England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HHJ DENNISS
S20120021

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/02/2013

Lord Justice Hughes:

1. This is a very unusual case. The judge had to find the right sentence for a man who suffers from an extremely grave combination of rare long term medical conditions which interfere with virtually all his bodily functions and require 24 hour monitoring and a very high level of constant assistance in most of the ordinary incidents of life. But the man had committed a serious offence of importing a large quantity of cocaine into this country. In the ordinary way it undoubtedly merited a long sentence of imprisonment. The judge imposed, in the end, a significantly shortened period of three years. The applicant presents us with alternative arguments:

i) that any sentence of imprisonment was wrong in principle because it would inevitably involve subjecting him to inhuman and degrading punishment akin to torture and in breach of Article 3 of the ECHR, or even to an interference with his right to life (Article 2);

ii) alternatively that the sentence imposed is, because of his condition, manifestly excessive; the judge ought to have reduced it even further than he did.

2. The defendant is 30 years of age. Since he was a small child he has suffered from a rare condition known as Friedreich's ataxia. That is an hereditary condition in which there is progressive, irreversible and incurable degeneration of the spinocerebellar tract. It not only directly affects the nervous system but often results in multisystem disorders of the body. He has little control of his limbs and has little balance, so cannot walk. His muscles are wasting. His speech is much impaired. He cannot swallow properly. He has intermittent bladder spasticity and is thus incontinent and needs help with bowel movements and urination. A consequence of the condition, present in this defendant, is severe scoliosis, or curvature of the spine, which brings with it chronic severe back pain and also cardiomyopathy (a stiffening of the walls of the heart) and atrial fibrillation (heart rhythm disturbances) and consequent breathing difficulties. Another known consequence, which again has ensued in his case, is pancreatic disorder leading to diabetes. As the condition advances, these multiple conditions become yet worse. There is, further, a heavy loss of life expectancy, which is usually restricted to about 40 years from the onset of the disease. The onset in this man's case is put at the age of approximately three.
3. By 1997, now fifteen years ago, he was confined to a wheelchair. He managed his difficulties with no little resilience. He carried on his schooling, with some interruptions, got into university and undertook a course in Spanish and economics which included a year abroad. Until 2000, when he left for university, his mother Anne provided all his care. But during his time at university his condition deteriorated. He was reluctant to admit it, apparently out of understandable pride, stopped going to lectures, and hid many of his difficulties from his mother. By the third year of university, he required formal care, day and night, which was funded by his local authority. In his fourth and final year at college, he was diagnosed with diabetes, and became very ill. He returned to live with his mother.
4. In 2007, he began to have cardiac symptoms: he had intermittent atrial fibrillation, and was found to have both stage 1 heart failure due to cardiomyopathy and mild left ventricle systolic dysfunction. In 2008, he moved into a fully wheelchair-adapted flat with accommodation for 24-hour care, close to his mother's home, and funded by his local authority as part of a detailed care plan. That plan included an extensive programme of therapeutic exercise activity, all of which required assistance, including passive stretching, gym and swimming pool exercise, standing practice using a standing wheelchair, and mechanical upper and lower limb exercise.
5. Since this time he has required very considerable assistance with every aspect of his life. He cannot feed himself without help. Without assistance, he is unable to do everyday tasks such as making a telephone call, opening a window, and even using a computer or a television remote control, nor can he perform any aspect of his personal care. He requires a hoist to move him, for example, from bed to wheelchair, from wheelchair to shower chair, or from chair to toilet. Frequent re-positioning and/or massage or stretching of the muscles is necessary as he sits, lies or uses a standing wheelchair if he is to avoid muscle spasm, seizing up of the joints and serious sores, and this needs one or often two carers each time. Because of his diabetes, he requires both regular injections of insulin, and also blood glucose testing at least four times per day. His other medication includes the anti-blood clotting agent Warfarin, and drugs to ensure that his heart maintains its rhythm. He also had significant non-pharmacological treatment: acupuncture, massage and water based exercises, which assisted particularly with muscle spasms and his generally poor sleep.
6. He has had intensive medical input, and regular appointments with neurologists, cardiologists, endocrinologists, occupational therapists, physiotherapists and speech therapists. Nevertheless, he has been regularly admitted to hospital units on a more or less emergency basis, on several occasions with symptoms of atrial fibrillation which proved to be an intermittent problem of sufficient concern to require medical review.
7. In the past, his psychological state has been of concern. Although he has generally borne his condition with some stoicism, he twice made serious attempts at suicide at the ages of 15 and 20. Comparatively recent conversion to Islam has, it seems, provided him with a spiritual support in facing his problems. Recently, however, he became very much committed to the hope of marriage to a lady from Morocco, but the hope was dashed by her family's objections to his disability, made at the last minute as he travelled to her home for the ceremony. After that, he entertained the hope of marrying another lady; that was perhaps a desperate reaction but it transpired that she was not genuine in her professed affections and a fresh blow was inflicted upon him. These very severe disappointments were undoubtedly dreadful reversals for him. At about the same time, a half sister developed cancer.
