R (on the application of Dennehy) v Secretary of State for Justice and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 26 May 2016 |
| Neutral Citation | [2016] EWHC 1219 (Admin) |
| Date | 26 May 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4332/2015 |
[2016] EWHC 1219 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Singh
Case No: CO/4332/2015
and
Hugh Southey QC and Richard Reynolds (instructed by Duncan Lewis) for the Claimant
Tom Weisselberg QC and Sarah Hannett (instructed by the Government Legal Department) for the First Defendant
Jenni Richards QC and Jamas Hodivala (instructed by Devonshires) for the Second Defendant
Hearing dates: 10 and 11 March 2016
Approved Judgment
Introduction
The Claimant is a convicted prisoner at HMP Bronzefield, one of only two prisons in this jurisdiction which can accommodate women prisoners who have restricted status: this is equivalent to a man who is a Category A prisoner. HMP Bronzefield is privately run by the Second Defendant, Sodexo Limited.
On 28 February 2014 the Claimant was sentenced by Spencer J to life imprisonment for three offences of murder; life imprisonment for two offences of attempted murder; and two concurrent determinate sentences of 12 years' imprisonment for offences of preventing burial. The victims were all men. In respect of the offences of murder the Claimant was given a whole life order. This has the consequence in law that she can never be considered for parole. She is currently one of only two women in this jurisdiction who are subject to a whole life order.
Since 19 September 2013 (at a time when she was still on remand) the Claimant has been in what is commonly called "segregation" (strictly "removal from association"). The Claimant submits that her segregation has been unlawful on a number of grounds.
Both Defendants concede that the segregation of the Claimant between 21 September 2013 and 4 September 2015 was unlawful because it was not authorised by the Secretary of State, as was required by the Prison Rules 1999 (SI 1999 No. 728) at that time. That concession is made in the light of the decision of the Supreme Court in R (Bourgass) v Secretary of State for Justice [2016] AC 384. Otherwise the Defendants resist the claim for judicial review.
I should say a little about the procedure adopted in the present case.
This is a claim for judicial review brought with the permission of Collins J, granted on the papers on 15 October 2015. Collins J refused permission in relation to one ground, which concerns alleged discrimination, to which I will return. As will become apparent later, the Claimant's grounds have evolved over time, up to and including the skeleton argument filed on her behalf. The Claimant applies for permission to amend her grounds so as to reflect what is submitted in the skeleton argument. I grant that application so that the Claimant has permission to advance all of the grounds raised in the skeleton argument, including the ground based on alleged discrimination.
In these proceedings, initially, the prison itself was named as a defendant but, at the hearing before me, it was agreed by the parties that the appropriate person which should be a defendant is the company which runs the prison.
In the present case not all matters of primary fact are undisputed. As Lord Reed JSC observed at paras. 124–126 of Bourgass, although judicial review does not usually require the resolution of disputes of fact or cross-examination of witnesses, that is not because they lie beyond the scope of that procedure. "Judicial review is a sufficiently flexible form of procedure to enable the court to deal with the situation before it as required." However, all parties before me agreed that in the present case it was not necessary for the resolution of the issues to have cross-examination of witnesses or to resolve such issues of fact as are in dispute. At the hearing before me, it was made clear by counsel for the Claimant, Mr Hugh Southey QC, that he did not wish to apply for permission to cross-examine any of the Defendants' witnesses.
Relevant legislation
What is commonly known as segregation is referred to in the relevant legislation as "removal from association". The version of the Prison Rules, made pursuant to section 47(1) of the Prison Act 1952, which was in force from 1 January 2010 to 3 September 2015, provided, in rule 45 as follows:
"(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the Governor 1 may arrange for the prisoner's removal from association accordingly.
(2) A prisoner shall not be removed under this rule for a period of more than 72 hours without the authority of the Secretary of State and authority given under this paragraph shall be for a period not exceeding 14 days but it may be renewed from time to time for a like period …"
In Bourgass the Supreme Court held that rule 45(2) requires that decisions to authorise continued segregation beyond 72 hours must be made by the Secretary of State for Justice and cannot be made by the prison governor acting in the name of the Secretary of State. However, as was common ground before me, this does not mean that the decision must be made by the Secretary of State in person. In accordance with well-established principle, the decision can be made by an appropriate official in his department acting in his name: Carltona v Commissioners of Works [1943] 2 All ER 560.
Following Bourgass, the First Defendant amended rule 45, so that it now provides:
"(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the Governor may arrange for the prisoner's removal from association.
(2) Removal for more than 72 hours may be authorised by the Governor in writing who may authorise a further period of removal of up to 14 days.
(2A) Such authority may be renewed for subsequent periods of up to 14 days.
(2B) But the Governor must obtain leave from the Secretary of State in writing to authorise removal under paragraph (2A) where the period in total amounts to more than 42 days starting with the date the prisoner was removed under paragraph (1).
(2C) The Secretary of State may only grant leave for a maximum period of 42 days, but such leave may be renewed for subsequent periods of up to 42 days by the Secretary of State …"
The amendments came into force on 4 September 2015, with the exception of paras. (2B) and (2C), which came into force on 16 October 2015: see the Prison and Young Offender Institution (Amendment) Rules 2015 (SI 2015 No. 1638).
Relevant policies
I turn to the relevant policies on segregation. The policy which was in place at the relevant time was Prison Service Order ("PSO") 1700. In its introduction that policy stated that:
"Segregation should be used only as a last resort whilst maintaining a balance to ensure it remains an option for disruptive prisoners, this does include prisoners on an open ACCT 2 plan, but only when they are such a risk to others that no other suitable location is appropriate and where all other options have been tried or are considered inappropriate."
The policy made it clear (at p. 7) that the question of possible alternative arrangements, such as transfer to another wing, closer supervision on an ordinary location and transfer to another establishment should be kept under consideration.
On behalf of the Claimant, Mr Southey emphasised that, at p. 18, the policy recognises that research which has been done into the mental health of prisoners indicates that for most prisoners there is a negative effect on their mental wellbeing and in some cases the effects can be serious.
He also emphasised that, at p. 19, the policy recognised that:
"A prisoner on an open ACCT plan must only be kept in segregation under exceptional circumstances whereby they are such a risk to others that no other suitable location is appropriate and where all other options have been tried or are considered inappropriate."
He also observed that, at p. 22, at para. 4.2, the policy recognised that the safety of the prisoner whilst in segregation is of paramount importance.
The Court has before it a witness statement from Lesley Cuthbertson, who works at the security policy unit of the National Offender Management Service ("NOMS"). She outlines the various policies which have been in force at the relevant times.
At paras. 6–10 of his witness statement Ms Cuthbertson explains that the rules and the policy order were amended after the judgment in Bourgass to expand the role of the Secretary of State. In practice, as she explains at para. 6, the Secretary of State's function is discharged by Deputy Directors of Custody in relation to prisons in the public sector and by the Deputy Director of Custodial Services in relation to private prisons. These are known as "DDC reviews."
In addition to that DDC review, a review must be carried out by the Director of Commissioning and Contract Management – Custodial Services (for private prisons in England) after a prisoner has been in continuous segregation for a period of 6 months: see para. 7 of the witness statement.
In the revised PSO 1700, Mr Southey emphasised para. 2.20, which appears in the section headed "Explaining reasons to continue segregation to the prisoner". This states that:
"Where the SRB 3 decides in principle to continue segregation, the reasons must be explained to the prisoner at the Review Board. The prisoner must be given the opportunity to make meaningful representations before a final...
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