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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Qazi & Anor, R v [2010] EWCA Crim 2579 (04 November 2010)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/2579.html
Cite as: [2010] EWCA Crim 2579, [2011] 2 Cr App R (S) 8, [2011] Crim LR 159, [2011] 2 Cr App Rep (S) 8, [2011] HRLR 4

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Neutral Citation Number: [2010] EWCA Crim 2579
Case No: 2010/00271/A5 & 2010/01011/A5

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LUTON
HIS HONOUR JUDGE KAY QC

Royal Courts of Justice
Strand, London, WC2A 2LL
04/11/2010

B e f o r e :

LORD JUSTICE THOMAS
MRS JUSTICE DOBBS
and
MRS JUSTICE SHARP

____________________

Between:
Regina
Respondent
- and -

Saraj Qazi
&
Majid Hussain
Appellant

Applicant

____________________

Tim Owen QC (who did not appear below) for the Appellant Qazi
Mr C Aylott for the Applicant Hussain
D Farrell QC and Mr S Alford for the Crown
Rosemary Davidson for The Secretary of State for Justice
Hearing dates: 1, 23 & 30 July 2010

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Thomas:

  1. The appellant Qazi and the applicant Hussain pleaded guilty to fraud in July 2009. We set out below at paragraphs 36 to 39 the details of the frauds. It is sufficient to say at this stage that the frauds included involvement in making insurance claims, that the sums which would have been claimed (if the fraud had been successful) were substantial, and that one of the means used involved deliberately engineering accidents in which innocent parties were involved.
  2. Qazi was sentenced by HH Judge Kay QC at the Crown Court at Luton on 3 December 2009 to a total of five years and six months imprisonment, less time on remand, and Hussain to a similar sentence on 11 January 2010. Qazi appealed on the basis that his imprisonment was a breach of Article 3 of the European Convention on Human Rights. Hussain renewed his application for permission to appeal to the court on a basis specific to the facts of the case. We stated at the end of the application by Hussain that we would refuse the application; at the end of the hearings in the case of Qazi, we reduced the sentence imposed on him. We said that we would give our reasons later, as we required further material from the Ministry of Justice.
  3. The issue in the appeal of Qazi

  4. The issue raised in the appeal by Qazi involved consideration by the court of the respective roles of the executive and judicial branches of the State in relation to rights under Article 3. In the result there was significant common ground as to the general principles applicable and an acceptance on behalf of the appellant that, although it was contended that part of his time in prison had resulted in a breach of Article 3 by HM Prison Service, it could not, in the light of action taken by the Prison Service, any longer be contended that his continued imprisonment was a breach of Article 3. It was nonetheless contended that the court, applying the principles set out by Rose LJ in Bernard [1997] 1 Cr App R(S) 135, should take into account his medical condition and the way in which he had been treated in determining the overall length of the sentence. Before turning to the issues in relation to Article 3 and whether we should take into account his ill-health and his treatment in prison under the principles set out in Bernard, it is necessary to outline Qazi's medical condition and the course of his treatment.
  5. Qazi's medical condition

  6. Qazi was born in June 1980. He suffers from an inherited genetic disorder known as Beta Thalassaemia Major, which has affected him since he was only a few months old. He has for the whole of his life, therefore, required blood transfusions every three to four weeks. An attempt was made when he was 12 at a permanent cure through bone marrow transplantation at the Hammersmith Hospital under Professor Roberts. This was not successful and he has continued to suffer from Beta Thalassaemia, together with complications arising from the attempted bone marrow transplantation and a splenectomy. Since that time, he has continued to need three to four weekly blood transfusions, together with infusions of medication to remove the excess iron.
  7. His treatment passed to the Whittington Hospital in North London, a leading tertiary haematology centre in the United Kingdom for the treatment of Beta Thalassaemia, under the care of Dr Farrukh Shah, an internationally respected expert in this disease.
  8. The sentencing hearing and the course of the appeal

