The Queen (on the application of Hayley Canham) v The Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Whipple J |
| Judgment Date | 10 December 2021 |
| Neutral Citation | [2021] EWHC 3361 (Admin) |
| Docket Number | Case No: CO/65/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3361 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Whipple
Case No: CO/65/2021
Rajiv Menon QC and Jesse Nichols (instructed by Deighton Peirce Glynn) for the Claimant
John McGuinness QC (instructed by the Crown Prosecution Service) for the Defendant
Hearing date: 27 October 2021
Approved Judgment
Introduction
The Claimant is the ex-partner of Robert Fenlon, and the mother of his daughter. Mr Fenlon took his own life while in prison custody at HMP Woodhill on 5 March 2016. The Claimant challenges the decision of the Defendant, the Director of Public Prosecutions, not to prosecute any one of three individual suspects (known as A, B and C), the Ministry of Justice (“MoJ”) or the National Offender Management Service (“NOMS”) in relation to Mr Fenlon's death. That decision was made on 19 October 2020 by Ben Southam, senior specialist prosecutor who was acting on the Defendant's behalf (the “Decision”).
The Decision was a review of an earlier decision by Colin Gibbs, senior specialist prosecutor, dated 5 April 2019. Dissatisfied with Mr Gibbs' decision not to prosecute any one of the five suspects, the Claimant exercised her victim's right of review (under the “VRR scheme”); Mr Southam was the reviewing lawyer.
Pre-action correspondence followed the Decision. The Claim Form was issued on 8 January 2021. Permission for judicial review was granted by Swift J at an oral renewal hearing on 27 May 2021.
The matter was heard on 27 October 2021. At the hearing, the Claimant was represented by Mr Menon QC and Mr Nichols. The Defendant was represented by Mr McGuinness QC. I am grateful to all counsel and to the solicitors who instructed them for the assistance they have given to the Court.
This is a sad case. The loss of Mr Fenlon's life is a tragedy for his family and those who knew him. This case proceeds in the face of evidence about many other prisoners who have taken their lives at HMP Woodhill. Whatever the legal rights and wrongs of this case, which I shall go on to discuss, I acknowledge at the outset the extremely serious context in which the issues in the case arise.
Background Facts
A detailed chronology of events leading up to the death of Mr Fenlon is set out in the witness statement of Jo Eggleton, solicitor for the Claimant, dated 20 July 2021. What follows is a summary of the key events in that chronology.
Mr Fenlon was born on 5 September 1980. On 15 October 2015 he was remanded in custody on a charge of burglary. He arrived at HMP Woodhill with standard documents, including a record which indicated he was withdrawing from opiates. He had a reported history of mental health issues.
On 26 February 2016, Mr Fenlon passed a note under his door stating that he was having thoughts of self-harm. An officer retrieved the note.
In line with guidance issued by the MoJ and NOMS in relation to management of prisoners at risk of harm to self, to others and from others (Prison Service Instruction or PSI 64/2011), the officer opened a file as part of the Assessment, Care in Custody and Teamwork process (“ACCT”). Within an hour, another officer opened an Immediate Action Plan (“IAP”). Under that IAP, directions were given that Mr Fenlon should not share a cell and should have two conversations per session and five observations per night. Access to a phone and to a prison listener trained by the Samaritans was explained to him. Medical intervention was not considered to be appropriate.
On 27 February 2016, Mr Fenlon lost his job as a painter at the prison. It seems that he was wrongly suspected of having taken a paint brush. He was reported to be spending more time alone in his cell because he had lost his job, he was becoming reclusive and depressed. At about 10am that day, an ACCT assessment took place. Mr Fenlon was offered a move to another wing which he declined. He said he had been waiting to see mental health services for 5 months and thought seeing them would help. At 11am a case review took place; Mr Fenlon said he had feelings of paranoia but did not have feelings of self-harm or suicide at that time.
On 28 February 2016, Mr Fenlon said he felt under threat and wanted to stay in his cell; he felt paranoid and said he would rather take his own life than be killed in prison. He asked to speak to C, who was a senior healthcare assistant. He met C at 3.31pm. C referred Mr Fenlon to the GP.
On 29 February 2016, Mr Fenlon reported that he had slept on the floor because of anxiety attacks triggered by his mattress.
