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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hopkins, R (on the application of) v Sodexo / HMP Bronzefield & Ors [2016] EWHC 606 (Admin) (21 March 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/606.html Cite as: [2016] EWHC 606 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN (on the application of MICHELLE HOPKINS) |
Claimant |
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- and - |
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SODEXO / HMP BRONZEFIELD SECRETARY OF STATE FOR JUSTICE - and - STEPHANIE HOPKINS |
1st Defendant 2nd Defendant Interested Party |
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Jamas Hodivala and David Patience (instructed by Devonshires) for the First Defendant
Tom Weisselberg QC (instructed by Government Legal Department) for the Second Defendant
Hearing dates: 16 and 17 February 2016
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Crown Copyright ©
Sir Stephen Silber:
Introduction
"It is not accepted that women within in an intimate relationship are to share a cell."
a) The First Defendant had statutory authority to issue the Policy (including the intimate relationship restriction) and it was entitled to operate the Policy as it sought to achieve an underlying statutory aim of maintaining good order and discipline in prisons;
b) The decision to move the Interested Party out of the Claimant's cell meant that the Interested Party was placed in a neighbouring cell to the Claimant so that the Claimant and the Interested Party were able to provide care for each other during the day when they (like other prisoners) were not locked in their cells;
c) There has been no violation of the Claimant's rights under Article 3 and/or 8 of the ECHR even if those rights were engaged; and that
d) The Claimant is not a "disabled person" within the meaning of the 2010 Act and even if she was, sections 20 and 149 of that Act have not been contravened.
The Factual Background
The Issues
i) Was the intimate relationship restriction enforceable notwithstanding that it did not comply with the provisions of section s47(1) and 52(1) of the 1952 Act requiring it to be contained in a statutory instrument? (Issue 1– The 1952 Act Issue);ii) Was the intimate relationship restriction unenforceable because of its rigid and inflexible nature and because of the alleged failure of the Prison to consider the Claimant's individual circumstances? (Issue 2 – The Inflexible Nature Issue);
iii) Had the Claimant's Article 3 rights been engaged and infringed by the decision of 16 February 2015 preventing the Claimant from sharing a cell with the Interested Party with whom she was in an intimate relationship? (Issue 3 – The Article 3 Issue)
iv) Had the Claimant's Article 8 rights been engaged and infringed by the decision of 16 February 2015 preventing the Claimant from sharing a cell with the Interested Party with whom she was in an intimate relationship? (Issue 4 – The Article 8 Issue);
v) If the Claimant's Article 8 rights had been infringed by the decision of 16 February 2015, can reliance be placed on Article 8(2) to establish that there is no interference with the Claimant's Article 8 rights as the decision of 16 February 2015 was made "in accordance with the law and is necessary in a democratic society in the interests of … public safety...for the prevention of disorder, for the protection of health and morals or for the protection of the rights and freedoms of others"? (Issue 5 – The Article 8(2) Issue);
vi) Did the Claimant suffer from a disability within the meaning of s6 of the 2010 Act on 16 February 2015 in the light of the Occupational Therapy report and the medical evidence? (Issue 6 – The Claimant Disabled Issue);
vii) If the Claimant suffered from a disability within the meaning of section 6 of the 2010 Act on 16 February 2015, did the failure of the First Defendant to permit the Interested Party to share with the Claimant amount to a failure to (a) make adjustments required by section 20 and/or (b) comply with section 149(1) and if so why? (Issue 7 – The Breach of the 2010 Act Issue);
Issue 1 – The 1952 Act Issue
"The Secretary of State may make rules for the regulation and management of prisons…and for the classification, treatment, employment, discipline and control of persons required to be detained therein."
"(1) Any power of the Secretary of State to make rules …under this Act shall be exercisable by statutory instrument."
"Order and Discipline shall be maintained with fairness, but with no more restriction than is required for safe custody and well ordered community life."
