R (Spinks) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ELIAS |
| Judgment Date | 12 November 2004 |
| Neutral Citation | [2004] EWHC 2916 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 November 2004 |
| Docket Number | CO/2876/2004 |
[2004] EWHC 2916 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Elias
CO/2876/2004
MR SOUTHEY (with MR BRANDER for judgment) (instructed by Stephensons) appeared on behalf of the CLAIMANT
MR KOVATS (with MR I DANIELS for judgment) (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
MR G BOYCE appeared on behalf of the INTERESTED PARTY
Friday, 12th November 2004.
The claimant is a prisoner serving a life sentence for murder. He was convicted on 15th March 1996. In October 2003 he was diagnosed as having terminal cancer of the colon. He applied to the Secretary of State to be released on compassionate grounds on 7th January 2004. At that stage his life expectancy had been estimated to be between 3 and 6 months. The Secretary of State refused this request on 8th June 2004. He informed the claimant that release would only be granted if there were the most exceptional circumstances and life expectancy was very short, and that the claimant did not meet these criteria. He added that the issue would be kept under review and that the prison would be asked to monitor the situation. I observe in passing that the delay of five months in dealing with this application was, in the circumstances and given the life expectancy then envisaged, wholly unacceptable. However, it is not an element in the legal challenge now being advanced.
Following this refusal the claimant commenced proceedings for judicial review. The basis of the original claim was that the decision not to release the claimant was unlawful because of a failure to disclose the relevant reports on which the Secretary of State relied, and also because of an alleged failure to supply proper reasons for the decision. The claim form was issued on 14th June and Collins J gave permission for an application for judicial review on the following day, subject to it being reconsidered if an acknowledgment of service were received within seven days. It was, and it disclosed all the relevant reports which had been relied upon and explained the Secretary of State's reasoning.
In addition the Secretary of State lodged two witness statements in response to the application. Mr Mark Flinton, the Deputy Governor of the prison at Wakefield where the claimant was incarcerated, commented on certain allegations made by the claimant about how he had been treated in prison and appended certain more recent reports, and Ms Morley, a civil servant in the Home Office who made the decision not to release on behalf of the Secretary of State, further explained the reasons underlying that decision.
As a consequence of that information, the grounds of challenge have shifted. The grounds originally advanced are no longer being relied upon. The claimant's primary contention now is that there is an arguable case at least that the refusal to grant release is infringing Mr Spinks' rights under Article 3 of the European Convention on Human Rights. Accordingly, he submits that under Convention law there must be an independent investigation into this alleged breach, and that such an investigation should in this case be carried out by the Parole Board.
These renewed grounds were lodged on 17th September. They are supported by a witness statement from the claimant dated 6th July 2004. Shortly before the hearing there was a response to that witness statement from Mr Almand, the healthcare manager at the prison. I have also been shown more recent doctors' reports providing up to date information as to the claimant's life expectancy. Dr Cooper, a consultant in clinical oncology who has been responsible for the care of the claimant, assesses it to be months rather than years.
Prior to the amended grounds being lodged, the claimant asked the Secretary of State to refer the matter to the Parole Board. However, he refused to do so by a letter dated 13th September 2004. It is that decision which is now under challenge.
Mr Southey for the claimant submits that the Board is particularly well equipped to consider the risk which would be attendant on his client's early release. His case is that if the Board were to recommend release, then the Secretary of State would be obliged to give effect to that recommendation. Alternatively, as a backstop argument, the claimant submits that the Court should consider whether the claimant's continued imprisonment would infringe Article 3, but he also says that oral evidence would be required to determine that issue.
The Legal Framework.
Section 30 of the Crime (Sentences) Act 1997 provides:
"(1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds.
"(2) Before releasing a life prisoner under subsection (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable."
It is pertinent to note that the Parole Board does not make the decision; it must be consulted (save where no consultation would be practical) but no more.
The manner in which that discretion would be exercised is set out in Prison Service Order 4700 known as the "Lifer Manual". Paragraph 14.3 as amended by a later Prison Service Instruction is as follows:
"Under section 30 of the Crime (Sentences) Act 1997 the Secretary of State may at any time release a prisoner on licence if he is satisfied that exceptional circumstances exist which justify release on compassionate grounds. Before exercising this power, the Secretary of State is required to consult the Parole Board, unless the circumstances make such a consultation impracticable. The Secretary of State has exercised his power of compassionate release only where medical evidence has shown the prisoner to be suffering from terminal illness and where life expectancy is judged to be very short. Any case in which it is considered that compassionate release may be appropriate must be referred by the Governor, with a recommendation from the Head of Health Care to LRU for referral to Ministers."
