Hawke, R (On the Application Of) v Secretary of State for Justice [2015] EWHC 3599 (Admin)

[2015] EWHC 3599 (Admin)

Case No CO/2719/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Date:Wednesday, 2 December and Thursday, 3 December 2015

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE HOLMAN

Between

THE QUEEN ON THE APPLICATION OFClaimant

MRS JANICE HAWKEClaimant

MR JEREMY HAWKEClaimant

Between

SECRETARY OF STATE FOR JUSTICEDefendant

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Mr A Straw and Miss D Waddoup (instructed by Leigh Day) appeared for Claimants

Ms H Slarks (instructed by Government Legal Department) appeared for Defendant

J U D G M E N T

The essential issue

[1]In this case there are two claimants, a convicted prisoner, who is the second claimant; and his wife, who is the first claimant. I will call them respectively "the prisoner" and "his/the wife". The wife is seriously disabled and cannot realistically and at proportionate cost visit the prisoner where he is currently detained. The claimants contend that the Secretary of State for Justice has acted, and is continuing to act, unlawfully by not detaining the prisoner in a prison closer to her home. The essential facts

[2]Both claimants are in their 50s. They have been married for many years and have two adult children. The claimants' home is at Bude in Cornwall. While awaiting trial, the prisoner was held on remand in HMP Exeter, which is the nearest local prison to Bude.

[3]In October 2013 the prisoner was convicted after a trial of very grave sexual offending. This consisted of three rapes upon each of two women, ie a total of six rapes. One woman was the partner of the prisoner's son; the other was that woman's mother. Additionally, the prisoner was convicted of four sexual assaults upon another partner of the prisoner's son, and one sexual assault upon a fourth woman. The first rape was in 1995. I am unclear as to the date of the last offence, but it was not earlier than 2009. So the offending spanned at least 13 or 14 years. The prisoner was sentenced to an aggregate determinate term of 17 years' imprisonment. His earliest release date is in March 2022, over another six years. He is thus a long term prisoner.

[4]The Prison Service categorise prisoners from A to D to reflect the likelihood of the prisoner escaping or absconding, and the risk of harm to the public if he were to escape or abscond. After his conviction, the prisoner in this case was categorised as B; namely, a "prisoner for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult". There is no challenge in these proceedings to that categorisation of this prisoner.

[5]The Prison Service subdivide category B prisons into local, or essentially short term, and training, or essentially long term, prisons. The starting point is, therefore, that this prisoner requires to be detained, unless and until he is recategorised as category C (which may never happen), in a category B training, or long term, prison. The nearest such prison to Bude is HMP Isle of Wight, to which he was transferred in April 2014. HMP Exeter and Bristol are both category B prisons and nearer to Bude, but they are local, or short term, prisons. There are category C training prisons in Devon at Dartmoor and Channings Wood, but this prisoner, being category B, cannot be detained there. (For completeness, I mention that there is a category B training prison at HMP Parc in south Wales, but the mileage distance from Bude is no shorter and it is not suggested that the prisoner should or might be transferred there.) The aim of this claim is to promote that the prisoner is transferred to HMP Exeter.

[6]The wife has suffered for several years from the debilitating affliction of fibromyalgia. She describes this as a long term illness, which causes severe and continuous pain all over the body, as well as swelling of the joints and stiffness of the joints and muscles. She says (without challenge by the Secretary of State) that it is a very painful and debilitating illness, and that the pain is particularly severe when she stays in the same position for long periods of time, as, for instance, when travelling in a car.

[7]The wife's statements are painful to read when she describes the small number of visits that she has made to the Isle of Wight. They required many stops and breaks and took a very long time (about 15 hours’ round trip, plus the length of the visit itself). They reduced her to agony and had the effect that during the visits themselves she was in great pain, swelling and stiffness. I wish to make very clear indeed that I am profoundly sympathetic to the wife in her affliction and her plight, and in its effect upon her ability to visit her husband so far away as the Isle of Wight. She says, and it is not challenged, that she, in discussion with her husband, has decided that she simply cannot visit the Isle of Wight again.

[8]The Secretary of State for Justice does not challenge any of that evidence of the wife. He accepts, or concedes, that for the purposes of all relevant disability and equality legislation, the wife suffers from a disability. He accepts, or concedes, that the degree of difficulty and pain involved in making the journeys puts her at a substantial disadvantage for the purposes of that legislation. Whilst not formally accepting it, Ms Hannah Slarks, who appears on behalf of the Secretary of State, does not argue against the proposition (which I hold) that due to her condition, this particular wife cannot realistically, and at proportionate cost, visit the Isle of Wight. Theoretically, she might be able to be transported swiftly and without undue pain in a helicopter, but the cost would be unrealistic.

