Ben King v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,The Hon Mr Justice Irwin |
| Judgment Date | 18 February 2011 |
| Neutral Citation | [2011] EWHC 286 (Admin),[2010] EWHC 2522 (Admin) |
| Docket Number | CO/7797/09,Case No: CO/6271/2010 AND CO/6733/2010,CO/6733/2010,Case No: CO/7797/09 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 February 2011 |
[2010] EWHC 2522 (Admin)
IN THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
Before: Lord Justice Pitchford
and
Mr Justice Maddison
Case No: CO/7797/09
Phillippa Kaufmann (instructed by Irwin Mitchell—Solicitors) for the Appellant
Sam Grodzinski (instructed by Treasury Solicitors) for the Respondent
Hearing date: 10th June 2010
Lord Justice Pitchford:
This is a judicial review, with the leave of the single judge, of decisions made by Mr Matthew Shepherd on 11 th April 2009 that the claimant, Ben King, while serving a sentence of detention at the Young Offender Institute at HMP Portland, was guilty of a disciplinary offence and should be confined in his cell for 3 days. The claim raises important issues concerning the nature of the regime for adjudication of disciplinary charges brought against inmates at HM prisons and young offender institutions. In Ezeh and Connors [2004] 39 EHRR 1, 9 October 2003, the European Court of Human Rights (“the European Court”) ruled that the nature of the “charges” in that case, and the prisoner's liability to be sentenced at a disciplinary hearing to additional days in custody, rendered the proceedings “criminal” in nature. Accordingly, Article 6 ECHR applied to those proceedings and the applicant was entitled to legal representation. In this review the claimant asserts that, while his liability to a punishment of cellular confinement did not render the proceedings criminal in nature, the proceedings did amount to “the determination of a civil right” requiring the procedural guarantees of the civil limb of Article 6(1). The governor of the YOI or his delegate was not an independent tribunal within the meaning of Article 6(1) and the decisions should be quashed.
The Charge and Adjudication
On 11 April 2009 Mr King, born 25 November 1990, appeared before the Governor Adjudicator, Matthew Shepherd, Deputy Head of Residence at Portland, to answer a disciplinary charge laid under Rule 55, paragraph 25 of the Young Offender Institute Rules 2000 (“YOI Rules”, made under section 47 Prison Act 1952), that he failed to comply with a lawful order. The notice of report submitted by Officer Paul read as follows:
“Sir, at approximately 20.45 hours on 10.4.09, GA8897 King, who is on an open ACCT document, was refusing to show himself to staff during role check/ACCT observations, and remained hidden in his shower/toilet cubicle. He refused to come out even when ordered to do so.”
The notice was issued to Mr King at 8.40 am on 11 April 2009 for hearing on the same day.
The record of adjudication shows that the charge was read to Mr King. The following exchange then took place between Mr Shepherd and Mr King:
“Q (Shepherd): Do you understand the charge?
A (King): Yes.
Q: Have you made a written reply?
A: No.
Q: Have you had enough time to think about what you want to tell me?
A: Yes.
Q: Do you wish to call witnesses?
A: No.
Q: Do you want legal representation?
A: No.
Q: Do you want legal assistance?
A: No.
Q: Do you want a McKenzie friend?
A: No.
Q: Do you understand the evidence?
A: Yes.
Q: Do you want to ask any questions regarding the evidence?
A: No.
Q: How do you plead?
A: Guilty.”
By way of explanation for his conduct, Mr King said: “I am in jail because I had a car accident. I was hearing voices. I heard [them] in the chapel and had problems with them. I started to lash out in the toilet. I wanted them to leave me alone. I was squashed against the wall. I am having a rough time at the moment”. Mr Shepherd asked: “Are you seeing the mental health in-reach team (“MHIT”)?” Mr King replied, “Yes, but the last time I saw someone I had to go to the hospital and I missed my appointment. They got someone to see me sooner. I am very disturbed”.
At the time of his adjudication Mr King was, as Officer Paul reported, the subject of an ACCT plan. ACCT is Assessment, Care in Custody and Teamwork. Those who are at risk from self-harm in custody are identified, assessed and supported. Mr King had been sentenced to 7 years detention for causing death by dangerous driving. The sentencing court had before it a psychiatric report prepared by Dr Susan Oxborrow, a staff grade psychiatrist in adolescent forensic psychiatry at Bluebird House, an adolescent secure unit in Southampton. Dr Oxborrow was reporting the conclusions, both of herself and Dr Paul Brodrick, who had carried out a psychological assessment of the claimant. Despite his young age, Mr King was diagnosed as suffering an anti-social personality disorder with prominent mood instability. He was also, in their opinion, suffering post-traumatic stress disorder with intrusive thoughts arising from the collision which he had caused. Mr King's history of disturbed and irresponsible behaviour was sufficient to support the conclusion that his disorder was psychopathic. It is not suggested that Mr Shepherd had the psychiatric report before him at the disciplinary hearing.
