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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  EWCA Crim 2579 (04 November 2010)
Cite as:  Crim LR 159,  2 Cr App R (S) 8,  EWCA Crim 2579,  HRLR 4,  2 Cr App Rep (S) 8
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ON APPEAL FROM THE CROWN COURT AT LUTON
HIS HONOUR JUDGE KAY QC
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE DOBBS
MRS JUSTICE SHARP
|- and -
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
Crown Copyright ©
Lord Justice Thomas:
The issue in the appeal of Qazi
Qazi's medical condition
The sentencing hearing and the course of the appeal
The facts in relation to the medical care of Qazi in prison
"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.
"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."
"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."
The duty imposed on the State
"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.
The duty of the Secretary of State and arrangements for compliance in England and Wales
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.
"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.
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.
i) Difficulties in agreeing any care plan with Bedford Hospital.
ii) Significant delay in the transfer to HMP Spring Hill.
The duty of the courts when sentencing
"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."
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