[9]So the claimants have asked that the Secretary of State for Justice transfers the prisoner long term to HMP Exeter, at least until (if ever) he is recategorised as C, in which case he might alternatively be detained at HMP Dartmoor or Channings Wood, each of which are training, or long term, prisons and are reasonably accessible to the wife. The Secretary of State for Justice has decided that he is not prepared to transfer him, since he is a long term prisoner and Exeter is only a local, or short term, prison.

[10]Mr Adam Straw, who appears on behalf of the claimants, argues that that decision is irrational and in breach of public law duties, and/or in breach of equality duties upon the Secretary of State, and/or involves adherence to a policy (namely the rigid classification of local and training prisons) which is unlawful as it does not contain appropriate adjustments for disability. Further, Mr Straw submits that the Secretary of State for Justice is in breach of his public sector equality duty under section 149 of the Equality Act 2010. It is important to stress that the disabled person in this case is not the prisoner himself (who has no disability) but his wife. Any duties towards disabled prisoners themselves are not directly in point.

Prison visits

[11]Rules 3 and 4 of the Prison Rules 1999/728, which are made by statutory instrument, provide as follows: “3. Purpose of prison training and treatment. The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life. 4. Outside contacts.(1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.

(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation."

[12]As rule 4(1) refers to "the best interests of both", viz the prisoner and his family, and rule 4(2) refers to best promoting "the interests of his family", the Secretary of State for Justice concedes that he is under a duty not only to the prisoner but also to "his family", and that a duty to the wife, as well as to the prisoner, is engaged by this case.

[13]By rule 35 of the Prison Rules, a convicted prisoner is ordinarily (there are exceptions not relevant to this case) entitled "to receive a visit twice in every period of four weeks". As Ms Slarks emphasises, that particular rule entitles the prisoner to "receive a visit" (my emphasis). It says nothing about who the visitor might be, and does not of itself afford any entitlement to a spouse or any other specific person or class of person to visit. The fact that his wife is unable to visit in no way impacts upon the prisoner's entitlement under that rule. He remains entitled to receive visits from other relatives, friends, well wishers or persons such as voluntary prison visitors.

[14]The Secretary of State for Justice in no way disputes the importance, so far as reasonably achievable, of regular family visits. It is spelled out in his own Prison Service Instruction 16/2011 at paragraph 1.2, which states:

"... visitors are seen as crucial to sustaining relationships with close relatives ... Regular and good quality contact time between an [offender] ... and their ... partner provides an incentive not to reoffend, and helps prisoners arrange accommodation, employment/training on release ..."

Accumulated Visits

[15]The National Offender Management Service instruction on Providing Visits Services to Visitors, now at bundle 1, tab C, page 88, makes provision at paragraphs 5.6 to 5.12 (now at bundle page 104) for "Accumulated Visits". As described in that instruction, and elaborated by the evidence in this case, Accumulated Visits are in effect a series of visits, to which the prisoner would otherwise have been entitled over a longer period, bunched up in a shorter period. They are expressly designed for, amongst others, those whose families are located some distance from the establishment or abroad. Accumulated Visits may be applied for every six months.

[16]In the present case, the Secretary of State for Justice is willing to transfer, and has already transferred, the prisoner to HMP Exeter for a period of 28 days to enable his wife to have a concentrated period of Accumulated Visits. During October 2015 the prisoner was transferred to, and detained in, Exeter Prison for 27 days to enable his wife to visit frequently during that period. Altogether, 15 visiting occasions were offered to the wife during that month, of which she attended on ten. A further five visits were made available by the Prison Service, but, as it happened, the wife was in hospital and could not attend.

[17]The Secretary of State for Justice argues that by making the prisoner available for Accumulated Visits in Exeter in this way, he makes reasonable adjustments for the disabled wife for the purpose of, and as required by, the Equality Act 2010. Both the prisoner and his wife describe how dependent they are upon each other and how hard they find separation to bear. They say, in effect, that Accumulated Visits compressed into one month do not compensate for the five months of no visits, and that they crave the ability to have regular bi-monthly visits month in, month out (as the prisoner is currently an enhanced prisoner, the prisoner is in fact currently entitled to visits even more frequently than this outside the Prison Rules). The position of the Secretary of State for Justice

[18]By a number of witness statements from staff at HMP Exeter and Isle of Wight, and from Mr Colin Hay, Head of Population Management in the National Offender Management Service, the Secretary of State for Justice has explained why it is that he cannot simply transfer the prisoner long term to HMP Exeter, however simple a solution that might superficially seem. Those reasons may broadly be analysed as general ones, and as ones specific to this prisoner.

