R (Muhid) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PLENDER |
| Judgment Date | 13 February 2009 |
| Neutral Citation | [2009] EWHC 360 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10814/2008 |
| Date | 13 February 2009 |
[2009] EWHC 360 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Plender
CO/10814/2008
Malcolm Bishop QC (instructed by Arani Solicitors) appeared on behalf of the Claimant
Kate Gallafent (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
: This is a renewed application for permission to apply for judicial review in the form of an order requiring the Secretary of State to remove the applicant from Frankland Prison and/or to place him in segregation for his own protection, pending the outcome of these proceedings. Permission was refused on the papers by Blake J and has been renewed before me this morning by Mr Bishop QC for the applicant and Ms Gallafent for the Secretary of State.
Not for the first time, unfortunately, the video facilities in the room have broken down. The applicant has therefore been unable to see these proceedings, but I have ordered that there shall be prepared, at public expense, a full transcript of them. No doubt he will read, if he wishes to do so, the transcript of my decision.
The claimant is serving a sentence, I was told, of 6 years' imprisonment, made up of two consecutive terms of 2 years for soliciting murder and 2 years for fundraising for terrorism. His estimated date of release is in January 2010. While in Frankland Prison he has been subject to two events which may, I think, be properly characterised as attacks. In one a fire was started on the bed of his cell. He, fortunately, was a long way away from it at the time, in the kitchen. In the second episode, he was subject to an attack by a fellow prisoner armed with a knife. That fellow prisoner, it appears, being a convicted murderer. The prison authorities, I was told by Ms Gallafent, have no intelligence that the claimant is currently at risk, although common sense would suggest that the offences of which he has been convicted may make him unpopular with his fellow prisoners. The claimant says that by reason of the fear of further attacks, that he sustains, it has been necessary for him to remain in the segregation unit. He has done so, despite repeated requests of the prison authorities to leave. He remains in segregation and observes that while he is there he does not have the facility, which would otherwise be available to him, of participating in communal worship.
The duty of the Secretary of State in a case such as the present has been the subject of several decisions, including one of the House of Lords in R v Deputy Governor of Parkhurst Prison and others, ex parte Hague [1992] 1 AC 58, where it was held that all operational and managerial decisions affecting prisoners' segregation and transfer are, in principle, matters for consideration by the courts and not susceptible to judicial review, but Lord Bridge, whose authority on questions of administrative law is paramount, said in his speech that:
“… short of anything that could properly be described as a physical injury or an impairment of health, if a person lawfully detained is kept in conditions which cause him for the time being physical pain or a degree of discomfort which can properly be described as intolerable, I believe that could and should be treated as a breach of the custodian's duty of care for which the law should award damages.”
This principle, must, however, be qualified by reference to Z v United Kingdom, a case which turned on the application of Article 3 of the European Convention on Human Rights. In that case, decided as long ago as 1980, the European Court of Human Rights held that the state is under a duty to take such steps as are reasonable to avoid the risk of ill-treatment contrary to Article 3. It cannot therefore be said that the Secretary of State is without any obligation, enforceable by the courts, arising from a risk to the physical integrity of this prisoner from other prisoners.
In the present case, however, the fact is that the claimant has been offered accommodation in the Vulnerable Persons' Unit more than once. This he rejects on the grounds, as Mr Bishop puts it, that the Vulnerable Persons' Unit is set up for sex offenders, debtors and informers. That, in my view, is plainly incorrect. The Vulnerable Persons' Unit is set up for persons who are vulnerable. That many are vulnerable because of their conviction for sex offences, or debt, or being, or suspected of being, informers, is irrelevant to the purpose of the establishment of the Vulnerable Persons' Unit. It is set up for those who are vulnerable. Here we have a person who considers himself vulnerable and has available to him the option of being accommodated within the Vulnerable Persons' Unit.
The law to be applied in the present circumstances is, I think, set out in ...
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