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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Russell & Anor, R (On The Application Of) v HMP Frankland [2000] EWHC Admin 365 (10 July 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/365.html
Cite as: [2000] EWHC Admin 365
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IN
THE HIGH COURT OF JUSTICE |
CO/1892/99 |
Royal
Courts of Justice
Strand
London WC2A 2LL
10th July 2000
MR JUSTICE LIGHTMAN
BETWEEN:
THE QUEEN
and
GOVERNOR OF HMP FRANKLAND
Respondent
ex parte
(1) ANDREW RUSSELL
(2) PERRY WHARRIE
Applicant
_________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
________
Ms Phillippa Kaufmann (Instructed by Messrs Bhatt Murphy, 23 Pitfield Street, London N1 6HB) appeared on behalf of the Applicant.
Mr Steven Kovats (Instructed by the Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the Secretary of State for the Home Department.
As Approved by the Court
Crown Copyright ©
INTRODUCTION
1. This is an application made pursuant to permission granted by me on the 14th January 2000 for an order quashing the policy ("the Policy") of the Governor ("the Governor") of HMP Frankland ("the Prison") in respect of the provision of food to prisoners placed in the segregation unit of the Prison ("the Unit") who refuse to wear prison clothes. The Governor provides prisoners with three meals a day at the central servery, but he has made it a rule that prisoners placed in the Unit who refuse to wear prison clothes shall not be allowed to collect their meals from the servery. If the Governor obtains the necessary authority, the segregation of a prisoner in the Unit can be continued month by month for an indefinite period. The Applicants were prisoners at the Prison who, when placed in the Unit, were subjected to the Policy. They have since been transferred to other prisons, but may at any time be transferred back to the Prison. They seek to challenge its legality and a declaration that prisoners in the Unit who by reason of their refusal to wear prison clothes are barred from collecting their three meals a day from the servery are entitled to have all their three meals brought to them in their cells. The essential question raised is whether the obligation of the Governor to make food available to prisoners precludes him from adopting the Policy which limits the provision to one meal a day. A knee-jerk reaction to this question is to say that the prisoners are the authors of their own discomfort; that they are free to don prison clothes and collect three meals a day if they wish; and that they cannot by their refusal to comply with the rule requiring them to wear prison clothes insist that the prison staff wait on them in their cells. But on further consideration it is apparent that the answer is not as simple as this, and it was for this reason that I granted permission.
FACTS
2. Rule 45 of the Prison Rules (which is set out later in the judgment) enables a Governor for the maintenance of good order or discipline or in the prisoner's own interests to require a prisoner to be confined in the Unit for the periods there specified. Rule 55(1)(e) and (f) and (3) provide that in case of a prisoner found guilty of a disciplinary charge the punishment may be imposed of cellular confinement for a period not exceeding 42 days.
3. The Applicants Mr Russell and Mr Wharrie were at all material times Category A prisoners. Category A status indicates that the prisoner is considered to be highly dangerous if he escapes and that the aim must be to make his escape impossible. The Applicants were serving at the Prison which is one of six high security prisons in this country. Four of these six high security prisons require prisoners to wear prison clothing when placed in the Unit. The Prison is one of those four. The inmates of the Unit normally leave their cells to collect three meals a day from a central servery, and then take their meals back to their cells to eat. Inmates who do not wear prison clothes are not permitted to leave their cells unless authorised by the officer in charge.
4. During the periods of their sentences served at the Prison, the Applicants were found guilty of disciplinary offences and punished by the imposition of periods of cellular confinement, in the case of Mr Russell between the 23rd and 28th December 1997, between the 12th and 18th August 1998 and between the 16th and the 19th September 1998, and in the case of Mr Wharrie between the 23rd November and the 1st December 1998. On each of these occasions the Applicants as a matter of principle objected to the rule of requiring them, so long as they were placed in the Unit, to wear prison clothes as a demeaning and an unnecessary restriction upon them and as a rule not adopted (as not considered necessary) at two of the other high security prisons and for this reason unfairly discriminatory against prisoners at the other four; and in protest when proffered prison clothes they refused to wear them. I am satisfied on the evidence before me that the objection was sincere, and the refusal to wear prison clothes was not a deliberate attempt to cause trouble. As a result of their refusal to wear prison clothes, the Applicants were naked or wrapped only in a blanket throughout their periods of confinement. For reasons of decency and hygiene the Governor required the Applicants to dress and wear prison clothes before they collected their meals from the servery and, when they refused to do so, he prevented them going there to collect their meals.
