Mohammed Ali v Northamptonshire Healthcare NHS Trust [2026] EWCC 13

IN THE COUNTY COURTVenue SITTING IN BIRMINGHAM, Birmingham Civil and Family Justice Centre, 33 Bull St, Birmingham B4 6DSDate 31 st March 2026[2026] EWCC 13
Before
Mr Recorder Adrian JackClaim No K16ZA814
Between
MOHAMMED ALIClaimantNORTHAMPTONSHIRE HEALTHCARE NHS TRUSTDefendantThe Claimant appeared in person for in personThe Defendant represented by Zoe Bushby in-house counsel,instructed by Browne Jacobson, solicitorsHearing: 5 th and 6 th March 2026Judgment date: 31 st March 2026JudgmentThis judgment was handed down remotely by circulation to the Claimant by first class post and to the Defendant’s representative by email. The date and time for hand-down is deemed to be 12 noon on 31 st March 2026..............................Mr Recorder Jack
[1]The current action was commenced by a claim form received by the Civil National Business Centre on 4th October 2023. The claimant, Mr Ali, is a serving prisoner under a sentence of indefinite detention for public protection imposed under section 226 of the Criminal Justice Act 2003 (a provision now repealed, but not with retrospective effect). He seeks damages limited to £5,000. He complains that he has not received the mental health treatment he needs in order to have a reasonable prospect of release from his custody. The defendant is an NHS trust said to be responsible for the medical care of the claimant at some, but not all, of the prisons where the claimant has been incarcerated since 2018. Pursuant to an order of 20th August 2024 the legal causes of action relied on by Mr Ali in the current action were clarified so as to be limited to claims under the Human Rights Act 1998 for breaches of Articles 3 and 8 of the European Convention on Human Rights up to 29th July 2024. The ECHR and the Human Rights Act 1998[2]Article 3 contains a prohibition of torture and provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
[3]Article 8 gives a right to respect for private and family life and provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[4]Section 6 of the Human Rights Act 1998 provides:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section ‘public authority’ includes— (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) [repealed] (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6) ‘An act’ includes a failure to act but does not include a failure to— (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order.” (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order.”
[5]Section 7 of the 1998 Act, so far as material, provides: “(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. … (5) Proceedings under subsection (1)(a) must be brought before the end of— (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.” (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,[6]Section 8 of the 1998 Act deals with remedy. It provides: “(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and(b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.” (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, Procedural history and witnesses[7]The matter was originally listed for trial as a small claim on 10th December 2025, but was relisted to be heard as a multi-track trial over 5th and 6th March 2026 with Mr Ali to appear by CVP. On 5th March 2026 Mr Ali appeared in person on CVP. The defendant NHS Trust appeared by Ms Bushby also by CVP. Unfortunately Mr Ali did not have the trial bundles. He explained that he had them for the trial on 10th December 2025, but had then disposed of them. I concluded that — most unusually — this was a case where a trial could nonetheless fairly proceed. Although the main bundles comprised 1138 pages, almost all of these were medical records. Mr Ali had various key documents from the bundles in a loose form and the various short passages in the bundles on which Ms Bushby wanted to rely, but which he did not have, could be read to Mr Ali. Since the destruction of the bundles was, as it seemed to me, his own fault, balancing all these matters it was appropriate to proceed with the trial. The evidence of primary fact from the medical records was largely uncontroversial.[8]Mr Ali gave evidence. He was intelligent and had some insight into his situation. He expressed his great hope that he can do the therapy which might allow him to return to Rampton Hospital and in turn allow him to satisfy the Parole Board that he was safe to release. Whether that hope is realistic I consider further below. He was cross-examined on his evidence and that concluded his case. Ms Wendy Scott-Earl then gave evidence on the Trust’s behalf and was cross-examined on it. That concluded the evidence. I then adjourned the case to the morning of 6th March 2026 for closing speeches. Unfortunately, for reasons which are unclear, Mr Ali did not appear on a CVP link that day.[9]Following Mr Ali’s non-appearance on 6th March, Ms Bushby applied to strike out the proceedings pursuant to CPR 39.3(1)(b) (claimant’s non-attendance at trial), but I refused the application. Firstly, it was unclear whether Mr Ali bore any fault for his non-appearance by CVP (there had earlier in the week been difficulties with the Court arranging a CVP link with the prison). Secondly, all the evidence in the case had been given. Mr Ali could be given permission to make closing submissions in writing. In accordance with the Overriding Objective, this was in my judgment the appropriate course to adopt. Accordingly, I gave Mr Ali until Friday 13th March 2026 to make his submissions. Ms Bushby also indicated that Ms Scott-Earl wanted to correct some of the evidence which she gave the previous day. Since Mr Ali was not on the CVP link, I considered it inappropriate to take further evidence from Ms Scott-Earl in Mr Ali’s absence but would decide what course to adopt once I had Mr Ali’s submissions. The corrections which Ms Scott-Earl sought to make were included in a recital to the order I made adjourning the hearing of 6th March. I shall return to my conclusions on the proposed corrections to her evidence below. Mr Ali’s case[10]Mr Ali says this in his claim, as amended (which was taken as his evidence in chief):
“3. I was put in prison 17 years ago [now 19 years ago] for a rape on a street worker, which I have the unfortunate privilege of knowing I didn’t do. The judge, after conviction, gave me an indefinite sentence of detention for public protection, as the pre-sentence psychiatric report concluded I’m dangerous. My minimum term’s 4 years expired in 2011. I have never been released due to outstanding risk factors to the public… [which] include things like poor emotional control, using violence, poor problem solving, an inability to build relationships (with prison officers), which are essentially features of my mental disorders, which is very distressing. As I have not received any mental healthcare supports since being returned to prison. As a result I’ve been very distressed and humiliated. I’ve regularly been a suicide risk to myself due to depression and loss of hope, due to never being able to progress towards risk reduction. 4. On 2016, for 2 years, until 2018, I was put in Rampton Hospital due to suffering from mental disorder, nearly all known types of personality disorders, depression and obsessive-compulsive disorders and paranoias. And as you can see from [a 2018 report of Dr Louise Sainsbury] I met the criterias and required DBT treatment [dialectal behaviour therapy], which is not available in a prison and one-to-one psychological therapies also not available in prison due to lack of resources. And due to my significant mistrust of prison staff, it’s impossible for me to be treated in a hostile environment. 5. With bitter regret, I was discharged from Rampton part-way through treatments due to destroying hospital properties in 2018. I am absolutely devastated that I still have not been re-referred to Rampton Psychiatric Hospital. But, as can be seen by the attached correspondence, Rampton Hospital have no issues with considering a referral for me. But for whatever bizarre, unfair reasons, the prison’s mental health provider, which is this defendant, never referred me.”
