AN, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1921 (Admin)

[2009] EWHC 1921 (Admin)Case No CO/4457/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/07/2009
Before
THE HON MR JUSTICE IRWIN
Between
THE QUEENClaimantON THE APPLICATION OF ANClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Ms Phillippa Kaufmann (instructed by Birnberg Peirce & Partners) for ClaimantMr Vikram Sachdeva (instructed by Treasury Solicitors) for DefendantHearing Hearing dates: 27 February, 2 March,12 May
Judgment
[1]In this case the Claimant is a prisoner in HMP Belmarsh. His claim is based on his detention in a single cell between 29 April and 13 May 2008. He firstly claims that his detention in a single cell violated Article 3 of the European Convention on Human Rights because it subjected him to inhuman and degrading treatment. Secondly and in the alternative, if the treatment did not cross the Article 3 threshold, he claims it constituted an unjustified interference with his right to private life under Article 8 of the Convention. In the further alternative the Claimant submits that if the negative obligations cast by Articles 3 and or 8 were not violated, his placement in a single cell was unlawful because it exposed him to a real and immediate risk of a violation of his rights under Articles 3 and 8 and that the Defendant’s actions in placing and keeping him in a single cell were disproportionate; and further that the Defendant did not take reasonable and proportionate measures to minimise or eliminate the risk of a breach of obligation. The claim is for declaratory relief, damages and costs.

Procedural History

[2]The claim was issued on the 12 May 2008. On that day, Mr Justice Forbes dealing with an urgent application directed that the case proceed urgently, by way of a rolled-up hearing. He directed that the Defendant should file evidence and Acknowledgement of Service within 14 days. There was a failure to do so, partly it is said because there was some difficulty encountered by the Defendant in getting the relevant evidence from the prison managers in time. The urgency of the case was diminished by reason of the Claimant’s move on 13 May back into ward accommodation.[3]There were further directions in the case on 11 July 2008 given by Mr Justice Charles. On 17 July, Mr Justice Silber gave further directions, again to enable the case to be listed for hearing and final determination. He ordered an Acknowledgement of Service to be filed by 15 August with consequential directions as to service by the Claimant. On 3 September 2008, the matter was listed for trial beginning 2 October 2008. Unfortunately the Defendant’s evidence was served late. Subsequently, Mr Justice Blake observed that this delay on the part of the Defendants was at least in part evidently unjustifiable, since the relevant medical report was dated June 2008. The Defendant’s grounds of defence were dated 5 September 2008. On 18 September it was recognised, by consent between the Parties, that the hearing date of 2 October could not be effective and on 1 October, the court yet again fixed the matter for 4 December.[4]For reasons which were set out in an email of 27 November, the Claimant did not file evidence in reply within 14 days, or indeed within 2 months, of receipt of the Defendants’ grounds of defence. It was only on 1 December that a substantial witness statement was lodged from the Claimant personally and only on 3 and 4 December did two medical experts make reports which were served upon the Defendant. On 1 December, the Claimant had made a formal application to adjourn. On 2 December Master Venne refused an application made on paper for the adjournment. On 3 December, the Defendant who had originally opposed the application to adjourn, concluded that there was no real prospect of the hearing on 4 December of being effective. A joint application was made when the case was called on before Mr Justice Blake on 4 December 2008, and he yielded to the application for yet further adjournment, directing that the hearing should be listed and determined before 28 February. His reason for doing so was that:
“In March it is anticipated the Claimant would be standing his criminal trial and it would be highly desirable for this issue to be resolved before that criminal trial intervenes.”
He also observed:
“The court is unlikely to be sympathetic to any further failures by any party to meet the directions which once again it gives for resolution of this case.”
[5]Mr Justice Blake further directed that the Defendant should have until 14 January to respond to the evidence which had been served by the Claimants both as to fact and as to medical opinion. He said:
“The court stresses that that is not merely an aspirational target for delivery of that material, it must be delivered by then.”
He further directed that all skeleton arguments and revised bundles should be lodged with the court no later than 7 days before the hearing and described that as “an imperative necessity”.[6]The case came first in front of me for hearing on the morning of Friday 27 February. The Defendant was in flagrant breach of the Orders of Mr Justice Blake. Further witness statements had been prepared by the Defendant’s servants Beverley Clarke and Martyn Redgate, in each case dated 25 February 2009, or some 6 weeks after the end of the time when they should have been served. The further medical report from the Defendant’s expert Dr Cumming was dated 23 February 2009. All of this material appears to have been served on 26 February. It is unsurprising that the Claimant’s lawyers were unable to respond to any of this material by way of an amended skeleton argument before the hearing. The skeleton argument prepared by Counsel for the Defendant for the purpose of the hearing on 27 February was faxed to the court office at around 6.00pm on the evening before the resumed hearing date, that is to say 6.00pm on 26 February 2009.[7]At the beginning of the hearing of the case on Friday 27 February I ordered that a full explanation in writing should be given of these delays by the individual who has conduct of this case on behalf of the Defendant. Such a letter was provided on Monday 2 March. It offers an apology and concedes fault, but provides absolutely no reasonable excuse for what took place. There does not seem to be an excuse for the grossly inadequate performance by those representing the Defendant.[8]However, matters did not stop there. In the course of the hearing on 2 March, one or two questions arose concerning evidence which called for an answer from the Defendant. When the hearing resumed on 12 March, a long and detailed witness statement from Beverley Clarke was produced. It had been served on the Claimant’s legal team only the previous day. This statement did deal with the points which had arisen, in particular with what had been known about the Claimant at the time by those who took the relevant decisions. In relation to those questions, the evidence advanced was both obviously important, so that it should have been advanced from the beginning, and to some degree different from the information put forward by the Defendant in earlier written submissions. However, the statement also added a good deal of previously undisclosed and potentially relevant information on other topics. There was little alternative but to allow a further adjournment of the case, permitting the Claimant to address the extra evidence now advanced. The explanation of the late delivery of this evidence amounted to the excuse that the witness would not or could not be seen promptly after 2 March, that a lot of other people had to approve the statement before it was served, and that they did not all address the draft statement promptly. Particularly given the history of this case before 12 March, this performance was truly woeful.[9]If these proceedings were ordinary civil proceedings instead of an allegation of inhuman and degrading treatment of a prisoner, the Defendant would be very likely to have had a default judgment entered against him. I direct that the text of this judgment up to and including this paragraph should be brought to the attention of the Treasury Solicitor in person. The High Court cannot tolerate repeated disruption of the lists through inadequate case preparation, something which had been made explicitly clear by Mr Justice Blake in this case.

Background

[10]The Claimant is a UK citizen born on 22 August 1981. He grew up in Ashby de la Zouche, a town near Leicester. His family have Ghanaian connections. He finished his education in the spring of 1999 and in September 1999, then aged 18, he decided to go to Syria to start learning Arabic at a mosque. He himself had converted to Islam during his teens.[11]He returned from Syria to the UK in September 2000 and found work in the London area, marrying there whilst working as a security guard, on 12 July 2002. His marriage was performed in a mosque but without a civil ceremony and thus he is regarded as formally married by Muslim religious authorities only.[12]On 24 September 2005 the Claimant with his wife and young child travelled again to Syria, spending a few days in Saudi Arabia en route. The Claimant’s statement describes how his wife fell ill in Syria during the summer of 2006 and how, after a break in studies, he enrolled at university in September 2006 on a course which was ongoing when he was arrested in December of that year. The Claimant then describes how he was assaulted and arrested in the street in December 2006 and taken to prison. He was interrogated, mistreated and imprisoned, including being placed in solitary confinement. The accusation against him, at least in part, was that he was an extremist Muslim with violent Jihadist beliefs. It is acknowledged on behalf of the Claimant that he is a believing Muslim. He denies the suggestion however, put to him by the Syrian Authorities, that in fact his purpose was to travel from Syria into Iraq in order to fight against occupying western forces.[13]The Claimant alleges that he was significantly mistreated whilst in prison in Syria and, certainly for the purposes of this application, that broad picture is not challenged by the Defendant. His mistreatment included being subjected to excessive heat, and to excessive cold; being placed in very overcrowded prison conditions; being beaten on his feet with electric flex, kicked and otherwise assaulted. His mistreatment also included being placed in solitary confinement for considerable periods. As we shall see in a little more detail, it is common ground that the Claimant has suffered significant psychological consequences from this course of mistreatment and is diagnosed as suffering from Post Traumatic Stress Disorder (PTSD).[14]On 31 March 2007, the Claimant was deported by the Syrian authorities back to the UK. On 4 July 2007, a Control Order was made under the Prevention of Terrorism Act 2005 for 12 months in relation to the Claimant. This was due to the belief of the Secretary of State that he has “participated in terrorist-related activities and that he wishes to travel abroad for terrorism-related purposes”.[15]The open case of the Secretary of State in the control order proceedings [2008] EWHC 372 (Admin) is that the Claimant:(1) has an intention to travel abroad for terrorism related purposes;(2) attempted to abscond from his control order on 9 September 2007;(3) has acted as a link between London based extremists and Al Qaeda linked overseas extremists;(4) has been involved in attack planning, likely to have taken place in the middle-east, to which he has travelled repeatedly;(5) has facilitated extremists to participate in terrorist-related activities overseas, and(6) has openly advocated support for violent extremist activities.[16]There is no evidence to show that anyone in Belmarsh had the open case in mind, or indeed had it at all, when reviewing the security concerns about the Claimant.

