R Daniel Roque Hall v University College London Hospitals NHS Foundation Trust and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 08 February 2013 |
| Neutral Citation | [2013] EWHC 198 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 February 2013 |
| Docket Number | Case No: CO/19/2013 |
[2013] EWHC 198 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hughes
Mr Justice Wyn Williams
and
Mr Justice Hickinbottom
Case No: CO/19/2013
Flo Krause (instructed by Scott-Moncrieff & Associates LLP) for the Claimant
Christopher Mellor (instructed by Hempsons) for the First Defendant
Galina Ward (instructed by the Treasury Solicitor) for the Second Defendant
Hearing date: 5 February 2013
We direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is the judgment of the court.
The Claimant Daniel Roque Hall was born on 7 August 198He suffers from Friedreich's ataxia, an hereditary, insidious and incurable disease of the brain and spinal cord, which affects many of the major systems of the body causing progressive disablement. Since 1997, he has been confined to a wheelchair. Since 2003, he has needed day and night care; and, because he can only be lifted by the use of a two-man hoist, recently that care has required two assistants to be in attendance on him for 24 hours a day.
In November 2011, with a carer, he holidayed in Peru. When passing through Heathrow Airport on his return, he was found to have nearly 3kg of high purity cocaine stashed in his wheelchair cushion. He was charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a class A drug.
He pleaded guilty and, on 6 July 2012 in the Crown Court at Isleworth, the matter came before His Honour Judge Denniss for sentence. The judge had the benefit of a pre-sentence report, and reports from the Claimant's general practitioner (Dr Lucy Abrahams), his consultant endocrinologist (Dr Dornhurst), his consultant cardiologist (Dr Perry Elliott), his consultant neurologist (Dr Paolo Giunti) and a consultant psychiatrist (Dr Leonard Fagin). He also had a breakdown of the care and other assistance that the Claimant needed, and then received at home.
The judge invited submissions on the correct approach to sentencing someone with the Claimant's disabilities, in the light of Article 3 of the European Convention on Human Rights and the judgment of this court in Qazi [2010] EWCA Crim 2579 which, at [35], indicated that a sentencing court will only be required to make any enquiry before sentence if there is a real risk that the very fact of imprisonment will involve a breach of Article 3. The judge considered that this might possibly be such an exceptional case, and adjourned to allow the experts to give their opinion, which they did. Additionally, the day before the hearing, the governor of the prison where the Claimant would serve at least the first part of any custodial sentence, HMP Wormwood Scrubs ("the prison"), wrote to the court indicating that the prison would have the facilities to provide proper care for the Claimant during any period of detention.
Judge Denniss sentenced the Claimant to 3 years' imprisonment.
Subject to a brief period in hospital from 6–9 July 2012, to which I shall return, the Claimant began serving his sentence in the 17-bed hospital wing of the prison, for which the Second Defendant is responsible, in a single air-conditioned room with a disabled toilet and disabled wet room with a shower. On 22 August, he was transferred to University College Hospital ("the hospital"), for which the First Defendant is responsible. The Claimant is currently still an in-patient at the hospital. The clinical team which has looked after him has been led by Professor John Martin, a Consultant Physician and Professor of Cardiovascular Medicine at University College Hospital, and coordinated by the Clinical Pharmacological Unit which includes Dr Marc George. The full team has included members from the Palliative Care, Endocrinology, Neurology, Rehabilitative Medicine and Cardiology Units, and there has been liaison with and reviews by the Neurology Unit from Queen Square who have looked after the Claimant for many years.
Since sentence on 6 July 2012, the Claimant has issued three claims in the Administrative Court.
First, on 17 July, he issued a claim (Claim No CO/7499/2012) challenging "conditions of prison detention", but in fact restricted to an allegation that the prison governor had refused the Claimant reasonable legal visits from his solicitors, then Duncan Lewis. That claim was compromised, and we need say nothing further about it. It has no relevance to the issues now before this court.