[19]The general reasons are that for many decades the prisons in England and Wales have been split between training prisons and local prisons, and their function and purpose is quite different. The purpose of training prisons, which normally only hold prisoners who have been convicted and sentenced (the position may be different with very dangerous category A prisoners, with which I am not concerned), is to provide rehabilitation and/or training to ensure that prisoners use their time in prison productively. The primary purpose of local prisons is to serve the courts and to receive newly sentenced prisoners and those remanded into custody. The purpose of keeping prisoners temporarily in local prisons is so that they are as near as possible to their court of trial, accessible to their legal teams, and as near as possible to their families during the particularly traumatic time on remand.

[20]Additionally, long term prisoners will be relocated, so far as possible, to a local prison in the last few months before release as part of their resettlement in the community. Prisoners sentenced to only short terms, normally up to six months, may remain in a local prison throughout their sentence to prepare for their release.

[21]This is an entirely rational and fully explained subdivision of prisons into training and local, and one which is not of itself challenged by this judicial review. The implications are, however, that, as the witnesses fully explain, it simply is not practical nor appropriate that a long term prisoner such as this prisoner should serve out his sentence in a local prison.

(x) to (xiii)):

"10. Most of our local prisons find it difficult to hold these spaces, because there are such a large number of prisoners moving through the prison estate. At times, prisoners from court cannot be received into their local prison and have to be redirected to the next nearest local prison. Occasionally, prisoners are even locked out into police stations overnight because of lack of immediate space in a local prison. Nationally, I would estimate that there are an average of 60 prisoners per day being redirected to prisons other than the local prison they would be expected to be sent to. Exeter and Bristol prisons are the only local prisons serving the whole of the south west region, and there is regular movement between these prisons to ensure all prisoners committed by the courts can be accommodated. ... 12. As a result, every bed in a local prison is precious, and needed for prisoners to be able to attend court, prepare for resettlement, or exceptionally transfer back temporarily for the reasons explained above [viz Accumulated Visits or exceptional temporary compassionate transfer]. We cannot afford to keep local beds out of circulation for long periods by assigning them to long term prisoners. Local prisons are not designed to meet the needs of long term prisoners, and long term prisoners would stop local prisons meeting the needs of short term prisoners. ... 15. The impact on local prisons and the prisoners whom they should serve would be more than financial. The claimants are suggesting that other prisoners who need spaces in local prisons can simply be sent elsewhere, and the only negative consequence would be increased cost. That is just not true. As I have explained above, there are important reasons why we need to have spaces available in local prisons to meet the needs of prisoners who are: on remand; in resettlement; coming back from hospital; in need of compassionate transfer; and in need of Accumulated Visits. Other prisoners would lose access to spaces of critical importance to their rehabilitation."

[22]Mr Tom McCruden, Head of the Offender Management Unit at HMP Exeter, elaborates what Mr Hay says, but with specific reference to Exeter. HMP Exeter does not provide suitable courses, learning or training for this prisoner. Further, Exeter can hold a limited number of Vulnerable Prisoners ("VPs"), which the prisoner in this case is due to his sexual offending. Already Exeter has more VPs than it can properly accommodate.

(v) ):

"Impact on other prisoners served by HMP Exeter if Mr Hawke was to occupy a space long term 12.We aim to ensure we have enough spaces for our remand population and the courts. We receive on average about 60 to 65 new prisoners from the courts each week. On average, we will hold about 190 prisoners for resettlement purposes and over 200 on remand. The remainder will include prisoners who are suitable for transfer and awaiting appropriate allocations. 13. The Hawkes' argument around spaces does not reflect the reality. Spaces are created by high levels of prisoner movement frequently, but these spaces are created not to provide long term prisoners the opportunity to stay, but for constant new receptions from the courts to be received into their local prison. ... 15.We are particularly oversubscribed in respect of places suitable for Vulnerable Prisoners, such as Mr Hawke. Vulnerable Prisoners include: those with offences of a sexual nature, those who are at risk from other prisoners and those with risks related to their court cases. We only have 87 spaces available for Vulnerable Prisoners. Over the past year, we have had to operate at 103 prisoners who required this separate accommodation. We have at times exceeded this figure and accommodated around 115 Vulnerable Prisoners temporarily. Whenever we accommodate more than 87 Vulnerable Prisoners, we have to put in place restrictions on the type of prison regime applied to these prisoners, in order to maintain safety. In particular, they are co-located with non Vulnerable Prisoners, which requires the Vulnerable Prisoners to be located in their cells for longer periods to ensure they do not come into contact with non Vulnerable Prisoners. 16. When Mr Hawke first arrived at HMP Exeter on 28 September 2015 for Accumulated Visits, he spent the first four days (rather than the usual one day) in our First Night Centre, because our sex offender population had increased to more than we are equipped to hold. He was not located on to our Vulnerable Prisoner wing until 2 October 2015, and we currently have other prisoners not located on that wing who should be there. This means that we would be required to restrict the regime many prisoners have access to, for example, work, showers, telephone calls and time out of cell. We would also need to manage the increased risk caused by co-location between non sex offenders and sex offenders."

