Mackenzie, R (on the application of) v HM Prison Wakefield Governor [2006] EWHC 1746 (Admin)

Case No CO/5274/2005

[2006] EWHC 1746 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 22 June 2006

Strand

London WC2

B E F O R E:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF MACKENZIEClaimant

-v-

Between

GOVERNOR HM PRISON WAKEFIELDDefendant

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MR P WEATHERBY (instructed by Howells of Sheffield) appeared via Videolink Manchester Crown Court for CLAIMANT

MISS N GREANEY (instructed by Treasury Solicitor) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE COLLINS: This is a claim for judicial review against a procedure which is carried out by the Prison Service whereby category A prisoners are inspected during the course of the night at regular intervals in order to make sure that they are still in their cells and there has been no attempt at or any escape in fact.

[2]The claimant is at present in Wakefield Prison. He was convicted in 1991 of a number of offences, including rape, and sentenced to life imprisonment. He has now served, having regard to a period spent on remand, something in the order of 16 or 17 years. In June 1991 it appears that he was attacked and beaten up in his cell. He had, as a sex offender, apparently at that time been placed in a prison wing with non-sexual offenders. As a result of that attack, he suffered some concussion and, more importantly, he has suffered from ill effects including, according to a psychiatric report which has been obtained, post traumatic stress disorder. He is now some 60 years old. He has, apart from the psychiatric condition, a number of physical problems. He has, I am told, prostate cancer. He has had recently a hip replacement, and he suffers from heart problems which require continual medication. Overall - Mr Weatherby submits - his physical condition is such that escape would be highly unlikely, certainly from a secure prison, and he has not attempted to escape during the 16 or 17 years that he has been held in custody.

[3]He is a category A prisoner and, as the Prison Standing Orders indicate, a category A prisoner is - "a prisoner whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must be to make escape impossible." As Miss Greaney points out, the ability to escape or the possibility of escape is not the reason why someone is within category A. It is because he would be a danger if he were to escape. There are three escape risk classifications for those who are category A. The claimant falls under what is described as a standard escape risk. I should simply cite the passage from the Standing Orders which explain what that is and what that involves:

"Most category A prisoners are classified as standard escape risk. They are not considered to have the determination and skill to overcome the range of security measures which apply to the custody and movement of category A prisoners. There is no current information to suggest that they have external resources which could be used to assist them to overcome those measures. They have no history of escape or determined escape planning. Even so, the Prison Service must assume that they would take any opportunity to escape and that, if unlawfully at large, they would pose a very serious threat to the public, the police, or the security of the State."

[4]One of the procedures that is required is that category A prisoners who are classified as a standard escape risk must be inspected during the course of the night at regular intervals. At Wakefield, because of work being done to the prison and because it was not as secure as was necessary to avoid more frequent inspections, such inspections took place every hour. It was because of that that the claimant first made complaints to the powers that be. What he asserted was that the inspection involved the opening of the hatch in his cell, the turning on of a light, and this was happening every hour. There was noise and sometimes even the full light, as opposed to low power light, was turned on. It was done in such a way as, in his view, deliberately disturbed his rest. Certainly it did cause disturbance. Because of his medical problems it had a greater effect upon him than it might upon others. He had, in any event, because of his prostate problems, to get up at least three times during the night and this added interference was having an adverse effect upon his health.

[5]The medical reports that he has produced make it plain that if his sleep was disturbed it would have an adverse effect upon his health, and since he was complaining that his sleep was in fact being disturbed that effect was taking place. There was no question but that because of his vulnerable state disturbance to him was the more serious. As Mr Weatherby has submitted, there is before me and there is now before the defendants as a result, evidence of the effect. As against that, it is important to note that he did not make any complaints to the Prison Medical Service about those effects upon his health. His complaints were that his sleep was being unnecessarily and deliberately disturbed.

[6]The submission that is made essentially is this that that effect is such as to breach

Article 3 of the European Convention on Human Rights

, alternatively Article 8. Insofar as Article 8 is concerned, it is unnecessary and disproportionate because of the physical state of the claimant and the fact that in his case it is, if not absurd, at least verging on the absurd to think that there is any real risk that he might escape if these checks did not take place during the night. Accordingly - although the policy is, and the existence of the policy as such is not attacked, nor could it be, that there should be inspections regularly during the night - in his case because of his particular problems it is appropriate that that policy be applied in a flexible manner. Accordingly, there is no need for what now is the position, not in fact hourly inspections but what amount roughly to every two hours, the reason for that being that the policy has been amended in respect of Wakefield because the necessary work has been done to render it as secure as possible.

[7]So far as Article 3 is concerned, that deals with the prohibition against torture or inhuman or degrading treatment or punishment. Mr Weatherby has submitted that treatment or action such as this - which in fact has an adverse effect upon an individual's health - is capable of falling within Article 3. I am bound to say that in my judgment the policy here and its effects come nowhere near reaching the threshold that is required to engage Article 3.

