the offence could be characterised as one of “statutory rape” of a minor. However, evidence was later adduced at the hearing which indicated that the judge, in sentencing the Claimant, had referred to the actual age of the victim, namely 13 years, and to the fact that the victim had not consented to the sexual intercourse. She had been a vulnerable girl who had been forced at knifepoint to have sexual intercourse with the Claimant. This issue, in my view, is of some significance because it shows that the Claimant, in giving evidence, was prepared, for his own advantage, to misrepresent the position to the court on a not insignificant point and that that misrepresentation was later exposed.

In August 2000 the Claimant was notified of the decision to deport him. In March 2004 the Claimant’s appeal against the deportation order failed and a deportation order was made on 10 May 2007. On 3 June 2007 the Claimant was served with the deportation order and was taken to Colnbrook Detention Centre.

The documentary evidence that was produced at the trial then shows a pattern of disruptive and unacceptable behaviour on the part of the Claimant at the Colnbrook Detention Centre. On 9 July 2007, according to that documentation, the Claimant was warned for racially abusive language towards officers. On 10 July 2007 the Claimant was again warned for abusive language and for pushing an officer. On 15 July 2007 the Claimant was yet again warned for being racially abusive towards an officer and relocated following assault on a staff member. In response to that finding the Claimant began a dirty protest. On 20 July 2007 the Claimant was again warned for abusive language towards an officer. On 24 July 2007 the Claimant was relocated on account of his threatening and abusive behaviour towards staff after stating that he would throw excrement at them. On 4 August 2007 the Claimant was warned for throwing dominos. On 9 August 2007 the Claimant was yet again warned for disruptive behaviour and for making derogatory remarks towards an officer. On 10 August 2007 the Claimant was again relocated for using racially abusive and threatening language towards a member of staff. On 18 August 2007 the Claimant was warned for aggressive and threatening behaviour towards an officer. On 29 August 2007 the Claimant was warned for being racially abusive towards officers. I stress that these matters were evidenced by documentation that was produced at the trial and that was put to the Claimant during his cross-examination. It is notable that at the time when the Claimant was receiving these warnings and was being relocated there was, so far as the evidence shows, no effort on his part to challenge, or generally take issue with, the disciplinary findings or the action being taken against him.

On 11 September 2007 the Claimant was relocated after becoming abusive and displaying aggressive behaviour towards members of staff. The Claimant claims in these proceedings that this was the day upon which he was assaulted by a “Mr Omar” on B Wing of Colnbrook Detention Centre. On 15 September 2007 the Claimant was relocated after displaying threatening and non-compliant behaviour and stripping his clothes. On 16 September 2007 the Claimant was relocated in order that his behaviour should be assessed. On 20 September 2007 the Claimant was warned for threatening behaviour towards officers. On 27 September the Claimant was relocated owing to racially abusive language and behaviour towards officers.

Shortly thereafter, at the end of July, SERCO, who were managing Colnbrook Detention Centre, recommended that due to the Claimant’s history of violent and abusive behaviour he posed a threat to the safety of officers and ought to be removed from the detention centre and moved to a more suitable place of detention, possibly within the prison estate, whilst awaiting deportation. On 1 October 2007 an order was made for the transfer of the Claimant to HMP Brixton. The Claimant was informed that the transfer would take place the following day and the Claimant objected to the transfer. On 2 October 2007 the Claimant was transferred from Colnbrook Detention Centre to HMP Brixton. On 31 October 2007 the Claimant complained about the transfer from Colnbrook alleging that it was unlawful. On 3 December 2007 the Claimant was transferred from HMP Brixton to HMP Wandsworth. The Claimant claims that on the transfer three male officers assaulted him. There was no contemporaneous record of this complaint. The Claimant complained on 4 December 2007 that officers at HMP Brixton had taken 36 DVDs, 10 CDs and £1000 in cash from his cell on 26 November 2007. On 8 January 2008 the Claimant claimed that he was assaulted after he appeared in the family court at HMP Wandsworth. He completed a Report of Injury to Prisoner form and on that form the Claimant was apparently complaining of scratches on his left hand. It was recorded that all the marks were consistent with handcuffs and that there were no other injuries to report. On 31 March 2008 this claim was issued.

The first issue in these proceedings is as follows: namely, was the transfer of the Claimant from Colnbrook Detention Centre to HMP Brixton on 2 October 2007 unlawful, such that the Claimant is entitled to damages for false imprisonment or for breach of Articles 5 and 14 of the ECHR?

