MOJ loses negligence claim for failing to protect Radislav Krstić in HMP Wakefield
15 Sep 2016
The Claimant’s solicitor, Kate Maynard, comments as follows:
- On 7 May 2010 Radislav Krstić, a vulnerable, high-profile prisoner at HMP Wakefield, was assaulted by three fellow-prisoners who held him down and cut his throat. This was a retaliatory attack carried out by radicalised Muslim prisoners for Mr Krstić’s role in aiding and abetting the massacre of Muslims during the civil war in Yugoslavia (charges he has continuously denied). As the judge found, he was fortunate to escape with his life, albeit with permanent physical and psychological injuries.
- The judge found that the Claimant should never have been moved to HMP Wakefield, which lacked the appropriate facilities to ensure his care and allowed him to be brought into contact with very dangerous prisoners with obvious motives for harming him. He was placed onto a wing housing two of the three Muslim assailants, known to be violent criminals with extremist views. The third assailant was placed in the same unit the day before the assault. If this information had been pieced together, which should have been a relatively straightforward exercise for properly trained security analysts and a well-resourced security committee, the danger to the Claimant would have been noted and decisive steps to ensure his safety would have been taken before the 7 May 2010 attack took place
- This case shows the British legal system working at its best, providing justice to an unpopular and vulnerable prisoner who was owed a duty of care under our long held traditions (the law of negligence). The judge found at para 81 of his ruling that the life threatening assault ‘could and should have been avoided’. This amounted to a negligent failure in the MOJ’s ‘legal duty of care’ owed to Mr Krstić.
- However, this trial was a wholly avoidable waste of public money. The evidence on behalf of Mr Krstić was compelling and his claim should never have been contested. In 2013 Mr Krstić had offered to accept a lower amount of compensation than the court awarded today. The trial judge agreed that the trial was unnecessary. When ordering the Defendant to pay the Claimant’s legal costs, he said that the case screamed out to be settled, and that the Defendant’s refusal of the Claimant’s realistic offers or his offer to mediate was unreasonable in all the circumstances.
- The reason the MOJ decided to waste so much time and public money defending this case was clearly political. It was unpalatable to pay damages to a man convicted of war crimes (accusations that Mr Krstić has continued to deny throughout nearly 17 years of incarceration in six different prisons, various attacks upon his person and the death of his wife).
- The court also criticised the MOJ’s unsatisfactory conduct of the litigation and noted legitimate criticisms of the MOJ in their failures in disclosure. The MOJ lost various crucial documents including Mr Krstić’s prison file. The Claimant had to obtain two court orders for disclosure and key documents were only disclosed to the Claimant on day four of the trial.
- Sadly, this triumph of British justice in addressing a failure to uphold the duty of care owed to a vulnerable prisoner will no doubt be used by some as a political stick against the Human Rights Act. However, this was not in fact a Human Rights Act claim, but a finding of negligence under English common law.