The first period in HMP Belmarsh

[17]The Claimant was alleged to have conspired to breach his control order and on 11 September 2007 was brought in to HMP Belmarsh on remand. According to the evidence of Beverley Clark, when the Claimant was first brought into Belmarsh little was known about the specific nature of his alleged offending or that he had any particular health needs. It was known that he was awaiting counselling for post-traumatic stress disorder. However, in her third statement, of 11th March 2009, Beverley Clarke, who is a Governor at Belmarsh responsible for the staff in the Health Care Centre, told the court of the information she was given in a briefing by a member of the Home Department, concerning AN. She was told that he had participated in terrorism-related activities, that he was a contact of London based extremists, and was the ‘predominant link’ with that group and Al-Qaeda linked extremists overseas; that the main purpose of his travel in the Middle-East was for ‘terrorism-related purposes’; that AN had openly advocated support for violent extremist activities, justifying his views on religious grounds; that he was linked to other specific South London extremists and that he posed a serious risk to national security.[18]The Claimant’s record from his period on House Block (that is to say the ordinary part of Belmarsh) has been produced and is markedly concise. The Claimant was placed in a single room on a normal wing location. On 12 September, he had a “one to one induction interview”. There is no record in any note at that stage that the Claimant said he was troubled by a single cell. The continuous clinical record opened whilst the Claimant was on the wing, notes that he had a mental health team referral and that he required his post-traumatic stress disorder to be addressed. Nothing was recorded about a single cell being a problem. The same is true of the health screen performed on 12 September, which curiously records that this was the Claimant’s “first time in prison”. The psychiatry/psychology referral form which was filled out on 12 September records that the Claimant suffers from PTSD and has been seen by the Mental Health Team. It also records that there has been no self harm and that he needs to “talk to listeners, Samaritans and nurse if don’t feel he is coping very well….Feels …alright at the moment”.[19]The Claimant remained in the single room and gave no real cause for concern until he made a suicide attempt on 1 November 2007. He was found by staff with a ligature round his neck tied to the bars of the window whereupon he was cut down and revived. He was admitted to the Healthcare Centre for a period of assessment and observation on the same day and immediately had a detailed psychiatric review. From this point forward, there are detailed healthcare notes.[20]The psychiatrist who engaged with the Claimant immediately discussed the reason for the attempted suicide and was told by the Claimant that on the previous day:
“he heard on the news that Control Orders will not be abolished and in some cases maybe stricter. He was very upset about this”
. He also explained to the doctor that his wife’s nephew and niece had died in a car accident weeks before, and he was unable to attend the funeral. His Control Order prevented him from contacting anyone without authorisation. All these stresses taken together made him feel very low and he had attempted to take his life as a result. He explained that he suffered nightmares and flashbacks as a result of the torture in a Syrian prison and described the feelings he had experienced of being in an isolated trench, whilst he was locked up in Syria. He went on to speak of psychological problems, of family difficulties with his wife and son, and to discuss his family background, including mental breakdown and difficulties on the part of his mother and brother. He was able to talk quite freely about his experiences in Syria including his mistreatment at the hands of the authorities. He denied that he had any continuing intention to commit suicide and he agreed to comply with intervention, including medication if that was appropriate. The psychiatrist diagnosed an adjustment reaction and symptoms similar to PTSD, and formulated a care plan which meant that the Claimant would remain on the healthcare wing, would be watched, assessed and further treatment offered.[21]In this long note, there is no mention that the Claimant had found living in a single cell to be difficult. Nor was there any suggestion that matter formed part of his motivation for attempting his own life.[22]In his witness statement prepared for these proceedings, the Claimant asserts that he was “extremely worried about the thought of being in a single cell as confined spaces make me extremely panicky” and the implication of the statement is that his feelings on this point were present from the very beginning. The Claimant does not suggest in his witness statement that he said any of this either to the doctors or to any prison staff at the time. It is also of note that when one reads through the long witness statement of the Claimant prepared for the Control Order proceedings, which has been admitted by consent in these proceedings in a draft form but to stand as evidence from AN, there is no emphasis on any concern about a single cell. In paragraph 51 of the Control Order statement, the Claimant describes being in a small cell and in one or two passages in the witness statement (see e.g. paragraph 76) he emphasises that he had been in solitary confinement and that this had an effect on him, but he does not lay any emphasis on a concern about being on his own. The statement does not suggest that he has become claustrophobic or afraid of small spaces.[23]Tracing through the contemporaneous medical notes from the prison, there is no concern mentioned by the Claimant to any of the doctors or nurses about being in a single cell until December 2007. Many of the Claimant’s concerns are mentioned, and at some length – the effects of his Control Order, his family affairs, his despair about himself, his anger at and mistrust of the authorities. For example, on 19 November he described to a nurse that his self-harming behaviour is “due to the anxiety he was feeling at the time….that his life is not much outside because of the restrictions to the Control Order” and that the secret service or police intend eventually to poison him. On 22 November, the Claimant was interviewed by Doctor Khan and told the doctor that he felt a lady in the ward round was from M15 and that “MI5 has djinns to deal with terrorist cases where the FBI uses psychics”. Many of these thoughts were considered by the doctors to be delusional in their nature.[24]On 28 November 2007 a mental nurse carried out an ACCT review. The Claimant told the nurse that he still had thoughts of self-harm “when asked how he feels about going to the house block. Said if he goes he will self-harm. He appears well settled in healthcare.” This note still does not focus on being in a single cell but rather on the shift back to the ordinary wing. The Defendant submits that this note demonstrates the Claimant was not suffering from uncontrollable feelings but rather making a “capacitated threat” to the authorities, using the risk of self-harming to gain his specific end.[25]Through the offices of his solicitors, and at least in large measure because of his mistrust of doctors active within the prison (although of course no longer employed by the prison service), the Claimant began to be seen by Dr Michael Korzinski who has a PhD in psychology with a special interest in torture victims, and who is on the clinical staff of the Helen Bamber Foundation. Dr Korzinski is a highly specialised consultant with a skill and interest in trauma programmes for those who have undergone torture or mistreatment. Dr Korzinski first saw the Claimant in Belmarsh at the very beginning of December 2007. Subsequent to that he saw Dr Khan, Dr Cumming, Nurse Gitter and Dr Faisal for reasonably full psychiatric reviews over the following fortnight. For example, on 21 December there was quite a long psychiatric review with Dr Khan where the Claimant expressed a number of concerns and worries. There was another full psychiatric session with Nurse Gitter on 29 December. Throughout all of these sessions there is no mention of a particular concern about a single cell. Throughout this period, the Claimant was in shared occupation of a cell on the Healthcare wing.[26]So far as I can tell from the evidence, the first mention by anyone of concern about a small room was on 21 December 2007, when the Claimant’s solicitors wrote to the Visits Department at HMP Belmarsh in the following terms:
“We write to raise a very important health issue in regard to our above named client. As you are aware [AN] is currently in healthcare, one of the reasons being we understand is that it is felt it is unsafe for him to remain in a small cell. With this in mind we would ask that [AN] not be placed in the visiting room for his legal visits until his solicitor has arrived in order to avoid any undue times spent in his small confined area, and therefore avoid unnecessary distress to our client. We are grateful for your assistance in this matter…… ”
As I have said, I can find no evidence pre-dating that letter which records contemporaneously a concern about a small cell. Nor is there any record which suggests there had been a concern about his occupying a small cell, or a single cell, voiced by the Claimant or by any treating clinician.[27]Between that letter and early February 2008, there were a number of clinical sessions with the Claimant, and the contemporaneous notes have been produced. Even though concern about a small room had been voiced by the solicitors in the letter quoted above, the Claimant himself made no mention of this issue, of claustrophobia, or indeed of his experience of solitary confinement in Syria. His concerns are centred on his general and family situation, what he thought of as his poor prospects even if he was bailed and his poor legal prospects generally, his mistrust of taking medication and his lack of contact with his family. He was noted as finding the psychology sessions with the treating psychologist difficult, and in that context he ‘talked about the difficulties in his childhood’.[28]On 8 January 2008 the Claimant had a psychiatric review with Dr Faisal. There is a long note reciting a number of points of worry. Amongst many other items of concern, the Claimant told Dr Faisal that he “had not contemplated returning to the house block-feels that the next two months will be very stressful”. The return to the house block would of course mean two things: firstly the removal from the Healthcare centre and secondly the return to a cell from the six bed ward. It is to be stressed that this was merely one amongst very many points of concern. The Defendant lays emphasis on the fact that there was no stress here on the question of being in a cell rather than a ward, or in a single cell rather than a double cell.[29]As January progressed into February 2008, it seems clear that the relationship between the Claimant and the doctors and psychologist who attended him in prison deteriorated. He became more and more mistrustful of them, although it is fair to say that there continued throughout to be extensive notes made of what were obviously long discussions with him. On the 5 February 2008, Dr Khan saw him for a psychiatric review and there was quite a full discussion about his relationship with the Healthcare professionals and his accommodation. It reads in part as follows: “[AN] does not feel that healthcare centre professionals had done what they could do for him. Said contact with his wife had not been facilitated [gym] had been cancelled on occasions, and said he was supposed to see a counsellor in six to eight weeks and had asked to go to CASS unit. When he was in HB, [house block] so being in healthcare had not helped much. But he was reluctant to go to HB. Said he had severe anxiety and panic attacks in confined spaces like single cells. Said his PTSD symptoms were worse at present and does not feel that he would be able to cope in HB. Described his feeling that everyone in the system (prison) was against him. The doctors are playing ‘good cop and bad cop’ to collect information from him and to pass this on”.[30]This is the first contemporaneous record of any concern on the part of the Claimant himself about a single cell.[31]Dr Khan informed the Claimant that he would have a further psychology session that day and that on the following day (6 February) he was to be seen by an “outside psychologist” who had seen him earlier, the latter being reference to Dr Korzinski.[32]Dr Korzinski did in fact see the Claimant on the 6th February. No more clinical notes or nursing notes of significance are recorded before the decision on 12 February 2008 that the Claimant should be moved into a single cell within the Healthcare centre. Before I address that, it is necessary to look at the evidence bearing on the reasons for that move.