[23]I particularly emphasise the last two sentences of that quote. To accommodate this prisoner, being a VP, long term at Exeter would have a continuing impact on many other prisoners whose regime would have to be restricted. Further, as Ms Slarks pointed out, the average stay of a prisoner in HMP Exeter is about six weeks. If the prisoner was located there for the remainder of his term, about 50 other prisoners would necessarily be directly displaced during that term.

[24]The reasons specific to this prisoner why he cannot be relocated long term to Exeter essentially pertain to the training and rehabilitation opportunities there. Preeminently this prisoner requires sexual offending courses which are not provided at a local prison such as Exeter. Currently he is not suitable for such a course as he denies his offending, but that may change.

[25]More generally, the Secretary of State for Justice says that this prisoner could benefit from a range of courses and training which are available at the Isle of Wight but not at Exeter. The prisoner himself has denied that, saying in effect that he was a forester before his detention and it is to forestry that he will return, and he neither desires nor needs other forms of education or training. He says that his main priority is maintaining more time with his family. However, as Ms Slarks points out, it is the Secretary of State for Justice who is charged with the rehabilitation of this prisoner. The prisoner himself may say subjectively that he does not need any courses or training. But his remaining term is a long one, over six years. Objectively, he does (in the judgment of the Secretary of State for Justice) need courses and training and constructive use of his time in prison, which cannot be met long term in Exeter but can in the Isle of Wight. To provide suitable training and courses for him on a one to one basis at Exeter would be prohibitively and disproportionately expensive.

The claim

[26]Mr Straw puts his claim and case essentially on three bases. He submits that the defendant is in breach of a public law duty. He submits that the defendant is in breach of his statutory duty under the Equality Act 2010 to make reasonable adjustments and to take such steps as it is reasonable to have to take to avoid the disadvantage to the disabled person, the wife. He submits that the defendant is in breach of his public sector equality duty under section 149 of the Equality Act 2010.

Public law duty

[27]Rule 35(2) of the Prison Rules 1999 provides, so far as is material, that:

"... a convicted prisoner shall be entitled -- (a)... ; and (b)to receive a visit twice in every period of four weeks ..."

[28]Mr Straw argues, correctly, that that gives rise to a public law duty on the Secretary of State. It is not necessary for me to decide the precise scope of the duty. I am quite clear that on the facts and in the circumstances of this case the Secretary of State for Justice is not in breach of the duty, however formulated, which arises under that rule. As I have already emphasised, the entitlement is that of the prisoner, not of any notional visitor, and the entitlement is to receive the specified number of visits. It is not an entitlement to receive a visit from any specified person or class of person.

[29]The defendant has an entirely rational policy of categorising prisons and of subdividing them into training and local prisons, and there is nothing in his policy, or in his approach to this particular case, which denies or frustrates the entitlement of the prisoner under that rule. The case of R (Walker) v Secretary of State for Justice

[2008] EWCA (Civ) 30

[2008] 1 WLR 1977

, upon which Mr Straw relies, is clearly distinguishable. In that case, the Secretary of State for Justice was failing to make available altogether the resources required to enable an IPP prisoner to obtain release, so the Court of Appeal said of that case at paragraph 40:

"This cannot simply be regarded as a discretionary choice about resources ... We are satisfied that his conduct has been in breach of his public law duty, because its direct and natural consequence is to make it likely that a proportion of IPP prisoners will, avoidably, be kept in prison for longer than necessary ... contrary to the intention of Parliament."

The statutory duty to make reasonable adjustments

[30]It is not necessary for me to set out extracts from the Equality Act 2010 at any length. The Secretary of State for Justice accepts that he is exercising a public function for the purposes of section 29(6) of that Act; and that therefore he must not do anything that constitutes discrimination (section 29(6)), and that he is under a positive duty to make reasonable adjustments (section 29(7)(b)). That duty comprises the three requirements set out in section 20, of which the one in point in this case is the first, under section 20(3), viz:

"20(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."

[31]The Secretary of State for Justice accepts that his provision, criterion or practice of subdividing category B prisons into training and local prisons does, or may, have the effect that a long term prisoner may be detained and located further away from his home than if he were detained at the nearest local prison; and he accepts that the class of disabled persons for whom travel by car is difficult are, or may be, at a substantial disadvantage in relation to visiting a prisoner in comparison with persons who are not so disabled. He accepts, therefore, that he is under the statutory duty to take such steps as it is reasonable to have to take (viz make reasonable adjustments) to avoid the disadvantage. The case of Finnigan v Chief Constable of Northumbria Police

[2013] EWCA (Civ) 1191

[2014] 1 WLR 445

clearly establishes that the duty under the Act is anticipatory; see paragraphs 31, 33, 34 and 36 of the judgment of Lord Dyson MR, and in particular the last sentence of paragraph 36:

"It is important, however, to bear in mind the distinction between (anticipatory) changes to a PPP which are applicable to a category or sub-category of disabled persons and changes which are applied to individual disabled persons on an ad hoc basis. The duty to adjust a PPP is to be judged by reference to the former, and not the latter."