The Claimant accepts that his detention at Colnbrook Detention Centre was lawful but he challenges the lawfulness of the decision to transfer him to HMP Brixton.

The Immigration Act 1971, Schedule 2, paragraph 18.1 provides that those detained under the provision of the Act may be held in “such places as the Secretary of State may direct”. Immigration Act detainees are currently held in one of a number of specialist immigration removal centres or in one of a number of prisons throughout the country. There are further short-term holding facilities at certain airports and ports. The protocol for the management of detainees held in prison custody and movement of detainees between the National Offender Management Service and the UK Border Agency Estate (“The Protocol”) provides that 250 spaces are “ring-fenced” within the prison estate for immigration detainees detained solely under immigration legislation. Immigration detainees may be moved into prison establishments if they pose a serious risk to the stability of immigration removal centres. The Protocol specifies that risks which would indicate that detainees should be held in prison accommodation include behaviour during custody. The Claimant alleges that there was no basis whatsoever for his removal from Colnbrook Detention Centre to HMP Brixton. However, I reject that claim. During the Claimant’s three months stay at Colnbrook Detention Centre there was documentary evidence, to which I have already referred, that he was involved in 15 incidents of verbal abuse, 6 incidents of racial abuse, 9 incidents of threatening and aggressive behaviour and 3 incidents of assaulting officers. The notes made by SERCO at the time refer to the Claimant’s “uncontrollable show of aggression and persistent racial tendencies and overtures that were unsettling a lot of officers and the Claimant remained a threat to the safety of officers”. On that basis SERCO recommended that he be removed from Colnbrook Detention Centre and moved to a more suitable place of detention whilst awaiting deportation.

In his evidence, the Claimant denied the episodes that form part of his history while he was at Colnbrook Detention Centre. He said that the record had been falsified and he denied the conduct that was there imputed to him. He said that he was being transferred because he was being victimised and that he was relocated for reasons unconnected to his alleged abusive conduct at Colnbrook Detention Centre. However I reject the Claimant’s evidence in this respect. The documentary record shows a persistent pattern of abusive and threatening behaviour. There is no apparent reason why that documentary record should have been falsified in any respect and furthermore, as I have already noted, the Claimant took no action at the time to challenge any of the findings that were made against him. He waited until these proceedings were brought in order to contend that there was no substance at all in the findings that were made some time ago.

The Claimant furthermore alleges that he was given no reason in advance why he was being transferred from Colnbrook Detention Centre to HMP Brixton. The Claimant was informed that the transfer was to take place and the evidence shows that solicitors representing him at that time were aware in advance of the intended transfer. However, no specific reasons were given at the time for the intended transfer and the Claimant was given no opportunity to make any representations at all about the appropriateness or legality of such intended transfer. Miss Helen Wolstenholme, who appeared on behalf of the Defendant, argued forcefully that there was no duty to give reasons in advance and to allow the Claimant to make representations about the legality or appropriateness of the transfer from the detention centre to a prison. This aspect of the claim has given me some concern. It seems to me plain that conditions in a detention centre are markedly different from the conditions that obtain in prison. Prison is primarily intended for those who have committed criminal offences in circumstances where only a period of custody is a justifiable sentence. It is inevitable that those detained in prison are subject to considerable constraints upon their liberty and upon their activities. Generally speaking, the environment in a prison such as HMP Brixton will be characterised by a regime of considerable discipline.

By comparison the conditions in a detention centre are substantially different. Those held in detention centres are those whom it is intended to remove from the UK. Generally speaking there is no reason to believe that such persons have committed criminal offences and certainly they are not being held in detention centres as a form of punishment for the commission of any such serious offences. Accordingly the regime in a detention centre is very likely to be considerably more relaxed and conducive to the exercise of liberty than the conditions that would typically prevail in prison. Accordingly it seems to me that removal from a detention centre to a prison is an important and potentially detrimental step so far as a detainee is concerned. It is, therefore, strongly arguable consistently with general principles of public law that a person affected by such an intended decision should be given reasons why such a detrimental step is planned against him and is given an opportunity to make representations about such a step. It is accepted that the Claimant in this case was not given reasons in advance and was therefore denied any opportunity to make representations. However, even if I were to hold that there was a procedural impropriety in the Claimant’s removal from Colnbrook Detention Centre to HMP Brixton, that procedural impropriety would not avail him in this claim. In this claim he claims damages for false imprisonment. However, his detention was, throughout the relevant period, lawful and any procedural impropriety that may have occurred on transfer from a detention centre to prison would not render his detention unlawful such as to found a claim for damages (see R (on the application of SK) v Secretary of State for the Home Department [2008] EWCA Civ 1204). If the Claimant claimed that the removal to HMP Brixton involved a procedural impropriety the proper course, as Miss Wolstenholme submitted, was for the Claimant, at the relevant time, to bring proceedings for judicial review in which, if his argument prevailed, he would have at least obtained a declaration that the transfer was procedurally flawed and would, in all probability, have obtained such relief as would have enabled him to receive reasons for the transfer and to make representations about its legality or appropriateness. He did not, however, take those steps at the time and in the light of SK any such procedural illegality cannot found a claim for false imprisonment.