5. When in December 1997 Mr Russell first made his protest, the Governor responded by adopting the Policy. His printed statement of the Policy reads as follows:
"HMP FRANKLAND
Prisoners in Segregation will only be allowed to leave their cells if properly dressed in prison clothing unless otherwise authorised by the Officer in Charge of the Segregation Unit.
Where this instruction would interfere with the prisoner collecting meals Segregation Unit staff will take one meal per day [Lunch or Tea meal] to his cell.
If the prisoners [sic] behaviour develops into a food refusal [i.e. hunger strike] then all meals should be taken to the cell [sic] however once food is eaten staff can assume that the food refusal is over and again require him to collect his food if properly dressed.
Other than in the instance of recognised food refusal Segregation Unit staff should not take more than one meal a day to the prisoners [sic] cell."
In a letter to the Prisoners' Advice Service dated the 3rd February 1998 the Governor explained why he had adopted the Policy:
"... I sought to balance 2 considerations:
* operationally, I did not want the Segregation Unit's routines disrupted or even made unworkable by establishing that prisoners who refused to wear prison clothing would simply have all their food taken to them
* pragmatically, I did not want a prisoner to go without food and make himself ill over what I regarded as a piece of silliness.
My decision was to construct a compromise between these 2 factors, in order that we found a way out of the impasse. I instructed staff to take Mr Russell one meal per day to his cell, either the lunch or tea meal. If he refused to eat it, then they were to take all meals to him and treat the situation as a food refusal. If he ate the meal, then it was not a food refusal [i.e. hunger strike] and the staff would require him to dress at every meal time. For so long as he refused to dress but ate the meals taken to him, he was to be taken one meal each day. He was to be given the opportunity to collect every meal, on the same basis as every other prisoner in the Unit. I informed Mr Russell of my decision at the time."
The Governor expressed himself in these words in his evidence:
"12. ...For reasons of discipline and control I did not want the prison's routines to be unduly disrupted or subject to negotiation with a prisoner. On the other hand I did not want a prisoner to go without food and make himself ill over what I regarded as a piece of silliness."
6. The relevant evidence before me can be summarised as follows:
(1) for the Governor to submit to the prisoners' demand and allow them to wear their ordinary clothes when collecting food from the servery would undermine discipline and control;
(2) to require the prison staff to take three meals a day to the cells of prisoners in the Unit who refused to wear prison clothes may affect the quality of the food delivered (although I do not understand why the quality should be materially different if transported by a prison officer to a prisoner in his cell or by a prisoner to his own cell). The requirement would be administratively practical, though it might involve a difficult exercise where the cells are on the second floor and would be disruptive to the prison regime, the degree of disruption depending on the number of prisoners to whom food has to be so taken;
(3) whilst (as the Governor states) the Applicants have demonstrated that a prisoner is well able to survive on one meal a day and (as stated by Dr Clark, the Senior Medical Officer at the Prison) the Applicants on this diet for a maximum of 8 days are "unlikely to suffer any medical problems", (as the dietician Ms Cathy Hodgson says in her unchallenged evidence) a typical 70 kg male with light occupational and recreational activities requires each day 2,341 K cals (energy) and 55.5 grams of protein, but a single (sample) meal only provided 768 K cals and 27.5 grams protein; and this under nutrition (depending on the individual) can lead to (as well as in feelings of hunger and discomfort leading to emotional distress) "weight loss, impaired muscle function with increased fatigue ability and a variety of mental effects, including depression, anxiety, introversion, irritability, apathy and loss of concentration". Ms Hodgson stresses the importance on grounds of health of monitoring any individual receiving a restricted diet;
(4) the Policy makes no provision for such monitoring and there was no monitoring. Dr Clark was at all times ignorant of the Policy and that the Applicants were subjected to it. Mr Savas Hadjipavlovu, Deputy Head of the Prison Health Service, in a letter written very shortly before the hearing to the Treasury Solicitor, states that prison doctors are required to visit prisoners in Units at least once every 72 hours, and if they see evidence of harm they will report to the Governor and remedial action may be expected.