Issue 2 – The Inflexible Nature Issue
"In most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms because to do so would defeat the statutory purpose. However, it seems to me that there are certain exceptional statutory contexts "where a policy may lawfully exclude exceptions to the rule because to allow exceptions would substantially undermine an important legislative aim which underpins the grant of discretionary power to the authority." (Emphasis in original)
Issue 3 – Article 3
"95… Nevertheless, under this provision the State must ensure that a person 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 him to distress or hardship of an intensity exceeding that unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured."
"30. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3 of the Convention."
i) The Claimant has the burden of showing that she has suffered the ill-treatment she alleges and that it amounts to a violation of Article 3 (per Hickinbottom J in Grant and Gleaves v The Ministry of Justice [2011] EWHC 3379 QB [73];ii) The burden of proof will be on the balance of probabilities per Hickinbottom J in Grant and Gleaves v The Ministry of Justice (supra) [77];
iii) For treatment to amount to a breach of Article 3, it "requires a "minimum level of seriousness" (Gorodnichev v Russia (2007) Application No 52058/99 [100]) or a "minimum level of severity" (see, e.g., Pretty v United Kingdom (2002) 35 EHRR 1 [52]);
iv) "A high level of suffering is usually needed which has been described as "intense suffering…" (Iochev v Bulgaria (2006) Application No. 41211/98[133],"serous suffering..." per Lord Bingham in R (Limbuela) v Secretary of State for Home Department [2005] AC [8]. The court has asked in other cases whether the treatment "adversely affected his or her personality in a manner compatible with Article 3" Kalashnikov v Russia (supra [95]);
v) In Selmouni v France (1999) 29 EHRR 403 [100] it was observed the assessment of the minimum level of severity "… depends on all the circumstances of the case such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age a state of health of the victim etc.";
vi) In considering whether the treatment is 'degrading' within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers v Greece, no 28524/95 [67]-[68] and [74]); Price v United Kingdom (2002) 34 EHRR53 [24]; and that
vii) The Strasbourg cases consistently adopt the following approach in prison cases. Where treatment or conditions in prison generate more humiliation, distress or other suffering than is inherent in a prison sentence, in order to prove a violation of Article 3, it is necessary for a complainant to show that, in all of the circumstances, the treatment or conditions satisfy the minimum severity test. That test has a high threshold; although the fact that the complainant is vulnerable because in state detention will often be a significant factor so that, even if treatment would not be humiliating if endured outside prison, it may well be found to be humiliating and degrading if suffered in a prison context", per Hickinbottom J in Grant and Gleaves v The Ministry of Justice (supra) [46].
i) The First Defendant commissioned an Occupational Therapy Report on the Claimant which was prepared on 7 January 2015 and it stated that she had some difficulty with using the toilet, but that she was able to transfer independently from her chair on to the toilet. It did not state that the Interested Party was the only person who could help the Claimant.ii) The Report recommended (a) the installation of a plastic fluted grab rail and so was not installed as standard; (b) the provision of a chair with arms and (c) a GP referral for a physiotherapy review of mobility and balance. As to (a), this was not installed as it was not considered it appropriate to do so as it created ligature points and the Claimant had threatened to commit suicide if she was not allowed to share a cell with the Interested Party, who suffered from mental illness. The chair specified in (b) was provided. As to (c), the Claimant was referred to an Orthopaedic Surgeon who works alongside a Physiotherapist to assess patients and make appropriate referrals to each other in the light of those assessments. As a result of this referral, the Claimant had two appointments with a consultant spinal surgeon and an MRI scan as well as being referred to a pain clinic.
iii) The Claimant was offered a reassessment of her needs in the Healthcare Wing at the First Defendant as she considered that the Occupational Therapy Report had not assessed her overnight needs but she refused to attend.
iv) As I have explained, there was a multi-disciplinary meeting between members of the staff at the First Defendant prior to 16 February 2015 to discuss the situation in which the Claimant was claiming that she need to have a carer who had to be the Interested Party and it was decided to consult the GP for the Claimant.
v) The Claimant's GP reported to the First Defendant that the Claimant did not need a carer and the decision was then taken at a multi-disciplinary meeting to move the Interested Party from the Claimant's cell.
