R Tony Eguakhide v Governor of HMP Gartree
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bean |
| Judgment Date | 26 February 2014 |
| Neutral Citation | [2014] EWHC 1328 (Admin) |
| Date | 26 February 2014 |
| Docket Number | CO/2166/2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 1328 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Bean
CO/2166/2013
Mr Julian Coningham (Solicitor Advocate) (instructed by Coninghams, SW1W 0BS) appeared on behalf of the Claimant
Miss Victoria Ailes (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
The claimant is a prisoner at Her Majesty's Prison Gartree serving a life sentence for robbery, which was imposed in 2004. On 24 November 2012 he was ordered to attend at the mandatory drug testing suite in the prison to provide a sample, and refused. He was charged with disobeying a lawful order. On 10 January 2013, a governor at the prison, having carried out an adjudication, found the charge proved. An application for review within the National Offender Management Service was unsuccessful. By this claim he seeks judicial review of the governor's adjudication.
The claimant is a practising Muslim. On 24 November 2012 was the Muslim festival of Yaum Ashurah. This festival involves devout Muslims fasting on three consecutive days from sunrise to sunset. The obligation to fast includes, as it does during the lunar month of Ramadan, an obligation not to drink water.
The charge against the claimant alleged that:
"At about 0850 hrs on 24/11/12 in cell 309 G wing, [he] refused an order to accompany myself [the reporting officer] to the MDT Test Suite to provide a sample of urine for the purpose [of] testing for the presence of a controlled drug."
Solicitors acting on the claimant's behalf submitted written representations on 6 December 2012 to be placed before the governor. These contended that on the morning in question:
"…Mr Eguakhide had been fasting since 2 AM. When ordered to provide a urine sample Mr Eguakhide had just been to the bathroom. He explained to staff that he was fasting for Yaum Ashurah and that he would not be able to provide a sample at that time. There is no indication from the DIS1 that Mr Eguakhide was warned of the consequences of not complying with the order."
At the oral hearing on 10 January 2013, which had been adjourned from 26 November 2012 at the claimant's request, the claimant raised a number of points orally and in further written representations of his own. He said that he had not been given a direct order by the reporting officer, and also that to have two tests within three months (there had been a previous incident in August) was not random. In his written submissions he argued that the reporting officer had failed to comply with Prison Service Order 3601 in regard to collecting prisoners for mandatory drug testing during a period of fasting, and that there had been a failure to follow the guidance contained in paragraph 4.73 of that document.
As I have noted, the governor found the case proved and imposed a penalty of five days cellar confinement and loss of privileges. This might seem a minor matter in itself to be the subject of judicial review, but the claimant's principal concern is understandably with his prison record for the purposes of Parole Board reviews.
The next day the claimant's solicitors submitted written representations in support of an appeal. The facts were put in this document in these terms:
"On 24th November Mr Eguakhide was ordered to provide a sample for a Mandatory Drug Test (MDT). Mr Eguakhide informed the officer that he was fasting for religious reasons.
Mr Eguakhide refused to provide a sample because he believed that he was not required to provide one during periods of religious fasting. On the day in question he was fasting in observation of Yaum Ashurah."
By a decision of 14 January an officer of NOMS, refusing an application for review, wrote:
"The order Mr Eguakhide refused, was to accompany the Reporting Officer to the MDT suite to provide a sample of urine for testing. He refused to do so and it was established during the hearing that the Reporting Officer was entitled to make this request and therefore a lawful order had been given which was refused."
It is clear to me that I should approach this case on the basis that the claimant refused to accompany the reporting officer to the MDT suite, and that he did so as a matter of principle because he believed that the order that he should do so was unreasonable and therefore unlawful. This is not a case of physical inability to provide a specimen and, although that was hinted at in the original written representations of 6 December 2012, it was not how the case was put at the internal review and it is not how it has been put before me.
On 25 February 2013, the present claim was issued together with a request for urgent consideration. That request was placed before Collins J who refused it, commenting that, "There is nothing in this claim."
He did go on, however, so say:
"But it may be that to test in Ramadan could and should have been avoided. That issue can be dealt with in an Acknowledgment of Service in the usual way."
After the defendant had acknowledged service the papers were placed before Holman J, who refused permission, writing:
"The adjudication was for the refusal to obey an entirely lawful and justifiable order to attend for the purpose of attempting to produce a random urine sample (which is not of itself a breach of the fast). If the [Claimant] had attended but then been unable to produce a sufficient sample, Bashir would have applied and he could not have been penalised for his inability to do so. But the requirement to attend and make the attempt was lawful. Article 9 of the ECHR was not even engaged. If the argument in this case were to prevail, the essence of random but not arbitrary drug testing would be undermined."
He certified that in his view the case was totally without merit. Had the rule change, which has since been made, applied to this case, that would have been the end of the matter and the permission application could not have been renewed to an oral hearing. However, the rule change had not been made and the application was indeed renewed. It came before Nicol J on 16 July. He granted permission on one ground only, namely:
"That the adjudicating governor did not engage with the question of whether the order requiring the Claimant to provide a sample was reasonable, and therefore lawful, in light of the provisions of 4.73 and/or 4.74 of Prison Service Order 3601.
For the avoidance of doubt, permission was refused in respect of the other grounds, including the ground relying on an alleged breach of Article 9 ECHR."
Section 16A of the Prison Act 1952 , enforced since 1995, provides by subsection (1) that:
"… any prison officer may, at the prison, in accordance with prison rules, require any prisoner who is confined in the prison to provide a sample of urine for the purpose or ascertaining whether he has any drug in his body."
The charge in this case is of disobedience to a lawful order, contrary to Prison Rule 51(22). By paragraph 6.1.13 of the Prison Discipline Manual a lawful order is one which is reasonable and is one which a member of staff has authority to give. As alluded to by Nicol J, PSO 3601 has provisions in paragraphs 4.70 to 4.74 concerning the testing of prisoners during Ramadan, which by paragraph 4.75 are to be considered in relation to other religious festivals which involve total...
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