The Security Problem up to February 2008

[33]I have summarised above what was known about the Claimant as he arrived in Belmarsh. In a helpful statement from Christopher Ardern, the security estate for Category A prisoners is summarised. Category A prisoners are those whose escape would be highly dangerous to the public or the police or the security of the State. It has not been suggested that AN’s categorisation was inappropriate, given the authorities’ understanding as to his support for violent Islamist views. Category A prisoners are normally accommodated in single cells since such cells are the most secure form of accommodation and that is particularly so at night time when staffing levels decrease.[34]There are a small number of shared cells for Category A prisoners assessed as being in crisis and at risk of self harm. These are intended for short term use only. Each high security prison has a Healthcare Centre with a limited in-patient capability, which normally consists of single cell accommodation within the Healthcare Centre. Three prisons only within the prison estate – Belmarsh, Wakefield and Frankland – have a small shared ward capability within the Healthcare Centre. As described by Beverley Clark in her first witness statement, the Belmarsh Healthcare block holds two wards each with a capacity of six beds, one of which is for Category A prisoners. In addition, there are twenty one single cell locations. It follows that accommodation other than in single cells within the Healthcare block in Belmarsh, is limited to the single ward of six beds and Belmarsh is one of only three prisons with any such facility. There is unchallenged evidence from Beverley Clark that the Healthcare accommodation within Belmarsh is under continuous pressure.[35]Ms Clark was clearly the central person in the decision to move AN. In her first statement she recited the basis for that decision. Not only was AN understood to be an extremist Islamist, but so was prisoner “X”, also in the Healthcare centre at the time. Security intelligence relating to AN in the period between 8 November 2007 and 11 February 2008 included the fact that he was asked by another prisoner to complete a complaints form for that other prisoner; exclusive association between AN and other prisoners; AN calling other prisoners to prayer in Muslim service; AN encouraging another prisoner in what was perceived as challenging behaviour to a prison officer; AN welcoming any new prisoner arriving in the Healthcare centre; AN demonstrating “grab and throw” techniques; direct concern on the part of another prisoner communicated to staff as to his safety from AN and, last in time, on 11 February 2008 it was noted that a prisoner on the ward had converted to the Muslim faith and that was said to be under the influence of prisoner X, with whom AN had formed a very close association.[36]Ms Clark emphasises that there was a particular concern about conversion of other prisoners, and the matter is put on behalf of the Defendant that this was not mere conversion to Islam, but recruitment to that brand of violent Jihadist Islam to which AN was said to adhere. The other central concern was about the safety of other prisoners within the Healthcare Centre. As counsel for AN acknowledged, there is no challenge to the fact of the report of concern for his safety on the part of that other prisoner. Nor is there any challenge as to the authorities’ understanding as to the extreme nature of AN’s views or the fact that his brand of Islam includes support for violence.[37]The Claimant argues that most of these concerns were insubstantial or were un-investigated, consisting of suspicion only. The point is also made that a move to a single cell within the Healthcare block would not prevent association with other prisoners for many hours during the day, something that is unchallenged by the Defendant. Nevertheless, the Secretary of State maintains his position that it was rational and proportionate to regard such an accumulation of intelligence as indicating a serious concern for the safety of another prisoner, and what might be described as a gathering dominance over the other prisoners within the Healthcare Centre. It is argued that it is not necessary or indeed practical to investigate every piece of intelligence before taking such a decision. As to the effect of a move to a single cell, although that would permit continued association, it is said it is not ineffectual. A move out of the Healthcare Centre altogether might be disproportionate, given that there were genuine continuing concerns as to AN’s mental health against a history of significant self-harm.

The decision on 12 February

[38]Ms Clark explains that the decision taken on 12 February was to move both prisoner X and AN. However, for practical reasons, it was felt that both prisoners could not be moved at the same time, as there were only three constant watch single cells available, one of which was unable to be used at the time. If the two remaining constant watch single cells were used to house AN and X they would be in cells next to each other with the potential for them to “interact inappropriately”. In her second statement, Ms Clark explains that the cells are not soundproofed and communication between them is impossible to prevent. If one self-harmed, the other might follow suit. Thus the outcome was an immediate move for prisoner X, whilst AN was informed that he would be moved in due course.[39]The medical notes made by Dr Khan on the 12 February record that officer Redgate informed the doctors AN would be moved to a single cell. There was then a discussion between the doctors and AN himself, in the course of which the decision was explained to him. It seems likely that this discussion, for at least part of the time, included Mr Redgate. The doctors suggested that it would be “ideal to discuss and agree this in a multi-disciplinary team meeting on Thursday. However, we also explained that if there is serious security concerns (sic) then the move will have to be a security rather than a clinical decision.”[40]There is no mention in the notes of any direct protest about this by AN. Indeed, in the note made at 17:00 that day AN was noted to be stable in mood and behaviour. A further note from that evening records that he was “unhappy this pm that fellow inmate was moved to another cell” but there was no evidence of any extreme reaction or indeed real change in behaviour. Nor does the statement from the Claimant suggest that he made any particular point about his own prospective move, as an immediate response to the decision or even afterwards, during February 2008.[41]However, the point was made on his behalf forcefully by Dr Korzinski in a letter dated 15 February 2008. By then Dr Korzinski had met AN on two occasions, the second being 6th February. No doubt informed of the decision by the Claimant’s solicitors, Dr Korzinski wrote to the prison. He noted the history of self-harm. He noted that in his view AN was suffering from “complex post-traumatic disorder” and also that there were indicators that he was suffering from “a major depressive disorder”. Dr Korzinski went on:
“I wish to express my grave concerns over the prospects of moving [AN] off the medical wing. Moving him from a shared to a single cell at this stage is contra-indicated given the fragile state of his coping mechanisms.”
Dr Korzinski considered that such a move would make further therapeutic support of the Claimant extremely difficult and concluded that he would experience the move as a further form of persecution. “...especially in light of the fact that for the first time he felt that he was getting the psychological help that he needed. This is not a commentary on the quality of the previous support that he has been offered, but a reflection of the utter breakdown in his capacity to believe and trust in other people. … it is my understanding that the cell he will be moved to will be small and there will be long periods of isolation for example when they are on lockdown. Under these conditions he will find it virtually impossible to achieve any form of emotional regulation”.[42]It is not clear on the evidence before the court that there was any direct response to this letter on the part of the prison. However, the fact is that AN was not moved at that point.