vi) For the entire period of the Claimant's incarceration with the exception of a period of five days in December 2014 housed in a disabled cell, which was adapted to meet the needs of disabled prisoners as it had a widened door to facilitate wheelchair access and was larger than an ordinary cell so as to allow movement around the cell in a wheelchair.
vii) Ms. M.T. Mangwiro, the Primary Care Nurse Manager at the First Defendant, stated that she met with the Claimant on 24 February 2015 who said that she was not coping at that time at night. Ms. Mangwiro said that she told the Claimant that she could arrange for her to be admitted to Healthcare so that her night time needs could be assessed, but the Claimant refused this offer.
viii) The First Defendant could not require or compel the Claimant to undertake such an assessment.
ix) At no stage has the Claimant suggested what further steps the First Defendant should take or have taken to assess what overnight care, if any, she needed.
a) 20 January 2015: The Claimant disclosed to medical staff that she had obtained the wheelchair herself. Minor disc degeneration was identified in 2012. The doctor records "It appears unusual to decide to use a wheelchair for this diagnosis";
b) 9 February 2015: there was no sign of the Claimant being in pain upon examination;
c) 16 February 2015: the Claimant stated to medical staff that "she is paranoid that her wife is seeing another prisoner behind her back";
d) 19 February 2015: the Claimant complained to medical staff that she has a condition that required 24hr care as it prevents her turning during the night. She did not say what this condition was;
e) 24 February 2015: the Claimant stated to medical staff that she is having problems at night, namely "weakness of her left side and migraine headaches therefore will require assistance at night." This is contrary to the Social Care Report [2/56/502] (prepared on 3 July 2015), which records that there had been no such migraine episodes: "She is also quite fearful of getting 'hemiplegic migraines' from which she can be affected – there has not been an episode of this during her time in First Defendant";
f) 25 February 2015: contact made with the Claimant's GP who confirmed the Claimant had bought herself a wheelchair. Concerns were recorded by the doctor at HMP Bronzefield that the Claimant may be malingering;
g) 30 March 2015: the Claimant was observed to stand unaided from her wheelchair, step onto the scales, stand until a reading was obtained and then step back down again before sitting back in her wheelchair and wheeling herself out of the room.
a) although it would have been easier for her if there had been a grab rail as suggested in the Occupational Therapy Report after the Interested Party ceased to share her cell, the Claimant was nevertheless still able to transfer herself to the toilet without any falls or injuries even though there is no grab rail;
b) she generally did not need assistance with her toileting needs unless she was having "a particularly bad day";
c) she was ordinarily able to lower and stand from the toilet seat and attend to her personal care needs having been to the toilet; and that;
d) she was able to wash herself and that she would sit on the toilet to wash her lower half.
"5. Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens…"
Issue 4 – Article 8
(i) The Issues
"….it is an essential part of a detainee's right to respect for family life that the authorities enable him or. if need be, assist him in maintaining contact with his close family. Such restrictions as limitations put on the number of family visits, supervision over those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special visit arrangements constitutes an interference with his rights under Article. 8 but are not, by themselves, in breach of that provision…"
(ii) Were the Claimant's Article 8 rights engaged?
"71. Moreover, normal restrictions and limitations consequent on prison life and discipline during lawful detention are not matters which would constitute in principle a violation of article 8 either because they are considered not to constitute an interference with the detainee's private and family life, or because any such interference would be justified (see DG v Ireland (2002) 35 EHRR 1153)".
(iii) If the Claimant Article 8 rights were engaged, were they infringed?
Issue 5 – Article 8 (2)
(i) The Submissions
"in accordance with the law and is necessary in a democratic society in the interests of … public safety...for the prevention of disorder, for the protection of health and morals or for the protection of the rights and freedoms of others".
"82 …the policy as structured effectively excluded any real weighting of the competing individual and public interests, and prevented the required assessment of the proportionality of a restriction in any individual case."