[32]At paragraph 48 of his written skeleton argument in this case, Mr Straw identified five questions to be answered in this case, and I accept those questions. They are:

"(a) Did the defendant have a provision, criterion or practice (PCP)? (b)Did that PCP put disabled persons at a substantial disadvantage in relation to the exercise of the public function in comparison with persons who are not disabled? If so, the defendant was under a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. (c)Has the claimant identified, in broad terms, a potentially reasonable adjustment that the defendant has not made? (d)Has the defendant proved that this adjustment was not a reasonable one to make? (e)Has the defendant failed to comply with that duty in relation to the claimant?"

[33]I answer those questions as follows: (a)Yes. The Secretary of State for Justice has the PCP of subdividing category B prisons into training and local prisons, and allocating prisoners to those prisons, depending whether they are respectively long term or short term prisoners. (b)Yes. The PCP does put a disabled person such as this wife under a substantial disadvantage, and the defendant was, and is, under a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. (c)Yes. The claimant has identified a 'potentially' reasonable adjustment, namely to treat prisoners whose wives or other family members are disabled such that travel by car is difficult, as eligible for transfer to a local prison nearer to home. I accept that this is 'prima facie', or 'potentially' a reasonable adjustment. At its most basic level, the function and duty of the Secretary of State for Justice is to keep prisoners detained, and it is not suggested that a given category B prison, in this case Exeter, is less secure than another one, in this case Isle of Wight. (d)In my view, however, the Secretary of State for Justice has convincingly proved that that proposed adjustment is not a reasonable one; and that the adjustment which he makes (namely the provision of Accumulated Visits) is a sufficient adjustment and does incorporate all such steps as it is reasonable to have to take to avoid the disadvantage. I have already described and summarised the Secretary of State's evidence with regard to the reasons for the subdivision into training and local prisons and as to why it is simply impracticable to transfer prisoners to a local prison on a long term basis. That is especially so in the case of a VP whom it is sought to transfer to Exeter, which already has insufficient space to hold them. In my view that evidence is compelling.

[34]The requirement under the Act is to take reasonable steps or to make reasonable adjustments. The Secretary of State for Justice has convincingly demonstrated, for the reasons which he has given, that it is neither realistic nor practical to transfer a long term prisoner (other than for short periods for Accumulated Visits or other compassionate purposes) to a local prison. Theoretically, the Secretary of State for Justice could build and staff a new and separate training prison in Exeter. Theoretically, he could build a special prison at Bude. Theoretically, he could arrange and fund helicopter flights for the wife between Bude and the Isle of Wight. But none of those solutions (which are not advocated by Mr Straw) are reasonable ones. On analysis, it is no more reasonable that a prisoner such as this prisoner should be transferred long term to a local prison.

[35]Instead, the Secretary of State for Justice does offer to facilitate, and in the case of this prisoner has facilitated, Accumulated Visits. I recognise that this is a pale substitute for regular, fortnight in fortnight out, visits, but it does represent a step and an adjustment, and is the most that the Secretary of State for Justice can reasonably be expected to do. (e)It follows that in my view the defendant has not failed to comply with the duty upon him under the Equality Act in relation to the claimant wife.

The public sector equality duty

[36]The public sector equality duty arises under section 149 of the Equality Act 2010. So far as is material, this provides as follows:

"149. Public sector equality duty. (1)A public authority must, in the exercise of its functions, have due regard to the need to -- (a)eliminate discrimination ... ; (b)advance equality of opportunity between persons who share a relevant protected characteristic [which includes disability] and persons who do not share it; (c)... (2)... (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -- (a)remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b)take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c)... (4)The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities. (5)... (6)Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act ... "

[37]Frankly, there is negligible, if any, evidence in this case to demonstrate that when formulating their relevant policies, or when making decisions in relation to this particular prisoner and visits by his wife, the Secretary of State for Justice, or any of his officials or front line staff, had any real regard to that express statutory duty.

[38]By paragraph 41 of his counsel's (Ms Slarks’) Detailed Grounds of Resistance, the Secretary of State for Justice asserts that he has considered the difficulties that people with characteristics such as disabilities and older age face when they wish to visit family members placed in prison far away. He asserts that as a result he attempts to place prisoners as close to their families as reasonably possible within his resource constraints, and offers an Accumulated Visits scheme in order to facilitate local visits where necessary.

