R(P) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Jacob,Lord Justice Ward |
| Judgment Date | 06 July 2009 |
| Neutral Citation | [2009] EWCA Civ 701 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | [2008] EWHC 1656 (Admin) |
| Date | 06 July 2009 |
[2009] EWCA Civ 701
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Mr Justice Mitting
Before: Lord Justice Ward
Lord Justice Jacob
Lord Justice Stanley Burnton
Case No: C1/2008/1582
Ian Wise (instructed by The Howard League for Penal Reform) for the Appellant
Javan Herberg (instructed by Treasury Solicitors) for the Respondent
Hearing date: 21 May 2009
Lord Justice Stanley Burnton:
Introduction
This is an appeal against the decision of Mitting J who on 30 June 2008 refused P permission to apply for judicial review of the refusal of the Secretary of State for Justice to hold an inquiry into P's detention in Feltham Young Offenders' Institution between 2 March 2007 and 5 June 2008.
On 8 October 2008 Hooper LJ granted P permission to appeal limited to the claim that the Secretary of State should hold such an inquiry. Hooper LJ directed that the parties should be prepared to deal with the substantive application for judicial review if the Court so wished.
On 21 May 2009 we heard full argument on the issues raised by the application for judicial review. P's application was the subject of substantial argument. In these circumstances, I would grant permission to apply for judicial review. However, for the reasons I give below, I would refuse judicial review and dismiss the claim.
The facts
P was born on 17 June 1987, and thus at the date of his admission to Feltham was approaching 20 years of age. He has been involved in offending behaviour since he was 13, and its seriousness has escalated over time.
P has a long-standing history of self-harm. During an earlier period in custody, he was assessed by Professor Jeremy Coid and then by Dr Tegwyn Williams of the South Wales Forensic Psychiatric Service. In his report dated 23 January 2007, Dr Williams stated that he agreed with Professor Coid that P was not currently amenable to psychological therapies. Dr Williams continued:
“From a diagnostic point of view he clearly has anti-social and borderline personality traits, though on the basis of the information available to me and my assessment of (P), I am not convinced that these currently are associated with abnormally aggressive or seriously irresponsible conduct and I personally would not label him as suffering from psychopathic disorder. If, however, one was to accept classification of psychopathic disorder, there is no evidence whatsoever that he would benefit from hospital treatment. Specifically, he does not require pharmacological therapy (beyond that which can be given as an out-patient as symptomatic relief rather than treatment), nor is he likely to respond to the psychological treatments. Even if once accepted that he may benefit from some treatment, review of (P)'s history supports the fact that his behaviour actually deteriorates in institutions. Within a hospital setting, his behaviour is likely to escalate, e.g. breaching the physical security, escalating self harm and violence. Therefore I do not accept that any treatment would bring about an improvement or prevent deterioration in his condition. For all these reasons, I do not consider (P) to be detainable under the Mental Health Act 1983, therefore the issue of transport to hospital does not arise.
On a purely clinical basis I would also not recommend (P)'s transfer to hospital as his behaviour is likely to deteriorate and result in transfer to a maximum secure mental health setting which I am not convinced would be in (P)'s best interest. From a clinical point of view, any treatment which may be effective requires (P) to show some signs of taking responsibility for his behaviour. Until he does so, any institutional setting will only provide containment.
…
Unfortunately, I think (P)'s prognosis is poor and on his return to the community (whenever that might be), he is likely to relapse into illicit drug misuse and criminal behaviour to fund his habit. Reviewing (P)'s history I feel there is a risk of extreme violence both to himself and possibly to others, the victim pool including the whole community. Unfortunately I can find no evidence that medical intervention can do anything to reduce this risk.”
As mentioned above, P entered Feltham Young Offender Institution on 2 March 2007. He was detained on remand on charges of burglary, robbery, false imprisonment and driving whilst disqualified. His then diagnosis was psychopathic disorder. While in Feltham, there were numerous and frequent incidents of self harm. It is unnecessary, and would unduly lengthen this judgment, to set them all out, but as examples I set out what is shown by his medical and prison records as occurring between 22 and 26 March 2007.