Conclusions on Article 8(2)
i) The decision was taken "in accordance with law" because of the terms of the Policy, and in particular the intimate relationship restriction which, as I have explained in resolving Issues 1 and 2, was a binding and enforceable rule;ii) The decision pursued the legitimate aim of the promotion of good order and discipline in the First Defendant, which was necessary for the prevention of disorder, which as I explained in paragraphs 32 to 36 could have arisen if same sex partners were allowed to share cells. In addition, as I have explained in paragraph 10, there was consideration of whether the Claimant needed a carer and the views of the Claimant's GP were sought. When the GP's answer was in the negative, the decision was made to move the Interested Party out of the Claimant's cell; and
iii) The policies were proportionate to the aim they pursue, as I have explained, the Policy provides that if two women have a relationship prior to the start of their sentence and wish to be allocated to the same wing, they must make an application to the residential manager. Such application was made by the Claimant and her partner and was granted. After 16 February 2015, the Claimant and her partner were placed in adjoining cells in the same wing.
"...[T]he Commission finds that it is within a State's margin of appreciation for the authorities to consider that the particularly exacting demands of discipline and order in prison required that no distinctions should be made between prisoners insofar as 'conjugal visits' are concerned."
"….Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision, that the relevant decision-making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests."
Issue 6 – The Claimant Disabled Issue
"(1) A person (P) has a disability if –
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities".
Issue 7 – The Breach of the 2010 Act Issue
(i) S 20 of the 2010 Act
"(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
i) The First Defendant commissioned an Occupational Therapy Report on the Claimant which was prepared on 7 January 2015 and it stated that she had some difficulty with using the toilet, but that she was able to transfer independently from her chair on to the toilet. It did not state that the Interested Party was the only person who could help the Claimant.ii) The Report recommended (a) the installation of a plastic fluted grab rail and so was not installed as standard; (b) the provision of a chair with arms; and (c) a GP referral for a physiotherapy review of mobility and balance. As to (a), this was not installed as it was not considered it appropriate to do so as it created ligature points and the Claimant had threatened to commit suicide if she was not allowed to share a cell with the Interested Party, who suffered from mental illness. The chair specified in (b) was provided. As to (c), the Claimant was referred to an Orthopaedic Surgeon who works alongside a Physiotherapist to assess patients and make appropriate referrals to each other in the light of those assessments. As a result of this referral, the Claimant had two appointments with a consultant spinal surgeon and an MRI scan, as well as being referred to a pain clinic.
iii) The Claimant was offered a reassessment of her needs in the Healthcare Wing at the First Defendant as she considered that the Occupational Therapy Report had not assessed her overnight needs but she refused to attend.
iv) As I have explained in paragraph 10 above, there was a multi-disciplinary meeting between members of the staff at the Prison prior to 16 February 2015 to discuss the situation in which the Claimant was claiming that she need to have a carer who had to be the Interested Party, and it was decided to consult the GP for the Claimant.
v) The Claimant's GP reported that the Claimant did not need a carer and the decision was then taken to move the Interested Party.
vi) For the entire period of the Claimant's incarceration, with the exception of a period of five days in December 2014, she was housed in a disabled cell, which was adapted to meet the need of disabled prisoners as it had a widened door to facilitate wheelchair access and was larger than an ordinary cell so as to allow movement around the cell in a wheelchair.
vii) Ms. M.T. Mangwiro, the Primary Care Nurse Manager at the First Defendant, stated that she met with the Claimant on 24 February 2015 who said that she was not coping at that time at night. Ms. Mangwiro said that she told the Claimant that she could arrange for her to be admitted to Healthcare so that her night time needs could be assessed, but the Claimant refused this offer.
viii) At no stage has the Claimant suggested what further steps the First Defendant should take or have taken to assess what overnight care, if any, she needed.
ix) The First Defendant could not require or compel the Claimant to undertake such an assessment.
(ii) S 149(1) of the 2010 Act
"A public authority must, in the exercise of its functions, have due regard to the need to
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."
Conclusion