On 2 March 2016, a scheduled ACCT review took place. Mr Fenlon told the officers in attendance that he had no present thoughts of self-harm. The next review was scheduled for 8 March 2016, with risk being assessed as low.
On 3 March 2016, A, who was a senior officer at the prison, entered Mr Fenlon's cell with another officer. They found him hanging from a ligature made of bedding attached to the window. The ligature was cut and Mr Fenlon was sat on his bed. Razor blades were removed from his cell. A noted that Mr Fenlon was very distressed and when the noose was cut red marks around Mr Fenlon's neck were revealed. He was seen by C and another healthcare trainee. There is disputed evidence about whether an ACCT review was conducted. Notes were found in which Mr Fenlon said that he could not cope and he was on the verge of doing something daft. The level of risk was raised as a result of “attempted hanging”. Observations were increased to two per hour. Mr Fenlon attended a court hearing that day via video-link from the prison; he was accompanied to this hearing by A. He spoke to a prison listener that afternoon.
On 4 March 2016, Mr Fenlon told another officer that he was having bad thoughts again. He spoke to the Samaritans by phone. He later told an officer that he was feeling suicidal again. At around 1pm, an officer saw that Mr Fenlon had created a noose which was attached to his outer window bars. Officers entered his cell and removed the noose. At about 2pm, B, a senior officer at the prison, conducted an ACCT review, which resulted in the risk remaining unchanged, and the frequency of observations remaining at two per hour. The next scheduled review, due for 8 March 2016, was brought forward to 5 March 2016. Mr Fenlon said he was unsure if he would attempt to harm himself again.
On 5 March 2016, Mr Fenlon was extremely paranoid. He spoke to a listener. He was observed on several occasions that morning by prison officers. At 10.40am an officer noticed that his cell observation panel was blocked. Officers entered the cell to find Mr Fenlon hanging from a noose tied to the window. He was cut down and CPR commenced but he could not be resuscitated.
ACCT Guidance
Much of the argument in this case has centred around the way the ACCT process was managed in Mr Fenlon's case. I have already referred to PSI 64/2011. That guidance is issued by MoJ and NOMS jointly. It is a lengthy document running to 70 pages. It would have been available to all the officers and healthcare staff involved with Mr Fenlon in the last days of his life, and it plainly informed their actions.
The executive summary records that the document “sets out the framework for delivering safer custody procedures and practices to ensure that prisons are safe places for all those who live and work there”. The guidance requires that prisoners who are at risk of harm to self are managed using ACCT procedures, which are outlined in chapter 5.
Turning to Chapter 5: the ACCT process requires that any member of staff who receives information or observes behaviour which may indicate a risk of suicide/self-harm must open an ACCT by completing the Concern and Keep Safe form (Chapter 5, p 26). Within an hour of the ACCT being opened, a manager must talk to the prisoner and complete the IAP to ensure the prisoner is safe from harm and must inform healthcare, including the mental health in-reach team where appropriate, arrange for an ACCT assessment to take place and organise the first case review, and ensure that the prisoner has been offered the opportunity to talk to a listener and/or the Samaritans (Chapter 5, pp 26–27). The ACCT assessment must be undertaken by a trained ACCT assessor and must involve an interview with the prisoner within 24 hours of the ACCT being opened; the first review must be held within 24 hours of the ACCT being opened, ideally immediately after the ACCT assessment interview. The review is multi-disciplinary and is usually attended by the prisoner; a case manager should be appointed (Chapter 5, pp 27–28). The outcome of the review should be a CAREMAP giving “detailed and time-bound” actions aimed at reducing the risk to the prisoner. This document must reflect the prisoner's care needs, level of risk and triggers for distress, and should cover a range of considerations such as level of supervision and cell sharing (Chapter 5, pp 28–29).
Chapter 6 deals with constant supervision and notes, in the overview section at the beginning, that “constant supervision must only be used at times of acute crisis and for the shortest time possible”. That is because the process of being constantly supervised by a member of staff can be de-humanising which may increase risk (Chapter 6, p 33).
Other reports into suicides at HMP Woodhill
Mr Fenlon's death by suicide was not an isolated incident at HMP Woodhill. Between May 2013 and the date of Mr Fenlon's death, twelve prisoners had taken their own lives, all found hanging in their cells.
Over time, a number of reports and inquiries have been produced, examining the deaths of prisoners by suicide...
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