“22 March: medical records state that he inserted a pin in his mouth, which he removed when he calmed down. He later put a pencil in his mouth. The prison records record that he put a broken pencil in his mouth.
24 March: the medical records state that P opened an old abdominal wound; he claimed to have inserted 2 staples into it. He was taken to A and E. He also reported that he had inserted staples underneath his right eye. Wound stitched at A and E. The staples on the right side of his face were not taken out as he needed an operation, as he had inserted them through his mouth. The prison records state that he had got hold of a screw and picked off the scab on his arm and continued to screw it in his arm. The officer asked him to hand over the screw but he declined. A note timed at 19.30 states that he continued to put staples into an open wound. At 21.00 he was told he would go to hospital.
25 March: the medical records state that he barricaded the door with a mattress. He removed a piece of the door and used it to harm himself, deepening an existing wound on his right arm causing it to bleed. He was taken to A and E. He was refusing meals, stating that he was on hunger strike.
26 March: the medical records state that he banged his head on the cell gate. According to the prison record, at 13.30 he was kicking the sink. When asked why, he stated that he wanted to break his foot.”
Other incidents that I mention to show the seriousness of his conduct include the insertion of a matchstick into his penis on 3 October 2007 and his insertion of a piece of glass into his urethra on 7 October 2007, which led to blood spots on the toilet. He also, on that date, cut the back of his left hand and the top of his right foot. The prison note states:
“It is apparent that (P) is becoming fixated with exposing tendons since yesterday when he exposed one in his foot and now he believes he can see one in his hand.”
Meanwhile, on 4 July 2007, P had been convicted of dangerous driving and false imprisonment. He was remanded in custody to Feltham awaiting sentence.
The Howard League for Penal Reform sent a letter before claim dated 25 October 2007, challenging the alleged failure of the Secretary of State to provide a safe environment in accordance with his own policy and articles 3 and 8 of the European Convention on Human Rights and his alleged failure to investigate life-threatening incidents contrary to article 2. The letter stated:
“The claimant's recent behaviour (see attached Chronology …) is life threatening and it appears that the prison service is unable to provide a safe and healthy environment for either our client or its staff.
The claimant instructs that while at HMYOI Feltham he has had over 15 surgical operations over the last 6 to 7 weeks. …
The claimant's present circumstances are detailed (in the attachment). In summary the claimant is confined to a wheel chair as a result of cutting his tendons in both his right and left feet, cut his wrists (23 October 2007), large burn marks to left arm and subject to considerable periods of isolation and “stripped conditions”. The claimant reports considerable tensions between himself and the discipline staff and very little support from the health staff. He receives no effective mental health support. Our client (sic) instructions are that he is likely to kill himself.”
The Treasury Solicitor replied in detail by letter dated 19 December 2007. The letter summarised P's current situation as follows:
”(P) is in good health. His last incident of self harm was on 10 December, when he inserted a small piece of metal into his foot, which he removed soon after. He has since spoken at length to the unit senior officer about this incident and about his problems with self harm generally and it is noticeable that he is now much more willing to speak to selected members of staff about his problems than he has been in the past. This most recent incident of self harm is believed to have been caused by frustration and anger and while HMYOI Feltham takes such acts very seriously it is noticeable that this incident was of a less severe nature than the actions (P) has previously taken when he self harms. (P)'s last visit to hospital was on 3 November.
(P) is currently located on the Kingfisher Unit in a normal room. This is in recognition of the recent stable behaviour which has seen great improvements in his conduct and mood since November.”
The letter stated that Feltham was providing as safe an environment as was possible whilst he remained in detention; and that staff there were actively striving to manage his care in a responsive needs-led manner, and that his care plan was constantly being monitored and changed if required.
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