R (Spinks) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE MAY,Lord Justice Buxton,LORD JUSTICE SEDLEY |
| Judgment Date | 28 January 2005 |
| Neutral Citation | [2005] EWCA Civ 275 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 2005 |
| Docket Number | C1/2004/2477 |
[2005] EWCA Civ 275
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE ELIAS)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Buxton
Lord Justice May
Lord Justice Sedley
C1/2004/2477
MR HUGH SOUTHEY (instructed by Stephenson of Wigan) appeared on behalf of the Appellant
MR STEVEN KOVATS (instructed by Treasury Solicitor) appeared on behalf of the Respondent
The appellant, Mr Clive Spinks, appeals from a decision of Mr Justice Elias on 12 November 2004 with the permission of the learned judge. Mr Spinks was convicted of murder on 15 March 1996 and was then sentenced to life imprisonment. The terms of his sentence were such that he will not become eligible for consideration for parole until the beginning of 2008.
In October 2003 Mr Spinks was, most unfortunately and sadly, diagnosed as suffering from terminal cancer of the colon. The original prognosis at that time was in terms of a life expectancy of no more than three or six months, but he subsequently received palliative chemotherapy treatment and his expectancy has somewhat extended. But it must be emphasised that there is no prospect of recovery and his life expectancy is at this time very short.
We have had the benefit of a very recent brief medical report by the responsible member of the prison medical service, dated 12 January 2005, in which he says that Mr Spinks is still in the normal area of the prison whilst attending the treatment room in the prison for medication and enabling the nursing staff there to observe his progress. Dr Evans adds—and this is of some slight importance in the context of this appeal:
"Neither hospital nor hospice admission is indicated at this time."
It is a feature of this case that Mr Spinks complains of a series of difficulties that have been caused to him by reason of the clearly most unfortunate combination of his being detained in prison, on the one hand, and suffering from a very serious condition. I will at this stage set out what those complaints are and will, for this purpose, effectively take them at their highest as stated on behalf of Mr Spinks. It must be emphasised that some part of the account that follows is not agreed by the Secretary of State.
Firstly in relation to the palliative chemotherapy, it is complained that the fact of imprisonment has caused difficulties in that treatment which otherwise would not occur, in particular, that appointments for attendance at hospital for that purpose have had to be re-arranged. Dr Cooper, the consultant oncologist treating Mr Spinks, points out that that circumstance is likely to reduce the effectiveness of the chemotherapy, which depends on its being delivered according to a timetable as advised by the oncologists. Mr Spinks has now completed that course of chemotherapy. But it is pointed out on his behalf by Mr Southey, who represents him in these proceedings, that other hospital assistance may be—indeed is—necessary, for instance there may be occasions when attendance at hospital would be required for immediate pain relief, when the difficulties about attendance might equally arise.
Secondly, when he has been attending his hospital appointments Mr Spinks has been handcuffed or otherwise restrained and has been attended by prison officers. He was also restrained when he was recovering from emergency surgery. The particular question of the appropriateness and extent of restraint of a physical nature so far as Mr Spinks is concerned is a specific issue in this appeal, to which I shall have to return.
Thirdly following his emergency surgery effectively a colostomy was performed and for that reason Mr Spinks needs to use a colostomy bag. That limits, to some extent, his freedom of movement within the prison and also he needs spare bags to replace those that are full. He claims that there have been times when such have not been available. That is a particular point that is clearly disputed by the Secretary of State.
Fourthly Mr Spinks has received some medical advice about diet which, it is alleged, has not always been acceptable to those running the prison.
Fifthly, although, as I have said, it is the current advice that Mr Spinks does not require hospice care in the sense of being a full-time patient—a view taken not only by Dr Evans in the report I have just referred to, but also by Mr Spinks' own consultant in a report that she wrote in July 2004—Dr Cooper nonetheless suggested, in September 2004, that Mr Spinks might benefit from day attendance at a hospice where there is a centre once a week where patients can attend principally for psychological support, a matter clearly that is highly desirable in a case such as this. Dr Cooper however did not feel able to recommend this course because the attendance of Mr Spinks together with his necessary accompanying prison officers might well cause difficulties and disruption in the work of the hospice generally.
I should say also that there is a point about Mr Spinks' own conduct in this connection, or potential conduct, to which I shall return in detail shortly.
The relief that was sought in the judicial review application was the quashing of a decision by the Secretary of State that Mr Spinks should not be released from prison on compassionate grounds. The Secretary of State's power to take that course is a matter again to which I shall have to return.
Before Mr Justice Elias and before us the matter became somewhat less straightforward. Mr Southey submitted that his case arose solely under Article 3 of the European Convention on Human Rights. Not necessarily his preferred, but his opening, case was that if there was an arguable breach of Article 3 then the Secretary of State should be required to refer the case to the Parole Board for investigation, as I would understand it, of, first, whether a breach of Article 3 had occurred and was occurring and, secondly, if so, to make appropriate recommendations or possibly appropriate directions to the Secretary of State as to the prisoner's release. Mr Southey went on to say that if, despite there having been an arguable breach of Article 3, investigation by the Parole Board was for reasons of domestic law or otherwise not considered by the court to be a possibility or acceptable course, then the court itself should investigate the case with a view to itself ordering release if the current detention of Mr Spinks was found to be incompatible with Article 3.
In order to explain how those arguments arise, and why they take the form they do, it is necessary to turn to the legal framework that governs the ability of the Secretary of State to release a life prisoner on compassionate grounds. The power of the Secretary of State to do that is to be found in Section 30 of the Crime (Sentences) Act 1997 which provides in sub-section (1):
"(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 sub-section (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable."
Faced with Mr Spinks' condition, the Secretary of State considered whether he should exercise those powers. It is his decision that he would not exercise those powers that is the starting point of these proceedings.
The Secretary of State, in order to inform himself about the decision he had to take, commissioned a very extensive series of reports about Mr Spinks and his situation. The persons from whom he received reports were Dr Evans, the prison medical officer already referred to; the prison probation officer Miss Johnson; and the deputy governor of the prison Mr Flinton. He then obtained further reports from Dr Evans, an external probation officer's report; and a report from a gentleman described as the life manager, governor Zserdicky. Also he considered medical reports that had been placed before him by Mr Spinks and those advising him, first from his surgeon Mr Irvine, and then a series of reports by Dr Cooper a consultant oncologist already referred to; and he received representations from Mr Spinks' solicitors.
The decision on the basis of those matters by Miss Morley, who took the decision on behalf of the Secretary of State, was that that relief should not be granted. In taking that decision, Miss Morley was guided by the published policy of the Secretary of State within the compass of Section 30 that is to be found in a written answer by the Minister of State at the Home Office in February 1999 set out by the judge at his paragraph 11:
"When considering compassionate release on medical grounds, the Secretary of State applies the following criteria in all cases:
if 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 his early release would bring some significant benefit to the prisoner or his family."
Miss Morley looked at those criteria. First it was pointed out that in the most recent prognosis then available—that was the report of Dr Cooper of 15 March 2004—the consultant considered that the life...
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