  9. When the judge came to sentence Qazi there were before him reports from Professor Roberts and Dr Shah, as well as from Professor Malone-Lee, in relation to a urine infection, from Dr Suri in relation to gastro-enterological issues arising from his underlying illnesses, and from his general practitioner. No contention was made before the sentencing judge that imprisonment of Qazi would be a breach of Article 3, but the judge was invited to take into account, applying the principles in Bernard, that imprisonment for Qazi, given his severe medical condition, was a ground on which the sentence that otherwise would have been passed should be reduced. We return at paragraph 42 to the way in which the judge dealt with this issue.
  10. As Qazi had been sentenced at the Crown Court at Luton, he was taken, in accordance with the usual arrangements made by the Prison Service, to Bedford Prison. As we explain in more detail at paragraphs 23 and following below, it is accepted by the Secretary of State for Justice, the Minister responsible in the executive branch of the State in England and Wales for the running of the prisons, that a sentenced prisoner is entitled to the same level of access to medical services as the general population.
  11. On his arrival in Bedford Prison, a category B prison, on 3 December 2009, he was examined and arrangements were put in place to deal with his complex medical problems. It is apparent that within a short period it was appreciated that it was very difficult to give him the necessary medical care at Bedford Prison.
  12. An appeal was lodged in January 2010 in which it was contended that the judge had not sufficiently taken into account Qazi's medical condition. Leave was granted by the Single Judge so that the court could consider the impact of the medical evidence, expressing the view that he did not think there was, that apart, any arguable fault in the sentence.
  13. After leave had been granted, Qazi instructed Mr Tim Owen QC, who sought to amend the grounds of appeal to allege that the continuation of the imprisonment would be a breach of Article 3. There was an initial hearing before the Full Court on 11 June 2010. The appeal was adjourned for hearing before us on 1 July 2010, and subsequently by us for a further hearing on 23 July 2010, to enable the Secretary of State for Justice to be represented. At this hearing, we were provided with further evidence by the Secretary of State for Justice.
  14. Before this court was evidence from Dr Shah and her colleagues, from the medical officers at Bedford Prison, the Governor and Deputy Governor of Bedford Prison and others on their staff, the Governor of HM Grendon and Spring Hill Prisons in Buckinghamshire, the general medical practitioner providing medical services to prisons in Buckinghamshire and Mr Richard Bradshaw, the Director of Offender Health at the Department of Health and Director of Offender Health in the National Offender Management Service (NOMS) in the Ministry of Justice as well as from another official from NOMS. On the basis of that evidence the facts appear to be as follows.
  15. The facts in relation to the medical care of Qazi in prison

  16. After Qazi's arrival at Bedford Prison on 3 December 2009, the prison medical officer, Dr Parimelalagan, was in close contact with Dr Shah. On 11 January 2010 Dr Parimelalagan asked the Governor to re-categorise Qazi as a category D prisoner on exceptional medical grounds; the Governor did that on 1 February 2010. It seems clear from what we have been told in a brief statement by Dr Parimelalagan that this was necessary because there was no point of contact at the local hospital at Bedford, and it was not possible to negotiate a plan of care for the appellant. The consequence of his re-categorisation was that he became eligible for release under temporary licence for medical outpatient appointments.
  17. It was on that basis that Qazi was seen by Dr Shah on 9 February 2010. It is apparent from Dr Shah's report on that consultation that there had been a deterioration in his condition and that there had been a break of seven weeks between the blood transfusions instead of the required three to four weeks; concerns about depression were evident. When seen on 22 March 2010 his condition had further deteriorated. After his visit to Dr Shah on 26 April 2010, she sent a report sent to the prison on 27 April 2010, expressing concern that blood transfusion had been delayed by Bedford Hospital for a total of six weeks, that he was in a great deal of pain, and that she would take on the blood transfusions at the Whittington Hospital. She did not want Bedford Hospital to be involved any longer. She also expressed concern, in the light of his splenectomy, his bone marrow transplant, and his chelation, that he was immuno-compromised and at a high risk of infection.
  18. That letter immediately caused the Deputy Governor of HMP Bedford on 27 April 2010, to e-mail Mr Peter Bennett, the Governor of Grendon and Spring Hill, a category D prison, with a request to take Qazi. The e-mail described the appellant as a very ill man with major health problems, and gave full details. The e-mail concluded:
  19. "Our main problem has been that no Cat D will take him until he is within two years of his release date. I hope you are able to look sympathetically at this case as he really is a bit of a fish out of water at a place like ours."