[11]As to his Article 3 claim, he says:
“9. I can confirm I have been subjected to ‘degrading treatment’ and ‘punishments’ which is prohibited under Article 3, for all of the reasons set out above and below. A). The key principle is respect for prisoners’ dignity — a strong link exists between the concepts of ‘degrading treatments’ and respect for a prisoner’s ‘dignity’: see Bouyid v Belgium [Application no 23380/09, Judgment of 28 September 2015 (Grand Chamber), [2015] ECHR 819] para 90. Thus where treatment humiliates or debases an individual or arouses feelings of fear, anguish or inferiority, capable of breaking an individual’s moral and physical resistance, it may be characterized as ‘degrading’ and fall within the prohibitions of Article 3. B). Obligations under Article 3 may go as far [as] to impose an obligation on the defendant to transfer mentally ill prisoners… to receive adequate treatments: Murray v Netherlands [Application no 10511/10, judgment of 26th April 2016 (Grand Chamber), [2016] ECHR 408, (2017) 64 EHRR 3] para 105. C). This defendant’s not even referring me, let alone provided adequate treatments & I’ve been left to rot/stagnate in prisons ever since. D). In addition, it is not enough for such detainees to be examined and a diagnosis made. It is essential that proper medical and supervision be provided (Murray… para 106). In this respect, the court takes account of the adequacy of the medical assistance & care provided in detention (Rooman v Belgium [Application no 18052/11, judgment of 31st January 2019 (Grand Chamber), [2019] ECHR 105] paras 146-147. — As a result I’m always in [the] segregation unit & a serious risk to others. E). An absence of a comprehensive therapeutic strategy aimed at treating a prisoner with mental health issues may amount to ‘therapeutic abandonment’ in breach of Article 3 (Strazimir v Albania [Application no, 34602/16, judgment of 21st January 2020 (Second Chamber)] paras 108-112. See also Kudla v Poland [Application no 30210/96, judgment of 26th October 2000 (Grand Chamber)], Novak v Croatia [Application no 8883/04, judgment of 14th June 2007 (First Section) [2017] ECHR 483], Claes v Belgium [Application no 43418/09, judgment of 10th January 2013 (Fifth Section)], Riviere v France [Application no, 33834/03, judgment of 11th July 2006 (Second Section)], Jeanty v Belgium [Application no, 82284/17, judgment of 31st March 2020 (Third Section)] (para 101-114).”
[12]As to his Article 8 claim he says:
“G). [Article 8(2)] has assumed particular prominence in the Court’s caselaw on ‘the right to health’. The Court has interpreted the notion of ‘private life’ as covering the right to protection of one’s health, and physical, moral and psychological integrity, as well as the right to choose (I repeat, the right to choose) — for example to refuse medical treatment, or to request a particular form of treatment (see Glass v The United Kingdom [Application no 61827/00, judgment of 9th March 2004 (Fifth Section) [2004] ECHR 103, (2004) 39 EHRR 15] paras 74-83, and see also Tysiąc v Poland [Application no 5410/03, judgment of 4th March 2007 (Fourth Section) [2007] ECHR 219, (2007) 45 EHRR 42]). H). Mental healthcare is provided by the defendant at all material times, responsible 2019 to 2024. Please also consider attached exhibit, recent medical entry dated 16th May 2024, which shows they never made any diagnoses.”
[13]In his oral submissions, Mr Ali narrowed his case to a straightforward submission. Since his discharge from Rampton Hospital, he has developed much more self-insight. He does not want to remain in prison for the rest of his life. He accepts that at present this outcome is highly probable. He wants to go back to Rampton, so that he can receive treatment which would reduce the risk of his reoffending if he were released. Rampton is realistically the only route to his being able to demonstrate to the Parole Board that release might become appropriate. However, in order to be accepted at Rampton he needs to take a therapy course described in the papers as the Prison Pathway for Personality Disorder (“the pathway therapy”). The trust has not made this course available to him in prison, so he has no realistic prospect of a transfer to Rampton. The trust’s case[14]The Defence dated 10th February 2025 pleads limitation in respect of matters before 4th October 2022. It denies breaches of Articles 3 and 8 and pleads that the claimant is incarcerated at His Majesty’s pleasure. (The trust also disputes that Article 5 is relevant, but this is not an Article on which Mr Ali relies.) It continues:
“6. The Defendant has at all times acted lawfully. The Defendant has at all times acted proportionately to protect public safety in line with the sentences handed down to the Claimant. 7. The Claimant was handed an indefinite sentence. For public protection the Claimant has not been released and is not eligible to be released until a psychiatric expert and the parole board deem him so eligible. 8. The allegations by the Claimant that he has not been treated or subject to a therapeutic strategy are denied and the Claimant [is] put to strict proof. 9. The Defendant notes that the Claimant admits he has committed ‘further serious offences’ and is aware this means that he may not be released from his incarceration. 10. The Defendant avers that each admission to segregation is either a decision the Ministry of Justice or was for clinical reasons that were reasonable. 11. Each and every allegation set out by the Claimant is denied and the Claimant is put to strict proof.”