LEGAL FRAMEWORK
7. The Prison Act 1952 ("the Act") provides in Section 4(1) that the Secretary of State shall have the general superintendance of persons and shall do all that is necessary for the maintenance of prisons and prisoners. Section 47(1) of the Act provides that the Secretary of State may make rules for the regulation and management of prisons and for the treatment, employment, discipline and control of persons required to be detained there. Pursuant to this power the Secretary of State made the Prison Rules 1964 and (superseding the 1964 Rules) the Prison Rules 1999. The parties are agreed that there is no material differences in the 1964 and 1999 Rules for the purpose of this application and that it is sufficient to refer to the Prison Rules 1999 ("the Rules").
8. The relevant provisions of the Rules are as follows:
"GENERAL
Purpose of prison training and treatment
3. The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life.
...
Maintenance of order and discipline
6.(1) Order and discipline shall be maintained with firmness, but with no more restriction than is required for safe custody and well ordered community life.
...
(3) At all times the treatment of prisoners shall be such as to encourage their self respect and a sense of person responsibility ...
MEDICAL ATTENTION
Medical attendance
20.(1) The medical officer of a prison shall have the care of the health, mental and physical, of the prisoners in that prison.
...
Special illnesses and conditions
21.(1) The medical officer ... shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations.
...
PHYSICAL WELFARE AND WORK
Clothing
23 ...
(3) A convicted prisoner shall be provided with clothing adequate for warmth and health in accordance with a scale approved by the Secretary of State.
...
(5) Subject to rule 40(3) [own clothes for court appearances] a convicted prisoner shall wear prison clothing provided under this rule and no other, except on the directions of the Secretary of State or as a privilege under rule 8.
Food
24.(1) Subject to any directions of the Secretary of State, no prisoner shall be allowed, except as authorised by the medical officer ... to have any food other than that ordinarily provided.
(2) The food provided shall be wholesome, nutritious, well prepared and served, reasonably varied and sufficient in quantity.
...
(4) In this rule `food' includes drink.
...
SPECIAL CONTROL, SUPERVISION AND RESTRAINT AND DRUG TESTING
45.(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly.
(2) A prison shall not be removed under this rule for a period of more than 3 days without the authority of a member of the board of visitors or the Secretary of State. An authority given under this paragraph shall be for a period not exceeding one month, but may be renewed from month to month except that, in the case of a person aged less than 21 years who is detained in prison such an authority shall be for a period not exceeding 14 days, but may be renewed from time to time for a like period.
(3) The governor may arrange at his discretion for such a prisoner as aforesaid to resume association with other prisoners, and shall do so if in any case the medical officer or a medical practitioner such as is mentioned in rule 20(3) so advises on medical grounds.
...
OFFENCES AGAINST DISCIPLINE
51. A prisoner is guilty of an offence against discipline if he-
...
(22) disobeys any lawful order;
(23) disobeys or fails to comply with any rule or regulation applying to him;
...
...
Governor's punishments
55.(1) If he finds a prisoner guilty of an offence against discipline the governor may, subject to paragraph (2) [cautions] and to rule 57 [offences by young persons], impose one or more of the following punishments:
...
(e) cellular confinement for a period not exceeding 14 days; ...
...
(3) The maximum period is 14 days even if the prisoner is guilty of more than one charge arising out of an incident.
...
Cellular confinement
58. When it is proposed to impose a punishment of cellular confinement, the medical officer, ... shall inform the governor whether there are any medical reasons why the prisoner should not be so dealt with. The governor shall give effect to any recommendation which may be made under this rule.
..."
ISSUES
9. There is no dispute between the parties that the rules adopted at the Prison requiring inmates of the Unit to wear prison clothes, and (in particular) to wear such clothes when they visit the servery, are perfectly valid as required on grounds of good order and discipline. In McFeeley v UK [1980] 3 EHRR 161 ("McFeeley") the European Commission of Human Rights ("the Commission") held that there was nothing inherently degrading or objectionable about a requirement that prisoners wear prison uniform and nothing inhuman in locating prisoners in a Unit. Likewise there is no dispute that the Rules require the Governor to provide food that is wholesome, nutritious, well preserved and served, reasonably varied and sufficient in quantity and that no punishment can be imposed which takes the form or has the effect of withholding or limiting the right of a prisoner to receive such food. Rule 21 of the Prison Rules 1964 (the predecessor of Rule 24) expressly provided:
"No ... prisoner shall be given less food than is ordinarily provided except ... upon the written recommendation of the medical officer."