    We were told by Mr Blakeman, the Operations Manager of NOMS for East of England, (who provided a statement to the court in the circumstances set out at paragraph 29 below) that there was nothing in the Deputy Governor's e-mail to suggest that a transfer was needed for urgent medical reasons. That is not the clear impression the e-mail gives, as it was quite obvious from the e-mail that the matter needed to be dealt with urgently. There then followed a delay until 12 July 2010 when the Governor of HMP Spring Hill agreed to accept Qazi. Investigations made by Mr Blakeman showed that the record of communications was poor and that there was a general lack of co-ordination within both prisons as to the provision of information to the respective senior management of each prison. It was not until 18 June 2010 that the Population Management Unit in the headquarters of NOMS became involved; it appears that thereafter there were numerous exchanges, during which the Governor of Spring Hill requested more information. We were not provided with copies of any of this correspondence, but it is somewhat surprising that the matter took so long to resolve, given the view expressed by the court at the first hearing of this matter on 1 July 2010.

  20. In the meantime, in preparation for the initial hearing on 11 June 2010 before the Full Court, Dr Shah produced a detailed report, dated 2 June 2010, with supporting reports from Professor Roberts, Dr Suri (a gastro-enterologist) and Dr Davis, another Consultant Haematologist. It appears from those reports that Qazi's health had deteriorated significantly; that he was at a high risk of developing life-threatening infections which had been increased by his imprisonment. Dr Shah pointed to the multiple problems with blood transfusions being undertaken in an effective manner, and the improvement that had taken place only because the Whittington Hospital was able to treat Qazi after his re-categorisation.
  21. It is apparent that the Governor at HMP Bedford was well aware of this problem and was doing as much as he could in his prison to deal with Qazi in accordance with the duties accepted by the Secretary of State. In a letter to the court dated 8 June 2010 from his Deputy, he accepted that, although they had done their best, it was an uphill struggle; that Qazi's health had suffered; and that Qazi had respected the trust imposed upon him. The problems had occurred purely because his health care needs were unusual, complex and unfamiliar to both the health and wing care staff at Bedford Prison. The position was made clear in the following paragraph:
  22. "In supporting the report from Healthcare, I want to emphasise the difficulties of managing someone like Mr Qazi in a Cat B Local such as ours. Our primary purpose at Bedford is to serve the courts. Therefore our time and resources are necessarily limited when compared to other prisons. However, we have experienced difficulties in placing Mr Qazi at another prison purely because of his health needs. One of the difficulties is that he needs to be at a prison from which his regular hospital, The Whittington, is easy accessible. The most suitable of these was HMP Springhill who have recently declined to accept Mr Qazi on the basis that they would be unable to provide him any medical support. Further, even if another prison was to accept responsibility for Mr Qazi, I expect that there will be another protracted and difficult period of adjustment whilst the new prison comes to some understanding of his needs."
  23. By the time of the hearing before us on 1 July 2010 there was a further report from Dr Shah, dated 29 June 2010, with a further report from her colleague Dr Davis and a report from Dr Croft, a medical officer at Bedford prison. The report from Dr Croft set out clearly that Thalassaemia Major was not easily managed in a category B prison, but could easily be managed in a category D prison. Bedford Prison had therefore only been able to manage Qazi's condition with considerable difficulty. That difficulty was apparent from the reports of Dr Shah and Dr Davis. Dr Shah expressed the view:
  24. "I do feel that further prolonged incarceration in a remand prison or in another prison environment where he cannot self care, would continue to result in a steady and consistent decline in [Qazi]'s health. In particular I am referring to his mental health and his ability to cope with the environment around him."
  25. On 12 July 2010, as we have set out, HMP Spring Hill agreed to accept Qazi. That transfer took place on 19 July 2010. At the resumed hearing before us it was disappointing, that in view of the gravity of the allegation that his care amounted to a breach of Article 3, the clear medical evidence and the concern expressed by the Court in the light of the report from a consultant of the distinction of Dr Shah, virtually nothing had been done to provide the court for the hearing on 23 July 2010 with details of the treatment that would be available to him at Spring Hill.
  26. The court requested further information. That was then provided in the form of a statement from Dr McGuiness and a detailed care plan upon which Dr Shah has commented and Dr McGuiness responded to those comments. It should not have been necessary for this Court to have to require that this be done before it was done, but at the conclusion of the hearings, it was clear that there was in force a care plan and other arrangements for the care of Qazi in accordance with the duties of the Secretary of State. It was no longer contended that there was a breach of Article 3.
  27. The duty imposed on the State

  28. It is clear that a State party to the ECHR has to accord a minimum humane level of treatment to those imprisoned. That obligation is entirely consistent with the duties at common law which reflected the long tradition, begun in the United Kingdom from at least the time of John Howard at the end of the eighteenth century, to accord a minimum standard of care for those detained in prison. As Collins J observed in R (Nathan Brookes) v Secretary of State for Justice [2008] EWHC 3041 (Admin), it did not need a court decision to make that clear. Article 3, as interpreted in the case law of the Strasbourg Court makes clear that it does require:
  29. "the state to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance."

