R (CD) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY,Mr Justice Maurice Kay |
| Judgment Date | 16 January 2003 |
| Neutral Citation | [2003] EWHC 155 (Admin) |
| Docket Number | CO/5343/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 January 2003 |
[2003] EWHC 155 (Admin)
Mr Justice Maurice Kay
CO/5343/2002
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
MR IAN WISE (instructed by A.S. Law) appeared on behalf of the FIRST CLAIMANT
MISS FENELLA MORRIS (instructed by the Official Solicitor) appeared on behalf of the SECOND CLAIMANT
MISS JENNIFER RICHARDS (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
1. It is common knowledge that the substantial rise in the prison population has included a significant increase in the number of women prisoners. Whilst sentencing courts usually strive to avoid sending pregnant women and the mothers of young children to prison there are occasions when such a course is inevitable. There has been an increased demand for Mother and Baby Units (MBUs) within women's prisons. At present there are four MBUs which provide a total of 68 places. One of the four is in an open prison at Askham Grange. The others are at Styal, New Hall and Holloway. Further MBUs are planned at Eastwood Park and at two new prisons which are to be built at Ashford and Peterborough. The circumstances which give rise to the present case occurred at Styal. CD is a young woman from Jamaica. She is 19 years of age. In September 2001 she travelled to England for the first time and, in so doing, acted as a courier in relation to the importation of a quantity of cocaine. She was arrested on arrival, charged and remanded in custody. In due course she pleaded guilty and was sentenced to three and a half years imprisonment. Her earliest release date is 13 June 2003. She is to be deported upon release.
2. At the time of her arrival in this country CD was pregnant. Her initial places of custody were at Holloway and Bullwood Hall. However on 27 February 2002 she was transferred to the MBU at Styal. On 10 April 2002 she gave birth to her son, AD. They remained in the MBU at Styal until 19 September 2002 upon which date a decision was taken to exclude CD from the MBU and to separate her and her child. From the date of separation in September until the hearing before me on 19 and 20 December, CD was held in a different part of the prison at Styal and, since 20 September AD has lived with and been cared for by SM, a friend of CD, in London. The present proceedings are in the form of an application for judicial review of the decision to exclude and separate. The application is made on behalf of CD and also on behalf of AD, whose interests are being looked after by the Official Solicitor. At the conclusion of the hearing on 20 December, the last day of term, I told the parties that the application for judicial review had succeeded and that I would give reasons in a judgment on 16 January. This is that judgment.
3. The regime in an MBU is more open and less controlled than within the conventional part of a part of a closed women's prison. Staffing levels are lower. The mothers have responsibility for their own children and there is a need for cooperative behaviour. There is little security within an MBU. The mothers have free access to their own and to other mothers’ rooms and they move about the unit as they wish. Nevertheless, the unit is still part of a prison and it is necessary for there to be rules which are conducive to good order and discipline. This is in the interest of all, particularly the babies. Not all women prisoners are suitable for placement in an MBU.
4. CD was at Bullwood Hall when she applied for an MBU place at Styal. Her application was strongly supported by the staff at Bullwood Hall who described her in various documents as “a very quiet eighteen year old” with no family in this country and therefore no support from outside prison, “always polite and on time”. She participated in the voluntary drug testing programme and tested negative on all occasions. There are three status categories conferred upon prisoners, namely basic, standard and enhanced. Whilst at Bullwood Hall CD “made an excellent effort to settle down….and has already enhanced status. Wing staff have confirmed that she is respectful to staff and mixes well with her peers”.
5. Within days of arriving at Styal CD was recorded in the contemporaneous log maintained by prison officers as being “very upset and emotional today….upset at being moved from prison to prison, young with all her family in Jamaica…baby's father is also in Jamaica….CD also seems to be afraid of the birth having witnessed X's waters breaking”. I do not propose to go into great detail about the daily record made in the contemporaneous log. It is apparent that CD was argumentative with other prisoners on occasions, sometimes failed to comply with rules as to timing and the use of cooking facilities and behaved in what the record for 3 May refer to as “a mixed fashion ….can be polite and helpful but equally she can be sullen and stubborn”. As time went by, and particularly after the birth of AD, CD came into conflict with other prisoners. It is quite apparent that CD could be difficult and that she had her ups and downs. One sympathetic note on 19 May suggests that perhaps that she “was suffering baby blues”. On the other hand, the regular visits of the health visitor attracted entries which suggest that CD was coping well as a parent and that AD was making appropriate progress. I have the impression that many of the entries regarding conflict with other prisoners were made by prison officers who had the unenviable task of listening to both sides of a story and having to form an impression based on accounts from people who are probably not wholly reliable. At the very least, however, CDs behaviour was giving cause for concern. Throughout May there are references to conflict with another prisoner but that prisoner left at the end of the month and on 9 June the weekly report is to the effect that “things have really settled down since (the other prisoner left)……(CD) feels much happier now”. The following weekly report also noted “a big improvement….polite, smiling and mixing with everyone on the unit”. Later in June and into July there are records of conflict between CD and prisoners referred to as “the travellers”.
6. Things came to head on 22 July. Mr. Seed, the residential governor in charge of the MBU, referred to two previous written warnings and “expressed some concerns over your continued residence on the unit”. In a memorandum of that date he informed CD
“I am giving you notice that if your behaviour does not improve you will be excluded from the unit.”
On that day he reduced CD from standard to basic status, thereby depriving her of various privileges. That decision was subject to monthly review and on 28 August CD was restored to the standard regime with immediate effect. The assessment form did not assess her as negative in relation to any of the fifteen behavioural criteria.
7. The weekly report dated 2 September records that CD's attitude “has improved dramatically…..she attends work regularly and promptly and seems to be approaching staff much more. A big improvement!” On 9 September the weekly report stated:
“A mixed week but on the whole her behaviour is OK. She is cheerful and staying out of the arguments.”
However, on 16 September the log records “a huge row between (CD) and (X)”. This led to the decision to exclude CD from the MBU and separate her from her baby on 19 September. On the previous day Mr. Seed had requested a member of the unit staff to provide a “brief overview of recent events”. The overview referred to the previous month and was not wholly consistent with the tenor of the contemporaneous log for that period. It included a number of allegations against CD which appear to have been based in the main on things said by other prisoners rather than events witnessed by prison staff. According to his witness statement, Mr. Seed then “recognised that CD's persistent bad behaviour was most unlikely to improve”. He reported to the governor of Styal, Miss Moulden, recommending that CD be excluded from the MBU immediately. Miss Moulden accepted this recommendation and on 19 September Mr. Seed served a notice of exclusion on CD.
8. The notice of exclusion referred to the warning of 22 July and went on
“It has been reported to me that since that time there have been a number of incidents that you have been involved in that fall far short of the behaviour required, and that you have continued to bully others on the unit, made racist remarks and at one stage allegedly threatened to injure a child.”
Later in the notice, Mr. Seed refers specifically to a number of incidents listed as follows
“—heated arguments between you and other residents on the unit.
—provoking other women on the house by making inappropriate comments;
—making racist gestures;
—threatening to kick a baby on the unit;
—alleged report that you stood on a baby's fingers;
—number of warning re you being outside the unit whilst on basic regime;
—other warnings being late for work and roll checks.”
The notice went on to state that “the decision to exclude you is in no way a reflection on your parenting skills, it is solely about your unacceptable behaviour.” It stated that the exclusion would take effect immediately but that CD could appeal to the operational manager for women's prisons.
9. Although CD accepts the reference to warnings about being outside the Unit, being late for work and missing roll checks, she has a case either by way of denial...
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