Mohammed Ali v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Clive Heaton |
| Judgment Date | 28 July 2015 |
| Neutral Citation | [2015] EWHC 2221 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2015 |
| Docket Number | Case No: CO/919/2014 |
[2015] EWHC 2221 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
York County Court
Piccadilly, York
His Honour Judge Clive Heaton QC
Case No: CO/919/2014
Flo Krause (instructed by Chivers Solicitors) for the Claimant
David Manknell (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 31 st October 2014
His Honour Judge Clive Heaton QC:
The Claimant here is Mohammed Ali. He has been represented before me by Flo Krause. The Defendant is the Secretary or State for Justice. He has been represented before me by David Manknell.
This is a judgment following a substantive hearing in Judicial Review proceedings. Although the hearing took place in October 2014 the matter has been delayed by the Court allowing the parties an opportunity to make further submissions in the light of a decision of Mr Justice Collins addressing similar issues handed down just over a month after the hearing in this matter.
The essential background
At the time the claim was brought the Claimant was a serving prisoner at HMP Full Sutton, a category "A" prison. The Claimant has been convicted of murder and other offences and sentenced to life imprisonment with a 22 year tariff.
The Claimant is of Kurdish Sorani descent. His mother tongue is Kurdish. He has tried for some time to obtain, through the prison, books, DVDs and CDs in Kurdish but has been unable to do so through lack of availability. The Claimant does have some knowledge of English, he has a Level 1 certificate in English Adult Literacy and Level 1 in the Cambridge Progression Unit in English.
In 2013 the Claimant was sent some items by his family at his request. The items were purchased abroad but sent to the Claimant by his cousin from here in the UK. The items comprised a cookery book, a dictionary, 28 DVDs, 8 further books and 9 CDs all in Kurdish. The Claimant was not permitted to receive these items by the prison authorities. He complained and the reception manager informed him on the 22 nd October 2012 that he would not be permitted these items.
The Claimant utilised the internal appeal process. In a response of 26 th October 2012 the Claimant's appeal was refused. It was reiterated to the Claimant that all commercial DVDs must come from an approved supplier and that if the Claimant wanted any books added to the religious\faith library he should contact the chapel staff.
The Claimant then made a complaint to the Prison and Probation Ombudsman (PPO) on the 23 rd November 2012. The PPO had some criticisms of the way the Claimant's request had been dealt with but on the key issue the PPO was satisfied that the general restrictions on material being sent in by families were reasonable and that provided certain steps were taken there should be no need for exceptions. The PPO did not consider that the Claimant should be issued with his DVDs or CDs and did not uphold that part of his complaint. The PPO did recommend inter alia that NOMS should identify appropriate suppliers of music, films and books for foreign nationals and circulate this to high security prisons by 2 nd April 2014.
There were further developments during the time the matter was with the PPO. The prison agreed to permit the Claimant to have the opportunity to have the cookery book and dictionary which had been sent in by his family.
Further in November 2013 the Claimant placed an order through the prison to a supplier "AB" (not its name) for 4 Kurdish DVDs. That order was cancelled and the Claimant's money returned. The reasons for this action did not relate directly to the Claimant. AB was at the time suspended as a supplier (although it has now been reinstated) due to concerns as to sexually explicit and strong adult content of some of the DVDs within the AB catalogue.
Mr Ali's solicitors wrote a letter before claim on the 5 th February 2014. In short form the following points were made:
(i) Whether or not the PPO's recommendations had been followed the Claimant had not been able to access appropriate material from an approved supplier
(ii) The Claimant had not been able to access any Kurdish material at all
(iii) The Claimant was the only Kurdish prisoner in the prison
(iv) Other foreign nationals had been able to keep material
The Defendant replied on the 21 st February 2014 saying: it had given its best efforts to looking for material for the Claimant; that it had liaised closely with the PPO and had complied with his recommendations; and that there was another Kurdish prisoner at the prison, but he could not be co-located due to that prisoner's status. The prison went on to say that it would not be proportionate to allow the material in from the family even if subject to checks.
The Claimant's case
The Claimant recognises that the policy operated in this area by the Defendant has a legitimate justification, as it is intended to ensure good order and discipline in the prison, and to prevent crime. The Claimant argues that unlawfulness arises here as the policy, as it is operated at HMP Full Sutton, is unlawful as it is a "blanket" policy and does not provide for exceptions. It should, the Claimant argues, be struck down on the grounds of inflexibility.
The Court's attention is drawn to the decision of the House of Lords in R(Daly)-v-SSHD [2001] 2 WLR 1622 which the Claimant argues establishes the principle that the need for security in a prison does not trump competing interests and that a fair balance has to be struck.
The Claimant further argues that even if such a policy with its lack of flexibility were lawful it has been unlawfully applied to him. The Claimant draws attention to the following matters:
(i) It had taken over two years to find appropriate material
(ii) The PPO had found against the Defendant
(iii) The Claimant was unable to access material even after suppliers had been indentified
(iv) There is a policy of translating letters in other languages coming into the prison suggesting that the prison has the capacity to check the appropriateness of material in foreign languages
(v) All the Claimant was allowed was a dictionary and a cookbook
(vi) The Claimant had no contact with any other Kurdish prisoner
(vii) If the Claimant has no contact with another Kurdish prisoner then no other prisoner the Claimant has contact with can access the material in that tongue
(viii) Any illicit (such as pornographic) material can easily been indentified
The Claimant argues that had the Defendant had proper regard to these matters rather than applying a blanket policy it may have come to the conclusion that it could use its resources to identify some of the material sent in by the family which the Claimant could be allowed. In failing to properly investigate whether an exception to the policy might properly be made in this case, it is argued, the prison has acted unlawfully.
Finally, the Claimant argues that the Defendant is in breach of its duties under s149 Equality Act 2010 as the prison is discriminating against the Claimant on the grounds of his race. It is argued by the Clamant that the prison has failed in its duty to take active steps to ensure the full integration and participation in prison life.
In response to the arguments of the Defendant the Claimant argues that the Defendant has failed to explain why the Governor has not exercised his discretion given that it is accepted that the Claimant's case is exceptional. The fact that (as is conceded) the policy pursues a legitimate aim is not enough it is argued, the Defendant must show that "The means used to impair the right or freedom are no more than is necessary to accomplish the objective" (see de Freitas-v-Permanent Secretary of Ministry of Agriculture Fisheries Lands and Housing [1999] 1 AC 69 at page 80). In failing to consider whether the exceptional circumstances he had identified in respect of the Claimant triggered the exercise of his discretion and\or in putting such a high threshold on the meaning of exceptional circumstances the Defendant, it is said, acted irrationally and or unlawfully.
The Claimant goes on to argue that the Defendant's reliance upon the PPO's conclusions is misplaced, as the PPO had clearly formed the view that it would be possible to access material if certain steps were taken.
The Claimant draws the Court's attention to a point raised in support of its claim by the Defendant, that it has attempted to access material from non approved suppliers. The Claimant makes the point that this is a very recent development, and that if the Defendant is willing to go to non approved suppliers why would he not consider the material sent in by the Claimant's family.
Finally the Claimant argues that the dictionary and cookbook were allowed; how, it is asked rhetorically, did the Defendant come to the view that these items did not contain illicit material? It is suggested by the Claimant that the Defendant effectively proceeded to provide the books in contradiction of its own policy.
The Defendant's response
The Defendant responds to the claim by asserting that the policy is lawful, and has been lawfully applied to the Claimant. The Defendants' case is that there is a general policy applied in prisons...
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