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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cossey, R (on the application of) v Secretary of State for Justice  EWHC 3029 (Admin) (25 July 2013)
Cite as:  EWHC 3029 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Chester County Court
Trident House, Little St John Street
Chester CH1 1SN
B e f o r e :
|THE QUEEN ON THE APPLICATION OF COSSEY||Claimant|
|SECRETARY OF STATE FOR JUSTICE||Defendant|
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Mr J Strachan QC appeared on behalf of the Defendant
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"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"Although the originalist theory of statutory interpretation is generally eschewed on this side of the Atlantic it is worth remembering the historical context that informed the framing of the Convention in 1950. Art 5 was an important bulwark against totalitarian tyranny. As Parker J recently reminded us in Re: MIG & MEG  EWHC 785 (Fam) at para 222 its purpose is to prevent 'arbitrary or unjustified deprivations of liberty'. I find it impossible to conclude that the framers of the Convention would even in their wildest dreams have contemplated that Art 5 might be engaged by the facts presented here. Even allowing for the accepted concept that the Convention is a living instrument there has to be a line drawn somewhere where the court will say 'thus far and no farther' (to echo Lord Steyn, writing in a different context in White & Ors v Chief Constable of South Yorkshire Police  2 AC 455, HL at page 500)."
"As is extremely well-known, Article 8 furnishes the right to respect for a person's private and family life, his home and his correspondence. But it is not an absolute right and it may be curtailed 'in accordance with the law' where it is necessary inter alia for the protection of health and morals, or for the protection of the rights and freedoms of others. It is well-established that even people in detention, whether in prison or in mental health institutions, retain nonetheless these rights, at least up to a point - that point being that the exercise of the right obviously cannot have the effect of destroying the purpose and function of the detention in question: see R (P and Q) v Home Secretary  EWCA Civ 1151 at para 78. Thus in the case of imprisonment the right does not extend to allowing prisoners conjugal visits, or to possession of mobile phones, or for that matter single cells. On the other hand it does extend to allowing visits from family and friends, the use of payphones, and the sending and receiving of letters. Thus is the balance struck between the exercise of the right and the purpose and function of imprisonment."
(a) the right to be visited by a medical practitioner of their own choice;
(b) the right to wear their own clothes;
(c) the right not to be forced to work;
(d) the right to send and receive as many letters as they wish;
(e) the right to receive as many visits as they wish;
(f) the right to receive, at their own expense, as many books, newspapers and writing materials as they wish;
(g) the right to have many items for cell activities and hobbies as they wish;
(h) the right to carry out their business activities;
(i) the right to receive a greater quantity of tobacco than is allowed to convicted prisoners;
(j) the right to be separated, as far as is reasonably possible, from convicted prisoners;
(k) the right not to have to share a cell with a convicted prisoner;
(l) the right, in certain circumstances, to continue to receive social security payments; and
(m) the right to vote.
The claimant here seeks to be granted all these rights apart from the last two. He would not be entitled to receive social security payments even if he were unconvicted, so that particular right is academic. I was told by his leading counsel, Miss Kaufmann QC, that he was pursuing the right to be able to vote "by other means".
"... proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default and refuse or neglected or refuses or neglects to pay the same."
Thus the purpose of imprisonment can be seen for this class of civil prisoner to be almost entirely coercive.
"55. From this review of authority I derive the following propositions concerning sentence for civil contempt, when such contempt consists of non-compliance with the disclosure provisions of a freezing order:/BLOCKQUOTE>
(i) Freezing orders are made for good reason and in order to prevent the dissipation or spiriting away of assets. Any substantial breach of such an order is a serious matter, which merits condign punishment.
(ii) Condign punishment for such contempt normally means a prison sentence. However, there may be circumstances in which a substantial fine is sufficient: for example, if the contempt has been purged and the relevant assets recovered.
(iii) Where there is a continuing failure to disclose relevant information, the court should consider imposing a long sentence, possibly even the maximum of two years, in order to encourage future co-operation by the contemnor.
56. In the case of continuing breach, out of fairness to the contemnor, the court may see fit to indicate (a) what portion of the sentence should be served in any event as punishment for past breaches and (b) what portion of the sentence the court might consider remitting in the event of prompt and full compliance thereafter. Any such indication would be persuasive, but not binding upon a future court."
"(2) The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would-
(a) fail to surrender to custody; or.
(b) commit an offence while on bail; or.
(c) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or to any other person.
(2A) The defendant need not be granted bail if-
(a) the offence is an indictable offence or an offence triable either way; and
(b) it appears to the court that he was on bail in criminal proceedings on the date of the offence.
(3) The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare.
(4) The defendant need not be granted bail if he is custody in pursuance of a sentence of court or of any authority acting under any of the Service Acts.
(5) The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this Part of this Schedule for want of time since the institution of the proceedings against him.