The period between 12February and 29 April 2008

[43]Security concerns about AN continued to arise during this period. Those enumerated in evidence are: an episode of disobedience of prison officers after a Muslim service which caused the corridor to be partially blocked for a period of 15 minutes; the conversion of four prisoners to Islam since being located in Ward Three; the formation of a close association between nine prisoners, substantially Muslim prisoners, within the Health centre; an episode on 7 April whereby a demonstration on how to punch someone unconscious was given by one prisoner (not AN) and that, in association with that demonstration and very soon after it, AN was seen speaking to that prisoner as if giving instructions. In short, there was great concern that AN was converting other prisoners to an extremist and violent form of Islam and that he was dominant within a group who might be contemplating some form of disorder.[44]Ms Clark has made it clear that the continuing situation was monitored against the earlier background, that staff were aware of the exchanges of correspondence with the Claimant’s solicitors and that there was continuing discussion between the security staff and the medical staff as to how all patients including AN were to be managed. This last point is a response to the criticism that there appears in the notes no further review between medical staff and security staff before AN’s move to a single cell was actually accomplished.[45]There is no written record of any specific medical advice given on the single-cell point by Dr Cumming the consultant psychiatrist, or indeed any of the more junior psychiatrists or psychologists working within the Healthcare Centre. Dr Cumming had been seeing AN intermittently since 5 November 2007. He gave his first report in this case on the 29 June 2008, but that report clearly refers back to the view that he had formed of AN over the course of his direct clinical engagement, and derived from his supervision of the other professionals within the psychiatric and psychological team in the prison. Dr Cumming’s view in June 2008, and I infer the period leading up to that, was that there was a key issue of trust with the management of AN and “considerable evidence of poor trust between [AN] and the prison staff and indeed clinicians such as myself.”

Dr Cumming went on:

“I believe that other parties such as his legal team also have a role to play in the breakdown of trust. [AN] has a tendency to discuss all matters with his legal team and subjugates his care to an outside counsellor. Although it is of course important and right that crucial matters are discussed with legal teams, in the instance it has an effect of not allowing [AN] to develop his own coping strategies and also to put further distance between himself, prison staff and the clinical teams. Thus we have felt that whatever happens in his management (clinical, security or otherwise) tends to be discussed with his lawyers first. One might assume this is a sensible course of action but it represents a considerable divergence from most other legal teams.”
[46]The same report from Dr Cumming also points out that the medical notes over the weeks following the announcement of a decision to move AN to a single cell contained little of note, and that in general AN was settled and stable. On a detailed reading of the notes it seems to me that this conclusion is correct. The Claimant’s mental state seems to have been broadly similar to that before the decision. He continued with paranoid ideas but was mostly stable in mood without self-harm. He voiced a degree of suspicion about those who were looking after him, but his most frequently voiced focus of concern was his family and issues associated with that. On 10 April, AN refused to see a member of the prison Healthcare staff even on a proposed future date. When it was explained that he was on the Healthcare centre for psychiatric issues and that he should be reviewed regularly, AN stated that “he was seeing his own psychiatrist”. The psychiatrist attending simply stated that he would continue to ask to see him weekly.[47]Thirteen days later AN complained that he “hasn’t been seen by a doctor for 2/12 [two months].” When he was reminded that Dr Agarwal had attempted to make appointments to see him, AN said he had not been in the mood to talk. As the clinical session continued on 23 April the Claimant complained about his family problems and said that his trial (for alleged breach of the control order) which had been due to start on the 12 May had been adjourned. He then added:- “said the only two things which he finds helpful 1. Fortnightly sessions with doctor from Helen Bamber Foundation, breathing techniques 2. Being in a ward with others.” [AN] asked me to write above two things in his notes (asked twice)” The psychiatrist who saw him on this occasion, Dr Faisal, went on to note that once more AN’s prime worries concerned the continuation of the control order, the possibility of imprisonment and his family problems. Dr Faisal made the point of confirming to AN that he was aware that he could ask to see a member of staff when he needed to do so. AN raised the question of why he had to see Dr Korzinski in the legal interview rooms rather than in the Healthcare centre and it was suggested that he should raise that with security staff. [AN] asked me to write above two things in his notes (asked twice)”[48]On 28 April AN was asked if he would like to see the doctor but he declined to be seen. He did on the same day attend occupational therapy, as he had been doing frequently over the previous weeks.[49]Drawing all these strands together, from the contemporaneous or near contemporaneous information, it seems to me that a fair conclusion is AN was seeking to exert as much control as possible over all the arrangements to do with his life. He was certainly seeking to do so in relation to his clinical care. That effort has to be seen in the context of his history, and of his delusional beliefs and suspicions about all those associated with the State and the prison. That view of events is consistent with the security concerns which surfaced during this period. It is also consistent with the view Dr Cumming formed of the way AN involved his legal team with every part of his relations within the prison. Although the question of being moved to a single cell does not appear to have surfaced more than occasionally during the period between February and the end of April, it is fair to say the authorities knew both of Dr Korzinski’s view that this would be a wrong step clinically for AN and of AN’s view, articulated at least twice since the 15 February, that he did not wish to go into a single cell. It seems to me that this issue had come to form, at least in part, a struggle for control.[50]At 2pm on this date the Claimant was informed that he was actually to be relocated to a single cell, within the Healthcare Centre. The notes read “following being informed that he would be moving to a single cell [AN] asked to be given a razor blade so that he could cut his own arms; very annoyed that he has been told to move”.[51]At 18:35 that evening AN did make superficial cuts to his left arm which were treated. He refused his evening meal and stated that that was a protest against being relocated to a single cell. The Claimant had a disturbed night. The following morning he made further superficial scratches to his left wrist with a broken biro pen. The wound was again treated. When asked about his reasoning for this self-harm he refused to answer and was reluctant to comply with any request.[52]Later on the 30 April the Claimant was seen by Dr Faisal and complained that his location in a single cell was “unbearable”. He told Dr Faisal that being in a single cell reminded him of his experiences in the Syrian prison. AN told Dr Faisal that cutting himself was not an attempt to go back on the ward. “He knows he won’t be moved back to the ward but is the only way to cope”. When asked how he had coped in a single cell in the House Block before being moved to the Healthcare centre AN said that his health had “deteriorated” since he was served with the second control order.[53]After seeing AN on the morning of the 30 April, Dr Faisal discussed the case with Dr Cumming and they agreed that it would be prudent to put AN on constant watch in view of the increased risk of self-harm following his relocation in a single cell, and that is what happened.[54]After being transferred to the gated anti-ligature cell under constant observation, AN remained there for the following three weeks. It follows that he only had one day in a closed single cell. In the anti-ligature cell the constant observation regime entails the cell door never being closed and the prisoner is observed 24 hours a day through a gated door. This in turn means that AN was able to see fully out of the cell and communicate with a member of staff at all times. The cell is approximately twelve foot by six foot in dimensions with a sink, toilet, television and table. The window of the cell looks out over an exercise yard. As already indicated, AN was permitted to continue periods of association in the ordinary way and thus was able if he chose to mix with other prisoners regularly during the day.