[15]This last blanket denial is improper: see CPR 16.5(2). If the trust wished to dispute that it provided the claimant with healthcare at all material times, as alleged by Mr Ali in para H) above, it needed to set out its case. This failure properly to plead its case on whether it provided Mr Ali with healthcare has had serious consequences as to how the case has been tried.[16]Ms Scott-Earl’s witness statement gives the following details of where Mr Ali has been held: from an unknown date until 12th September 2016, HMP Full Sutton; 12th September 2016 to 17th July 2018, Rampton Hospital; 17th July 2018 to 6th December 2018, HMP Full Sutton; 6th December 2018 to 3rd April 2024 HMP Rye Hill; 3rd April 2024 to 28th May 2024 HMP Peterborough; 29th May 2024 to 5th July 2024 HMP Wakefield; 5th July 2024 to 31st July 2024, HMP Peterborough; 31st July 2024 to 17th December 2024, HMP Wakefield; 17th December 2024 to 6th January 2025, HMP Peterborough; 6th January 2025 to 31st January 2025, HMP Wakefield; 31st January 2025 to 19th February 2025, HMP Peterborough; and 19th February 2025 to 6th March 2025, HMP Wakefield.[17]She accepted in her witness statement that the trust had provided healthcare to the claimant at HMP Rye Hill and thereafter at HMP Peterborough, but said in oral evidence that the trust was not responsible for healthcare at HMP Wakefield.[18]In her closing submissions, Ms Bushby raised no issue regarding the healthcare at HMP Wakefield. In particular, no one suggested that HMP Wakefield offered the pathway therapy to Mr Ali. Insofar as a duty was owed to provide pathway therapy, it was a duty which arose at HMP Rye Hill and HMP Peterborough. The fact that HMP Wakefield might also have owed a duty to provide pathway therapy could not afford a defence to a claim based on non-provision at HMP Rye Hill and HMP Peterborough. Mr Ali in any event was only incarcerated at HMP Wakefield after he had issued his claim in this action. The proposed change of evidence[19]Ms Bushby said on the second day of the trial that Ms Scott-Earl wished to make changes to her evidence. The changes were these. Firstly, from 2008 G4S Health Services (“G4S”) provided healthcare at HMP Rye Hill until in November 2022 Practice Plus Group (“PPG”) took over the provision of healthcare at that prison. Secondly, that the trust had previously served as the secondary mental health healthcare provider but only from 2019. In November 2022, all health services including mental health went across to PPG. Thirdly that when Ms Scott-Earl started in June 2023 HMP Rye Hill was not part of the trust’s profile plus. Fourthly, the recommendation regarding a referral to Rampton Hospital and speaking to the psychiatrist in 2023 would sit with PPG and not with the trust.[20]In my judgment it is far too late for the trust to seek to make this wholly new case and would be quite unfair to Mr Ali. Firstly, it is unclear what the contractual relations between the trust, the prisons and PPG and G4S might be. No disclosure has been given. Secondly, it is unclear how the trust would put their case in relation to the human rights claim made by Mr Ali. The trust appears to accept that it is an emanation of the State, so that a human rights damages claim can in principle lie against it. However, it was unclear in the light of Ms Scott-Earl’s new evidence whether it says that it was or is responsible for any actions of PPG or G4S. (There may be an argument that its duties are non-delegable, but without knowing what the legal relationship was between the trust on the one hand and PPG and G4S on the other I cannot start any legal analysis of the point.) Moreover, even if the trust was not responsible for the actions of PPG or G4S, it might be responsible for the inactions of those companies. This is potentially significant, because the key element of Mr Ali’s complaint is that he has not been given access to the pathway therapy which might permit his being a suitable candidate for readmission to Rampton. It may be (if the relevant documentation were available) that the trust would in dereliction of its duties to Mr Ali by not ensuring that PPG and G4S were obliged to provide the pathway therapy. Thirdly, if this new evidence meant that the trust was not liable to Mr Ali for any breaches of his human rights, there might still be liability on the part of some other state entity, such as His Majesty’s Prisons and Probation Service, or the Lord Chancellor and Secretary of State for Justice, or even (as a fall-back) the Attorney-General.[21]Accordingly I disallow this new evidence to be adduced. In my judgment, the trust is bound by its concession in Ms Scott-Earl’s witness statement (reinforced by the terms of its Defence) that the trust was responsible for the healthcare provided to Mr Ali at HMP Rye Hill and HMP Peterborough. Limitation[22]I can deal with this at once. The primary limitation period is one year and thus bars any claim by Mr Ali which pre-dated 4th October 2022. The Court has the power under section 7(5)(b) of the 1998 Act to extend the primary limitation period for “such longer period as the court or tribunal considers equitable having regard to all the circumstances”. It is, however, incumbent on a claimant to plead reliance on that provision. Here Mr Ali has served no Reply relying on this provision, nor has he pleaded any grounds on which it might be equitable to extend time. That in my judgment is fatal to his ability to obtain an extension of time.[23]In fact, however, for reasons which will become apparent, this conclusion makes only a small difference to the outcome of the case. The chronology[24]I turn to the chronology, which was largely not in dispute. Mr Ali was born on 4th June 1990. He was cautioned for theft and kindred offences when he was 13 years old. At 16 he was convicted of having a blade in a public place (an offence involving threats to a prostitute), two offences of shoplifting, assault occasioning actual bodily harm and rape. He appears to have been remanded in custody, although from what date is unclear. On 20th April 2007 there was an incident of his raping a different prostitute, but the prosecution did not proceed when the complainant said she was too distressed to give evidence.[25]A psychiatric report prepared by Dr E F Mendelson in January 2008 for the sentencing exercise the following month concluded that Mr Ali “should be regarded as at significant risk of causing serious harm to women.” (Bundle page 926.)[26]On 12th February 2008 aged 17 he was sentenced for the rape. The judge passed the indefinite sentence of detention for public protection which he is still serving. The judge fixed the minimum period for which he should serve, in other words, the punitive element, as four years. He was also given two years for the assault occasioning actual bodily harm.[27]At 18 he was convicted of battery.[28]During his time in prison, there were repeated incidents of a sexual and violent nature (bundle page 892). In 2009 he punched a female officer in the face. In 2011 he touched a female prison officer’s breasts over clothing and was convicted of sexual assault with no penetration on the woman. In 2012 he punched a female careers advisor after making sexual approaches to her. That same year he was convicted of assault occasioning actual bodily harm after tipping scalding water on a fellow prisoner. In October 2016 he was convicted of wounding another fellow prisoner with intent and given a two-year sentence concurrent with his current sentence.[29]In 2015 Mr Ali attempted suicide twice, once by overdosing on medicine, once by trying to hang himself. (Bundle page 927.)[30]In 2016 Prof Srikanth Nimmagedda made a psychiatric assessment (bundle page 927). He concluded that “Mr Ali displayed…features of Paranoid Personality Disorder… traits of Emotionally Unstable Personality Disorder, Borderline type… and traits of Dissocial Personality Disorder.” He concluded:
“In my opinion, Mr Ali continues to present with medium to high risk of future violence, including the risk of physical and sexual violence both in the prison establishment and also in the community… It is likely that Mr Ali’s features of his personality disorder could have contributed to his difficulties to a large extent in the last few years and it would be appropriate that he is managed in a safe and secure therapeutic setting where he can establish a rapport with professionals gradually and address the features of his personality disorder… I would recommend that consideration is to be given by the prison professionals and authorities to move him to conditions of security within a hospital setting.”
[31]That recommendation was accepted and Mr Ali was moved to Rampton Psychiatric Hospital when a place became available later that year. A report dated 5th May 2017 from Gill Hahn, a senior social worker, considered that the placement was appropriate (bundle page 928). However, she noted that although he participated in group-work it had not produced any “gains”. She said: “He struggles to accept that he has mental health difficulties and attributes his violent behaviours to a defensible response to a harsh environment or being treated unfairly. Despite specific sex offender work, he does not appear to have insight regarding his index offences.[32]There was then an improvement in Mr Ali’s behaviour and mental health. A report from Dr Louise Sainsbury, a consultant psychologist, dated 2nd July 2018 (bundle page 880) noted that from mid-2017 there had been positive motivation on his part in various activities. However, in early 2018 there was a deterioration in Mr Ali’s behaviour. He caused extensive damage to two rooms at Rampton. On 20th February 2018 he was placed in segregation there.[33]Eventually the hospital determined that it could not continue to provide care for him. He was moved back to HMP Full Sutton on 17th July 2018. Prior to his arrival, there was a meeting of professionals on 2nd July 2018 (bundle page 143). This reported that Rampton considered he was:
“not treatable at this time due to lack of application of his therapy interventions. He is currently a significant risk to others, [and to] property and [has] been in seclusion. He has made ligatures and threats to end his life. He is [at] risk from other patients. Despite actively engaging in therapy (DBT) there is no link to modified behaviour. He takes no responsibility for [his] own behaviour.”