This provision is not to be found in Rule 24, but this prohibition is implicit in Rule 24(2). Further it must be implicit in the Rules (as was accepted by the Governor in the course of argument) that the Governor is under an overriding and continuing obligation to prisoners in his care to take reasonable care to prevent prisoners suffering any serious harm. The issue in this case is concerned with the interplay between the power of the Governor to make and enforce the rules relating to the wearing of prison clothes in the interests of good order and discipline and the obligations imposed on the Governor in respect of the provision of food and how far the Governor is obliged, so long as he enforces the rules prohibiting prisoners not wearing prison clothes from collecting food from the servery, to provide it to them in their cells.
10. The starting point must be Rule 24. This rule (like Rule 23) is an expression of the overriding obligation of the Governor to care for those in his custody who have no means to obtain food or clothing (the necessities of life) save from him. The word "provides" is used in both rules. The word in the context of these rules must mean to make immediately available for consumption or use to those prisoners who want food or clothes. It is clearly established that the Governor has no right or duty to force feed prisoners on hunger strike. Their autonomy in this regard must be respected: R v. Home Secretary ex parte Robb [1995] Fam 127. The obligation imposed by Rules 23 and 24 to clothe and feed are expressed in unconditional terms, in contrast to other rules which afford to prisoners rights subject to specified limitations or conditions, e.g. rights to access to open air (Rule 30), communications and visits (Rules 34 and 35) and correspondence with legal advisers (Rule 39). The question raised is whether in exercise of his duty to maintain order and discipline the Governor is authorised to attach limitations or conditions to the provision of these necessities of life to those who want them. Mr Russell contends that the right to the provision of food is absolute and that no limitations or conditions can be imposed on the exercise of that right, or in the alternative that no limitation or condition can be imposed which constitutes an interference with the fundamental human right of a prisoner, and most particularly the right under Article 3 of the European Convention on Human Rights ("Article 3") not to be subjected to inhuman or degrading treatment or punishment, and that the treatment of prisoners under the Policy constitutes such treatment or punishment. The Governor contends that (subject only to fulfilment of his overriding obligation to take reasonable care to prevent prisoners suffering serious harm) he can in exercise of his duty to maintain good order and discipline attach as limitations or conditions the due compliance by the prisoners with valid rules and in particular the rule that the prisoners in the Unit wear prison clothes when they collect food from the servery.
11. Some guidance on this question of construction of the Rules is afforded by recent authorities in the English Courts The principles to be extracted are as follows:
(1) a convicted prisoner retains all his civil rights which are not taken away expressly or by necessary implication: Raymond v. Honey [1983] AC 1 at 10G;
(2) since a sentence of imprisonment is intended to restrict the rights and freedom of a prisoner, the prisoner's liberty, personal autonomy and freedom of movement and association are limited, but the starting point is to assume that a civil right is preserved unless it has been expressly removed or its loss is an inevitable consequence of lawful detention in custody: R v. Home Secretary ex parte Simms [1999] 3 WLR 328 at 331 per Lord Steyn;
(3) the principle of legality means that, in the absence of express words or necessary implications to the contrary, even the most general words in an Act of Parliament and in subordinate legislation must be presumed to be intended to be subject to the basic rights of the individual, and accordingly prison regulations expressed in general language are presumed to be subject to fundamental human rights, a presumption which enables them to be valid: R v Home Secretary ex parte Simms at pp.341-2 per Lord Hoffmann;
(4) where the question arises as to extent to which a power is impliedly conferred by statute to interfere with fundamental rights, there must be established a self evident and pressing need for that power and the interference must be the minimum necessary to fulfil that need: R v. Home Secretary ex parte Leech [1994] QB 198;
12. I turn to the authorities providing guidance as to the ambit of Article 3. The authorities provide guidance to what constitutes such treatment. The European Commission of Human Rights ("the Commission") described "inhuman treatment" in the Greek case 12YB186 as:
"such treatment as deliberately causes severe suffering, mental or physical, which in the particular situation is unjustifiable."
In T v. UK (16 December 1999) the European Court of Human Rights said:
"68. Ill treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it 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 age, sex and state of health of the victim ....
69. Treatment has been held by the Court to be `inhuman' because inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering, and also `degrading' because it was such to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be `inhuman' or `degrading', the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment .... The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account ... but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3."
