Mrs Janice Hawke and Another v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeMr Justice Holman
Judgment Date03 December 2015
Neutral Citation[2015] EWHC 3599 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date03 December 2015
Docket NumberCase No. CO/2719/2015

[2015] EWHC 3599 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Holman

Case No. CO/2719/2015

The Queen on the Application of

Between:
Mrs Janice Hawke
Mr Jeremy Hawke
Claimants
and
Secretary of State for Justice
Defendant

Mr A Straw and Miss D Waddoup (instructed by Leigh Day) appeared on behalf of the Claimants

Ms H Slarks (instructed by Government Legal Department) appeared on behalf of the Defendant

Mr Justice Holman

The essential issue

1

In this case there are two claimants, a convicted prisoner, who is the second claimant; and his wife, who is the first claimant. I will call them respectively "the prisoner" and "his/the wife". The wife is seriously disabled and cannot realistically and at proportionate cost visit the prisoner where he is currently detained. The claimants contend that the Secretary of State for Justice has acted, and is continuing to act, unlawfully by not detaining the prisoner in a prison closer to her home.

The essential facts

2

Both claimants are in their 50s. They have been married for many years and have two adult children. The claimants' home is at Bude in Cornwall. While awaiting trial, the prisoner was held on remand in HMP Exeter, which is the nearest local prison to Bude.

3

In October 2013 the prisoner was convicted after a trial of very grave sexual offending. This consisted of three rapes upon each of two women, ie a total of six rapes. One woman was the partner of the prisoner's son; the other was that woman's mother. Additionally, the prisoner was convicted of four sexual assaults upon another partner of the prisoner's son, and one sexual assault upon a fourth woman. The first rape was in 1995. I am unclear as to the date of the last offence, but it was not earlier than 2009. So the offending spanned at least 13 or 14 years. The prisoner was sentenced to an aggregate determinate term of 17 years' imprisonment. His earliest release date is in March 2022, over another six years. He is thus a long term prisoner.

4

The Prison Service categorise prisoners from A to D to reflect the likelihood of the prisoner escaping or absconding, and the risk of harm to the public if he were to escape or abscond. After his conviction, the prisoner in this case was categorised as B; namely, a "prisoner for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult". There is no challenge in these proceedings to that categorisation of this prisoner.

5

The Prison Service subdivide category B prisons into local, or essentially short term, and training, or essentially long term, prisons. The starting point is, therefore, that this prisoner requires to be detained, unless and until he is recategorised as category C (which may never happen), in a category B training, or long term, prison. The nearest such prison to Bude is HMP Isle of Wight, to which he was transferred in April 2014. HMP Exeter and Bristol are both category B prisons and nearer to Bude, but they are local, or short term, prisons. There are category C training prisons in Devon at Dartmoor and Channings Wood, but this prisoner, being category B, cannot be detained there. (For completeness, I mention that there is a category B training prison at HMP Parc in south Wales, but the mileage distance from Bude is no shorter and it is not suggested that the prisoner should or might be transferred there.) The aim of this claim is to promote that the prisoner is transferred to HMP Exeter.

6

The wife has suffered for several years from the debilitating affliction of fibromyalgia. She describes this as a long term illness, which causes severe and continuous pain all over the body, as well as swelling of the joints and stiffness of the joints and muscles. She says (without challenge by the Secretary of State) that it is a very painful and debilitating illness, and that the pain is particularly severe when she stays in the same position for long periods of time, as, for instance, when travelling in a car.

7

The wife's statements are painful to read when she describes the small number of visits that she has made to the Isle of Wight. They required many stops and breaks and took a very long time (about 15 hours' round trip, plus the length of the visit itself). They reduced her to agony and had the effect that during the visits themselves she was in great pain, swelling and stiffness. I wish to make very clear indeed that I am profoundly sympathetic to the wife in her affliction and her plight, and in its effect upon her ability to visit her husband so far away as the Isle of Wight. She says, and it is not challenged, that she, in discussion with her husband, has decided that she simply cannot visit the Isle of Wight again.

8

The Secretary of State for Justice does not challenge any of that evidence of the wife. He accepts, or concedes, that for the purposes of all relevant disability and equality legislation, the wife suffers from a disability. He accepts, or concedes, that the degree of difficulty and pain involved in making the journeys puts her at a substantial disadvantage for the purposes of that legislation. Whilst not formally accepting it, Ms Hannah Slarks, who appears on behalf of the Secretary of State, does not argue against the proposition (which I hold) that due to her condition, this particular wife cannot realistically, and at proportionate cost, visit the Isle of Wight. Theoretically, she might be able to be transported swiftly and without undue pain in a helicopter, but the cost would be unrealistic.

9

So the claimants have asked that the Secretary of State for Justice transfers the prisoner long term to HMP Exeter, at least until (if ever) he is recategorised as C, in which case he might alternatively be detained at HMP Dartmoor or Channings Wood, each of which are training, or long term, prisons and are reasonably accessible to the wife. The Secretary of State for Justice has decided that he is not prepared to transfer him, since he is a long term prisoner and Exeter is only a local, or short term, prison.

10

Mr Adam Straw, who appears on behalf of the claimants, argues that that decision is irrational and in breach of public law duties, and/or in breach of equality duties upon the Secretary of State, and/or involves adherence to a policy (namely the rigid classification of local and training prisons) which is unlawful as it does not contain appropriate adjustments for disability. Further, Mr Straw submits that the Secretary of State for Justice is in breach of his public sector equality duty under section 149 of the Equality Act 20It is important to stress that the disabled person in this case is not the prisoner himself (who has no disability) but his wife. Any duties towards disabled prisoners themselves are not directly in point.

Prison visits

11

Rules 3 and 4 of the Prison Rules 1999/728, which are made by statutory instrument, provide as follows:

"3. Purpose of prison training and treatment.

The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life.

4. Outside contacts.

(1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.

(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation."

12

As rule 4(1) refers to "the best interests of both", viz the prisoner and his family, and rule 4(2) refers to best promoting "the interests of his family", the Secretary of State for Justice concedes that he is under a duty not only to the prisoner but also to "his family", and that a duty to the wife, as well as to the prisoner, is engaged by this case.

13

By rule 35 of the Prison Rules, a convicted prisoner is ordinarily (there are exceptions not relevant to this case) entitled "to receive a visit twice in every period of four weeks". As Ms Slarks emphasises, that particular rule entitles the prisoner to " receive a visit" (my emphasis). It says nothing about who the visitor might be, and does not of itself afford any entitlement to a spouse or any other specific person or class of person to visit. The fact that his wife is unable to visit in no way impacts upon the prisoner's entitlement under that rule. He remains entitled to receive visits from other relatives, friends, well wishers or persons such as voluntary prison visitors.

14

The Secretary of State for Justice in no way disputes the importance, so far as reasonably achievable, of regular family visits. It is spelled out in his own Prison Service Instruction 16/2011 at paragraph 1.2, which states:

"… visitors are seen as crucial to sustaining relationships with close relatives … Regular and good quality contact time between an [offender] … and their … partner provides an incentive not to reoffend, and helps prisoners arrange accommodation, employment/training on release …"

Accumulated Visits

15

The National Offender Management Service instruction on Providing Visits Services to Visitors, now at bundle 1, tab C, page 88, makes provision at paragraphs 5.6 to 5.12 (now at bundle page 104) for "Accumulated Visits". As described in that instruction, and elaborated by the evidence in this case, Accumulated Visits are in effect a series of visits, to which the prisoner would otherwise have been entitled over a longer period,...

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