[39]With regard to the facts of this particular case, the Secretary of State for Justice draws attention to two documents attached to the summary grounds of resistance as D/02 and D/03. Examination of those documents reveals the scantest of reference or regard to the disabilities of the wife, still less to the statutory public sector equality duty. The first, dated 20.12.2014, says (on this topic) rather laconically:

"He is in the process of attempting to gain a transfer to another B category prison due to the ill health of his wife and I imagine that this will be considered on compassionate grounds ..."

[40]The second, dated 9.02.2015, merely says (on this topic):

"No great changes over the past few weeks ... however still feels a little down at times due to his wife's sickness."

[41]The Accumulated Visits section (paragraphs 5.6 to 5.12)

of the PSI 16/2011 makes reference to:

"... those whose families are located some distance from the establishment; in other countries or for those families who might be ineligible for financial assistance under the Assisted Prison Visits scheme."

[42]That instruction makes no reference to, and evidences no discrete or specific consideration of, the position of those whose families may include a disabled person.

[43]On behalf of the Secretary of State for Justice, Ms Slarks emphasises that the duty under section 149 is one of substance, not of form, and not a matter of ticking boxes. For that she relies on what was said by Aikens LJ in the Divisional Court in Brown v Secretary of State for Work and Pensions

[2008] EWHC 3158 (Admin)

at paragraph 92, which was clearly approved by the Court of Appeal in Bracking v Secretary of State for Work and Pensions

[2013] EWCA Civ 1345

at paragraph 26(iii). However, the whole tenor of the decision in Bracking, and all the propositions contained in paragraph 26, could not be more clear. The Act imposes a positive duty whose exercise must be positively demonstrated. McCombe LJ said at paragraphs 60 and 61:

"60. In the end, drawing together the principles and the rival arguments, it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude. 61. It is for this reason that advance consideration has to be given to these issues and they have to be an integral part of the mechanisms of government ... There is a need for a 'conscious approach' and the duty must be 'in substance, with rigour and with an open mind' ... In the absence of evidence of a 'structured attempt to focus upon the details of equality issues' ... a decision maker is likely to be in difficulties if his or her subsequent decision is challenged."

[44]Elias LJ said at paragraph 77:

"However, the second and related issue is whether the Minister properly appreciated and addressed the full scope and import of the matters which she is obliged to consider pursuant to the PSED. There is simply no material from which one can properly infer that she did. A vague awareness that she owed legal duties to the disabled would not suffice ..."

[45]As I have already explained, I am satisfied in this case that there is no breach in this case of the objective duty under section 20 of the Equality Act to make reasonable adjustments. By making provision for Accumulated Visits, the Secretary of State for Justice has done all that he reasonably and objectively can do. But I am not satisfied, in the way that Bracking so clearly requires, that the Secretary of State for Justice, or his officials or staff, have given the positive due regard which section 149 requires. If I were to brush over this, as the submissions of Ms Slarks encourage me to do, I would be failing in my own duty to mark the failure of a public authority to give effect to section 149 in the way that Bracking so clearly requires.

[46]Although Ms Slarks relies upon what Lord Brown of Eaton-under-Heywood said in McDonald v Kensington and Chelsea

[2011] UKSC 33

at paragraph 24, those observations are not in point at all in the present case. There, Lord Brown referred to a person who is ex hypothesi disabled and the public authority is discharging its functions under statutes which expressly direct their attention to the needs of disabled persons. That is far removed from the situation here.

[47]I will accordingly make a declaration, in terms to be agreed by counsel or the subject of further argument, to the general effect that on the facts and in the circumstances of this case there has been a failure by the Secretary of State for Justice to discharge his duties under section 149 of the Equality Act 2010. However, neither claimant has suffered any loss as a result, since even if the Secretary of State for Justice or his staff or officials had fully and duly discharged their duties under that section, the outcome would have been, and will still be, the same.

Outcome

[48]Accordingly, save for the above declaration, the remainder of this claim for judicial review, including the claim for damages, is dismissed.

Impact and effect of section 31(2A) of the Senior Courts Act 1981

[49]Until this point I have been reading out verbatim from a judgment which I had fully written out. What follows is an ex tempore continuation of the same judgment. In order that what follows can be understood by the reader, it is necessary briefly to describe the forensic context. At the substantive hearing of this claim the claimants were represented, as already indicated, by Mr Adam Straw. Mr Straw was not able personally to be present yesterday when I delivered the first part of this judgment. In his place was counsel, Miss Daniella Waddoup, who was later to address me with great learning and skill, but who was obviously not completely conversant with this case. Her plea was that, in the events which unfolded yesterday, I should adjourn the case, and indeed the conclusion of this judgment, until I had heard further submissions from Mr Straw himself at a further hearing, which we have been able to fix for the following day, namely today.

