R Bright v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 03 October 2013 |
| Neutral Citation | [2013] EWHC 3514 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 October 2013 |
| Docket Number | CO/2693/2013, CO/12931/2012, CO/2324/2013 |
[2013] EWHC 3514 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Carr
CO/2693/2013, CO/12931/2012, CO/2324/2013
Mr H Southey QC (instructed by Chivers) appeared on behalf of the First Applicant, the Second Applicant and the Third Applicant
Ms K Gallafent (instructed by The Treasury Solicitor) appeared on behalf of the First Respondent, the Second Respondent and the Third Respondent
I have before me two renewed applications for permission to apply for judicial review by two separate applicants, a David Bright and an Andrew Keeley, permission in both cases having previously been refused on paper.
The applicants have been represented by Mr Southey QC and the defendant who is the same, a common defendant, by Kate Gallafent. I am grateful to counsel for the clear and succinct way in which they have expressed themselves on paper and orally.
What follows is my ruling. The permission hearing has in fact lasted well over one hour. In this ruling, I will address those matters that I see as being most important to the applications. If I do not mention a particular point that has been argued out before me it is not because I have overlooked it, it is because in an ex tempore judgment of this nature it seems to me more appropriate to concentrate on the core facts. The full argument is a matter of record.
So far as Mr Bright is concerned he was, until recently, a serving prisoner at Her Majesty's Prison Whitemoor in the Dangerousness and Severe Personality Disorder Unit. He was convicted in June 2003 of buggery, gross indecency with a male child under the age of 14 and deception, and was sentenced to life imprisonment with a minimum term of 5 years.
HMP Whitemoor is a maximum security prison for men in Categories A and B. The Dangerousness and Severe Personality Disorder Unit has 3 spurs: red, blue and green. Which spur an individual prisoner is allocated to is based on the group in which he is being assessed or treated. The defendant tells the court that the spur system and its allocation within it is a matter of careful construction and that as a matter of common sense makes sense.
Mr Bright states that he is the long term partner of another prisoner, Mr Beau Beale. Mr Beale is also serving a sentence for wounding with intent. He, in September 2005, was given an indeterminate sentence for public protection. Whilst Mr Beale and Mr Bright are not formally civil partners they have a clear intention to become such. The relationship between them developed following their imprisonment. Thus it is argued that Mr Beale was not a "close relative" within the meaning of PFI 2011/16 entitling the two to visit each other if they were to be held in separate prisons. Mr Beale was at HMP Whitemoor until 30 May 2013 when he was transferred to HMP Wakefield.
Between March 2011 and 17 January 2013, the applicant and Mr Beale were on the same spur, red spur, although they were in different treatment groups. On 17 January 2013 Mr Beale was moved to his own protection as a matter of urgency. He had made serious allegation against two other prisoners, one a current prisoner, so serious that the matters were reported to the police.
Mr Beale was separated in accordance with HMP Whitemoor's usual procedures so as to prevent witness intimidation and to ensure the safety of the parties. The applicant states that on 30 January 2013 his request for inter-wing visits with Mr Beale was refused and inter-prison visits were, as I have previously described, it is said, ruled out on the basis of ineligibility.
However, according to the defendant, in fact between 17 January and 30 May the applicant was able to visit Mr Beale on 3 March and shortly before the 30 May. Moreover, the defendant tells the court that the applicant has now been allowed monthly inter-prison telephone calls with Mr Beale. They have taken place on 11 July, 13 August and 12 September 2013.
The applicant has also now been confirmed as eligible for inter-prison visits by video link. One such visit is scheduled to take place today. I am told by Mr Southey for the applicant that it is not clear for reasons unknown whether that visit will in fact be able to take place today but I have no more information on that particular topic.
So far as Mr Keeley is concerned, he is serving an 8 year custodial sentence imposed in June 2010 for offences of indecent assault on a male under the age of 16. Two males were involved: one a homeless minor, whom he had previously paid for prostitution services.
Mr Keeley's partner, Mr John Doughty, is serving life imprisonment for 6 offences of rape, that sentence being imposed in 2003. There was at one time as I understand it an application before the court to join Mr Doughty to these proceedings but that application has not been pressed before me.
The applicant and Mr Doughty were first located together at HMP Maidstone on the Thanet Wing in December 2011. On 26 March 2012 a prison officer discovered the applicant in Mr Doughty's cell and they were engaged in sexual intercourse. They were warned that their conduct was unacceptable. No further action was taken at that stage but they were told in terms that their behaviour was not to be repeated.
On 27 April 2012 another prisoner reported seeing Mr Doughty and Mr Keeley having sex. There are factual disputes as to whether or not this in fact occurred and what, if, any admissions were made by the applicants, Mr Keeley and Mr Doughty, at the time.
In the event, the Governor of the prison, HMP Maidstone, decided to separate the men. The reasons for that separation are set out succinctly in paragraph 7 of the acknowledgment of service.
The separation was executed taking into account that (so Governor Huckle of HMP Maidstone believed at the time) they had been caught twice engaging in sexual activity during association time. The second occasion had occurred a month after the first after both prisoners been expressly warned not to repeat any such behaviour.
The applicants, Mr Keeley and Mr Doughty, had sought to prevent entry to the cell by wedging material underneath the door. The prisoners could have been and were observed by staff and other prisoners. Both the applicant and Mr Doughty's attitude upon being challenged about their behaviour was dismissive and it therefore appeared unlikely that they would not repeat such behaviour.
Such behaviour was inappropriate and unacceptable and did not comply with the expectations set out in HMP Maidstone's Decency and Citizenship Strategy, whereby inappropriate and anti social behaviour will not be tolerated from staff, visitors, or offenders; nor in the custody compact, and, in any event, did not demonstrate the common decency with which offenders, staff and visitors should conduct themselves.
For present purposes I do not need and do not seek to resolve any disputes of fact. I note, however, that in the context of the applicants' response to the complaints in relation to the second incident, the response included a reaction that the prisoner who found them or saw them should first have knocked on the door. What is clear to me for present purposes is that Governor Huckle at the material time clearly had a genuine belief at all material times that there had been inappropriate sexual activity on 27 April 2012.
On 28 April 2012, as a result of the above, Mr Doughty was moved to a different wing from that inhabited by Mr Keeley. Complaint and appeal were made by Mr Doughty. The applicant, too, complained and he asked to be put on the same wing as Mr Doughty.
In November 2012, the two gentlemen underwent a civil partnership. A few days later the applicant applied to be in the same wing, which application was rejected. On 8 January 2013, there was an issue as to whether or not the two men would be allowed to cuddle and the applicant contends that he was told that cuddling was not permitted.
It is right to record that just as Mr Bright is no longer at HMP Whitemoor, nor is Mr Keeley any longer at HMP...
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