    See Gelman v France (2006) 42 EHRR 4, paragraph 50.

  30. Although the duty is imposed on the State and through the Human Rights Act 1998 on the court as a public authority, it is, in our judgment, clear that the primary responsibility of the State to ensure compliance with Article 3 and to accord a minimum humane level of treatment lies with the executive branch of the State. That is because it is the executive branch of the State that is responsible for prisons. Under current arrangements for the machinery of Government, that is the specific responsibility of the Secretary of State for Justice. The extent of that duty is illustrated by R (Clive Spinks) v Secretary of State for the Home Department [2005] EWCA Civ 275. May LJ made clear that if the State was in breach of its Article 3 obligations, that had to be remedied. If the only way to remedy was to release the prisoner, then the Secretary of State for Justice would be obliged to order his immediate release.
  31. The extent of the Secretary of State's duty and the way in which it works in practice is the context within which the duty of the court under Article 3 (as the judicial branch of the State and as a public authority under the Human Rights Act) when sentencing a prisoner, and this court, on an appeal, must be delineated. It is therefore necessary for us to examine the arrangements in place for compliance with the duty by the Secretary of State.
  32. The duty of the Secretary of State and arrangements for compliance in England and Wales

  33. It was accepted on behalf of the Secretary of State by Miss Davidson, in clear and helpful submissions supplemented by the evidence to which we will refer, that health care in prisons should be in line with Rule 40 of the Council of Europe's Recommendation (Rec (2006) 2) on European Prison Rules Rule 40 which provides:
  34. 40.1 Medical Services in prison shall be organised in close relation with the general health administration of the community or nation.
    40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
    40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners suffer.
    40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.

    These Rules reflect the general obligations in relation to the treatment to be accorded to prisoners, derived from the ECHR, as agreed by the States that are parties to the ECHR.

  35. The Secretary of State had, in accordance with the general tenor of these European Rules, transferred prison health care services in prisons operated by HM Prison Service in England in April 2003 to the Secretary of State for Health, who commissioned health care services in such prisons through the National Health Service and local Primary Care Trusts. Full responsibility was transferred to Primary Care Trusts by April 2006. The arrangements were then set out in the National Partnership Agreement made in January 2007 between the Department of Health and the Home Office shortly before transfer of the responsibility for prisons to the Ministry of Justice. We are not concerned in this case with privately operated prisons or prisons in Wales; the arrangements are different, but the obligations have also to be in compliance with the European Prison Rules; this , for example, is required in respect of privately operated prisons by Prison Performance Standard 22 and Prison Service Order 3100.
  36. The National Partnership Agreement of 2007 applicable to prisons operated by HM Prison Service in England provides for "equity of access to health services for prisoners in keeping with services provided for the community". Paragraph 2.2 provides
  37. "The principal aim of the partnership is to provide prisoners with access to the same quality and range of health care services as the general public receives from the NHS"

    The duty to provide health care rests on the Primary Care Trusts which have to commission health care services, secure resources and monitor performance. HM Prison Service has to support the effective delivery of such services.

  38. The general principles are reflected in more detail in the Guidance Notes on Prison Health Performance and Quality Indicator issued by the Prison Service and the Department of Health in 2009 and Prison Service Order 3050 issued in 2006. They make detailed provision for health assessments on admission to prison, as do the Prison Rules 1999 made under the Prison Act 1952.
  39. However, as this case and general experience shows, legal provisions can reflect the highest standards of respect for rights, but what also matters to an assessment of the duty of the courts is the way in which the provisions operate in practice. A court cannot, in considering its own obligations under Article 3, simply rely on legal provisions as to the duties of the Secretary of State for Justice; it is the actuality of the performance of those duties by the Secretary of State for Justice that is an essential consideration. In order to ensure that the arrangements work in practice, machinery has been established by the Secretaries of State for Justice and for Health which, in brief outline, is as follows:
  40. i) Each local Primary Care Trust must have a Prison Health Strategic Partnership Board comprising the Governor, his Deputy and representatives of the local Trust. The performance of the duties of these Boards is superintended by the Strategic Health Authority and the prison area manager.