[50]After I had read out the above judgment there was some discussion between myself and counsel as to a timetable for Mr Straw and Ms Slarks to communicate with each other and hopefully agree the terms of a declaration, as I contemplated in paragraph 47 above. After that, we had turned to consideration of costs, and eventually there was a short break so that Miss Waddoup and Ms Slarks could draft an appropriate provision as to costs, on the one hand to give effect to my decision that in principle the claimants, being the unsuccessful parties, should pay the costs of the Secretary of State for Justice, being the successful party; yet, on the other hand, to give to the claimants the costs protection afforded by section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

[51]In the event, Miss Waddoup and Ms Slarks were out of court for about half an hour. When they returned, Ms Slarks drew my attention for the first time at any stage in this case to the provisions added to section 31 of the Senior Courts Act 1981 by the Criminal Justice and Courts Act 2015.

[52]I mention that, from the outset of these proceedings, one of the forms of relief claimed by the claimants in their original claim form was a freestanding declaration that the defendant was in breach of section 149 of the Equality Act 2010. So from the very outset of these proceedings, quite apart from any other elements of the claim or remedies sought, there was that claim for a freestanding declaration. However, nowhere in any of the formal pleadings, nor the written skeleton arguments of counsel, nor, so far as I can recall, the oral submissions of counsel, was any reference made at any stage to the recently added provisions to section 31. Yesterday, Ms Slarks, in effect, very frankly said that it was only at that very late stage indeed, when actually she was outside considering the correct drafting of the order as to costs, that it had first struck her that the new provisions of section 31 were, or might be, in point in this case.

[53]Of course it might be thought that a judge such as myself sitting as a judge of the Administrative Court would have those provisions personally in mind. But if ever there was room for a fiction that knowledge of the law reposed in the bosom of a judge, that fiction has long since been exploded by the pace, volume and complexity of modern legislation. Like most judges of the Administrative Court, I personally only sit intermittently and not continuously in this court. Frankly, I have not previously had any occasion to consider the added provision in section 31(2A), nor, so far as I am aware, has it ever been specifically drawn to my attention.

[54]That, at any rate, is the background to how it is only at this very late stage of this judgment, and after I had already said that I would make a declaration, that it now falls to me to reconsider that part of my decision. I might perhaps have revised and substituted new wording for what I had already said in paragraphs 47 and 48 above. Since I have not yet made an order, I am probably entitled to revise my judgment. But I do not choose to do so, since that would lack intellectual honesty and would mask the true way in which this issue with regard to the grant of a declaration has unfolded.

[55]Today Mr Straw has appeared again to present his submissions, as has Ms Slarks to present her contrary submissions. The issue arises from the impact and effect of section 31(2A) and (2B) of the Senior Courts Act 1981 as inserted by the Criminal Justice and Courts Act 2015. These particular inserted provisions took effect from 13 April 2015, which was before the date of commencement of the present proceedings. They provide as follows:- "31(2A) The High Court- (a)must refuse to grant relief on an application for judicial review, and (b)may not make an award under subsection (4) [which relates to damages] on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. (2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest."

[56]The essential submission of Ms Slarks is that subsection (2A) is directly in point in this case, and that there are no reasons of exceptional public interest such that it may be disregarded pursuant to subsection (2B).

[57]It seems to me, first, that the word "relief" where it appears in subsection (2A)(a) must refer back to the word "relief" where it appears in subsection 31(1). In that subsection the relevant forms of "relief" are identified, and they include "a declaration". So far as is material to the present case, therefore, it seems to me that I should read subsection (2A)(a) as if it read "must refuse to grant a declaration..." The words of paragraph(a) are of course mandatory and completely binding upon me, if the gateway words at the conclusion of subsection (2A) appear to me to be made out. I have already said at paragraph 47 above: "However neither claimant has suffered any loss as a result, since even if the Secretary of State for Justice or his staff or officials had fully and duly discharged their duties under that section, the outcome would have been, and will still be, the same.”

[58]I do not resile in any way at all from what I said in that paragraph. Accordingly, it seems to me crystal clear that it does indeed appear to me to be highly likely that the outcome for the claimants would not have been substantially different if the conduct complained of, namely the failure to have due regard to the public sector equality duty as section 149 requires, had not occurred.

[59]Mr Straw seeks to avoid that particular conclusion by arguing as follows (this is in fact the second of his four main submissions today). He says that, bearing in mind the intention of Parliament behind section 149, the duty under that section is a freestanding, explicit statutory duty. He says that it is, or would be, "an important outcome" for the claimants to establish by declaration that there has been a breach of that duty. With respect to the ingenuity of Mr Straw, however, it seems to me that that particular submission is circular; and if I acceded to it, it would effectively negative the impact and intended effect of section 31(2A), and I do not accept that submission.