[55]From the time of his move, AN made the transfer to a single cell, both the original cell and the anti-ligature cell, a focus of his complaint. In addition to the two efforts at self-harm, he began to refuse to take fluids and food. He refused to allow clinical staff to make base-line observations such as taking his pulse, blood pressure or urine. According to the statement of Martin Redgate, whilst he was under constant observation staff did not see the Claimant consume any food and he claimed that he was not drinking. However, since the only acknowledged times when he drank during the next three weeks were on two or three occasions when he was given fluids by his legal team on visits, I am extremely sceptical of the claim that in fact he did not drink at least small quantities regularly during that period. That claim was initially advanced by those representing him before me, but there is no evidence to suggest that anyone could survive this period with only two or three drinks. As Mr Redgate points out there was a sink with a tap in his cell. During the whole of the time in the cell, the Claimant did not attend any activity except legal visits.[56]It is certainly the case that the Claimant persisted in refusing food and stated he was refusing to drink. For example on 6 May, the notes record a direct request by medical staff to take his clinical observations, since he had not eaten ‘for seven days including today’. However the Claimant ‘refused to have any of the above [tests] carried out by the nursing staff at ward level’.[57]Later on the same day there was a psychiatry review by Dr Agarwal. The notes begin as follows: “[AN] continues to refuse to eat or drink. He claims this is not a protest as he is not demanding anything. He says he wants to die as being in a single cell is adversely affecting his mental state. I said to him that if he wanted to move out of a single cell then not EAD [eating and drinking] was a protest but he said as he wasn’t expecting to move it wasn’t. He remains angry that he is in a single cell – he can’t understand the reason. He denies having a detrimental effect on his cell-mates. …’ Dr Agarwal noted that the Claimant had last drunk five days before when seen by his ‘own psychiatrist’ and that he certainly appeared dehydrated, with dry lips. The clinical note continues: “I urged him to EAD but he declined. He is fully aware of the effects of not eating on his physical health. His hunger strike is not down to the effects of his mental illness in that it is not psychiatrically driven. In my opinion his hunger strike is clearly a protest.’[58]On 7 May the Claimant received a legal visit, and drank some fluids at the request of his solicitors. On his return to his cell, he told staff that his lawyers had encouraged him to resume eating and drinking but ‘he mentioned that if he start [sic] eating he will cut up.’ I find this a striking reference in the contemporaneous notes. The Claimant was warning, or indeed threatening, that if he ceased one form of protest, he would begin another. In the event, he continued to refuse to accept food and drink from the prison staff. On 8 May the Claimant received a further legal visit and that afternoon drank a bottle of Lucozade to make his solicitor happy. He described this to Dr Faisal and once again confirmed that he “doesn’t trust any staff in prison”. He “went on to say hunger strike is not a protest don’t think he will be moved back to the ward. Said this is the only [way] he can cope in a single cell or will have to cut himself. Said he is aware of the risk of renal failure ….but “gone past the point of caring”. Said even if he is released from prison today he will be on “house arrest” unable to go to work. Said his wife’s phone number was finally cleared last Tuesday but doesn’t want to phone her as he is too distressed. Asked how would he feel if he was moved to the ward said to us he will not get better immediately or start eating but believes he will improve gradually…….”[59]On 9 May AN was informed that he would be transferred back to the house block on the ensuing day. He continued to refuse food and drink and refused both baseline observations and a psychiatric assessment. At 6.30 that evening he informed a prison officer that “if we moved him into shared accommodation on a house block he will find a razor blade and cut himself”. In my judgment, it is noteworthy that the proposal here was he should be in shared accommodation not a single cell. Yet the Claimant was still threatening self harm. He had a specific objective: being in a shared ward in the Health Care centre.[60]When the shift pattern changed before midnight that night, the oncoming prison officer had a long conversation with AN when he voiced his concerns about sharing a cell, even with a Muslim, on the house block. He stated that “he felt that this move was an attempt by the prison personnel involved to cause him to take his own life or be in with someone who would either report to prison authorities or cause him physical harm. Feels even more suspicious about his treatment in the prison and believes there is now concerted effort being made to get rid of him”.[61]On 10 May AN was visited by a Duty Governor Rebecca Harrison, who took the decision that he would not be moved to the house block. She attempted to gain some rapport with AN, and tried again to encourage him to eat and drink. By that evening he was noted to be more settled and to be relieved that he was not going to go to the house block. He told the incoming officer that he was “feeling much better and more calm with a clearer head”.[62]On the morning of 11 May, the prison officer with care of AN encouraged him to eat he refused food on the basis that he didn’t have the appetite, but he did take a shower and stated that he “felt much better”. He declined food at lunchtime but accepted exercise with fellow prisoners had a phone call to his mother and was recorded as being in a very good mood.[63]Through the rest of 11 May and into 12 May, AN continued to refuse food but did drink Lucozade from a bottle on the afternoon of 12 May.[64]On the morning of 13 May prison staff taking over had a considerable conversation with AN, noting that he was chatty and that he “explained he is not fasting or on hunger strike it is just at the moment he does not feel the need for food when he sees food he gets nauseated….. I asked him if he will try and take ENSURE as he cannot eat solid he said yes”.[65]It is clear by the beginning of 13 May, the Claimant’s mood was improving somewhat. Even before the developments of that day he had agreed to take liquid nourishment as the note I have quoted confirms.[66]On 13th May 2008 Mr Redgate met members of the mental health team including Dr Cumming and Dr Agarwal and reviewed the Claimant’s case. No concerns were raised by the medics about the Claimant’s mental health. Both of the doctors present were in agreement that the Claimant had retained capacity throughout. However, there were significant concerns regarding his physical well being and they wanted to get him to eat and drink normally. The meeting came up with the suggestion of a time-limited plan, with a view to returning the Claimant to a wing location within six weeks.[67]When this plan was put to him, the Claimant agreed that he would begin to take food and fluids, and to allow clinical staff to conduct appropriate medical tests. He was reminded of security concerns which were continuing and told there would be conditions to any move back into the ward. He went on a ‘visit on video link’ during the afternoon, and on his return he was told he was going to be moved to the ward within the Healthcare Centre. Following further discussions with Governor Bell an agreement or “compact” was drawn up, which was intended to put some structure around his return to the ward, to ensure that this would not be permanent, and to deal in effect with the security concerns which underlay the move from the ward in the first place. He was informed by staff that his stay in the Healthcare Centre would be limited to six weeks and that thereafter he would be moved to the House Block. He agreed with all of this. By 18.30 that evening, he had been transferred back to the ward, and had begun to take fluids and liquid food.[68]By 15 May the Claimant started eating solid food again, and when reviewed on 20 May by Dr Agarwal, his mood was much improved. Although things did not prove entirely plain sailing, and the Claimant’s feelings of being persecuted persisted, his condition improved thereafter.

