Leslie Malcolm v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lady Justice Black,Lord Justice Mummery |
| Judgment Date | 14 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1538 |
| Docket Number | Case No: A2/2011/1035 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2011 |
[2011] EWCA Civ 1538
Lord Justice Mummery
Lord Justice Richards
and
Lady Justice Black
Case No: A2/2011/1035
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Sweeney
Royal Courts of Justice
Strand, London, WC2A 2LL
Phillippa Kaufmann QC (instructed by Bhatt Murphy Solicitors) for the Appellant
Oliver Sanders (instructed by Treasury Solicitors) for the Respondent
Hearing date : 16 November 2011
The appellant is a life sentence prisoner. The appeal concerns the period between 26 April and 2 October 2007 when he was detained in the segregation unit at HMP Frankland. During that period he was provided with an average of around 30 minutes in the open air each day, whereas under paragraph 2(ii) of Prison Service Order 4275 ("PSO 4275") he should have had the opportunity to spend a minimum of one hour in the open air each day. He subsequently issued proceedings against the Ministry of Justice ("the MoJ"), claiming that the failure to secure him his entitlement under the order was unlawful and that the prison officers at HMP Frankland (1) were guilty of misfeasance in public office and (2) acted in violation of his rights under article 8 ECHR and were therefore in breach of s.6 of the Human Rights Act 1998. Sweeney J, after a two day trial, dismissed both aspects of the claim. The appeal relates only to his decision on article 8.
Whilst the MoJ was the correct defendant for the purposes of the misfeasance claim, as the appropriate authorised government department under s.17 of the Crown Proceedings Act 1947, that section does not apply to the claim under the Human Rights Act 1998 and it is strictly speaking the Secretary of State for Justice who is the relevant public authority and the appropriate defendant for the purposes of that claim. We granted the appellant permission to amend the title of the proceedings accordingly at the hearing of the appeal.
Legal and policy framework
Rule 30 of the Prison Rules 1999, made under s.47(1) of the Prison Act 1952, provides that "[i]f the weather permits and subject to the need to maintain good order and discipline, a prisoner shall be given the opportunity to spend time in the open air at least once every day, for such period as may be reasonable in the circumstances".
PSO 4275 provided prison staff with guidance on the application of rule 30. It was introduced in 1998, when the Prison Rules 1964 were in force, but was retained as guidance in relation to the Prison Rules 1999. Its material provisions are these:
" Mandatory requirements
2. Governors and directors must ensure that:
(i) if the weather permits and subject to the need to maintain good order and discipline, a prisoner shall be given the opportunity to spend time in the open air at least once every day, for such period as may be reasonable in the circumstances;
(ii) prisoners subjected to a severely restricted regime (e.g. those held in the segregation unit as a punishment or under Rule [45] in the interests of good order or discipline) are provided with the opportunity to spend a minimum of one hour in the open air each day….
…
Health Care advice
3. Health Care advice is that ideally prisoners should have the opportunity to spend at least an hour in the open air each day and that the period allowed should not normally be less than half an hour."
PSO 4275 was replaced with effect from 1 April 2011, after judgment in the present claim, by Prison Service Instruction 10/2011 ("PSI 10/2011"). Para 1.15 of PSI 10/2011 states that prisoners must be afforded time in the open air in accordance with the Instruction. In a section on "specification outputs", para 2.21 provides (with original underlining and italics):
" Prisoners are afforded a minimum of 30 minutes in the open air daily, as defined in the SLA/Contract.
This provision is mandatory subject to weather conditions and the need to maintain good order and disciplinea…..
…
The previous mandatory requirement for prisoners on restricted regimes to have 60 minutes in the open air is withdrawn. However, Governors will be required by their SLA/Contract to continue to provide a minimum of 60 minutes activity for such prisoners, of which at least 30 minutes must be in the open air."
The move from a mandatory requirement of 60 minutes in the open air for prisoners on restricted regimes to a mandatory requirement of 30 minutes does not have any direct impact on the appellant's case, which is firmly rooted in the effect of PSO 4275 as the policy in force at the material time.
The facts
Sweeney J's judgment includes extensive findings of fact, including the following material points:
"18.… HMP Frankland is a high security prison. It houses long term prisoners who are mostly Categories A and B. At all material times in 2007 there were 6 Wings and a Segregation Unit at the prison.