(6) The defendant need not be granted bail if, having been released on bail in or connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of this Act."
"Unconvicted prisoners have not been tried and are presumed to be innocent, the Prison Service's sole function is to hold them in readiness for their next appearance at court. Their imprisonment should not deprive them of any of their normal rights and freedoms as citizens, except where this is an inevitable consequence of imprisonment, of the court's reason for ordering their detention and to ensure the good order of the prison. Instructions or practices that limit their activities must provide only for the minimum restriction necessary in the interests of security, efficient administration, good order and discipline and for the welfare and safety of all prisoners."
"The other point on which I would comment is the expression 'personal characteristics' used by the European Court of Human Rights in Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711, and repeated in some later cases. 'Personal characteristics' is not a precise expression and to my mind a binary approach to its meaning is unhelpful. 'Personal characteristics' are more like a series of concentric circles. The most personal characteristics are those which are innate, largely immutable, and closely connected with an individual's personality: gender, sexual orientation, pigmentation of skin, hair and eyes, congenital disabilities. Nationality, language, religion and politics may be almost innate (depending on a person's family circumstances at birth) or may be acquired (though some religions do not countenance either apostates or converts); but all are regarded as important to the development of an individual's personality (they reflect, it might be said, important values protected by articles 8, 9 and 10 of the Convention). Other acquired characteristics are further out in the concentric circles; they are more concerned with what people do, or with what happens to them, than with who they are; but they may still come within article 14 (Lord Neuberger instances military status, residence or domicile, and past employment in the KGB). Like him, I would include homelessness as falling within that range, whether or not it is regarded as a matter of choice (it is often the culmination of a series of misfortunes that overwhelm an individual so that he or she can no longer cope). The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify. There is an illuminating discussion of these points (contrasting Strasbourg jurisprudence with the American approach to the Fourteenth Amendment) in the speech of Baroness Hale of Richmond in A L (Serbia) v Secretary of State for the Home Department  UKHL 42,  1 WLR 1434, paras 20-35."
"I do not think that a personal characteristic can be defined by the differential treatment of which a person complains. But here Mr Clift does not complain of the sentence passed upon him, but of being denied a definitive Parole Board recommendation. Is his classification as a prisoner serving a determinate sentence of 15 years or more (but less than life) a personal characteristic? I find it difficult to apply so elusive a test. But I would incline to regard a life sentence as an acquired personal characteristic and a lifer as having an 'other status', and it is hard to see why the classification of Mr Clift, based on the length of his sentence and not the nature of his offences, should be differently regarded. I think, however, that a domestic court should hesitate to apply the Convention in a manner not, as I understand, explicitly or impliedly authorised by the Strasbourg jurisprudence, and I would accordingly, not without hesitation, resolve this question in favour of the Secretary of State and against Mr Clift."
"But a difference in treatment based on the seriousness of the offence would fall outside those grounds. The real reason for the distinction is not a personal characteristic of the offender but what the offender has done."
Her opinion was adopted by Lord Bingham in paragraph 39 and his opinion was adopted by the other members of the Committee. Therefore it seems to me, on analysis of the opinions, that the true ratio is precisely what Mr Strachan QC says it is.
"'Discrimination' means a failure to treat like cases alike. There is obviously no discrimination when the cases are relevantly different. Indeed, it may be a breach of article 14 not to recognise the difference: see Thlimmenos v Greece (2001) 31 EHRR 15. There is discrimination only if the cases are not sufficiently different to justify the difference in treatment. The Strasbourg court sometimes expresses this by saying that the two cases must be in an 'analogous situation': see Van der Mussele v Belgium (1984) 6 EHRR 163, 179-180, para 46."
"As it seems to me, this argument isolates a single procedural parallel between the role of the court and the role of the Parole Board, and to treat it as founding a similarity between the cases of the HMP detainee and the remand prisoner big enough to make an Article 14 case in the light of the differential treatment of those two classes for the purposes of housing benefit. I have to say that I consider the enterprise to be a failure. The HMP detainee has been convicted of murder. The remand prisoner has not been convicted of anything. He enjoys the presumption of innocence. Section 32(6) of the Crime (Sentences) Act 1997 indicates that the HMP detainee's liability to continue detention is or would be 'in pursuance of his sentence'. I quite accept that the HMP detainee can only lawfully be detained after tariff on distinct grounds of dangerousness and, in a case such as the present where there has been a release and a recall, the judge of his dangerousness is the Parole Board. This, in my view, does not touch the fact that the reason why such a detainee is subject to the regime of recall by the Secretary of State and later determination by the Parole Board, is the fact of his conviction and sentence for murder. The reason why the remand prisoner is subject to the regime of trial and possible court order by way of sentence is the fact of his having been accused of a crime. These two circumstances seem to me to set the two cases wholly apart."