Expert opinion

[69]Following the directions of Mr Justice Blake, no live expert evidence was called before me.[70]The Claimant principally relies on the evidence of Dr Korzinski. I have summarised above his background and the intervention he made before the Claimant was moved to the single cell. I bear in mind that he is a psychologist with a special interest in, and experience of those who have undergone imprisonment and maltreatment or torture. His report of 3 December 2008 makes a number of key points. In answer to a criticism from Dr Cumming, he emphasises that it is not his ‘practice to place undue emphasis on diagnostic classifications as such terminology does not necessarily lead to a better understanding of the client’s needs..’. In Dr Korzinski’s view, the degree of distress of difficulty suffered by the patient is of more importance.[71]It is clear however that Dr Korzinski does have views on imprisonment and the consequences of imprisonment for an individual such as AN, which, although probably borne of his experiences with prisoners, may not be in the mainstream. He states that he is not able to judge the dangers posed by such a prisoner but that if ‘incarceration is seen as the only option, all steps necessary including bringing in an outside consultant, is not an unreasonable course of action.’ Of course this point was not explored in cross-examination, and caution in interpretation is necessary, but on re-reading his reports and letters, it does seem to me likely that Dr Korzinski is in fact expressing a degree of dissent with the incarceration of his client, and a view that those doctors who have the care of those in prison are not independent, or independent enough. It may be that he did not know that prison doctors are no longer employed by the prison service. It may simply be that his view is there should always be a second opinion, given the closed nature of prison.[72]Dr Korzinski defends his view against a concern of Dr Cumming that AN is suffering from ‘complex’ PTSD, despite the fact that such a terminology does not appear in either of the main medical classificatory systems. I do not find this debate of much assistance. The attempt to standardise medical terminology is no doubt laudable, but perhaps more in psychology and psychiatry than elsewhere in medicine, the descriptions of pathology are fluid and the terminology shifting. Closely read, Dr Korzinski’s defence of the term ‘Complex PTSD’ amounts to the proposition that those who have been tortured in captivity can develop psychological ‘disorder that is more severe, more complex and more enduring’ than necessary to satisfy the definition of PTSD in the current DSM defined classification. I am happy to accept that proposition, just as I would be happy to accept that patients who have undergone other extreme stressors may also develop such complex and severe problems.[73]Dr Korzinski proceeds to argue that AN’s depressive disorder is major (and was at the time), something which can readily occur coincident with complex PTSD. This is perhaps his major disagreement with Dr Cumming. He based his conclusion upon his clinical observation of AN, which of course started before the move to a single cell, but for a large part, post-dated the transfer away from the single cell. Dr Korzinski does not ever separate out the evidence for his view into the material before and after the shift to the single cell. Nor does he ever analyse the detailed contemporaneous notes of other clinicians made along the way. As we have already seen, he wrote protesting about the move to a single cell in February 2008, at a time when he had seen AN twice. There is no evidence that he had seen AN’s notes at that time, or indeed has read them in detail since. Dr Korzinski went on to write ‘What [AN] has described to me is consistent with someone who is suffering with a major depressive disorder. One could argue that this is the “normal state” of someone who is in prison but that does not mean that it should not be noted or responded to in an appropriate manner.’[74]Dr Korzinski goes on to argue that clinical experience suggests torture victims have lowered thresholds to ‘mental anguish torture etc’, and that ‘what might seem to us a simple move will not be experienced as such by [AN]. It is experienced by him as a form of torture even though objectively speaking it is not comparable to what he went through in Syria. There may be other yet unknown reasons why [AN] does not want to be moved into a single cell but one cannot disregard his previous experience in Syria and the powerful set of conscious and unconscious mental associations that are connected with these experiences. Yes, [AN] does not want to be moved into a single cell but I would argue there are sound reasons for this based upon his traumatic past and previous experience of solitary confinement.’[75]Dr Dene Robertson is a consultant psychiatrist at the Bethlem Royal and Maudsley Hospitals, who saw the Claimant for medico-legal purposes on 11 April, 25 June, 2 July and 26 November 2008. It follows that he saw him for the first time some two months after the decision to move him to a single cell, and about two weeks before the decision was implemented. Dr Robertson’s first report is undated, but followed a conversation with Dr Korzinski of 2nd July 2008. It is important to note that this report was prepared in the period soon after AN’s contested stay in the single cell, and having seen AN on two further occasions after that.[76]For the first report, Dr Robertson was instructed to address AN’s general history and condition, the effect of the imposition of the control order, the effect of the interruption of care following his return from Syria and his state of mind when he breached the control order on 9th September 2007. Dr Robertson amended and extended his report after having seen AN again on 26 November 2008, but on this occasion he recited that he was instructed to report ‘dealing with a number of issues in relation to the Judicial Review’.[77]In the first report, Dr Robertson gave a full history, and in general terms outlined a picture of extreme experiences in Syria, of distress, and deep suspicion, which conforms to the common expert view of AN. In the course of this history, AN related to Dr Robertson that he was on his own in a cell at the first Syrian prison for a total period of 33 days. He was then take to a different prison, after being beaten, and there he was kept in ‘cramped unsanitary conditions; approximately 50 people in a cell 3-4 metres wide and 8 metres long.’ The climate in this prison ‘..even though I was not in solitary confinement..’ was terrifying, because of the torture and mistreatment of others and their screaming, day and night. This second prison was much more terrifying than the first.[78]At page 17 of the report, Dr Robertson describes how AN came to make his suicide attempt in November 2007, quoting extensively from AN’s own description. The central themes here are suspicion of the authorities and despair at the control order regime, particularly following ‘a House of Lords decision in which control orders were said to be legal’.[79]When discussing his time in Belmarsh, AN described to Dr Robertson how he initially did not want to transfer to the Health Centre, but after arrival found it better, less claustrophobic – ‘I could breathe’. Then he described how the prison authorities told him he was to be moved to an ‘ordinary location’ and he had a panic attack, and threatened the authorities that if anything happened to him ‘then you are responsible’, adding that then he had not been moved, but ‘…I still had the feeling that they were trying stuff on me.’[80]It seems clear from the report that in the course of their first meeting in late April 2008, AN had laid no emphasis on solitary confinement as a particular stressor in his time in Syria. Nor does it seem that he had complained about the decision to move him to a single cell in the Health Care centre. It might be that this had dropped away somewhat, since this interview was two months after the decision had been announced, and it had not been implemented. However, as we have seen, he did complain about the proposal to move him out of the Health Care centre and back to the block. There is at least a question mark about the whole issue of solitary confinement and single cells in the way AN addressed his concerns with Dr Robertson at their first interview.[81]Dr Robertson is quite clear about how things were presented at their second interview, on 25th June. By then of course, the move to the single cell had taken place and finished. Dr Robertson writes:
‘At my second interview with [AN] he told me that Dr Korzinski, who had been seeing him in order to support him with symptoms of Post Traumatic Stress Disorder, had recommended that he not be put in a single cell. However, he believed that as a result of allegations that he had been attempting to convert non-Muslims, the prison authorities had put him into a single cell against the wishes of HMP Belmarsh medical staff. [AN] reported the doctors had not agreed to this and that he had been told that repeatedly by nursing staff.’