    ii) On arrival into custody, a prisoner's health needs are to be assessed within 24 hours. If needs are detected, then the prisoner is put under the care of a healthcare worker or specialist team who make arrangements for treatment in that prison, in a hospital outside prison or for transfer to another prison for treatment at that prison.

    iii) If a governor and medical staff cannot reach agreement as to the medical treatment of a prisoner, then there is a dispute resolution mechanism that escalates the dispute to Mr Bradshaw and from him to the Secretaries of State. We were told that the escalation procedure has only been used 5 or 6 times, and that it has not been necessary to refer issues to the Secretaries of State.

    iv) If the transfer of a prisoner is required so as to enable the Secretaries of State to discharge their agreed duties to provide the same level of care, then it is expected that governors would reach agreement on transfer. If there were a disagreement then the dispute between the governors would be escalated to the local area manager who could direct the transfer.

    v) In case of special need, it is the responsibility of the NOMS population management unit at its headquarters to allocate prisoners to the appropriate prison.

  41. The events that we have set out show that there were two particular problems with the way in which the machinery operated:
  42. i) Difficulties in agreeing any care plan with Bedford Hospital.

    ii) Significant delay in the transfer to HMP Spring Hill.

  43. We called for the facts to be investigated as we had to be sure that there was a proper system in operation on which the courts could rely in delineating the courts' obligations under Article 3. Mr Bradshaw's statement of 28 July 2010 did not contain a proper explanation for what had happened; we directed that further evidence be provided. That was provided by Mr Blakeman in the statement dated 23 August 2010 to which we referred at paragraph 14 above.
  44. We are satisfied that there is a proper system as described by Mr Bradshaw. Although Mr Blakeman's statement was not the careful and detailed report that this court had expected, we consider that it provides a sufficient explanation to show that what happened in this case was explicable by reason of human error and human failures within an otherwise sound system. Every effort seems to have been made by the Deputy Governor of Bedford Prison and his medical officer, Dr Parimelalagan, to try to arrange proper treatment whilst the appellant was at Bedford Prison, as we have set out above. The delays in the transfers to Spring Hill again appear to have been a breakdown in an otherwise sound system, and a regrettable and unexplained failure of central direction at NOMS and its Population Management Unit at its headquarters. Due to the deficiencies in Mr Blakeman's statement, we have not been provided with the documentation or information necessary to attribute the precise cause of the failure. The Secretaries of State will no doubt ensure that these failures are properly examined and remedied, particularly the failure of central direction at the headquarters of NOMS, as the courts must be able to rely not only on the existence of a sound system, but on one that will work in practice without the problems and delays that occurred in this case. The intervention of this court should not have been necessary to remedy the human errors and failures that occurred.
  45. The duty of the courts when sentencing