[34]On 9th July 2019, he agreed with a prison nurse that as therapy “[pathway therapy] treatment would be most appropriate”. He said that “he didn’t want to go to Rampton anyway.” (Bundle page 209.)[35]By letter of 23rd January 2020 Mr Ali was informed that the Secretary of State had accepted the Parole Board’s recommendation that release on licence be refused. The letter identified fifteen risk factors as relevant to that decision, including sexual preoccupation, believing that he had a right to sex, impulsivity and using violence to resolve conflict (bundle page 1128). (There is likely to have been further Parole Board consideration of Mr Ali’s case in the years since 2020, but no determination of the Secretary of State has been adduced in evidence.)[36]On 24th September 2020, he had another discussion with a prison nurse in which he said he would like to return to Rampton, but was told he needed to follow the pathway therapy route before he could self-refer to Rampton. (Bundle page 235.)[37]In 2020 Mr Ali raised a formal complaint about not being referred back to Rampton. In its response dated 7th October 2020 (bundle page 1138), the prison said that the prison personality disorder pathway was the appropriate way forward. “[T]he least restrictive option for yourself and how your presentation right now would be to a self-referral through the PD Pathway rather than a high secure hospital.” The letter said:
“You were able to recognise that your presentation has changed, you were no longer displaying aggressive behaviours and felt you were now ready to access [the] treatment you require.”
[38]On 17th May 2022, there was a nursing review following an incident where he had self-harmed in protest at being punished for assaulting another inmate. (Bundle page 258.) He said that he did not feel he required any ongoing support from the primary care mental health team. This appears to have been the last time his mental health was considered by any mental health professional.[39]In 2023 there were referrals for medical treatment for his wrist and for dental treatment. (Bundle page 405.) There appear to have been further incidents of violence with other inmates. He was also warned for recurrent verbal abuse to health centre staff. On 5th June 2023, Mr Ali raised with a prison nurse again the possibility of being transferred to hospital or possibly being deported to Somalia (Mr Ali is of Somalian heritage). The nurse was generally negative about these possibilities. (Bundle page 289.)[40]On 3rd June 2024, there is a record of a meeting between Mr Ali and a medical professional identified only as “AS”. The record noted that Mr Ali was to be referred to a medium secure hospital, but that the hospital would not accept him unless he had done cognitive behavioural therapy work first. It was discussed that he should be recommended for the pathway therapy treatment programme. (Bundle page 459.) There is no evidence that that recommendation was either made to the trust or to the prison authorities or that it was acted upon. Mr Ali’s uncontradicted evidence is that he was not, and has to date not been offered, the pathway therapy treatment programme. The caselaw of the European Court of Human Rights on Article 3[41]The Grand Chamber in Murray v The Netherlands Application no 10511/10, [2016] ECHR 408, (2017) 64 EHRR 3 (judgment of 26th April 2016) held (omitting citations) as follows. (In this and other extracts of judgments I set out somewhat more than would be normal due to Mr Ali’s potential difficulties accessing the relevant case law himself.) “103. Notwithstanding the fact that the Convention does not guarantee, as such, a right to rehabilitation, the Court’s case-law thus presupposes that convicted persons, including life prisoners, should be allowed to rehabilitate themselves. Indeed, the Court has held that ‘...a whole-life prisoner is entitled to know... what he or she must do to be considered for release and under what conditions’… It has also held… that national authorities must give life prisoners a real opportunity to rehabilitate themselves… It follows from this that a life prisoner must be realistically enabled, to the extent possible within the constraints of the prison context, to make such progress towards rehabilitation that it offers him or her the hope of one day being eligible for parole or conditional release. This could be achieved, for example, by setting up and periodically reviewing an individualised programme that will encourage the sentenced prisoner to develop himself or herself to be able to lead a responsible and crime-free life.104. Life prisoners are thus to be provided with an opportunity to rehabilitate themselves. As to the extent of any obligations incumbent on States in this regard, the Court considers that even though States are not responsible for achieving the rehabilitation of life prisoners…, they nevertheless have a duty to make it possible for such prisoners to rehabilitate themselves. Were it otherwise, a life prisoner could in effect be denied the possibility of rehabilitation, with the consequence that the review required for a life sentence to be reducible, in which a life prisoner’s progress towards rehabilitation is to be assessed, might never be genuinely capable of leading to the commutation, remission or termination of the life sentence or to the conditional release of the prisoner. In this connection the Court reiterates the principle — well established in its case-law — that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective… The obligation to offer a possibility of rehabilitation is to be seen as an obligation of means, not one of result. However, it entails a positive obligation to secure prison regimes to life prisoners which are compatible with the aim of rehabilitation and enable such prisoners to make progress towards their rehabilitation. In this context the Court has previously held that such an obligation exists in situations where it is the prison regime or the conditions of detention which obstruct rehabilitation... (c) Health care provided to prisoners with mental health problems105. As regards the treatment of prisoners with mental health problems, the Court has consistently held that Article 3 of the Convention requires States to ensure that the health and well-being of prisoners are adequately secured by, among other things, providing them with the requisite medical assistance… A lack of appropriate medical care for persons in custody is therefore capable of engaging a State’s responsibility under Article 3… Obligations under Article 3 may go so far as to impose an obligation on the State to transfer prisoners (including mentally ill ones) to special facilities in order to receive adequate treatment…106. In the case of mentally ill prisoners, the Court has held that the assessment of whether particular conditions of detention are incompatible with the standards of Article 3 has to take into consideration the vulnerability of those persons and, in some cases, their inability to complain coherently or at all about how they are being affected by any particular treatment… In addition, it is not enough for such detainees to be examined and a diagnosis made; instead, it is essential that proper treatment for the problem diagnosed and suitable medical supervision should also be provided… (d) Life prisoners with mental disabilities and/or mental health problems107. Life prisoners who have been held to be criminally responsible for the offences of which they have been found guilty — and who are therefore not considered ‘persons of unsound mind’ within the meaning of Article5(1)(e) of the Convention — may nevertheless have certain mental health problems; they may for instance have behavioural or social problems or suffer from various kinds of personality disorders, all of which may impact on the risk of their reoffending. The Court has not previously dealt with the specific issue of the reducibility of life sentences imposed on persons who have been diagnosed as suffering from a mental disability and/or a mental health condition. Against the background of the case-law set out above…, the Court finds the following approach to be appropriate in this regard.108. For a State to comply with its obligations under Article 3 of the Convention in respect of life prisoners belonging to this category, the Court considers that it is firstly required that an assessment be made of those prisoners’ needs as regards treatment with a view to facilitating their rehabilitation and reducing the risk of their reoffending. This assessment should also address the likely chances of success of any identified forms of treatment, given that Article 3 cannot entail an obligation for a State to enable a life prisoner to receive treatment that is not realistically