In the context of the treatment of prisoners the treatment must go beyond the usual element of humiliation associated with imprisonment after a criminal conviction: Tyrer v. UK (1980) 2 EHRR 1 at 9-10. The public nature of the treatment is relevant as is its adverse effect: Raninen v. Finland [1997] 26 EHRR 563. But absence of publicity will not necessarily prevent a given punishment from being degrading, for it may be sufficient that the victim is humiliated in his own eyes, even if not in the eyes of others, and the punishment or treatment need not cause any severe or long lasting physical effects: Tyrer v. UK (1978) supra at pp.10-11. The fact that the person concerned has brought the treatment on himself may be relevant: McFeeley supra at 198. But that fact cannot absolve the state of its obligations under Article 3: X v. UK [1982] 28 DR 5 at 32. A degrading punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to maintain discipline: Tyrer v. UK (1978) 2 EHRR 1 at 10 (para 31).
13. In McFeeley the applicants were prisoners in Northern Ireland who in pursuit of the goal of achieving the status of political prisoners protested against the requirement to wear prison uniform and to work, and as part of this protest engaged in a strategy involving "a self inflicted debasement and humiliation to an almost subhuman degree" (see p.196). The applicants complained that their treatment by the prison authorities constituted a breech of various articles of the Convention including Article 3. In this context the Commission stated (at p.196):
"43. ... the Commission is of the view that undoubtedly harsh conditions of detention, which developed from the applicants' decision not to wear prison uniform or use the toilet and washing facilities provided and other self-imposed deprivations associated with their protest cannot engage the responsibility of the respondent Government.
44. It must also be considered whether the Convention imposes on the Government an obligation to accept the demands of the applicants not to wear prison uniform or work in the face of a dispute which continues to deteriorate in such a drastic way to the detriment of everyone concerned. However the Commission does not consider that such an obligation exists in the present case.
...
46. On the other hand the Commission considers that in such a situation the State is not absolved from its obligation under the Convention and under Article 3 in particular, because prisoners are engaged in what is regarded as an unlawful challenge to the authority of the prison administration. Although short of an obligation to accept the applicants' demands in the sense described above, the Convention requires that the prison authorities with due regard to the ordinary and reasonable requirements of imprisonment, exercise their custodial authority to safeguard the health and well-being of all prisoners including those engaged in protest insofar as may be possible in the circumstances. Such a requirement makes it necessary for the prison authorities to keep under constant review their reaction to recalcitrant prisoners engaged in a developing and protracted protest."
14. For a period the prisoners in that case were placed on a restricted diet as a disciplinary award. In respect of this the Commission said (at p.204):
"75. The Commission notes that since October 1978 the above diet is no longer employed as a disciplinary award, although it does not appear to have been abolished as such. The Commission considers that a restricted diet such as the above coupled with an award of cellular confinement is a stringent and wholly undesirable form of punishment. However in the present case it notes that it was employed for short periods in respect of both complainants and is thus of the opinion, though harsh, it does not amount to a sufficiently rigorous punishment where the level of physical or mental suffering or the degree of humiliation involved amounts to inhuman or degrading punishment in breach of Article 3."
15. The Commission went on to express concern at the adoption by the authorities of an inflexible approach more concerned to punish offenders against prison discipline than to explore ways of resolving such a serious deadlock, but in view of the magnitude of the institutional problems posed by the protest and the precautions taken, it held that the failure by the authorities did not amount to a breach of Article 3.
16. T v. UK (1983) 49 D & R 5 was concerned with an analogous situation, namely the continued right under Article 10(1) of a prisoner who refused to wear prison clothes to "receive information" notwithstanding that his conduct led to an exceptional degree of segregation from human contact. The Commission held that the authorities could properly prevent him obtaining access to the library when undressed, but that this did not justify the restriction on his access to newspapers and periodicals in his cell. The Commission held (at para 49) that authorities had to adopt a flexible approach to disciplinary problems where it becomes clear that an individual or group shows an intransigent resolve against the disciplinary system; and it went on to say:
"71. ... While it is true that [a degree of] segregation was necessary `in the interest of good order and discipline' (Rule 43 of the Prison Rules [1964]) this alone does not mean that the restrictions on the applicant's access to information, can equally be considered as necessary until Article 10 para. 2 since his access to information itself was not relevant to the good order of the prison even though it might not have been possible for the applicant to collect books or other publications in person."
The Commission went on to conclude that Article 10 required the prison authorities during the period of the applicant's segregation (including punishment periods) to consider alternative means which were administratively practical to ensure continued access by the applicant to newspapers and periodicals.