8. His family has connections in South America. His father is Nicaraguan. Although father has rejected the defendant, there is a sister in law also in that country. The defendant has managed to arrange travel from time to time, with a constant carer, to South America, to North Africa, to the United States, and to various other countries. It was one of these trips which he exploited to commit the criminal offence which brought him for the first and only time before the criminal courts.
9. In November 2011 he travelled to Peru with his carer for a holiday. On his return, a test at Heathrow disclosed the presence of cocaine hidden in the cushion of his wheelchair. Concealed in it was 2.8 kilograms of cocaine at the very high purity level of 83%. It was worth about £370,000. When first asked if they were carrying anything not permitted, both defendant and carer said that they were not. When the drugs were found, the defendant took the blame, saying that his carer knew nothing about it. As he later admitted, this importation had been planned in advance of his leaving this country and the hope had been that because he was in a wheelchair he would pass without question. The account he later gave was that an acquaintance of his had asked him previously to bring drugs back from South America. He had previously refused but this time had agreed, before going, to do so. He would not himself have been able physically to hide the drugs in the cushion, or indeed to substitute a different cushion if that was what was done. He volunteered that he had been promised £7000 for what he did. He said that the money was not his prime motive, and seems to have meant that he wanted to demonstrate an independence which is conspicuously lacking in his life.
10. This was a serious example of the offence. The importation was planned. The defendant was not exploited by someone else, nor does he suggest that he was blackmailed or put under severe pressure. Severely disabled as he himself is, the quantity of the drug imported was capable of ruining the lives of many other people, either directly from taking it, or via the harm that those who took it might do to others. The offence also risked involving the carer in serious crime. We should advert to an unexplained piece of evidence that a dismantled suitcase was found when, after his arrest, police officers went to his home; as to that, we think it best not to speculate about what that meant and the judge rightly avoided drawing from it any conclusions adverse to the defendant.
11. To set against those serious features of the offence there was mitigation which was most unusual, perhaps close to unique. The defendant's multiple medical conditions are quite dreadful. The restrictions which they impose upon him are much greater than most cases of paralysis. His grave misbehaviour was a first offence. Whether it was prompted by resentment against society generally, attributable to the appalling handicaps which life had visited upon him without any kind of fault of his own, we are not sure, but it is not difficult to see that one way of coping with such a condition of life may be to become rebellious and resentful. It does seem fairly clear that the acute double disappointments of the two aborted marriages will have made an enormous impact on the defendant, for whom they must, for a while at least and whether realistically or otherwise, have offered the prospect of a life experience which could dramatically improve his psychological wellbeing. In other words, it is possible to regard the offence less gravely because of the defendant's parlous condition. Further, the defendant admitted the offence from the outset, had been at pains to exonerate the carer, and on the evidence was demonstrating genuine remorse for what he had done. All those were features of significant mitigation.
12. With them goes a separate but related factor affecting sentence. One legitimate aim of sentencing is to preserve, to the extent that one can, some parity of punishment between like offenders. This defendant's life out of prison is made just about bearable by intense care in his own surroundings. Even assuming that he can be provided with care in prison, the impact on him of imprisonment is enormously greater than the impact on any able-bodied, or even significantly disabled, man. He has to be accommodated on the hospital wing, in a separate room but alongside other occupants with a variety of conditions, some of mental disorder, and he there requires 24 hour attention. The management of his feeding, bowel and urinary needs, turning, blood sugar testing and so on is very much complicated by the need to preserve security in prison. What has actually happened illustrates the point. He has needed two health care assistants assigned to him alone. He can be taken outside for fresh air, but synchronising this with his fixed mealtimes and blood sugar checks is restricting and difficult in the context of a prison regime which must cope with, and restrain, a large number of prisoners. His standing wheelchair, which is an important part of his routine, calls for special training (with him) by those who may use it, and for some seven weeks when he arrived, there was no one who could do so. He cannot expect to have the same access to the extra facilities which he can arrange at home, such as swimming or acupuncture, and so the limited relief which such things afford, which no doubt assume huge significance to him, are lost. He has considerable disruption of his sleep at the best of times. In a noisy prison, it is significantly worse. Because he must be in a prison where there is an appropriate health wing, and in his case in London because of external health appointments which must be kept, the only places available are Category B prisons, although he is classified as Category C and it may well would ordinarily be D. The necessary security restrictions at a Category B prison are inevitably greater.