[82]AN then went on to describe experiencing a panic attack in the single cell, followed by a deterioration in his condition.[83]I find this piece of reporting to Dr Robertson illuminating. AN put the dispute about a single cell more in terms of conflict between Dr Korzinski and the prison authorities, and then suggested conflict between the prison doctors and nurses and the prison authorities, rather than an issue which originated with AN himself. This has to be set beside the limited references to the issue in the notes before the move took place, the lack of emphasis on solitary confinement as an important part of the events in Syria as described to Dr Robertson, and the speed with which the solicitors and Dr Korzinski took up the issue after the original decision was announced in February.[84]AN did describe a significant downturn when in the single cell in the Health Care centre, with bad panic attacks and self-harm. However, he described to Dr Robinson the court proceedings – these proceedings – as having been started by his legal team ‘..to have me moved back to the Health Care Wing’. That is a direct quotation from AN in the report. Of course he had never left the Health Care centre.[85]Dr Robertson gives his opinion towards the end of his report. He identifies a number of key stressors for AN in Syria, including ‘being held in solitary confinement in the dark for many days’. He confirmed the severity of the events and experiences in Syria. He confirms his view that AN sustained severe PTSD. He confirms his view that the control order served as a reminder of the imprisonment in Syria and worsened his mental condition, because his resources were diminished, and possibly because the features of the control order exacerbated his pre-existing PTSD. Dr Robertson proceeds to identify many specific features of what happened to AN following the imposition of the control order, and later the breach or the order, but he nowhere specifically mentions the transfer to a single cell as being important or particularly significant. Indeed, in his conclusions to this report, Dr Robertson nowhere mentions that episode at all.[86]In his later report, of December 2008, Dr Robertson responds to a suggestion from Dr Cumming that PTSD sufferers can cope well in a single cell by commenting that ‘the ability to cope in a single cell would depend in part on the nature of the trauma that originally gave rise to the PTSD. In my opinion it is not surprising that a person might manage better in a single cell if the trauma implicated in causing their PTSD was unrelated to detention in a confined space.’ Dr Robertson goes on to comment that a move to a single cell ‘would worsen’ AN’s mental state because it would remind him of his experience in Syria, would be seen by him as confirmation of the desire of the prison authorities to harm him and would deprive him of coping strategies he has developed. It is clear from the context that Dr Robertson is thinking about both the historic move to the single cell, and a potential future move. He adds that the situation is likely to have been compounded by AN having been informed that the prison authorities were warned of the risks to him of such a move. In Dr Robertson’s opinion, that would have decreased the trust between AN and the authorities, because it would have confirmed his belief that the authorities were wishing to harm him.[87]Dr Robertson was asked to consider if the refusal of food and drink when in the single cell ‘could be seen as a possible form of self-harm’. He concludes that they could, but could also have been a way of ‘regulating his emotions’, and that these two functions were not mutually exclusive. He reports that the resumption of eating and drinking when AN left the single cell suggested to him that the two were linked. I have noted above that in fact the resumption of drinking happened a little before AN left the single cell.[88]Dr Cumming has since 1998 been a consultant psychiatrist employed by the Oxleas NHS Trust and working at the Bracton centre and HMP Belmarsh, leading the multidisciplinary team at Belmarsh. He is engaged with ‘the management team within the partnership between HMP Belmarsh and Oxleas’ from which I conclude he has management as well as clinical responsibilities, in ensuring the provision of mental health services within the prison. He has broad experience in psychiatry, is a qualified forensic psychiatrist, has written and edited a textbook on prison psychiatry and has recently been appointed an advisor on prison psychiatry to NHS London.[89]I have made some reference to Dr Cumming’s report above, and it will be clear that much of the first report dated 29th June 2008 properly consists of a review of the medical notes in the case, which I have already covered in this judgment. Dr Cumming agreed that the Claimant fulfilled the criteria for PTSD. In addressing its severity, Dr Cumming emphasised the difficulty of any assessment of severity, and the degree of individual variation to be found in reactions to similar stimuli. He noted Dr Korzinski’s description of the disorder as ‘complex’ and observed that was not an accepted diagnostic term. He also noted that none of the tools for evaluation of severity of PTSD had been validated in a prison setting. He went on to say that ‘…although I have complete belief in the depth and severity of his traumatic experiences in Syria, and that he has PTSD, I have not seen evidence that this has a major impact on his day to day functioning and in my opinion I would not see his PTSD as severe.’[90]Dr Cumming went on to express the view that AN was depressed but ‘…does not meet the criteria for moderate depression and definitely does not meet the criteria for severe depression.’ He proceeded to consider how these factors affected AN’s social functioning, noting that his mental condition will wax and wane in severity. He also took the view that there was ‘some discrepancy between his reported levels of distress and what is actually observed.’[91]In a passage which is clearly crucial as to his thinking on this case, Dr Cumming writes ‘Over a decade I have seen a number of people within the prison who have PTSD of similar or greater severity and who have been successfully managed in single cell accommodation and in the main prison. …I would see no reason why [AN] could not go to the main prison (where he would be in a single cell) apart from the statement that he does not want to go. We have a limited set of resources but have provided [AN] with time from a psychiatrist, counsellor and psychologist in addition to input from an occupational therapist and attending the day centre; in contrast to many of the other prisoners in the health care centre, [AN] is one of the most well.’[92]Dr Cumming went on to comment on the lack of trust between AN and those managing him in the prison, including clinicians, which constituted on of the main difficulties in his case, adding that ‘…many parties are involved in the establishment, maintenance and breakdown of trust.’, a reference which Dr Cumming goes on to make clear includes the Claimant’s legal team. AN’s tendency to involve his legal team in every discussion and every aspect of his life was part of the problem, because it prevented AN from developing his own coping strategies and ‘..put further distance between himself, prison staff and the clinical team.’[93]Dr Cumming agreed that there was a deterioration in AN’s mental state after the move to single accommodation but stated ‘..I am not convinced this was due to a worsening of his PTSD and in my opinion some of his actions such as the food refusal was much more in keeping with a protest than a deteriorating mental state’ a view which he suggested was confirmed by the gradual escalation but quick resolution afterwards. He went on to emphasise that this was not solitary confinement, and that the prison staff and health care team went to considerable lengths to ‘cushion the effects’ of being in a single cell, by opportunities for social contact and exercise.[94]In an addendum report of 23rd February 2009, Dr Cumming focussed on whether his own conclusions in his earlier report were flawed because he had not in the past seen PTSD cases involving small cells as a trigger for deterioration, and in fact had missed the point of AN’s history of mistreatment. Dr Cumming’s response was that AN’s PTSD derives from a variety of factors, as Dr Robertson’s report identified: in other words the small cell as a particular stimulus did not fit with the history. In Dr Cumming’s view the issue of trust was the central issue, in respect of which he adhered to his previous opinion that others, including the Claimant’s legal team, had played a role. Whilst the move to a single cell was taken for security reasons, it is clear that Dr Cumming did not object to that. The preferred option of the clinical team would have been to transfer him out of the Health centre altogether and into the main prison ‘..in the period before his move to a single cell, but we were realistic as to the likely response to such an intention.’[95]In his final report of 6th April 2009, Dr Cumming expresses his reservations once more as to Dr Korzinski’s loose use of diagnostic and descriptive medical language, without ‘..clinical precision or definition of any of the terms though the report speaks with a clear air of authority and certainty’ and suggests it may be a sign of ‘..an expert going beyond their expertise.’ He contrasts these matters with the approach taken by Dr Robertson.