The second issue that arises is as follows: namely, was the transfer of the Claimant from HMP Brixton to HMP Wandsworth on 3 December 2007 unlawful such that the Claimant is entitled to damages for false imprisonment and for breach of Article 5 of the ECHR?

Again the Claimant does not allege that his detention, as such, during this period was unlawful but essentially maintains that there was no good reason for detaining him in prison or for removing him from one prison to another. This claim is therefore largely parasitic upon the first claim that I have dismissed. It seems to me that the defendant was entitled to move detainees within the prison estate. It also appears to me that the argument that the Claimant should have been given reasons for removal from one prison to another is considerably weaker and I would not have been minded to accept such an argument. In any event, in the light of SK even if again there had been any procedural impropriety by failure to give such reasons for removal from one prison to another such failure could not found a claim for damages. The correct remedy would have been to challenge the transfer at the relevant time by way of proceedings for judicial review.

The next issue in the claim is as follows: namely, was the Claimant subject to assault and battery by the Defendant, its servants or agents on 11 September 2007, 3 December 2007 and 8 January 2008?

I shall first deal with the allegation relating to 11 September 2007. Mr Amardeep Singh Sidhu, an officer at Colnbrook Detention Centre, made a witness statement for these proceedings and gave oral evidence upon which he was cross-examined by the Claimant. Mr Sidhu, in his evidence, said that on the occasion in question the Claimant was at the office door of Bravo Unit of Colnbrook Detention Centre demanding vouchers for unit competition winners. Mr Sidhu said that he asked the Claimant to allow the officers a moment to complete their task because the Claimant was trying to get into the office and his conduct was only slowing the work of the officers down. Mr Sidhu said that at this juncture the Claimant began to shout abuse at Mr Sidhu, saying “suck your mother you fucking pussy hole”. Mr Sidhu then said that he waited for a moment for this abusive language to stop but the Claimant continued to come closer to him and he could feel saliva, namely spit, being projected onto his face. As the Claimant became more aggressive Mr Sidhu began to fear for his personal safety therefore he put his arm out to maintain some distance between him and the Claimant. He said that he did this with an open hand and that he did no more than stretch out his arm to stop the Claimant getting closer to him. Mr Sidhu said that at this point DCM Ridd tried to talk to the Claimant to calm him down as the Claimant was continuing to shout abuse. The Claimant then appeared to be seeking to push past DCM Ridd and was apparently provoking a fight. At this point the Claimant was taken into the corridor by DCM Ridd and DCO McDermid to try to calm down the Claimant and maintain discipline and order on the Bravo Unit. The Claimant was then escorted to room 40, an area of the detention centre reserved for detainees so that they could reflect on their behaviour. Mr Sidhu said that as night shift officer he remained on the unit to continue his duties of lock-up and roll count. Mr Sidhu attached to his witness statement contemporary documents, including his officer’s report, that were entirely consistent with the account that he gave in evidence to the court.

Miss Penni Ridd, to whom reference has been made, also prepared a witness statement for these proceedings, gave oral evidence and was cross-examined by the Claimant on that evidence. Miss Ridd is a Detention Custody Manager at Colnbrook Detention Centre. She was working in the Bravo Unit office when the Claimant was standing outside the office door shouting for his voucher on 11 September 2007. The Claimant was told that he needed to wait for his voucher but he continued to shout. DCO McDermid asked the Claimant to wait. DCO Sidhu, according to her evidence, walked up to the Claimant and asked him to move away from the office door. However, the Claimant refused. DCO Sidhu asked again for the Claimant to move away. The Claimant then turned on DCO Sidhu, becoming abusive and lashed out at him. Miss Ridd said that she then moved quickly between DCO Sidhu and the Claimant and tried to calm the Claimant down. However the Claimant continued to be abusive towards DCO Sidhu and would not calm down. The Claimant then tried to push her out of the way to get to DCO Sidhu. Miss Ridd removed the Claimant from the unit to the lobby area to try to calm him down and he did then become quiet. However, upon seeing other staff arriving, the Claimant again, according to her evidence, became abusive and argumentative.