The law

13. The law was very clearly set out quite recently in R v Qazi [2010] EWCA Crim 2579. The extensive treatment of it there given makes it unnecessary to repeat it at any length. The medical needs of prisoners are a well understood factor in the administration of prisons. Sophisticated arrangements exist under which these needs are ordinarily met by the Primary Care Trust in close collaboration with the prison authorities. Medical care is ordinarily provided in prison, either to prisoners housed in cells in the usual way, or to those who are housed in a hospital wing. If the condition of a prisoner requires hospital treatment, he will be transferred to a civilian hospital for as long as necessary. In exceptional or extreme circumstances, the Lord Chancellor may advise the exercise of the royal power of release under the Prerogative. A court which is passing sentence ought not to concern itself with the adequacy of these arrangements in an individual case, except in one circumstance. The sole circumstance in which this is necessary is if the mere fact of imprisonment will inevitably expose the prisoner to inhuman or degrading treatment contrary to Article 3; in other words, that there cannot be made any arrangements in prison or out of it for his care which will avoid that consequence. The court in Qazi expressed itself doubtful, given the detailed protocols for the treatment of prisoners, that this would ever arise. If it were to do so, it would be impossible for the sentencing court to pass a sentence of imprisonment which brought with it an inevitable breach of Article 3.
14. Independently of that exceptional possibility, the sentencing court is fully entitled to take account of a medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the defendant, or as a matter of generally expressed mercy in the individual circumstances of the case: see R v Bernard [1997] 1 Cr App R (S) 135. It will not necessarily do so, and normally will not do so if, for example, the powers of release under the Prerogative powers will provide sufficient response if it is a case of possible future deterioration, nor will it normally do so if the prisoner represents a danger from which the public needs to be protected. But in an appropriate case, it may be right to do so. We have set out this process of reasoning as it applies to the present case at paragraphs [11] and [12] above.

The sentence passed

15. The judge dealt with this very difficult case in an imaginative and entirely commendable way. On behalf of the defendant some medical reports were placed before him, together with the written and oral evidence of some of the defendant's carers. He asked himself directly the Article 3 Qazi question at a hearing specifically arranged for the purpose. Having heard the evidence he concluded that although it would be difficult, the normal arrangements for special care for the defendant would apply and that his condition was not such as to mean that any imprisonment would ipso facto involve a breach of Article 3. He then gave an indication of the length of sentence that he had provisionally in mind. He did so to give the prison and health authorities the time to consider the arrangements which would be necessary. He adjourned the case for approximately a fortnight and granted the defendant bail meanwhile. Only when the case returned, and there was no additional reason for departing from his conclusion, did he pass the sentence which he had indicated, which was one of three years.
16. The judge approached the fixing of the sentence in this way. He was prepared to treat the defendant as of lower culpability for the purposes of the Sentencing Council Guidelines, no doubt because he regarded him as unusually vulnerable. He sensibly regarded the quantity of cocaine as somewhere on the borderline between the indicative quantity appropriate to level one and that appropriate to level two. Accordingly he arrived at a notional sentence of 7 years after trial. The defendant had pleaded guilty at the first available opportunity. He reduced the notional sentence to four and a half years in recognition of that factor, applying the conventional reduction. Having done that, he reduced the sentence by a further year and a half on the grounds of the defendant's medical condition. In that manner he arrived at three years.