The Law

[96]A number of points of law are agreed. The Secretary of State has the power to confine prisoners lawfully, to commit prisoners to a particular prison, to classify prisoners, to control the movements of a prisoner within a prison. These powers must be exercised in a compatible fashion with the Human Rights Act 1988, and with Articles 2, 3 and 8 of the European Convention on Human Rights.[97]I bear in mind the recent reminder from Lord Bingham that European Convention jurisprudence is to be regarded as laying down principles to be followed, not mandating solutions to particular cases – see Secretary of State for the Home Department v JJ [2008] 1 AC 385.[98]I further bear in mind the reminder from Lord Bingham in In re D (Secretary of State for Northern Ireland intervening) [2008] UKHL 33, that there are only two standards of proof known to our law, civil and criminal. The standard here is the civil standard, despite some earlier dicta which might suggest a more qualified standard in some categories of case, and a hint from counsel for the Defendant that he might seek to invoke such an approach.[99]The conditions of imprisonment may sometimes amount to inhuman and degrading treatment, but ill-treatment must attain a minimum level of severity if it is to fall within Art 3 – see Van der Ven v Netherlands (2004) 28 EHRR 46, Peers v Greece no 28524/95. In order for a punishment to be ‘inhuman’ or ‘degrading’ the suffering or humiliation must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment – see V v United Kingdom no 24888/94. The segregation of a prisoner, even over a considerable period, for security, discipline or reasons of protection, does not in itself constitute inhuman treatment or punishment – see Ocalan v Turkey no 46221/99. The conditions in high security prisons for particular categories of prisoners must nevertheless be compatible with respect for the prisoner’s human dignity, must not subject the prisoner to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention or at a level where his health or well-being cannot be adequately secured – se Kudla v Poland no 30210/96.[100]In Dhoest v Belgium no 10488/83, the Commission reported on the case of an applicant who complained of his long term detention in a custodial mental institution, most of which had been spent in isolation. The Commission noted that the situation complained of was mainly the result of the Applicant’s uncooperative and disruptive behaviour, but that despite that, the State was not absolved from its obligations under the Convention in general and Art 3 in particular; on this point see also N v SSHD [2005] 2 AC 296. The report referred back to previous decisions of the Court where the capacity of long-term isolation or sensory deprivation had been held to have the capacity to destroy the personality, something which could not be justified by the requirements of security or for any other reason. In the instant case, taking into account the Applicant’s behaviour and all the other circumstances, the Commission concluded that the conditions of detention did not attain the seriousness of treatment envisaged by Article 3.[101]It is clear that the prison authorities must take cognisance of specific features of the prisoner when handling him, including any mental illness of which they have notice – see Keenan v United Kingdom (2001) 33 EHRR 38, a matter which may render unlawful treatment otherwise acceptable in the case of a healthy prisoner. Increased vigilance is required where the prisoner has particular vulnerability or weakness – see Herczegfalvy v Austria (1992) 15 EHRR 437.[102]In Mouisel v France (2004) 38 EHRR 34, the Court considered the case of a prisoner, serving a sentence for serious offences of armed robbery, who contracted chronic lymphocytic leukaemia whilst in prison. The prisoner complained of a constellation of matters arising from the way his medical needs were met, submitting that his treatment had breached Article 3 and that his condition was incompatible with continued detention. He complained of forced rapid chemotherapy in hospital, so as to minimise the time spent away from the prison, of having handcuffs and leg-chains during transfers and treatment, of brutal physical manhandling during transfers, and of all these being sustained over a long period. The Court reiterated that handcuffing was normally compatible with convention obligations, but here it was disproportionate, given the absence of evidence of escape risk, despite the Claimant’s convictions. The Court noted that the health of a detainee was amongst the factors to be considered in determining how a custodial sentence was to be served, and in particular as to the length of the sentence. The nub of the decision is that the measures complained of must be reasonably necessary for some legitimate purpose.[103]In Ramirez Sanchez v France 59450/00, a decision of 2006, the Court reiterated that ill-treatment must attain a minimum level of severity if it is to breach Art 3. The ‘assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects, and in some cases, the…state of health of the victim’ – judgment para 117. The Court went on to emphasise that ‘..in considering whether a punishment or treatment is ‘degrading’ within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3…..However the absence of any such purpose cannot conclusively rule out a finding of a violation…’ – judgment para 118.[104]As to the application of Article 3, it is for the Court to assess the evidence, including the expert evidence, since the assessment whether the treatment did indeed violate Article 3 is one which the Court is required itself to make – see R(Wilkinson) v Broadmoor Special Hospital [2002] 1 WLR 419.[105]In relation to the positive obligation of the State under Article 3, the Claimant relies upon the decision of the House of Lords in R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148. This case concerned the regime adopted in Ashworth high security hospital, and in particular the outcome for the claimant who was a long-term psychiatric patient, compulsorily detained, and for whom the regime meant continuous lengthy periods of seclusion. The policy in question was that which determined the frequency of review of the regime for such patients. In that case, no-one suggested that the regime of seclusion amounted to torture or was being used for punishment. It was said that the effect might amount to inhuman or degrading treatment. Again, it was not suggested here there was anything done that was directly prohibited by Article 3 – it was the positive obligation only that was in question. The Hospital had departed from the Secretary of State’s Code of Practice governing seclusion, in reducing the frequency or medical reviews after the first seven days of seclusion. Their Lordships (Lords Steyn and Brown dissenting) concluded that this departure was not a breach of the positive obligation, since it was reasonable and proportionate to the risks addressed.[106]In relation to Article 8, it is agreed that the Article protects a right to establish and develop relationships with others (Pretty v United Kingdom (2002) 35 EHRR 1) and that the Article engages with mental health, the preservation of which ‘is an indispensable precondition to the effective enjoyment of the right to respect for private life’ (Bensaid v United Kingdom (2001) 33 EHRR 10). Even in respect to Article 8, the interference must still have sufficiently adverse effects on a person’s physical or mental integrity (Raninen v Finland (1997) 26 EHRR 563). It is established that removal from association with other inmates can constitute an interference with private life (McFeeley v United Kingdom (1980) 3 EHRR 161).[107]The positive obligation of the State under Article 8 is to take reasonable and proportionate steps to avert a risk of violation. The Claimant accepts that a fair balance has to be struck between the general interest of the community (here meaning in the preservation of good order in the prisons) and the interests of the individual. It is also accepted that the boundaries between positive and negative obligations in Article 8 do not lend themselves to precise definition – see: Powell and Rayner v United Kingdom (1990) 12 EHRR 355. Conclusions[108]Whilst in Belmarsh, the Claimant was suffering from at least moderate, and possibly severe, PTSD, with associated depression, which was mild and probably sometimes moderate, but not severe. As to the severity of his PTSD, on balance, and with a degree of caution since I have not heard the experts give oral evidence, I prefer the evidence of Dr Cumming, who had far more time and exposure to AN than either of the other experts. I find no basis for saying he has lost independence of mind due to his position within the prison system, which was the implication behind much of the comment made on behalf of the Claimant. I am also impressed by the degree to which a close analysis of the contemporaneous medical notes, made by many different hands, bears out the analysis advanced by Dr Cumming.[109]AN’s difficulties had many of their roots in Syria, but cannot be dissected away from resentment and dismay at the Control Order, fear and anger at the damage to his family life, combined with his persecutory beliefs, and a corrosive mistrust of everyone inside or associated with the prison system. These things are far from inconsistent with a desire to control his own fate and those around him as far as he could.[110]The Claimant did undergo a period of solitary confinement in Syria, which was a significant stressor upon him, but not nearly as significant as some of the other much more extreme examples of mistreatment which he suffered there. For a long period, this factor did not really live large in his mind. In any event, solitary confinement around the clock is a very different matter from being placed in a single cell, with appropriate movements in and out of the cell during the day, for association and so forth. His time based in a single cell on the House Block before his suicide attempt on 1st November 2007 was unproblematic from that point of view.[111]The Claimant’s suicide attempt on 1st November was not precipitated by him being in a single cell, but by other factors. The fact that he had been in a single cell in the period before this episode was not mentioned by him in the aftermath because it was not an important factor for him then. The contents of his later witness statements are anachronistic: a projection back, quite possibly without consciously intending to mislead.[112]The first mention of concern about the Claimant being in small spaces came in the letter from his solicitors of 21st December 2007, which was written after he had first been seen by Dr Korzinski. It seems to me probable that this matter was first raised as a problem by Dr Korzinski, particularly in the light of the way the Claimant spoke to Dr Robertson about this. The first time the Claimant himself voiced a complaint about a single cell was probably only on 5th February 2008.[113]By February 2008, the staff in the Health Care centre had genuine security concerns about the two prisoners AN and X, and there was a sufficient basis for those concerns for their response to be considered rational and proportionate. There may have been some degree of excessive caution in their view, but it is not possible for me to say so on the evidence I have seen. Given the background briefing they had received, and more importantly what is acknowledged to be the views of the Claimant and his fellow-prisoner X, it was a perfectly understandable concern that these two appeared to be acquiring a real degree of dominance or control over their fellow prisoners, to be proselytizing for what was understood to be their particular brand of Islam, including a belief in violence, and to be contemplating some sort of disruption in the Health care centre. It cannot be right that the authorities are required to await the actual outbreak of disorder before any decisive intervention takes place.[114]I also accept that there are real limitations on the potential management of this situation, given the Claimant’s mental health and the restricted estate for Category A prisoners.[115]The decision to move the Claimant (and X) to a single cell, whilst remaining in the Health Care centre and able to associate with other prisoners for some hours during each day, was not ineffectual or unreasonable, so as to mean it could not be considered proportionate. One can quite see how such a move could help to break up a pattern of dominance, removing association during the long period of the night-time, and confining association to the day-time, when the Centre had more staff present.[116]Even when the Claimant was told of the decision to move him, he evinced no immediate strong reaction. However the temperature was raised by the letter from Dr Korzinski of 15 February, and by the correspondence from the solicitors at around the same time. I should make it clear I am confident they acted as they thought right in the Claimant’s interests. However since the Claimant was already engaged in something of a battle for control, it seems to me likely that these interventions from outside on his behalf entrenched the dispute, and ensured that the transfer to a single cell crystallized as the focus for that dispute. It also acted to accentuate the Claimant’s mistrust of those within the prison, whether members of the clinical team or security staff. The reaction from the prison governors and staff to the correspondence from the solicitors would confirm that perception, as would the remarks from Dr Cumming on the Claimant’s relations with his legal team I have quoted above.[117]Between the decision to move the Claimant, and its execution on 29th April, mistrust deepened, badly damaging relations even between the Claimant and the medical staff serving in the prison, despite persistent efforts on the part of the latter to remain engaged with the Claimant and help him.[118]Following the first night in the single cell, and the Claimant’s self-harm, the move to a gated cell was a genuine attempt to deal with the Claimant’s distress and his protestations, despite the security fears and the Claimant’s level of hostility and mistrust. He received close attention during his period in a single cell. The medical and nursing staff did their best to persuade him to eat and drink, and to engage therapeutically with them. It is incidentally highly probable that he did drink more than he has claimed over this period, although he evidence is clear that he was dehydrated and not eating. I accept that during this time the Claimant was genuinely distressed, but I do not regard that as inconsistent with a continued attempt to exert his will, and to gain or regain more control over how he was handled.[119]The cycle was broken by the intervention of Deputy Governor Harrison and her discussion in which she promised that the Claimant would not simply be returned to the House Block. As a response, the Claimant began to drink properly again, before 13 May and the decision that he could leave the single cell.[120]Dr Korzinski is, I accept, experienced in dealing with those who have undergone torture and highly committed to their welfare. I express views as to the experts with due caution, since I have not seen them give oral evidence. However it seems to me probable that Dr Korzinski came to engage with the Claimant, with some highly determined views, which may in the event have proved unhelpful.[121]It is notable that the evidence from Dr Robertson lays very much less stress on the whole question of the single cell, particularly in the report which post-dated the key events, but predated him being instructed in relation to the judicial review. When he was asked in an open-ended way to review the effects of the Control Order and the consequences which flowed from it, the issue of the single cell took on little importance. This seems to chime with the views of Dr Cumming, quoted above, which on balance I prefer to those of Dr Korzinski. I consider that the solitary confinement in Syria was important, but by no means the principal stressor in the Claimant’s experiences in precipitating or maintaining his PTSD. There is no evidence that this issue was at the front of the Claimant’s mind in the way he now says it was.[122]In any event, the conditions into which the Claimant was moved were really very different from the conditions of his solitary confinement. There was no breach of the negative obligations under Article 3. What was done fell very far short of torture, or inhuman or degrading treatment. The short review of the European and English cases above, emphasising as one should that they demonstrate principles only, supports that conclusion. What is more, I am not persuaded that the Claimant suffered ‘fear, anguish or inferiority’ to a degree ‘capable of breaking his moral or physical resistance’. Moreover, what was done was a proportionate response to a genuinely and reasonably held security concern.[123]There was no breach of the positive obligation under Article 3 or Article 8. The system provided to maintain the Claimant’s convention rights was perfectly adequate. The heart of the Claimant’s case on Article 3 in any event depends on his specific personal reaction to transfer to a single cell. This was addressed repeatedly, and by those with close knowledge of the Claimant and the correct expertise to make a judgement.[124]There was no violation of the negative obligation under Article 8. There is no evidence of any significant interference with his Article 8 rights, either in the period when he was in the single cell, or in terms of the consequences of this episode for his mental health afterwards. In my judgment there is no evidence to show there were long-lasting effects on his mental health.[125]For these reasons, the application is dismissed.