On 15th February 1999, the then Minister of State for the Home Office, Mr Howarth, said in a Parliamentary written answer (Hansard Commons Law 325 Column 510):
"When considering compassionate release on medical grounds, the Secretary of State applies the following criteria in all cases:
"The prisoner is suffering from a terminal illness and death is likely to occur soon; or the prisoner is bedridden or similarly incapacitated; and
"the risk of re-offending is past; and
"there are adequate arrangements for the prisoner's care and treatment outside prison; and
"early release will bring some significant benefit to the prisoner or his/her family."
The alleged breach of Article 3.
The premise of Mr Southey's argument is that there is at least an arguable breach of Article 3. He accepts that the mere fact that the claimant is suffering from cancer does not as itself involve an infringement of that provision, even although it will inevitably to some extent be harder to provide as effective treatment to someone within the confines of the prison than it would for somebody at liberty. Obviously the latter can be far more flexible about arranging and meeting necessary appointments. For example, Dr Cooper has indicated that in future the pain may get worse and the need for the claimant to be able to go to a doctor speedily could be very important.
However, Mr Southey relies upon three additional matters in addition to the difficulties which are inherent for anybody in the claimant's position, which he submits taken together at least arguably take the case over the Article 3 threshold. First, it is alleged that the prison has failed to produce the claimant for chemotherapy appointments. Dr Cooper, the consultant responsible for the claimant, has written to the prison expressing concern that the claimant had been attending her chemotherapy sessions one or two weeks late. In addition there is a specific complaint that the claimant was not produced for an appointment on 24th August and again failed to attend the clinic on 7th September. This is particularly significant, submits Mr Southey, because as Dr Cooper has emphasised, the efficacy of that treatment is dependent on there being no undue delay in the treatment provided. (The treatment has now in fact stopped because it was thought that it is no longer assisting the claimant.)
Second, Mr Southey complained that when the claimant has left prison to visit the hospital, he has at all times been handcuffed to prison officers in a manner which was both distressing, degrading and potentially disruptive of his treatment. The handcuffs were retained when he was in hospital for three weeks for an operation. He was attached to them by a long chain which he said clanked on his bed when he moved, thereby disturbing his rest. He said that a prison officer would be with him at the end of the chain wherever he went.
The third grievance relates to the fact that the patient has had a colostomy. He says that on occasions he has not been allowed to have access to the necessary colostomy bags because of the deliberately obstructive attitude of prison staff. Again he says that this has caused him distress and unpleasantness. On one occasion he says that he was required to use a towel during a weekend because he had been refused clean colostomy...
To continue reading
Request your trial
-
R (Spinks) v Secretary of State for the Home Department
...months and he was fully-mobile, there remained a risk of offending and there was no release plan. The application was dismissed ([2006] 1 Prison Law Reports 159); permission to appeal was granted. Judgment Buxton 1. The appellant, Mr Clive Spinks, appeals from a decision of Elias J on 12 No......
-
R (Faizovas) v Secretary of State for Justice
...art 3 has been violated depends on the particular circumstances of the case. Mouisel was considered by this court in R(Spinks) v Secretary of State for the Home Department [2005] EWCA Civ 275, on appeal from Elias J (as he then was). The appellant was a prisoner serving a sentence of life i......
-
R (Faizovas) v Secretary of State for Justice
...of Human Rights dated 24 May 2007; R(Graham) and (Allen) v Secretary of State for Justice [2007] EWHC Admin 2940; and Spinks v Secretary of State for the Home Department [2005] EWCA Civ 275. Mr Southey submits that Gorodnichev indicates a particular predisposition on the part of the Europea......
-
R (Graham Allen) v Secretary of State for Justice
...held that there was a breach of Article 3 of the Convention. 26 The question was considered by the Court of Appeal in Spinks v Secretary of State for the Home Department [2005] EWCA Civ 275 in which, upholding the trial judge's view, the court held that the use of handcuffs "has not reached......