Second, on 16 August 2012, again through his solicitors Duncan Lewis, he issued a claim (Claim No CO/8752/2012) alleging that the prison regime to which he was subject amounted to inhuman and degrading treatment, contrary to Articles 3 and 8 of the European Convention on Human Rights, some fourteen or so specific matters being relied upon in support. On 18 September, the grounds were amended to include reliance upon the Claimant's subsequent hospitalisation, and his failing health immediately before he was admitted to hospital. On 19 October, Kenneth Parker J refused permission to proceed, in short finding that the matters relied upon did not engage Article 3 (nor, implicitly, Article 8), and they could appropriately be pursued by way of complaint to the Prison Ombudsman rather than by way of judicial review. An application was made to renew that application for permission at an oral hearing.
However, in the meantime, at a meeting on 31 December 2012, in circumstances to which we shall return, the hospital informed the Claimant that he was fit to be discharged, and they proposed to discharge him back to the prison on 2 January 2013. The third claim (Claim No CO/19/2013) ultimately focused on the allegation that to discharge the Claimant back to the prison would put the Claimant's life at risk and be a breach of Article 2 of the Convention. The claim was issued by new solicitors (Scott-Moncrieff & Associates) on 1 January, when, on an out-of-hours ex parte application, Lang J restrained the hospital from discharging the Claimant. That order is still in force. On 25 January 2013, Collins J gave permission for the Claimant to withdraw Claim No CO/8752/2012, on the basis that the grounds relied upon in that claim be incorporated into amended grounds in Claim No CO/19/2013; and he directed that that claim be listed at the same time as the hearing of the Claimant's appeal against sentence before the Court of Appeal, "the nature of the hearing to be determined by the court".
On 5 February 2013, the court as currently constituted, sitting as the Court of Appeal (Criminal Division), heard an appeal against the Claimant's sentence, which is the subject of a separate judgment ( [2013] EWCA Crim 82) that sets out in more detail the background to the Claimant's medical conditions and the offence, which we need not repeat here. At the same hearing, sitting as a Divisional Court, we heard various applications in the Claimant's judicial review applications.
The Claimant made an application to amend the now Detailed Statement of Grounds (which incorporate the grounds in the earlier claim), and also to rely upon further evidence which had been lodged in support. There was no opposition to those applications which, during the course of argument, the court allowed; and we went on to hear the Claimant's application for permission to proceed on those amended grounds.
The Grounds of Challenge
The Claimant relies upon the following grounds of challenge.
Article 2: This is now the primary ground relied upon. It is said that the treatment in the prison in the 7-week period to 22 August 2012 was such that his life was put at risk, and it reduced his life expectancy, in breach of his Article 2 rights. Furthermore, to discharge him back to the prison would expose him to a similar risk, so that the decision to discharge him to the prison is itself a further breach of those rights.
Articles 3 and 8: On the basis of the grounds initially lodged in Claim No CO/8752/2012, the prison's treatment of the Claimant in the period 6 July to 22 August 2012 breached his rights under Articles 3 and 8 of the European Convention.
Equality Act 2010: The prison has breached its obligation under the Equality Act 2010 to make reasonable adjustments to ensure compliance with its duty not to discriminate against the Claimant on the ground of his disability, by not making available various equipment and facilities to him, and by detaining him (as a Category C prisoner) in a Category B prison rather than a Category C prison.
We will deal with those claims in turn.
Article 2
The Claimant's primary claim is based on Article 2, which guarantees the right to life.
For the purposes of this claim, we accept that that duty includes, in the context of persons detained by the State, an obligation to preserve life and to provide the necessary care to preserve life. However, Article 2 is only engaged where there is a "real and immediate risk" of death (see, e.g., Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB)).
Ms Krause put the claim on the following basis.
i) Prior to sentence on 6 July 2012, the Claimant's various medical conditions were optimally controlled, through a regimen of drugs and non-pharmacological therapy. The...
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