  46. It is against that background that we turn to consider the duty of a sentencing court in relation to Article 3.
  47. It is clear from the judgment of the Court of Appeal given by Lord Phillips MR in R(P & Q) v Home Secretary [2001] 1 WLR 2002; [2001] EWCA Civ 1151 that a sentencing court is bound by s.6(1) of the Human Rights Act 1998 to have regard for the provisions of the Convention when sentencing. In that case the court was concerned with the separation on sentence of a mother from a very young child, but the general principle established is clearly applicable.
  48. The same also appears from the decision of the Strasbourg Court in Price v UK (APPN 33394/96, 10 October 2001). The applicant in that case was severely disabled and committed a contempt of court in the County Court. She was committed to prison for seven days. She was detained overnight at the police station, where she had to sleep in her wheelchair. On transfer to prison no proper attempt was made to treat her in a manner consonant with her severe disabilities. The Strasbourg Court found a violation of Article 3. In a separate opinion of Judge Sir Nicolas Bratza, in which Judge Costa joined, he made clear that the primary responsibility lay not with the police or the prison authorities
  49. "but with the judicial authorities who committed the applicant to an immediate term of imprisonment for contempt of court.
    While there appear on the material before the court to have been certain failings in the standard of care provided by the police and prison authorities, these stemmed in large part from the lack of preparedness on the part of both to receive and look after a severely handicapped person in conditions which were wholly unsuited to her needs. On the other hand, I can see no justification for the decision to commit the applicant to an immediate term of imprisonment without at the very least ensuring in advance that there existed both adequate facilities for detaining her and conditions of detention in which her special needs could be met."
  50. It was submitted to us that circumstances could arise (as they did in the case of Qazi) where a judge, when sentencing, was bound to enquire into whether there were adequate conditions to ensure that a person about to be sentenced could be held in custody without a breach of Article 3, and that an appellate court would in such circumstances need to enquire closely into the way that a sentenced prisoner was in fact being detained so as to ensure there was no breach of Article 3. Reliance was placed on R v Hetherington [2009] EWCA Crim 1186 where the defendant had spina bifida from birth and hydrocephalus from shortly after birth with consequent severe disabilities and medical problems. The sentencing court had before it, in support of a contention by the defendant that his imprisonment would amount to a breach of Article 3, reports from medical practitioners and from an Area Manager from NOMS who set out the general principles of provision of care to prisoners (as we have set out in more detail above) and that his medical needs could be dealt with in prison. The judge sentenced him on the basis that he could be imprisoned in accordance with his Convention rights at a particular prison but passed a reduced sentence on the basis of the principles in Bernard. On appeal, the question raised was whether the judge had properly reached that conclusion. It was apparent from the judgment of the court that a very careful review was taken of the way in which that appellant was being treated in prison. In the result the court concluded that his needs could be met at the specified prison.
  51. We have had the benefit of considering at much greater length the correct approach a sentencing court should adopt, with the benefit of submissions not only from the appellant, the respondent and the Secretary of State for Justice but also a most helpful and clear statement from Mr Keir Starmer QC, Director of Public Prosecutions. We have reached the following conclusions:
  52. i) The court is entitled to take into account the fact that there are the arrangements that we have outlined at paragraph 23 to 27 above to ensure that prisoners with severe medical conditions in public sector prisons are treated in accordance with their Convention rights, and there are the duties of the Secretary of State of the type set out in Clive Spinks to which we referred at paragraph 21 above, to release the prisoner if that is the only way a breach of Article 3 can be remedied.

    ii) On the basis of those arrangements and their continued operation in practice, a sentencing court need not be concerned in the allocation of a prisoner to a specific prison in the discharge of its duties under Article 3. Furthermore, provided that the arrangements that we have set out for the provision of health care under the overall responsibility of the Secretaries of State are maintained and work in practice, a sentencing court does not need to enquire into the facilities in prison for the treatment of a medical condition. The court can be satisfied that there is a proper system for allocation to a prison where health care can be provided in accordance with the procedure we have set out, and that a sentence of imprisonment will not create a risk of a breach of Article 3.

    iii) It is only in circumstances where the very fact of imprisonment itself might expose the individual to a real risk of an Article 3 breach that the court will be called upon to enquire into whether sentencing a person to custody will mean a breach of Article 3. That is a quite different circumstance from the kind of enquiry carried out in Hetherington as to whether facilities in a particular prison were adequate. It is an enquiry that can only arise where there is proper medical evidence before a court that any sentence of imprisonment ipso facto would cause a breach of Article 3. We are doubtful if circumstances will ever arise in which such a submission could be made, but if they should ever arise, it would be an exceptionally rare event.

    iv) If any such circumstances should ever arise, then the sentencing court must be provided with detailed medical evidence with an attached statement of truth by a properly qualified medical expert setting out the ground why imprisonment ipso facto will cause a breach of Article 3; such a statement must be served on the court and on the Crown Prosecution Service well in advance of the hearing so that the Crown Prosecution Service can, in conjunction with the Secretary of State for Justice, make the appropriate enquiries and produce medical evidence to the court.

    v) Once a sentence of imprisonment has been imposed, unless it is to be contended on appeal that the judge should not have imposed a sentence of imprisonment because imprisonment anywhere would ipso facto cause a breach of Article 3, the relevance of an appellant's medical condition relates solely to the assessment of the overall length of the sentence in accordance with the principles established in Barnard.

    vi) Any issues as to breach of the duties of the Secretary of State in relation to medical treatment and conditions in prison are matters for civil remedies and not for this division of the Court of Appeal.