In his evidence the Claimant gave an entirely different account of what occurred on this occasion. He said that “Mr Amar” (referring to Mr Sidhu) came on the scene and then pushed the Claimant away from the door because he was knocking on the door to get inside to obtain his voucher. The Claimant said that Mr Sidhu pushed him away from the door and that when the Claimant asked him why he had done that Mr Sidhu, without any provocation, proceeded to punch him. He said that Mr Sidhu struck him either in the stomach or in the face, he couldn’t recollect clearly. The Claimant said that he later complained about what had happened and said that he wanted to speak to the police. The police were, in fact, called and came to speak to the Claimant the next day and took a statement. However, no further action was taken.

There is therefore on this matter a clear conflict of evidence and I have to decide which of the witnesses is giving an honest account of what occurred on 11 September 2007. In this context I must bear in mind that the Claimant was a man who was convicted of a very serious and violent sexual offence to which he had pleaded not guilty at his trial. Furthermore, as I have indicated, when asked about the circumstances of that offence he sought to misrepresent to this court the true position that was only later disclosed. Furthermore, the Claimant, as the contemporary documents have shown, had been involved in 11 incidents of abuse and assault at Colnbrook Detention Centre. There was, therefore, a well-documented history of unacceptable behaviour on his part at this detention centre. On the other hand I found both Mr Sidhu and Miss Ridd entirely credible witnesses. They both struck me as professional and responsible officers who were seeking to deal with an extremely difficult detainee in very difficult circumstances. There was no reason at all why Mr Sidhu or Miss Ridd should involve themselves in any unprovoked assault upon this Claimant. There was, for example, no previous history, as the Claimant readily accepted in cross-examination, between Mr Sidhu and himself. Furthermore, the accounts that both these witnesses gave in clear and convincing terms at this hearing were entirely consistent with the contemporaneous records that they made of the incident in question. Finally, although the Claimant did raise a complaint at the time this was not a complaint that was then actively pursued at a later date. In relation to this incident, therefore, having heard the witnesses on each side I have no hesitation whatsoever in accepting the evidence of the officers at the detention centre as to what happened on this occasion. That the Claimant, as on previous occasions, was engaging in unacceptable, abusive and violent behaviour and the custody officers did no more than exercise lawful restraint in order to maintain good order and discipline at the detention centre.

The Claimant then alleges that he was assaulted on 3 December 2007 during the course of his transfer from HMP Brixton to HMP Wandsworth. On this alleged assault the Claimant’s account has, in the course of time, varied. The Particulars of Claim refer to the Claimant being restrained and handcuffed during his transfer from Brixton to Wandsworth. However, the amended Particulars of Claim refer to the Claimant being “violently restrained and assaulted by three white officers”. Then in his oral evidence the Clamant said that two officers came to his cell on the day in question to tell him that he was being moved but did not disclose the destination. The Claimant said that he refused to pack and at that point the officers “jumped on me and pushed me to the ground” before handcuffing him and walking him to reception for the transfer to HMP Wandsworth. The Claimant initially alleged during his oral evidence that he did complain about the incident to the doctor and the prison officer but later in cross-examination he accepted that he had made no complaint to the doctor and that he made no complaint before he was transferred by the same two officers to whom he had referred to HMP Wandsworth.

As to this claim, I note that at the relevant time the Claimant made no such allegations as he has made in these proceedings. The first time that he made any allegation about any assault on his transfer to HMP Wandsworth was when these proceedings were launched, some considerable time after the alleged incident in question. I simply find it inconceivable that this Claimant would not have made a complaint at the time if the incident to which he alludes had occurred. Furthermore, the Claimant has, as I have shown, given different versions of what he said occurred on this day and I find that these inconsistencies also undermine his credibility so far as this claim is concerned. Finally, for the reasons that I have already given, I did not find the Claimant a credible witness. In these circumstances I am not satisfied, on a balance of probability, that any alleged assault occurred on his transfer to HMP Wandsworth. I am satisfied on the evidence that no more than lawful force was used in order to effect that transfer and that the Claimant has later made an allegation of assault which, over the course of time, has become itself magnified and exaggerated.

