R v Qazi (Saraj)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas,LORD JUSTICE THOMAS |
| Judgment Date | 04 November 2010 |
| Neutral Citation | [2010] EWCA Crim 1930,[2010] EWCA Crim 2579 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2010/00271/A5 &2010/01011/A5,No: 201000271 A5/20101011 A5 |
| Date | 04 November 2010 |
[2010] EWCA Crim 1930
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Thomas
Mrs Justice Dobbs DBE
Mrs Justice Sharp DBE
No: 201000271 A5/20101011 A5
Ms R Davidson appeared on behalf of the Ministry of Justice
(As Approved)
: For reasons that we shall give later, in the case of Qazi we reduce the sentence from one of five years and six months to one of five years, both such sentences being less time on remand.
In the case of Hussain, the renewed application for leave to appeal is dismissed.
[2010] EWCA Crim 2579
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LUTON
His Honour Judge Kay Qc
Before: Lord Justice Thomas
Mrs Justice Dobbs and
Mrs Justice Sharp
Case No: 2010/00271/A5 &2010/01011/A5
Tim Owen QC (who did not appear below) for the Appellant Qazi
Mr C Aylott for the Applicant Hussain
D Farrell QC and Mr S Alford for the Crown
Rosemary Davidson for The Secretary of State for Justice
Hearing dates: 1, 23 &30 July 2010
Crown copyright©
Lord Justice Thomas:
The appellant Qazi and the applicant Hussain pleaded guilty to fraud in July 2009. We set out below at paragraphs 36 to 39 the details of the frauds. It is sufficient to say at this stage that the frauds included involvement in making insurance claims, that the sums which would have been claimed (if the fraud had been successful) were substantial, and that one of the means used involved deliberately engineering accidents in which innocent parties were involved.
Qazi was sentenced by HH Judge Kay QC at the Crown Court at Luton on 3 December 2009 to a total of five years and six months imprisonment, less time on remand, and Hussain to a similar sentence on 11 January 2010. Qazi appealed on the basis that his imprisonment was a breach of Article 3 of the European Convention on Human Rights. Hussain renewed his application for permission to appeal to the court on a basis specific to the facts of the case. We stated at the end of the application by Hussain that we would refuse the application; at the end of the hearings in the case of Qazi, we reduced the sentence imposed on him. We said that we would give our reasons later, as we required further material from the Ministry of Justice.
The issue in the appeal of Qazi
The issue raised in the appeal by Qazi involved consideration by the court of the respective roles of the executive and judicial branches of the State in relation to rights under Article 3. In the result there was significant common ground as to the general principles applicable and an acceptance on behalf of the appellant that, although it was contended that part of his time in prison had resulted in a breach of Article 3 by HM Prison Service, it could not, in the light of action taken by the Prison Service, any longer be contended that his continued imprisonment was a breach of Article 3. It was nonetheless contended that the court, applying the principles set out by Rose LJ in Bernard [1997] 1 Cr App R(S) 135, should take into account his medical condition and the way in which he had been treated in determining the overall length of the sentence. Before turning to the issues in relation to Article 3 and whether we should take into account his ill-health and his treatment in prison under the principles set out in Bernard, it is necessary to outline Qazi's medical condition and the course of his treatment.
Qazi's medical condition
Qazi was born in June 1980. He suffers from an inherited genetic disorder known as Beta Thalassaemia Major, which has affected him since he was only a few months old. He has for the whole of his life, therefore, required blood transfusions every three to four weeks. An attempt was made when he was 12 at a permanent cure through bone marrow transplantation at the Hammersmith Hospital under Professor Roberts. This was not successful and he has continued to suffer from Beta Thalassaemia, together with complications arising from the attempted bone marrow transplantation and a splenectomy. Since that time, he has continued to need three to four weekly blood transfusions, together with infusions of medication to remove the excess iron.
His treatment passed to the Whittington Hospital in North London, a leading tertiary haematology centre in the United Kingdom for the treatment of Beta Thalassaemia, under the care of Dr Farrukh Shah, an internationally respected expert in this disease.