    The circumstances of the offence and our decision in the case

  53. In about 2005, Qazi and the applicant Hussain set up a company called "Swift Accident Management" with offices in Luton and Reading. In the following months a series of claims were made by them through that business in a number of different ways. First, claims were made where accidents had been caused to innocent third parties when a vehicle collided with them. Secondly, accidents were staged where both drivers brought about an accident. Thirdly, claims were made for accidents which had never occurred at all. Fourthly, claims put forward were exaggerated in the sense that the amount claimed far exceeded damage caused. The claims made against insurance companies included the typical types of claim which arose including vehicle damage, recovery costs, storage costs, replacement car hire charges and personal injury claims. Self-evidently the fraud involved others including an assessor, drivers who participated in the accidents and others.
  54. The activities led to a police investigation involving observations of what was being done at premises used by the participants in the fraud. The police made arrests in November 2006, bringing the fraud to an end. In the period of about 18 months from the commencement of the business by Swift Accident Management, 280,000 had been paid by insurance companies and a further 305,000 had been claimed for damage and approximately 50,000 for personal injuries. It was estimated that, taking into account further potential claims, a total amount of 1.6m would have been realised, if the fraud had not been detected and stopped.
  55. The role of Qazi was central to the fraud. He had, with the applicant Hussain, set up the bank account, taken the lease of the offices at Luton and Reading and was party to three of the claims either in his own name or as aliases. The applicant Hussain was also a leading participant in the conspiracy; he had been seen participating in the business during the police observations and was party also to three claims either in his own name or as aliases. In a basis of plea Qazi admitted that he knowingly lent himself to the dishonest conduct of the others involved by presenting a respectable and creditworthy face to the business. He accepted he had played a significant role in the establishment of Swift Accident Management by obtaining services for the business and by assisting in the organisation of insurance claims. The applicant Hussain accepted that as a Director of Swift Accident Management he was one of the principal parties behind the fraud. He claimed he was not the initiator nor prime mover.
  56. In additional to this principal fraud, investigations also revealed that both Qazi and Hussain had been involved in a mortgage and financial service fraud which had occurred during the rising property market of 2004-6. They had obtained mortgages by making dishonest statements as to their income. Qazi pleaded guilty to involvement in some dishonesty in providing false income and employment details on mortgage application forms. Hussain also pleaded guilty to similar frauds. Qazi and Hussain were sentenced to four years imprisonment for the accident insurance fraud and a consecutive sentence of 18 months imprisonment for the mortgage fraud.
  57. In the renewed application to us it was contended on behalf of Hussain that the sentence for the offences he had committed was too long. We do not agree. The single judge put the matter succinctly, "I do not see any arguable fault in the sentence". We agree. The criminality involved in the insurance fraud, particularly the involvement of innocent people in deliberately created accidents, made that offence one for which a lengthy custodial term was inevitable. Looking at the sentence for that offence and the sentence for the mortgage and financial services fraud, the sentence imposed by the judge cannot in any way be criticised as manifestly excessive. We refuse the renewed application.
  58. As to the appeal by Qazi, it is clear on the evidence before us that no issue under Article 3 arose before the sentencing court or this court. A sentence of imprisonment would not ipso facto have been a breach of Article 3, given the system in place and the way that his condition can be managed within a custodial environment. Such failures as there may have been (and we make no finding as to whether there was fault) are, on the evidence before us, failures within an otherwise sound system and can be remedied in the way which we have described.
  59. We therefore turn to consider whether, on the principles in Barnard, the judge took sufficiently into account his medical condition as a mitigating factor. In his clear and careful sentencing remarks, the trial judge took into account, on the evidence before him, Qazi's condition. However, in the light of all the information now before us, we consider that some further allowance should have been made. As we stated at the end of the hearing, we propose to reduce his overall sentence of five years and six months to one of five years imprisonment. We do so by adjusting the sentence on the sentence of 18 months imprisonment for mortgage and financial fraud, reducing that to 12 months but making it consecutive to the sentence of four years imprisonment for the insurance fraud. To that extent only is this appeal allowed.
  60. We should add that we have received further submissions from Qazi and his solicitors in respect of the medical treatment being accorded at HM Prison Spring Hill. For the reasons we have given, these are not matters for this court, but for the civil courts, if the serious complaints made about his medical treatment whilst detained at HM Prison Spring Hill are not mutually resolved.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/2579.html