expected to have any significant impact in helping the life prisoner to rehabilitate himself or herself. For this reason, account is to be taken of the life prisoner’s individual situation and personality. The Court, moreover, recognises that certain mental health conditions are not, or not easily, amenable to treatment. Given that, owing to their mental health situation, such life prisoners may not themselves be sufficiently aware of a need for treatment, the aforementioned assessment should be conducted regardless of whether any request for treatment has been expressed by them… Where the assessment leads to the conclusion that a particular treatment or therapy may indeed help the life prisoner to rehabilitate himself or herself, he or she is to be enabled to receive that treatment to the extent possible within the constraints of the prison context… This is of particular importance where treatment in effect constitutes a precondition for the life prisoner’s possible, future eligibility for release and is thus a crucial aspect of de facto reducibility of the life sentence.109. Providing life prisoners with a real opportunity of rehabilitation may therefore require that, depending on their individual situation, they be enabled to undergo treatments or therapies — be they medical, psychological or psychiatric — adapted to their situation with a view to facilitating their rehabilitation. This entails that they should also be allowed to take part in occupational or other activities where these may be considered to benefit rehabilitation.110. In general it will be for the State to decide, and not for the Court to prescribe, which facilities, measures or treatments are required in order to enable a life prisoner to rehabilitate himself or herself in such a way as to become eligible for release. In choosing the means for that purpose, States accordingly have a wide margin of appreciation and this obligation under Article 3 is to be interpreted in such a way as not to impose an excessive burden on national authorities.111. Consequently, a State will have complied with its obligations under Article 3 when it has provided for conditions of detention and facilities, measures or treatments capable of enabling a life prisoner to rehabilitate himself or herself, even when that prisoner has not succeeded in making sufficient progress to allow the conclusion that the danger he or she poses to society has been alleviated to such an extent that he or she has become eligible for release. In this connection the Court reiterates that States also have a duty under the Convention to take measures to protect the public from violent crime and that the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention where necessary for the protection of the public… States may fulfil that positive obligation to protect the public by continuing to detain life prisoners for as long as they remain dangerous…112. In conclusion, life prisoners should thus be detained under such conditions, and be provided with such treatment, that they are given a realistic opportunity to rehabilitate themselves in order to have a hope of release. A failure to provide a life prisoner with such opportunity may accordingly render the life sentence de facto irreducible.”[42]This approach was reiterated by the Grand Chamber in Rooman v Belgium (Application no 18052/11, judgment of 31st January 2019, [2019] ECHR 105), where the Court was dealing with a mentally disturbed prisoner who could only speak German, but the Belgian prison authorities had not employed German-speaking mental health professionals, so there was no one with whom the prisoner could communicate. In consequence he received no therapy. The Court held (again omitting citations):
“141. As the Court has repeatedly stated, Article 3 of the Convention enshrines one of the most fundamental values of democratic society… It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour. In order for treatment to fall within the scope of that provision it must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Treatment is considered to be ‘degrading’ when it arouses in the victim feelings of fear, anguish or inferiority capable of breaking his or her moral and physical resistance, or when it is such as to drive the victim to act against his or her will or conscience. Although the question whether the purpose of the treatment is to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3… 142. Measures depriving persons of their liberty inevitably involve an element of suffering and humiliation. 143. That being stated, Article 3 requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for their human dignity, that the manner of their detention does not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in such a measure and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance… The Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them… 144. The Convention does not contain any provision relating specifically to the situation of persons deprived of their liberty, let alone where they are ill, but it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3… In particular, the Court has held that the suffering which flows from naturally occurring illness, whether physical or mental, may in itself be covered by Article 3, where it is, or risks being, exacerbated by conditions of detention for which the authorities can be held responsible… Hence, the detention of a person who is ill in inappropriate physical and medical conditions may in principle amount to treatment contrary to Article 3… 145. In determining whether the detention of an ill person is compatible with Article 3 of the Convention, the Court takes into consideration the individual's health and the effect of the manner of execution of his or her detention on it… It has held that the conditions of detention must under no circumstances arouse in the person deprived of his liberty feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance… On this point, it has recognised that detainees with mental disorders are more vulnerable than ordinary detainees, and that certain requirements of prison life pose a greater risk that their health will suffer, exacerbating the risk that they suffer from a feeling of inferiority, and are necessarily a source of stress and anxiety. It considers that such a situation calls for an increased vigilance in reviewing whether the Convention has been complied with… In addition to their vulnerability, the assessment of the situation of these particular individuals has to take into consideration, in certain cases, the vulnerability of those persons and, in some cases, their inability to complain coherently or at all about how they are being affected by any particular treatment… 146. The Court also takes account of the adequacy of the medical assistance and care provided in detention… A lack of appropriate medical care for persons in custody is therefore capable of engaging a State's responsibility under Article 3… In addition, it is not enough for such detainees to be examined and a diagnosis made; instead, it is essential that proper treatment for the problem diagnosed should also be provided… by qualified staff... 147. In this connection, the ‘adequacy’ of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee has been seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention, that diagnosis and care are prompt and accurate, and that where necessitated by the nature of a medical condition supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee's health problems or preventing their aggravation, rather than addressing them on a symptomatic basis. The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through. Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities… 148. Where the treatment cannot be provided in the place of detention, it must be possible to transfer the detainee to hospital or to a specialised unit…”
The trust’s case on Article 3[43]In her closing submissions, Ms Bushby submits:
“23. Article 3 of the Human Rights Act 1998 states that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Article 3 may be breached if an ill person is detained in inappropriate physical and medical conditions, and it must be possible to transfer the detainee to hospital or a specialised unit if treatment cannot be provided in the place of detention (Rooman v Belgium). 24. However, to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity which usually involves actual bodily injury or intense physical or mental suffering which humiliates an individual (Bouyid v Belgium [Application no 23380/09, Judgment of 28 September 2015 (Grand Chamber), [2015] ECHR 819])… 29. The severity threshold for ill treatment is not met as there is no evidence of bodily injury or intense mental suffering that humiliates Mr Ali.”