The sentencing hearing and the course of the appeal
When the judge came to sentence Qazi there were before him reports from Professor Roberts and Dr Shah, as well as from Professor Malone- Lee, in relation to a urine infection, from Dr Suri in relation to gastro-enterological issues arising from his underlying illnesses, and from his general practitioner. No contention was made before the sentencing judge that imprisonment of Qazi would be a breach of Article 3, but the judge was invited to take into account, applying the principles in Bernard, that imprisonment for Qazi, given his severe medical condition, was a ground on which the sentence that otherwise would have been passed should be reduced. We return at paragraph 42 to the way in which the judge dealt with this issue.
As Qazi had been sentenced at the Crown Court at Luton, he was taken, in accordance with the usual arrangements made by the Prison Service, to Bedford Prison. As we explain in more detail at paragraphs 23 and following below, it is accepted by the Secretary of State for Justice, the Minister responsible in the executive branch of the State in England and Wales for the running of the prisons, that a sentenced prisoner is entitled to the same level of access to medical services as the general population.
On his arrival in Bedford Prison, a category B prison, on 3 December 2009, he was examined and arrangements were put in place to deal with his complex medical problems. It is apparent that within a short period it was appreciated that it was very difficult to give him the necessary medical care at Bedford Prison.
An appeal was lodged in January 2010 in which it was contended that the judge had not sufficiently taken into account Qazi's medical condition. Leave was granted by the Single Judge so that the court could consider the impact of the medical evidence, expressing the view that he did not think there was, that apart, any arguable fault in the sentence.
After leave had been granted, Qazi instructed Mr Tim Owen QC, who sought to amend the grounds of appeal to allege that the continuation of the imprisonment would be a breach of Article 3. There was an initial hearing before the Full Court on 11 June 2010. The appeal was adjourned for hearing before us on 1 July 2010, and subsequently by us for a further hearing on 23 July 2010, to enable the Secretary of State for Justice to be represented. At this hearing, we were provided with further evidence by the Secretary of State for Justice.
Before this court was evidence from Dr Shah and her colleagues, from the medical officers at Bedford Prison, the Governor and Deputy Governor of Bedford Prison and others on their staff, the Governor of HM Grendon and Spring Hill Prisons in Buckinghamshire, the general medical practitioner providing medical services to prisons in Buckinghamshire and Mr Richard Bradshaw, the Director of Offender Health at the Department of Health and Director of Offender Health in the National Offender Management Service (NOMS) in the Ministry of Justice as well as from another official from NOMS. On the basis of that evidence the facts appear to be as follows.
The facts in relation to the medical care of Qazi in prison
After Qazi's arrival at Bedford Prison on 3 December 2009, the prison medical officer, Dr Parimelalagan, was in close contact with Dr Shah. On 11 January 2010 Dr Parimelalagan asked the Governor to re-categorise Qazi as a category D prisoner on exceptional medical grounds; the Governor did that on 1 February 2010. It seems clear from what we have been told in a brief statement by Dr Parimelalagan that this was necessary because there was no point of contact at the local hospital at Bedford, and it was not possible to negotiate a plan of care for the appellant. The consequence of his re-categorisation was that he became eligible for release under temporary licence for medical outpatient appointments.
It was on that basis that Qazi was seen by Dr Shah on 9 February 2010. It is apparent from Dr Shah's report on that consultation that there had been a deterioration in his condition and that there had been a break of seven weeks between the blood transfusions instead of the required three to four weeks; concerns about depression were evident. When seen on 22 March 2010 his condition had further deteriorated. After his visit to Dr Shah on 26 April 2010, she sent a report sent to the prison on 27 April 2010, expressing concern that blood transfusion had been delayed by Bedford Hospital for a total of six weeks, that he was in a great deal of pain, and that she would take on the blood transfusions at the Whittington Hospital. She did not want Bedford Hospital to be involved any longer. She...
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