[8]I have been referred, on paper, to a number of cases, but in particular this morning Mr Weatherby drew my attention to a decision of the European Court of Human Rights in Yankov v Bulgaria

[2005] 40 EHRR 36

. That was a case in which the prisoner, following his arrest, had had his head shaved and had been placed in solitary confinement for a week in a cell which he claimed had no lavatory, poor hygiene and there was insufficient light. The case was decided in favour of the claimant Mr Yankov on the basis that shaving his head amounted to degrading treatment, and there was no proper excuse put forward by the government for having shaved his head other than it was designed to humiliate him. The government suggested it had been done for hygienic reasons but the court had no difficulty whatever in rejecting that explanation. The general principles are set out in paragraphs 103 onwards on page 872. Mr Weatherby has relied on the general principles there set out. What the court said in paragraph 103 was this:

"103 The court reiterates at the outset that 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 victim's behaviour. 104 Treatment has been held by the court to be 'inhuman' because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be 'degrading' because it was such as to diminish the victims' human dignity or to arouse in them feelings of fear, anguish and inferiority capable of humiliating and debasing them."

It made the point in relation to degrading treatment that the purpose for which the relevant treatment was applied is a highly relevant consideration. The court at paragraph 107 made the point that the suffering and humiliation involved had to go - "beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element." Yankov of course was concerned with the conditions under which the particular individual was kept and the treatment that was applied to him.

[9]There is no question but that the policy of inspection during the night is not one that is aimed in any way to humiliate and is not designed in any way to cause injury of any sort. Indeed in most cases it does not cause any injury. It may cause inconvenience and it may be a nuisance if, from time to time, an individual's sleep is disturbed, but that falls far below anything which can properly be regarded as torture or inhuman or degrading treatment and thus, in my view, falls far below that which can be said to be a breach of Article 3. Accordingly there is no case in respect of Article 3.

[10]The alternative that Mr Weatherby relies on is Article 8, that is to say, the right to respect for private life. Article 8.2 provides that there shall be - "no interference by a public authority with the exercise of his 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 a 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."

[11]There is no question but that this particular policy to inspect is in accordance with the law. It is approved in Orders which are made in accordance with the Prison Rules and the Prison Act. It is not argued that in general it is unnecessary in the interests of national security, public safety, and prevention of crime; it clearly is. What is said is that in the case of this individual it is not necessary because of the effect that it has upon him. However as Miss Greaney correctly submits, the policy is applied but not in such a way as will inevitably have the damaging effect. Measures can be taken, and are being taken, to try to ensure that it does not have the adverse effect upon the claimant that he has complained about. Thus instructions have been given to ensure, or to try to ensure, that no noise occurs, or as little noise as possible occurs, when the flap is opened and that no more light than is necessary from a low wattage bulb is applied.

[12]It is important to note that the claimant himself accepts that he is not always disturbed and that there are officers who carry out the inspections in such a way that avoids any disturbance. The evidence before me is that over a period of up to a month in recent times he has not been disturbed in his sleep. Accordingly, as it seems to me, it is clear that the policy can be applied in such a way as avoids any damage to the claimant. Furthermore it has been suggested that he might be assisted by a mask such as one wears on an aeroplane to avoid the effects of light and, as was raised this morning, the possibility of ear plugs which would avoid the effect of any noise. It is perhaps not without significance that the psychiatrist's report concludes that his insomnia is likely to continue to be a problem so long as he is subjected to loud noises and/or bright lights during night-time security checks. If the checks are carried out in the way that they ought to be carried out there is no need for loud noise and there is no need for bright lights.

[13]Accordingly, as it seems to me, the policy is not one which even in the claimant's case necessarily produces the adverse effects of which he has complained. Accordingly there is, in the application of that policy, no interference with his private life to the extent that his private life can be interfered with if his sleep is affected.

[14]That Article 8 - an interference with private life - can apply in the context of a prison is accepted by Miss Greaney; and indeed that that could be the case was decided by the Court of Session in Napier v Scottish Ministers, a decision in April 2004, reported in the Inner House in 2005 SLT 379. It is not necessary for me to go into the details or to examine the circumstances in which it can be said that there has been an interference with the right to private life within Article 8. Suffice it to say, for the reasons that I have given, it seems to me that the application of this particular policy and the night-time checks does not create such an interference, even in the case of a vulnerable person such as the claimant, provided it is applied in the way that it ought to be applied; I have no evidence before me that it is not now being so applied. The complaints initially were largely because of excessive noise and excessive light when the checks took place.

[15]Having said all that, I merely conclude by noting that the answer to the claimant's complaints to the governor about the effect on him was that there was no way in which the policy could be amended in his case and it was necessary, and remained necessary, that there should be the inspections, I think, five times overall during the night.

[16]Miss Greaney submits that it is quite impossible for the Prison Service to be required to consider individual cases separately and to be prepared to disapply that policy in relation to an individual. As a general proposition, that is undoubtedly right. It seems to me that if in an individual case - and for the reasons I have given I am satisfied it is not this case - it is clear that a particular prisoner is suffering unduly as a result of the application of the policy and the need for checks, consideration can be given as to whether, where there is good evidence of the effect, good evidence that he is not in any way an escape risk, the policy can be amended in any reasonable fashion. That such will be necessary in respect of this policy will only apply in the rarest of cases. It seems to me that it is not right to say "This policy exists, it is inflexible, it must be applied whatever its effect". As I have said and indicated, in my judgment, it does not, in the circumstances of this particular claimant, create the interference that results in a breach of Article 8.1. Certainly it is a policy which is fully justified within the terms of Article 8.2. It is proportionate and necessary and accordingly this claim must be dismissed.

MR JUSTICE COLLINS: Are there any further applications?

[18]MISS GREANEY: No.

[19]MR WEATHERBY: My only application is for a detailed assessment.

[20]MR JUSTICE COLLINS: You may have that, Mr Weatherby. (Short discussion as to the videolink system) ---