R Wolkowicz Del Ponti v Governor of HMP Wandsworth
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males,MR JUSTICE MALES |
| Judgment Date | 15 May 2013 |
| Neutral Citation | [2013] EWHC 3602 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11486/2011 |
| Date | 15 May 2013 |
[2013] EWHC 3602 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Males
CO/11486/2011
Miss Phillippa Kaufmann QC (instructed by Prisoners Advice Service) appeared on behalf of the Claimant
Miss Cathryn McGahey (instructed by Treasury Solicitor) appeared on behalf of the Defendant
This is a claim for judicial review brought by Mr Marius Wolkowicz Del Ponti, a Polish national who was held in prison in this country pending a request for his extradition. He has now been extradited. That took place on 14 March 2013. It is accepted that what remains of this claim for judicial review is academic.
The claimant is confined to a wheelchair. He made complaints about the fact that in the prisons where he was held there were not suitably adapted cells for him, at least for the first part of his time on remand. He was held in cells at Wandsworth Prison which were not adapted, although subsequently he was transferred to Leeds where there was a suitably adapted cell. He has complaints about the treatment which he received, saying that that treatment was not in accordance with his human rights under Article 3 and other Articles of the European Convention. Those claims relating to his treatment have been transferred to the Queen's Bench Division and, on the assumption that his legal aid will continue (which is not a matter for me), those claims will be determined in due course.
What remains in the Administrative Court is a wider challenge (ground 2 of the claimant's amended grounds) which asserts that the Secretary of State for Justice has failed, first, to maintain an adequate stock of prison accommodation suitable for disabled people and, secondly, to have in place a policy or practice ensuring that the needs of disabled prisoners are taken into account when prisoners are allocated to establishments.
It is accepted that these grounds are academic so far as this particular claimant is concerned. He can obtain no benefit from a decision that the Secretary of State has failed in the respects alleged. If he has any claim which will benefit him, that will be as a result of the transfer to the Queen's Bench Division. It has been left to me to decide whether this academic claim should go ahead in the Administrative Court. I must do so applying the principles set out in a number of cases concerned with such academic cases, in particular those identified by the House of Lords in Salem [1999] 1 AC 450 at 456, and also an elaboration of those principles set out by Mr Justice Silber in Zoolife International [2007] EWHC 2995. At paragraph 36 of Zoolife, Mr Justice Silber referred to the general principle that academic issues cannot and should not be determined by courts unless there are exceptional circumstances. He identified two conditions which would need to be satisfied although, as I understand it, that is not to say that merely because those conditions are satisfied the case should necessarily go ahead. It remains a matter for the court's discretion.
The first such condition is that a large number of similar cases exist or are anticipated or at least some other similar cases exist or are anticipated; the second condition is that the decision in the academic case will not be fact-sensitive. Those are the points on which Miss Kaufmann QC for the claimant has focussed her submissions. Miss Kaufmann identifies material which shows that there is a fairly large number of disabled prisoners or prisoners with reduced mobility at any one time.
Miss Kaufmann drew my attention to a thematic report by the Inspectorate of Prisons on the subject of disabled prisoners, dated March 2009, which gives figures for the position in 2008. This shows that in August 2008 there were 715 prisoners with reduced mobility and 418 with reduced physical capacity. Those figures extend more widely than wheelchair users and appear to refer to all sorts of reduced mobility or reduced physical capacity. Miss Kaufmann suggests that the figure is unlikely now to be any less than that and refers also to what is said in paragraph 6.11 of the same report as to the limited facilities in terms of dedicated cells for prisoners with disabilities.
On the other hand, the Secretary of State's position is that there have in recent years been very few challenges to the provision made for disabled prisoners, with only five files concerning public law complaints having been opened since August 2011 relating to complaints about disability made by disabled prisoners, one of which is the present claim. None of the others apparently proceeded.
So far as whether there is a large number of other such cases is concerned, it seems to me that while there may be other cases it is likely that those will be, at least to some extent, fact-sensitive. Miss Kaufmann says that the claim here would focus on the stock and the numbers of prisoners in need and the Secretary of State's policy. But it seems to me that the position is likely to be different according to the kinds of disability which prisoners may have and the severity of those disabilities and that such cases are much better decided against concrete facts, even if they also do raise wider policy issues, rather than in the abstract. It may also be that some of the claimant's complaints or matters on which the claimant would rely are to some extent historic and that the position may change as further policies are brought in.
I was, on the second aspect of the claim, referred to a policy concerning allocation and categorisation of adult prisoners — PSI 40/2011 issued on 31 August 2011 — which is said to be due to expire on 1 September 2015. It does appear that needs relating to disability are...
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