R (SP) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Jack,MR JUSTICE JACK |
| Judgment Date | 23 June 2004 |
| Neutral Citation | [2004] EWHC 1418 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5900/03 |
| Date | 23 June 2004 |
[2004] EWHC 1418 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable The Hon. Mr. Justice Jack
Case No: CO/5900/03
Ian Wise (instructed by the Howard League for Penal Reform, London N1) for the Claimant
Jenni Richards (instructed by The Treasury Solicitor) for the Respondent
Introduction: the claims
The applicant, SP, was born on 4 September 1986, and is now 17 years old. Since 9 September 2003 she has been held at HM Prison and Young Offenders Institution at New Hall near Wakefield. When she arrived her situation was that she had pleaded guilty to various offences but had not been sentenced, and so was a remand prisoner. On 16 December 2003 she was sentenced under section 91 of the Powers of Criminal Courts (Sentencing) Act to be detained for 5 years. Between 25 September and 15 October she was removed from association and held within a segregation unit. In these proceedings for judicial review she seeks declaratory relief in respect of two matters arising from her segregation. The first is that while she was segregated she was not provided with the hours of 'purposeful activity' referred in Chapter 7 of Prison Service Order 4950. The second is that she was not given an opportunity to make representations as to her segregation before the decision to segregate her was made. The first claim is made with permission granted by Elias J. on 11 December 2003, and the second is made with permission granted by the Court of Appeal on 24 March 2004.
Factual background
Although the issues which the claims raise are very largely matters of law I should provide somewhat more of the factual background in relation to the order for segregation. SP is a highly disturbed young woman. She had a very difficult early life. She did not attend school after she was 11. A psychiatric report dated 15 October 2003 found no evidence of mental illness but found a severely disturbed personality characterised by sadistic traits with lack of empathy to the victim, an inability to maintain personal relationships and a general lack of sense of responsibility. It referred to episodes of self-harm, over-doses, the use of prohibited drugs and excessive use of alcohol. It concluded that at this stage of her development psychiatric treatment would not help her. The offences for which she was sentenced included the robbery and assaulting of a girl who was alleged to owe her co-defendant money. The girl's hair was cut off and SP slashed the girl's arms with a knife, which she found funny. She wanted to cut the girl's ears off but was told not to by her co-defendant. Assessments made by the Youth Justice Board on 2 and 18 June 2003 identified SP as being a risk to vulnerable adults, her peers, the public and to staff. While on remand in secure training centres she had committed acts of self-harm, had committed arson, cut other young people with blades and had been violent towards staff and put a substance in their tea.
On SP's arrival at New Hall on 9 September 2003 a Self-harm at Risk Form was opened. This was closed on 18 September. A second such form was opened on 19 September and was closed on 2 October. Meanwhile on 25 September she had been moved from the wing on which she was to the segregation unit. At a meeting with her CARATS worker (Counselling, Assessment, Referral, Advice and Throughcare) at 4.15 p.m. on 24 September SP had said that she would like to harm others using a razor blade in a bar of soap. Staff were also concerned at this time about the effect SP was having on her co-defendant. In particular, on 16 September a letter from SP to her had been found suggesting that they should have tortured and murdered their victim. On 24 September a Security Information Report was opened, the assessment of the Security Officer being that SP was not suitable to be kept on her wing. At 4.20 p.m. the next day, 25 September, the Governor signed an authority for SP's segregation under 'Prison Rule 45 / YOI Rule 49 for reasons of good order or discipline' for up to three days. His reasons referred to her offence, her behaviour in secure training centres, her effect on her co-defendant and the desire to use razor blades. On 28 September a further order was made for segregation until 10 October. It was in addition signed by a member of the Board of Visitors, who had earlier seen SP. On 10 October a further order was made running to 15 October. The reasons referred to fresh threats made by SP to other inmates and staff. It was again countersigned by a member of the Board of Visitors who had seen SP. On the occasion of each order forms were completed in the form prescribed by Prison Service Order 1700. These covered the activities to be permitted to SP and conditions attaching to them.