[60]Mr Straw submits also (this was his first numbered submission today) that section 149 of the Equality Act is an important statutory provision, intended to create a positive duty on public authorities to have due regard to all the matters elaborated in that section. He says that it is important that effect be given to it by making it an "enforceable duty". He submits that it would "emasculate that section" if I declined in the present case to grant a declaration or construed section 31(2A) as preventing me from doing so. I cannot accept that submission either. Of course, I fully accept that the public sector equality duty is a very important statutory duty indeed, bearing down on all public authorities. That, indeed, was made very clear by the Court of Appeal in Bracking, if indeed it was not already clear. Even a formal declaration itself is not "enforceable" against a public authority, and does not give rise to any additional or subsequent remedies. The added provisions in section 31 are recently enacted and appear to me to be entirely general and unqualified in their reach and impact, subject to subsection (2B). If Parliament had wanted in some way to "ring fence" the public sector equality duty under section 149 of the Equality Act from the reach and impact of section 31(2A), it could easily have done so by some suitable words of exception. It seems to me, however, that the reach and purpose of the added subsection (2A) is quite clear and is general, and I should not seek to cut down or limit its scope.

[61]My attention has been drawn to some words of Blake J in Logan v London Borough of Havering

[2015] EWHC 3193 (Admin)

in which he gave judgment on 6 November 2015. It is clear, however, from paragraph 57 of his judgment in that case that there were "other reasons" why in any event he concluded that it was not appropriate to make a formal declaration, and accordingly his words are in fact obiter. It is to be noted that in any event he concluded his judgment at paragraph 61 by saying:

"[The claimant] will obtain no personal benefit from a declaration. Following the grant of permission, a useful public purpose has been achieved for the future, if the defendant accepts the conclusions in this judgment on the requirements to have due regard..."

[62]He thus was making what he had described as "a declaratory judgment" at paragraph 58 of his judgment, without making any formal declaration.

[63]In my view, the facts and circumstances of the present case fall fair and square within the embargo in section 31 (2A), subject only to the exception in subsection (2B) to which I now turn. In relation to this, Mr Straw submits that this is a case in which the embargo should be disregarded and that "it is appropriate to do so for reasons of exceptional public interest". He stresses, first, the considerable importance of the statutory public sector equality duty. I fully recognise the importance of that duty, but it is only one of hundreds if not thousands of statutory duties upon the whole spectrum of public authorities. There is nothing in fact in section 149 to elevate the public sector equality duty to some specially prestigious position above many other no less important statutory duties upon public authorities. It does not seem to me that there is about the present case some "exceptional public interest", although there is obviously significant public interest.

[64]Mr Straw submits, however, that if the claimants in this case cannot get a declaration then no one can get a declaration who cannot show that the outcome for them would have been substantially different. Essentially, that is the intended purpose and effect of subsection (2A). I agree with him that if my judgment stands, then it may be difficult for individual claimants, who cannot show that the outcome for them would have been substantially different if the conduct complained of had not occurred, to obtain a freestanding declaration that there has been a breach of section 149. That, as I say, appears to me to be the intended purpose and effect of these recently added provisions. But it is not an absolute and inevitable effect. Just to take two possible examples: If even after a "declaratory judgment" a public authority persisted in failing to discharge its public sector equality duty under section 149, then there may come a time when, on proof of that failure, a claimant may be able successfully to persuade the court that enough is enough and that the exceptional public interest under subsection (2B) has become engaged. Alternatively (without in any way deciding the point), it may be that if a body such as the Equality Commission, which has very express responsibilities in this field, reached a considered decision that a public authority was in such continuing breach of the public sector equality duty that it was necessary to obtain a formal declaration from the court, then such a body may be able to persuade the court that the exception in subsection (2B) is engaged, even though, by the nature of the body, it would not be able to show that the outcome for it would have been substantially different.

[65]So, for these reasons, I am clear, now that it has been drawn to my attention, that section 31(2A) of the Senior Courts Act 1981 does apply in this case and that the exception under subsection (2B) is not established. I am therefore forbidden by statute from granting the declaration which in paragraph 47 above I had previously contemplated granting. The formal outcome of the case will therefore be, not as I expressed it under the heading "Outcome" in paragraph 48 above, but that the whole of the claim for judicial review is dismissed.

[66]I nevertheless conclude this judgment by repeating what I said in paragraph 45 above: that I am not satisfied on the facts and in the circumstances of this case that the Secretary of State for Justice or his officials of staff have given the positive due regard which section 149 of the Equality Act 2010 requires, and on the facts and in the circumstances of this case, there has been a failure by the Secretary of State for Justice to discharge his duties under that section. I intend those words to represent "a declaratory judgment" of the kind contemplated by Blake J in paragraphs 58 and 61 of his judgment in Logan. I am confident that the Secretary of State for Justice or appropriately senior officials will consider and take heed of what I have said.