By Rule 60 of the YOI Rules 2000, if he finds an inmate guilty of an offence against discipline, the Governor may, subject to exceptions which do not apply to Mr King's case, impose certain punishments. They include a caution, forfeiture of privileges, removal from a particular activity or activities, extra work, stoppage of or deduction from earnings, and removal from the detainee's wing or living unit. Further:
“60(1)(f) – in the case of an offence against discipline committed by an inmate who was aged 18 or over at the time of commission of the offence, other than an inmate who is serving a period of detention and training under a detention and training order pursuant to Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000, confinement to a cell or room for a period not exceeding ten days.”
By paragraph 7.27A of the Prison Service Order (“PSO”) 2000:
“Before any punishment of cellular confinement, including a suspended punishment and a further punishment added to a previous punishment still being served, is imposed or activated, a medical practitioner or registered nurse must first complete an Initial Segregation Safety Screen, and the adjudicator must take account of any medical advice that the punishment is unsuitable when making his/her decision.”
Mr Shepherd obtained an assessment from Staff Nurse Doherty, called the Initial Segregation Algorithm, timed at 11.45 am on 11 April 2009. It indicated that with regular observations the prisoner could cope with a short period of segregation. At 12.00 noon Mr Shepherd imposed a punishment of three days cellular confinement. Mr King was returned to his normal routine at 8.30 am on 13 April 2009. His actual period of confinement was, therefore, less than two full days.
The conditions under which a detainee is to be kept in cellular confinement are provided by paragraphs 7.27 – 7.34 of the PSO 2000. They are summarised in the witness statement of Mr Roy Donno dated 16 October 2009. Mr Donno is policy lead for adjudications in the Safer Custody and Offender Policy Group of the National Offender Management Service (“NOMS”). Commencing at paragraph 61 of his statement, Mr Donno says:
“61. The punishment of cellular confinement is described in paragraphs 7.27 – 34 of chapter 7 of PSO 2000.
62. Prisoners serving this punishment must be located in an ordinary prison cell set aside for the purpose. This is not necessarily a cell in the prison's segregation unit. A bed and bedding, a table and chair or stool must be provided in the cell and must not be removed as a punishment. Other furnishings and fittings may be provided at the Governor's discretion. The prisoner must have access to sanitary facilities at all times. In the case of a young offender, the cell or room must be certified as suitable for the purpose, i.e. its size, lighting, heating, ventilation and fittings, are adequate for health and it allows the prisoner to communicate with an officer at any time (YOI Rule 61 (2)).
63. Prisoners in cellular confinement must be allowed all normal privileges other than those incompatible with the punishment, unless a further punishment or forfeiture of privileges has also been imposed. Privileges normally compatible with cellular confinement include access to a reasonable number of personal possessions, cell hobbies and activities, entering public competitions and wearing own clothes and footwear (where already allowed). The prisoner may use his or her private cash to purchase items from the prison shop (canteen) for direct delivery.
64. The prisoner's entitlements to correspond, exercise and make applications to the Governor, Seconded Probation Officer, Chaplain and Independent Monitoring Board are not affected by cellular confinement. They may attend the main service for their religion. The prisoner is allowed to have books and access to a telephone unless his or her behaviour or attitude make removal from cellular confinement impractical or undesirable. Visits should take place at a time or place away from other prisoners. The prisoner's privilege level on the IEP scheme will not be affected until a review board has taken place.
65. The main difference between a prisoner who is in cellular confinement and one who is not is that, in the case of prisoners serving the punishment in the segregation unit, apart from an hour in the exercise yard, showers, telephone calls, visits and meals (all of which take place without association with other prisoners), they remain locked in their cell. During this period, they do not attend work. The main part of the...
To continue reading
Request your trial
-
R (on Application of L) v West London Mental Health Nhs Trust Partnerships in Care (First Interested Party) The Secretary of State for Health (Second Interested Party)
... . . [2012] EWHC 3200 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL . Before: . The ...However in a note dated 1 April 2012 Mr Southey QC accepted that the recent decision of the Court of Appeal in R (King) v Secretary of State [2012] [EWCA] Civ 376 meant that that argument was no longer open to him in this Court, although the Claimant reserved the ......
-
R (1) Ben King v Secretary of State for Justice and R (2) Kamel Bourgass and (3) Tanvir Hussain (Respondent Appellants) Secretary of State for Justice
...King's application for judicial review was dismissed by the Divisional Court (Pitchford LJ and Maddison J) on 13 October 2010: [2010] EWHC 2522 (Admin). The applications on behalf of Bourgass and Hussain were dismissed by Irwin J on 18 February 2011: [2011] EWHC 286 (Admin). The statutory......
-
R (on the application of Bourgass and another) v Secretary of State for Justice
...application for judicial review was heard together with that of the second appellant by Irwin J, who dismissed both applications: [2011] EWHC 286 (Admin). Their appeals to the Court of Appeal were heard together with that of a third appellant named King. All three appeals were dismissed: ......
-
R (Whiston) v Secretary of State for Justice
......In R (King) and others v Secretary of State for Justice [2012] EWCA Civ 376 this court held that even if cellular confinement could be said to amount to the deprivation of a civil right for a prisoner to associate with other prisoners within the meaning of Article 6 (which the majority thought it could ......