The legislative framework and Prison Service Orders
The principal Act is the Prison Act 1952. Section 47 empowers the Secretary of State to make rules for the regulation and management of prisons, young offender institutions, remand centres and secure training centres, and for the classification, treatment, employment, discipline and control of persons required to be detained in them. The rules governing prisons are the Prison Rules 1999, and those governing young offender institutions are the YOI Rules 2000 as amended by the YOI (Amendment) Rules 2002.
Any one would expect that during her time at New Hall SP was subject to the YOI Rules and that the position would be clear and simple. But it is not the case. SP was remanded to New Hall under section 27 of the Criminal Justice Act 1948. This provides:
27(1) Where a court remands a person charged with or convicted of an offence or commits him for trial or sentence and he is not less than seventeen but under twenty-one years old and is not released on bail, then, if the court has been notified by the Secretary of State that a remand centre is available �. It shall commit him to a remand centre and, if it has not been so notified, it shall commit him to prison.
The warrant made out by the Crown Court in relation to SP stated that she was 'remanded into custody at HM remand centre.' I should say that I have not seen the document but am informed that this was so in a note prepared by Miss Jennifer Richards (who appeared on behalf of the Secretary of State) after the conclusion of oral submissions and the making of further enquiries as to the position. It had been submitted on behalf of SP that in her case New Hall was acting as a remand centre. It appears, however, that remand centres no longer exist. The reference to them in section 27 will be deleted by section 75 and Schedule 8 of the Criminal Justice and Court Services Act 2000 when the provisions are brought into force.
New Hall is both a prison and a young offender institution. It is not a remand centre. SP's reception there was not seen as providing any difficulty because she could be accommodated in a wing with those of her own age. I was told that in other cases it was necessary to designate a cell within a young offender institution as a 'prison' so that section 47 could be met without sending a person of 17 to an inappropriate institution. (It was not explained what happened when the detainee stepped out of the designated cell.) Section 27 is not referred to in the Prison Services 'Guidance for Remand Management in YOIs, Working Practice Guidance for YOI Remand Services', 24 June 2003.
As there was no statutory power to remand SP to a young offender institution, I must proceed on the basis that she was committed to New Hall in its capacity of a prison. Nonetheless it is the fact that she was held, and rightly held, in the young offender institution part of the accommodation. Under the interpretation provision of the YOI Rules, rule 2, 'an "inmate" means a person who is required to be detained in a young offender institution.' It is thus the view of the Prison Service that, as SP was not required to be detained in a young offender institution but in a prison, she did not come within the YOI Rules but fell under the Prison Rules. This seems to me to be too literal an interpretation of the position. If a person of 17 is being held in a young offender institution he or she is in the ordinary sense an inmate of it and should be treated as such. Such a person should be subject to the YOI Rules and also entitled to their benefit. The main relevance here is that it brings in rule 37 of the YOI Rules entitled 'Regime Activities'. The rules providing for removal from segregation, rule 45 of the Prison Rules and rule 49 of the YOI Rules are very similar.
Section 27 of the Criminal Justice Act 1948 requires reconsideration.
Like the Prison Rules the YOI Rules have a large ambit. I should refer to the following. Rule 8 relates to requests and complaints by inmates made to the governor or board of visitors orally or in writing, and provides that on every day the governor shall hear any oral requests or complaints made to him.
Rules 37 to 41 are entitled respectively 'Regime activities', 'Training courses', 'Work', and 'Physical education'. Rules 37 and 38 provide:
37(1) An inmate shall be occupied in a programme of activities provided in accordance with rule 3 which shall include education, training courses, work and physical education.
(2) In all such activities regard shall be paid in individual assessment and personal development.
(3) The medical officer or medical practitioner such as is mentioned in rule 27(3) may excuse an inmate from work or any other...
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