[44]As to making the pathway therapy available to Mr Ali, she says:
“27. The Defendant submits that the Claimant has received adequate health care and there is no evidence of a breach of Article 3 for the following reasons: a. The Claimant has received consistent support from the mental health teams and has been subject to numerous referrals. i. Mr Ali agreed that he had been referred to InReach and the Prisons’ mental health teams on multiple occasions and that can be seen throughout the medical records… ii. During cross examination, Mr Ali also accepted that shortly after he committed his numerous offences in prison, he was seen by mental health support teams, and that he had been creating a plan with the mental health team the morning of his refusal to go back to his cell. b. The Claimant has been deemed not suitable for hospital treatment and not treatable due to his lack of application and serious behaviour [and she details the circumstances in which Mr Ali was sent back from Rampton Hospital in 2018]. [T]he decision not [to] refer Mr Ali is supported by psychiatric opinion at the time of the claim. As seen on page 1138 of the bundle which states Mr Ali is not suitable for hospital treatment, and should be treated through the Prison PD Pathway. v. Mr Ali was told multiple times that in order to be suitable for a referral back to hospital, he would need to demonstrate cooperative behaviour and his referral may not be possible due to the security assessment… Despite this, Mr Ali has continued to commit continuous offences whilst in prison, as per paragraph 15 above. c. The Claimant was clearly advised on multiple occasions that he can self-refer for the prison’s pathways both verbally and in writing and has been encouraged to access sessions. i. During cross examination, Mr Ali stated that people in prison wanted to keep him in and for him not to progress. Mr Ali then stated that the programmes did not exist at all and that he had completed all the programmes available, he then referred the offering of such programmes but compared them to the equivalent of being offered help by your kidnapper. To support this, Mr Ali then referred to an incomplete parole board review letter [from 2020] which states at the bottom ‘during your time in custody you have completed the Enhanced Thinking Skills (2009), CALM (2010), the Core SOTP (2010), and Thinking Skills Programme (2014). While you have taken some learning from these programmes, your continued poor behaviour demonstrates that your risk has not reduced’ (bundle page 1128). ii. It is the Defendant’s submission, that whilst it is accepted Mr Ali undertook the thinking programmes, there were other multiple pathways offered to him, such as the Personality Disorder Programme and the PIPE Programme for targeting violent prisoners, that he refused to take part in… [Mr] Ali’s reason for refusing these programmes…was that he would ‘rather die than be kept in by these pigs’ and he no longer trusts the programmes would support his application for release. iii. Mr Ali refused to undertake his violence reduction work after attacking a prison officer (bundle page 199). iv. Whilst Mr Ali was assessed for the therapeutic community by the beacon unit and deemed unsuitable, there were several other programmes offered to Mr Ali on his return from Rampton and up until his claim. It has been decided by mental health staff and on the basis of psychiatric opinion that he is suitable for these pathways (bundle pages 1138, 209, 230, 235, 498). v. The rehabilitative programmes do exist, and they were deemed appropriate and the least restrictive option for Mr Ali. Choosing the least restrictive option is required under s.47 of the Mental Health Act 1983, but Mr Ali has chosen not to participate due to his unfounded belief that the prison staff have it out for him and his hatred for them. d. There is no evidence that the Claimant has a mental illness that requires treatment that cannot be provided by the prison service, and the Claimant denied mental health support on numerous occasions. i. In 2019 Mr Ali had a mental health assessment which concluded that there was not evidence of mental illness and psychiatrists also supported this conclusion. The professional stated Mr Ali was angry with the system and therefore sought a referral back to Rampton, and that he had already refused engagement in programmes (bundle page 186). ii. In cross examination, Mr Ali repeatedly stated that whilst he is not severely mentally unwell, he is unwell enough for hospital treatment. However, in the medical records which he accepted, he regularly reported no mental health concerns and denied input form the mental health team... iii. …[A]t no point across the time period of this claim was Mr Ali unwell enough for a hospital referral to be made. e. The Claimant’s reason for wanting to be referred to hospital is not in relation to receiving appropriate treatment, instead he wishes to be referred as it is ‘a way out of prison’ (bundle page 28)]. i. It is the Defendant’s submission that the reason Mr Ali wants to go to hospital or be deported is because it is a way out of prison. It is clear that he knows he does not need the treatment, and instead he wants to see out his sentence in an environment he thinks is easier than prison.”
Determination of liability under Article 3[45]I do not accept that the threshold for breach of Article 3 is as high as Ms Bushby put it in her paras 23, 24 and 29. In my judgment, when the Court is considering a prisoner with mental health difficulties, para [108] of Murray requires the Court to look at the following matters:(a) There needs to be “an assessment be made of those [life] prisoners’ needs as regards treatment with a view to facilitating their rehabilitation and reducing the risk of their reoffending.”(b) The “assessment should also address the likely chances of success of any identified forms of treatment, given that Article 3 cannot entail an obligation for a State to enable a life prisoner to receive treatment that is not realistically expected to have any significant impact in helping the life prisoner to rehabilitate himself or herself.”(c) “[T]he aforementioned assessment should be conducted regardless of whether any request for treatment has been expressed by them.”(d) Where the assessment leads to the conclusion that a particular treatment or therapy may indeed help the life prisoner to rehabilitate himself or herself, he or she is to be enabled to receive that treatment to the extent possible within the constraints of the prison context… This is of particular importance where treatment in effect constitutes a precondition for the life prisoner’s possible, future eligibility for release and is thus a crucial aspect of de facto reducibility of the life sentence.”[46]As to (a), the evidence is that pathway therapy is a requirement for consideration of a re-referral to Rampton: see the discussion with the prison nurse on 24th September 2020 (bundle page 235) and the letter of 7th October 2020 responding the Mr Ali’s complaint (bundle page 1138).[47]As to (b), the letter of 7th October 2020 is posited on the proposition that the pathway therapy may have a significant impact on Mr Ali’s prospects of rehabilitation. It is a precondition for Rampton to reconsider accepting him. In my judgment, Ms Bushby’s submissions misunderstand the case against the trust. She is correct that the letter “states Mr Ali is not suitable for hospital treatment, and should be treated through the Prison PD Pathway.” However, it misunderstands the case put by Mr Ali, namely that the pathway therapy was not in fact provided. (The trust does not make any case that it was unable to provide the pathway therapy. Even if it did try to establish such a case, it is doubtful that that would afford a defence in law to Mr Ali’s claim: R (Wells) v Parole Board; R (Williams) v Secretary of State for the Home Department [2007] EWHC 1835 (QB), [2008] 1 All ER 138.) (c) is of little relevance here. Mr Ali wants to undergo the pathway therapy.[49]As to (d), Ms Bushby emphasises Mr Ali’s history in prison. It is indeed an unhappy picture of repeated offending whilst in prison including his making his treatment at Rampton in 2016-18 impossible by causing repeated property damage. However, these incidents are historical. Mr Ali now accepts that his past behaviour was unacceptable. Likewise, Mr Ali has in the past denied that he suffered any mental health problems. This, however, is no longer the case: he accepted before me the diagnosis of Dr Nimmagedda that he suffered multiple mental health conditions.