19. Four of the wings (A-D) were for vulnerable prisoners, such as those (like the Claimant) convicted of sex offences. Each of these Wings had a maximum capacity of 108 prisoners, each of whom had his own cell measuring approximately 12 foot long by 7 foot wide by 8 foot high (the same size as the cells in the other 2 Wings).
20. A Wing was for prisoners who had earned enhanced status for good behaviour. B and C Wings were for other vulnerable prisoners. D Wing was for those undergoing induction onto the vulnerable prisoner Wings.
21. There was a substantial outside exercise yard for the exclusive use, one Wing at a time, of the prisoners in A-D Wings. There were no problems with their exercise regime.
22. Such prisoners, if they wished, received a minimum of one hour in the open air each day—typically made up of 30–45 minutes in the exercise yard, and other movements around the prison.
…
24. On arrival at HMP Frankland on 26 April 2007 the Claimant refused, without giving any reason, to locate on to a Wing, and said that he would only go to the Segregation Unit. Therefore, as he knew that he would be, the Claimant was placed in the Segregation Unit under Rule 45, for good order or discipline.
…
26. The Claimant remained in the Segregation Unit until 2 October 2007 when he was transferred to HMP Whitemoor. Thus he was housed in the Segregation Unit at HMP Frankland for some 159 days in all.
27. The Segregation Unit was built at a time when the prison was significantly smaller. The Unit contained 28 cells—each the same size as those in the remainder of the prison, and thus large enough for in-cell exercise.
28. The Segregation Unit had its own outside exercise yard, which was about the size of a standard tennis court. At some point in the past, the exercise yard was divided into two by wire mesh, thus providing two caged areas of roughly equal size—each for the use of a single prisoner at a time.
29. In about the late 1980s, and before the full recognition of the value of risk assessments, the practice began of permitting prisoners in the Segregation Unit to take exercise in pairs in the two caged areas. However, this resulted in episodes of violence against both prisoners and prison officers, and was eventually stopped.
30. At around that time, consideration was given to further dividing the exercise yard into four caged areas, but that idea was rejected as it was decided that the resultant areas would be too small.
…
40. During the 159 day period when the Claimant was in the Segregation Unit there were, on average, some 19 prisoners housed in the unit each day. Some 8 or 9 Prison Officers worked there during both the morning and afternoon shifts.
41. Given the nature of those who were housed in the Segregation Unit, a 'one in, one out' policy was necessarily in operation throughout the 159 days. This meant that only one prisoner at a time was allowed out of his cell, and required at least 2 Prison Officers to supervise each movement. At the top end of the security scale, some movements required supervision by a number of officers dressed in full protective equipment.
42. During the 159 days, the daily regime in the Segregation Unit was broadly as follows. From about 8.15am to 8.45am the prisoners were unlocked, one at a time, and provided with breakfast. At that stage, if they wished to, they could make application, variously, for outside exercise, a shower, a razor, a cell clean out, use of the library, healthcare, an evening phone call, or a visit. Lunch was provided, again one prisoner at a time, from about 11.45am to 12.15pm. The prisoners would all then remain locked in their cells until about 1.30 to 1.45pm, whilst the staff had their lunch. The prisoners would all then be locked up again at about 3.30pm–3.45pm, being let out thereafter, again one at a time, only for their evening meal and to make telephone calls.
43. Once all the applications for the day had been made at breakfast time, officers then gave consideration as to the amount of time that could be allotted to each prisoner who wished to take exercise in the yard. In accordance with the regime, the broad time periods available for such exercise were from about 8.45am to 11.45am and from about 1.30pm–1.45pm to 3.30pm–3.45pm. In theory this gave a time period of a little over 5 hours for time in the fresh air, and thus (given the use of the two caged areas each occupied by only one prisoner at a time) the theoretical possibility that if there were up to 10 applicants, each of them could have an hour in the fresh air. However in allotting exercise periods, consideration had to be given to the time limitations imposed by...
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...for example, Taunoa v Attorney-General, above n 24, at [106]. 58 Ibid, at [128]–[129]. 59 Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538 at 60 Vogel v Attorney-General, above n 25, at [103]. 61 Taunoa v Attorney-General, above n 24, at [287] per Tipping J. 62 Ibid, at [357]–......