As to the allegation of assault and battery on 8 January 2008, the Claimant alleged that when he returned to HMP Wandsworth after attending court on an unrelated matter an officer was reading through the Claimant’s legal papers and the Claimant asked him to desist. The Claimant said that he could not remember if he tried to grab the papers from the officer but he admitted that he might have done so because he was upset that the officer was reading through paperwork and showing him no respect. The Claimant alleged that an argument escalated and around 4-6 officers trampled on him, pinning him to the ground, handcuffing him and kicking him. As to this alleged incident, there was in the evidence a report of injury to a prisoner dated 8 January 2008 made by the medical officer. In that report it is recorded that the Claimant was restrained and accompanied down from reception. The complainant complained of scratches on his left hand. The report stated that no medical intervention was required at the time and the report notes that the scratches were consistent with handcuffs being placed on him and that there were no other injuries.

In my judgment, the evidence as to his injuries is entirely consistent with the imposition of lawful restraint and inconsistent with the account of a very violent assault on the Claimant perpetrated by a number of prison officers. I have, for reasons already stated, general reservations about the credibility of the Claimant. However, even proceeding on the assumption that a prison officer was unlawfully looking at legal papers belonging to the Claimant it appears to me that the Claimant, consistent with his general abusive and threatening behaviour, as evidenced by other documents in this case, decided to take the law into his own hands and then engaged in provocative conduct to challenge the officer in question and used threatening language and behaviour towards that officer. Inevitably the Claimant was then lawfully restrained, handcuffs were placed on him and he was removed from the area in question. The medical report shows, in any event, that such injuries as he sustained in this lawful removal were trivial. I do not therefore accept that any unlawful assault occurred on this occasion and in any event the injuries sustained were not such as to give rise to a claim for significant damages.

The next issue is as follows: Did the Defendant remove a) £100 of cash; b) a mobile telephone valued in the sum of £27; and c) Jamaican dancehall DVDs valued in the sum of £75 from the Claimant while at HMP Brixton?

The Claimant alleged in his oral evidence that when he entered HMP Brixton his property was not searched at all and that he was able to take into his cell 3 mobile telephones, cash hidden in gloves and “loads” of DVDs. The Defendant has no record at all of any items of this nature having been taken from the Claimant at any stage during his detention at HMP Brixton. I find the Claimant’s allegation to be incredible. I do not find it at all credible that the Claimant’s property was not searched on his transfer to HMP Brixton and that he was simply permitted to take mobile telephones and cash into his cell. There is no independent evidence that the Claimant possessed such items when he entered HMP Brixton.

The Claimant went on to say that his cell was subsequently searched and various items were confiscated. In particular, he said that one mobile telephone was confiscated because by that time he had given the other one away but was allowed to retain one. Again, I do not find it at all credible that the Claimant should be allowed to retain, in prison, a mobile telephone. His whole account in relation to this matter does not seem to me to be worthy of belief. I also note that although the Claimant made a contemporaneous complaint in relation to a sum of money being taken from his cell he was originally alleging that £1000 had been taken whereas his allegation in this claim was that £100 only was taken. The original complaint also made no mention of any mobile telephones being taken from him.

The last claim relates to an alleged breach of the Data Protection Act. As to this claim the Claimant has failed to give such particulars as would enable a proper assessment to be undertaken. It appears that the principal thrust of this claim is that Mr Christopher Frampton of Colnbrook Detention Centre allegedly disclosed the Claimant’s previous offence to other detainees and members of staff on 29 September 2007.

At the time the Claimant made a complaint on 29 September 2007. In the complaint form that he completed the Claimant said that Mr Chris Frampton had told him, the complainant, that he, Mr Frampton, knew that the complainant had been in prison for rape and that he, Mr Frampton, was going to put the Claimant back on the wing and let the other detainees know that he was a rapist. There is no evidence that Mr Frampton did in fact disclose the Claimant’s previous conviction to other inmates. Insofar as Mr Frampton was telling the Claimant that he was aware of the Claimant’s previous conviction this plainly could not be a breach of the Data Protection Act. Furthermore, Section 13 of the Data Protection Act provides that damages are only available where an individual suffers damage by reason of contravention of the Act. There is no evidence that the Claimant has suffered actual damage by reference to any alleged breach of the Act in this case. Finally, insofar as the Claimant was alleging any violation of the Data Protection Act an alternative remedy was available, namely a complaint to the Data Commissioner pursuant to Part V, Section 40 of the Data Protection Act.

For these reasons I find no substance in any of the claims made by the Claimant and accordingly I dismiss his claims.