[50]Mr Ali’s case is that, if he carries out the pathway therapy, then he will be eligible for consideration for transfer back to Rampton. In Rampton, he will receive therapy which will allow his risk-profile to be sufficiently reduced that the Parole Board will be able to recommend his release. That in turn would allow the Secretary of State to permit his release on licence.[51]Ms Bushby submits that Mr Ali wants to be referred to Rampton “as a way of out of prison”, as if this were some improper purpose. I do not accept this. Mr Ali wants to go to Rampton for treatment, so he can demonstrate to the Parole Board that he is sufficiently safe to be released. That in my judgment is a laudable reason for wanting a referral to Rampton.[52]There are numerous factual hurdles for him to overcome if he is to establish his case in full. A key problem for his case is that he has adduced no expert evidence as to the likelihood of his mental state improving if these various steps are taken.[53]Nonetheless I can make some findings. I do not accept Ms Bushby’s somewhat surprising submission that Mr Ali has no mental health difficulties. It is belied by Dr Mendelson’s report in 2008, Dr Nimmagedda’s report in 2016, the complaint response of 7th October 2020 and the view of “AS” in 2024. I find as a fact that Mr Ali needs to undergo the pathway therapy to be considered for transfer to Rampton. This is borne out by the 7th October 2020 letter and the 3rd June 2024 consultation. I find that he has not been offered the chance to participate in that therapy. However, in my judgment there is no evidence that completing the therapy on its own would be sufficient to ensure a transfer. For example, there have been further incidents of violence between him and his fellow prisoners. That may well constitute a bar to his transfer to hospital. Nonetheless, it is possible that, if his mental state improves when undergoing the pathway therapy, these incidents will stop and Mr Ali will be able to show greater self-control.[54]Further, even if he were transferred to Rampton, it is uncertain whether there would be any, or any sufficient, improvement in his risk-profile to allow the Parole Board to make a recommendation in his favour. After all, he was in Rampton between 2016 and 2018. Although there was some improvement in the middle of that time, the referral there was ultimately unsuccessful. A re-referral may also be unsuccessful.[55]The key issue on liability in my judgment is what, as a matter of law, Mr Ali must prove in order to establish a claim. There are in my judgment three possibilities.(a) Must he show on balance of probabilities that, if it had been arranged for him do the pathway therapy, he would by now have been released on licence or at least currently be on course to be released? Or,(b) is it sufficient in order to claim substantial damages that he had lost the chance that he would have been released or would have been on course for release (cf Allied Maples Group Ltd v Simmonds & Simmonds [1995] 1 WLR 1602)? Or, lastly (c), is it enough for him to show that he should have been given the chance of doing the pathway therapy, even if the chances of his eventual release are speculative?[56]As to (a) and (b), in my judgment the failure to adduce any expert evidence is fatal to these claims. A expert would be able to comment on the likelihood of Mr Ali completing the course successfully and then on the likelihood of further treatment at Rampton reducing the risk of releasing Mr Ali to a level where the Parole Board would recommend his release. Without such evidence, even assessing the loss of a chance would be wholly speculative.[57]This leaves (c). ASY v Home Office [2024] EWCA Civ 373, [2025] KB 87 concerned asylum seekers who had been given permission to work on the condition they had no recourse to public funding. The claimants had lost their jobs and were left with no income whatsoever. In separate proceedings, the “no recourse to public funding” requirement (“NRPF”) was found to be unlawful, but in the meantime the claimants and their children had been left destitute (albeit they had not in fact starved or lost their accommodation). They claimed damages for breach of their Article 3 rights and succeeded in the County Court. On appeal to May J in the High Court, they lost. They appealed further to the Court of Appeal.[58]There Fraser LJ held:
“80. The principles governing Article 3, including the positive obligations imposed on public authorities are usefully summarised in X v Bulgaria (2021) 50 BHRC 244 (Application no. 22457/16): ‘177. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals… Children and other vulnerable individuals, in particular, are entitled to effective protection… ‘177. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals… Children and other vulnerable individuals, in particular, are entitled to effective protection… 178. It emerges from the Court’s case-law as set forth in the ensuing paragraphs that the authorities’ positive obligations under Article 3 of the Convention comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision; and, thirdly, an obligation to carry out an effective investigation into arguable claims of infliction of such treatment. Generally speaking, the first two aspects of these positive obligations are classified as “substantive”, while the third aspect corresponds to the State’s positive “procedural” obligation.’ 81. Those paragraphs were recently endorsed by this Court in AB v Worcestershire CC [2023] EWCA Civ 539. Lewis LJ, with whom Dingemans and Baker LJJ agreed, having cited from X v Bulgaria at [13], reiterated at [14]: ‘Thus, Article 3 prohibits a state from inflicting inhuman or degrading treatment or punishment. It also imposes certain positive obligations on the state. These include putting in place a legislative and regulatory system for protection (often referred to as the “systems duty”). They also include an obligation to take operational measures to protect specific individuals from a risk of being subjected to treatment contrary to Article 3 (often referred to as “the operational duty”). They also include an obligation to carry out an effective investigation into arguable claims that treatment contrary to Article 3 has been inflicted (often referred to as the “investigative duty”).’ 82. A problem which has arisen in this case, in my judgment, is what might be described as the shifting or unclear terminology in some of the arguments, including in the first judgment in the County Court. Describing someone such as a claimant in this case as having ‘procedural rights’ and ‘substantive rights’ under Article 3 is, in my judgment, apt to confuse. That confusion can be compounded when one considers that the word procedural has been used in the European cases such as X v Bulgaria to describe what this court in AB v Worcestershire CC more correctly labelled as the investigative duty. As May J observed at [50] of her judgment [from which the appeal to the Court of Appeal was brought]: ‘Article 3 has been interpreted as charging public authorities with certain obligations. The nature and scope of these obligations is still developing and the manner of describing them has not always been consistent. However they fall into three broad categories of “systems”, “operational” and “procedural/investigative”, helpfully set out with reference to relevant authorities by Johnson J in the case of R (MG) v SSHD [2022] EWHC 1847 (Admin) at [6] to [8].’ 83. MG concerned injuries suffered by an asylum seeker housed in a hotel. Another resident there ran amok, stabbed several people including the claimant, and was shot dead by police. The claimant sought an order that the defendant commission an independent investigation into the events which culminated in that attack which had caused his injuries. The judge adopted the descriptive terms of systems obligation; operational obligation and investigative obligation to describe the different types of positive obligations upon public authorities as a result of Article 3 (and Article 2, which arose in that case but does not arise in this one). That descriptive approach was gratefully adopted by May J at [50] in her judgment, and I adopt it too. The duties upon a public authority are three-fold, or best seen as falling into those three categories. 