R (Faizovas) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON |
| Judgment Date | 09 May 2008 |
| Neutral Citation | [2008] EWHC 1197 (Admin) |
| Docket Number | CO/1660/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 May 2008 |
[2008] EWHC 1197 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Dyson
CO/1660/2008
Mr Hugh Southey (instructed by Fisher Meredith) appeared on behalf of the Claimant
Mr Jeremy Johnson (instructed by Treasury Solicitor) appeared on behalf of the Defendant
The claimant is a serving prisoner. He is now 49 years of age and, sadly, suffers from cancer. He was born in Lithuania and speaks little or no English, and understands little of the language. In these judicial review proceedings he challenges decisions that he should be handcuffed whilst out of prison for the purposes of attending hospital appointments. He contends that his being handcuffed in these circumstances violates his rights under Article 3 and/or Article 8 of the European Convention on Human Rights (“the Convention”).
On 15 December 2005, he was sentenced to 42 months' imprisonment for a serious sexual assault on a woman, an offence which was said by the judge to have fallen short of attempted rape. He was a man of previous good character. The judge said that there was no significant risk that the claimant would seriously harm members of the public. Prior to his conviction, the claimant had been diagnosed as suffering from pancreatic cancer and was released on bail to undergo surgery. He did not breach the terms of his bail.
In October 2007, it was discovered that the cancer had spread. In consequence, the claimant started to receive chemotherapy as an out-patient. On 18 January 2008, his consultant estimated that he would survive for no more than between four and eight months.
During his stay in prison, he attended West Suffolk Hospital as an out-patient on 17 occasions between March 2007 and February 2008. Each time he left prison to attend hospital for chemotherapy, he was accompanied by two prison officers. On the journey from prison to hospital, he was restrained by handcuffs. At hospital, the handcuffs were usually replaced by an escort chain. This is a chain 2.5 metres in length, linking a handcuff attached to the claimant and a handcuff attached to an officer. An escort chain was used to facilitate treatment unless the proposed treatment was such that the nursing staff said that handcuffs could remain in place. He would wait in the waiting room for an average of 30 minutes, in full view of members of the public who were also awaiting treatment. He would then be taken to a consultation room for the treatment. The chemotherapy would be administered by means of a cannula in his left arm. This would last about 30 minutes. He remained handcuffed or attached by means of the escort chain throughout the procedure.
In his witness statement, he describes one occasion when the treatment caused him to vomit over the officer to whom he was attached. This incident is disputed by the defendant. Mr Southey does not place reliance on the incident. He is right not to do so, since in these judicial review proceedings it is not appropriate for me to seek to resolve such a disputed question of fact.
In November or December 2007, the claimant, who is a Category C prisoner, applied to be released from prison early on compassionate grounds. His application was supported by the Governor of HMP Highpoint, where he was being detained. It was refused by the Secretary of State on 18 December for a number of reasons. These included:
“… in order to qualify for early release on compassionate grounds, the risk of harm to the public must be past. In your case, the pre-sentence report writer considered you to be of a low to medium risk of re-offending. The sentencing court took the view that there was not a significant risk of harm to the public of you committing a further specified offence. The sentence planning risk predictor finds you to be a raised risk of further sexual offending within two years. Although the OASys report finds you to be a low risk of re-offending (with a weighted score of only 10), it assesses you of being a medium risk of harm to the public and to a known adult. The seconded probation officer notes that it is difficult to assess risk in your case owing to the on-going denial. There is also no evidence of risk reduction through offence-focussed work. Although the seconded officer believes there might be a low risk of further offending, and the Governor too considers risk can be managed on release, we are not persuaded that there is sufficient evidence of risk reduction to be able to conclude that the risk you present to the public is now past.”
The claimant became eligible for automatic release on 18 February 2008. However, he was subject to deportation proceedings and remained liable to be detained under the immigration legislation. He was eventually granted bail on 25 February 2008.
Before the commencement of these proceedings, the defendant served a witness statement by Ms Ruth Stephens, the Deputy Governor at HMP Highpoint. At paragraph 23 of her statement, Ms Stephens identified the factors which were taken into account in deciding the level of restraint to which the claimant was subjected when he made his visits to hospital. These were:
“(a) The Claimant's index offence, a violent sexual offence;
(b) The Claimant is subject to Multi Agency Public Protection Arrangements;
(c) There being no evidence of risk reduction through participation in offending behaviour work or otherwise;
(d) The claimant is subject to deportation, but claiming UK residence;
(e) The claimant's medical condition was continually reviewed. His condition at all relevant times was not such as to enable the possibility of escape to be discounted;
(f) The hospitals are large insecure public buildings, with many avenues of escape;
(g) The fact that, particularly during latter appointments, due to the nature of his treatment, the Claimant had regular pre-booked appointments of which he would have had prior knowledge. This is contrary to Prison Service policy that due to the potential risk of escape, prisoners should not have prior knowledge of external appointments;
(h) The Claimant was found guilty at an adjudication in June 2007 for fighting, indicating a risk he was still prone to violence;
(i) An application made by the prison for a compassionate early release in view of his medical condition was declined by the Secretary of State.”
In her statement, Ms Stephens continued:
“24. In all the circumstances it was concluded that the level of restraint —namely the use of the escort chain while the Claimant was undergoing treatment was appropriate given the need to balance the interests of security and the risk of the Claimant escaping and the Claimant's rights to receive medical treatment unhindered. The healthcare manager at HMP Highpoint was consulted during this process and, as the Risk assessments indicate, that there is no medical objection to the use of the restraints to suggest that having the escort chain applied would impede Mr Faizovas's medical treatment or recovery.
25. The decisions which were arrived at in relation to the balance of risk need to be understood in the context of the Prison Service's duty towards keeping prisoners in lawful custody, public protection issues, and the fact that apart from appearances at Court a visit to hospital now offers one of the few opportunities for an attempted escape either assisted or unassisted.”
On the subject of security, Ms Stephens concluded at paragraph 30:
“In all the circumstances it is my view that any further relaxation of the security arrangements applying in respect of the Claimant's visits to hospital such as to permit him to move from the taxi and through the public parts of the hospital and grounds unrestrained, or to permit him to remain in the consulting room during treatment without the presence of officers, would have posed too great a risk of escape and risk to public safety.”
Mr Southey has drawn my attention to the National Security Framework, which states that prison management of all closed and semi-open prisons should undertake a risk assessment to decide the level of escort and restraint required for the safe custody of each prisoner. The normal arrangements for prisoners on escort from closed establishments are that restraints must be used unless there are medical objections. There should be a two officer escort; restraints are applied when out of the prison up to the point of medical consultation or treatment; the restraints will be taken off at this point unless the risk assessment shows the risk of escape is too high; restraints will be reapplied immediately following the treatment or consultation.
Ms Stephens has exhibited the escort risk assessments that were made in respect of the claimant prior to each hospital visit. In the first assessment dated 14 March 2007, it was said that the claimant posed a medium risk to the public and was medium escape potential. These judgments appeared in the succeeding risk assessments, although it was noted in the assessment dated 12 September 2007 that “previous hospital appointments no problems”. The assessment dated 29 June recorded an adjudication. The claimant had been involved in an incident of fighting with two other younger inmates. The charge of fighting was found proved by the governor against all three. Subsequent assessments continued to record, however, that there had been no problems with hospital appointments. The assessment dated 11 December reduced the risk to the...
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