The first submission: Articles 2 and/or 3

17. The first argument advanced on behalf of the applicant is that the judge reached the wrong conclusion on the Article 3 Qazi question. We can see no basis on which that can possibly be arguable. The judge had reports from the various specialists, including a psychiatrist to speak of the defendant's psychological health. None suggested that the defendant would be unable to cope with imprisonment. The closest that any came was that the Friedreich's ataxia consultant, Dr Giunti, said, plainly correctly, that imprisonment would be detrimental to his health and that it might not be possible to guarantee the level of daily care which was being provided in his own home. But there can be no expectation that care should be identical in prison to that at home, providing that it is sufficient, and certainly if it is not identical that is a very long way short of inhuman or degrading treatment contrary to Article 3.
18. Ms Krause relies on events which occurred at the end of August 2012, after the defendant had been in prison for about seven weeks, when he was transferred to a very distinguished hospital under the kind of arrangements which are summarised above. The details of what occurred are set out in the judgment which it is necessary for us to give in the defendant's parallel claims for judicial review against both the prison and the hospital and which we are satisfied are unarguable. In summary, he developed a degree of fibrillation and was for that reason taken to hospital. His condition was otherwise stable and did not give cause for concern. However, whilst in hospital his condition worsened about 24 hours later. The cause was thyroid toxicosis and a secondary infection. Thyroid problems are a known side effect of one of the drugs which he had had to be prescribed in the past to try to keep his heart stable. The drug in question had been prescribed for him when he was at home. It had been stopped in prison about three weeks before the incident of fibrillation but its effects on the thyroid were, as is common, delayed and only fully manifested themselves after his admission to hospital for the fibrillation. The defendant was very ill during the first week in hospital, but the cause was not anything connected to the regime in prison. The defendant thereafter recovered, but it took weeks for him to recuperate. It was late November before the doctors were ready to discharge him.
19. That episode led Ms Krause to submit that the prison authorities, and/or the hospital authorities, were in breach not only of Article 3 but also of Article 2, the right to life. Those arguments are misconceived. We shall deal with them in greater detail in our judgment dealing with the applications which have been made for judicial review. Far from the August incident demonstrating that imprisonment necessarily involved a failure to avoid inhuman or degrading treatment, it was an illustration of the system working. The fibrillation which occasioned the transfer to hospital was a known risk, which had occurred before imprisonment and more than once, but it was not attributable to any impossibility of dealing with it if it arose in prison. The supervening toxicosis had nothing to do with the care provided in prison. The question of whether the sentence was wrong in principle is a question logically prior to whether, assuming it was not, the continued regime for the defendant will or will not involve any unlawful breach of his Convention rights. But since no arguable breach of Article 3, still less of Article 2, occurred subsequently to sentence, it follows that it is quite plain that the events of late August 2012 cannot demonstrate that the judge was wrong to conclude that imprisonment would not, ipso facto, involve such a breach.

The second submission: length of sentence

20. Ms Krause is on much firmer ground with her second submission. Those who are gravely ill, or severely disabled, or both, may well have to be imprisoned if they commit serious offences. Their condition cannot be a passport to absence of punishment. If this defendant should ever again offend seriously, that would no doubt be the inevitable outcome, and some loss of the quality of care compared with a self-organised home regime would no doubt necessarily follow. But for the reasons which we have already set out, the impact on this defendant of a sentence of imprisonment is greater by a margin which it is difficult to overstate than it would be on an ordinary defendant. There is no lack of punishment in what he has undergone since being sentenced in the summer of last year. He is now said by the hospital to be significantly more frail than at the time of sentence. Notwithstanding his clear tendency to have become angry, uncooperative and demanding in relation to his care in prison, and a degree of exaggeration which in places characterises his statements about it, the personal mitigation is quite exceptional. The events of late August 2012, although they certainly do not demonstrate any breach of Articles 2 or 3, do serve to underline this fact, and to illustrate the inherently unstable combination of conditions from which he suffers and the real potential for unexpected deterioration over a short period. If the judge had known of them, we think he would have felt able to make a significantly greater reduction in his sentence. At all events, now that we do, and bearing in mind the additional blow which life has now dealt the defendant, we are satisfied that his is an appropriate case for an exceptional application of mercy. We shall reduce the sentence to one of eighteen months, which represents the term which the defendant has now served.
21. We do, however, take the view that we should do what we can to ensure that the temptation to do as he did should not recur for this defendant, with all the risk to the public which would go with it. He has admitted a serious offence within the meaning of the Serious Crime Act 2007. The court has power under section 19 of that Act to make a serious crime prevention order in whatever terms are appropriate to the risk. We think that we should do so. A specific example of such order, contemplated by section 5(3)(f) of the Act, is one restricting travel whether within the UK or abroad. That power is additional to, and wider than, the similar power conferred in the case of drug offenders by section 33 of the earlier Criminal Justice and Police Act 2001, which we are aware is limited to those who attract sentences of four years or more. We have considered the defendant's legitimate interest in travelling abroad, including the presence of extended family members in two foreign countries, and we are alive to the fact that in his very inhibited lifestyle, a degree of travel is one of the pleasures which he can enjoy. We nevertheless think that it is appropriate to make an order under section 19 of the Serious Crime Act as follows: (i) requiring him to surrender to the police the two passports which he holds, one Nicaraguan and one British, (ii) preventing him for the period of three years from today from applying for any further passport or document which would enable him to travel out of the UK, and (iii) ordering that he does not do so for the same period. We are satisfied that in reducing the sentence and adding such an order we are not dealing with him in a way which, taken overall, is more severe than the way in which he was dealt with in the court below.
22. We extend time for application for leave to appeal against sentence, grant leave and allow the appeal to the extent of substituting a sentence of 18 months and the order which we have just set out.