84. I consider the helpful descriptive terminology used by Johnson J, and already approved by the Court of Appeal in the judgment per Lewis LJ at [14] in AB v Worcestershire CC, to be the correct one. In my judgment, the three groups of positive obligations upon public authorities that arise under Article 3 (namely the systems duty; the operational duty; and the investigative duty) are those that should be used. Notwithstanding the final sentence of [178] of X v Bulgaria quoted above, which seeks to further describe or group those three categories into ‘substantive’ (the first two) and ‘procedural’ (the last one), I would resist that. Describing, in the context of a claim for damages of Article 3 rights, one of those types of duty as procedural and another as substantive, introduces into the taxonomy an unnecessary and confusing gloss. Indeed, in this case it has led to the focus being upon what type of rights might, or might not, if breached, lead to a successful damages claim, at the expense of, and thereby diluting, consideration of the requirements of section 8 HRA 1998. 85. In her judgment, May J — having adopted the systems/operational/ investigative terminology, went on to say: ‘[50] …The “procedural” obligation contended for by the Claimants in the present case appears to me to fall into the “low-level systems” category identified by Johnson J in MG…’ 86. I agree with May J that the duty contended for by the claimants in this case is in reality (regardless of the claimants’ disinterest in describing it as such themselves) a low-level systems duty. There is a difficulty here given the majority of the cases dealing with the three types of duty concern the right to life under Article 2, rather than the rights under Article 3. But there is sufficient to make clear that the same descriptions of the types of duties arise under both articles... Applying the rights under Article 3 not to be subject to inhuman or degrading treatment by analogy to the Article 2 rights, any duty that were to be found to arise here would be a low-level systems duty to adopt administrative measures to prevent a person falling into the severe state of destitution that would constitute inhuman and degrading treatment contrary to Article 3. 87. There are various situations in which such a systems duty has been held to arise. It does so whenever a public body undertakes, organises or authorises dangerous activities, but it has also been held to arise in the circumstances of health and social care, where a public body is responsible for welfare of those in its care and exclusive control, and also in hospitals, prisons, detention facilities, waste collection and building sites, on board a ship, derelict buildings, road safety and flooding reservoirs. These different factual situations are all helpfully listed at [6] of MG, together with the references to the different European cases relevant to each. The descriptive summary I have provided here is sufficient to demonstrate the wide range of situations in which such a duty has been found. 88. May J held at [67] that ‘whilst the categories of Article 3 systems duties are never closed, in my view the Claimants’ circumstances were not such as to call for an extension of a systems duty owed to them at the point of imposition of the NRPF condition.’ I accept the categories of systems duties are not closed; however, I do not accept, and disagree with her, that it would be to extend the systems duty upon the Home Office both to consider that the systems duty applied in this situation, and that the obligation that arose as a result of that duty was owed to the claimants. The Home Office had… by reason of the imposition of the NRPF condition, potentially put each claimant in the position whereby public funds were not available to prevent them falling into such severe destitution that this amounted to a breach of the rights that each had under Article 3 not to be subjected to inhuman or degrading treatment. Having done so, there must in my judgment be a low-level systems duty upon the Home Office.”
[59]In my judgment, the trust here owed a systems duty to give Mr Ali access to the pathway therapy. It may well be that the therapy would not have succeeded in bringing about a situation where he was eventually released, but, as the European Court of Human Rights held in Murray at [103] “national authorities must give life prisoners a real opportunity to rehabilitate themselves.” The only chance Mr Ali had — and the only chance he currently has —to rehabilitate himself is if the trust facilitates his taking part in the pathway therapy. In my judgment he should have that chance.[60]The failure to give him that chance in my judgment is a breach of his Article 3 rights.[61]In the light of that conclusion I do not need to consider his claim under Article 8, but much the same considerations arise and, had it been necessary to decide it, I would for much the same reasons have found in his favour on his Article 8 claim. Assessment of damages[62]This leaves the question of what, if any, damages Mr Ali can claim. I have held that the trust has breached his Article 3 rights by failing to arrange for him to do the pathway therapy. In some jurisdictions, it is open to award vindicatory damages to recognise the breach of the claimant’s rights: see, for example most recently, Attorney-General of Trinidad and Tobago v JM [2022] UKPC 54. This is not the English practice. However, it does not mean no damages can be awarded.[63]Ms Bushby submits as follows:
“54. Under section 8(3) of the Human Rights Act, damages are discretionary and will be awarded in line with the leading decisions of the House of Lords and Supreme Court which require a claimant to show, that ‘the award is necessary to afford just satisfaction’. A court finding that there has been a breach of a Convention right is acknowledged as a sufficient remedy for just satisfaction (ECHR Practice Directions, Just Satisfaction Claims, 9th June 2022). 55. The Defendant submits that a finding of a breach by the court will be a sufficient remedy for the following reasons: a. The Claimant significantly contributed to the situation complained of by not engaging with mental health support and programme offers. b. The Claimant should not benefit financially from the criminal acts in which he has committed. c. Any violations found will be minor in nature.”
[64]She does not, however, suggest that the Court should make a declaration (and none has been sought by Mr Ali). Instead she submits that the claim should simply be dismissed in toto.[65]Lord Hope held in Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134 at para [87] that the “function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done, the duty is a hollow one, stripped of all practical force and devoid of all content.” It would thus be inappropriate in my judgment simply to dismiss the claim.[66]In the current case, Mr Ali should have been offered the pathway treatment shortly after the letter of 7th October 2020 was issued. He was not. Instead he has been left in limbo for over five years. Yes, it may well be that the pathway therapy would not have led to a referral to Rampton. Yes, it may well be that Mr Ali would not have improved in Rampton and might never have been released. But the pathway therapy gave him a hope that he might eventually be released. That hope is, I have found, protected by Article 3.[67]As to the matters outlined by Ms Bushby in para 55 of her submissions, I do not accept Mr Ali contributed to the situation by not engaging with mental health services. He was not offered the pathway therapy recommended in the 7th October 2020 letter. That was not his fault. He is not benefiting for his criminal conduct. The punitive part of the indeterminate sentence under which he is currently imprisoned was served by 2012 and any other offending has also been punished. The violation of Mr Ali’s right to treatment is not trivial, as Ms Bushby implies. Any breach of Article 3 is serious.[68]In my judgment a modest award of damages is necessary to afford just satisfaction to Mr Ali. I bear in mind that due to the limitation issue only the period from 4th October 2022 is actionable. A declaration (even if I could make one, when neither party seeks such an order) would not recognise the time where Mr Ali has been in a state of hopelessness. In my judgment an award of £2,000 is appropriate. Costs[69]I would normally invite submissions as to costs, however, I am mindful of the difficulties Mr Ali has in communicating from prison, as well as proportionality. He is the winner in this matter. Although the case was originally on the small-claims track, it was moved onto the multi-track on 10th December 2025. Thus in principle, he has a claim for his costs as a litigant in person from that date. I assume he did not pay any fees to the Court. His claim to costs is thus solely for his own time since 10th December 2025, payable at a rate of £24 an hour. I do not have a figure for the hours he has spent. If neither party submits to the contrary within fourteen days of the handing down of this judgment, I am minded to award cost summarily assessed as 20 hours at £24 per hour, a total of £480.