PRINCIPLES
17. In my view in the light of the above authorities, the relevant principles may be stated as follows:
(1) the obligation of the Governor to provide adequate food is an obligation to make food immediately available to prisoners who want to eat it. Food is made immediately available if the prisoners are allowed free access to the place where it is to be collected or eaten. If the Governor lays down conditions for obtaining such access (e.g. wearing prison clothes), so long as the prisoners are content to comply with those conditions, the Governor is providing free access to them; but if prisoners refuse to comply with those conditions, and for that reason are excluded from access, their free access to the food is withdrawn;
(2) the rights of a prisoner to the provision of adequate food cannot be withdrawn or limited as a punishment or sanction or as a method of coercion;
(3) subject to his overriding obligation to provide prisoners with adequate food, the Governor in the exercise of his powers of management is free to decide the times and places where food is to be made available and e.g. whether the cutlery shall be metal or otherwise;
(4) the Governor can lay down conditions which regulate access to the place where food is to be made available e.g. requiring the wearing of clothes or particular clothes; and he may order prisoners to comply with such conditions (e.g. to get appropriately dressed); and he may treat disobedience to such an order as a disciplinary offence. But neither the imposition of such conditions nor the failure of a prisoner to comply with them (or with an order requiring compliance) can excuse the Governor from performance of the obligation to provide food to that prisoner or can detract from the fundamental right of the prisoner to adequate food. That does not mean that the Governor must accede to the prisoner's demands and e.g. allow the prisoner to wear other clothes or go to the servery naked; but that, since the Governor cannot comply with his obligation to provide food in the ordinary way (i.e. in the servery), he must adopt some alternative way;
(5) the obvious alternative is to provide food to the prisoner in his cell. This does not mean that he has to provide the same number of meals or the same food or provide food at the same time as to other prisoners. All that Rule 24 and the fundamental rights of the prisoner requires is that the prisoner is provided with adequate food which meets the requirements of Rule 24. Adequacy is not to be measured by the criterion whether it is sufficient to ensure that the prisoner will survive or be unlikely to suffer any medical problems. Rather the measure must be along the lines indicated by Ms Hodgson: it must meet the nutritional requirements of the prisoner. The food provided in the servery for prisoners is clearly such as meets this requirement. If a prisoner is to be provided with less food than, or different food from, that provided to other prisoners in the servery, care must be taken, and professional advice obtained, to ensure that the provision made is adequate to meet the requirements of the individual prisoner in question. The one qualification I would add is that, if the quality of the food must inevitably suffer because of the need to transport it to the cell, that is not a matter of which the prisoner can complain;
(6) the Governor may lay down policies for the treatment and feeding of prisoners unwilling to wear prison clothes, but the policy must be flexible and calculated to ensure in the case of each individual prisoner that he receives adequate nourishment and (if any question can arise whether he will receive adequate nourishment) must provide safeguards to protect the prisoner's health.
18. I must now turn to applying those principles to the Policy. It is necessary for this purpose to identify the salient features of the Policy. The Policy is an ad hoc policy adopted to meet the situation when Mr Russell first refused to wear prison clothes. It was, as it seems to me, at least in part designed as an effective deterrent to his continuing what the Governor somewhat cavalierly dismissed as his "childishness". The policy is however in terms a blanket policy affecting all prisoners who refuse to wear prison clothes and provides for a regime which is to continue for the indefinite duration that the prisoners remain in the Unit and unwilling to wear prison clothes. It is accordingly capable of applying (if the segregation of the prisoner is continued month by month under Rule 45(2)) for a prolonged (indeed for an indefinite) period. The limitation of provision to one meal a day is arbitrary and operates irrespective of the impact on the individual prisoner. The policy contains no provision for monitoring and safeguarding the health of the prisoner. I may add that Dr Clark's evidence makes clear that he did not consider that he had any duty to monitor; indeed he did not know that there was any reason to monitor the prisoner; and the visits only once every 72 hours referred to by Mr Hadjipavlovu must be quite inadequate for this purpose.
19. In my judgment, the Policy is unlawful: it is not and could not be authorised by the Prison Rules. The first and foremost reason is that it fails to give proper effect to Rule 24 and (in view of the possible indefinite duration of the segregation of a prisoner in the Unit) may well breach the fundamental rights protected by Article 3. For it arbitrarily cuts down for an indeterminate period to one third the provision of food to the prisoners affected without any or any proper or sufficient regard to the entitlement of prisoners under Rule 24 to adequate food. It is inflexible. It fails to provide the elementary health safeguards which such a reduction in provision (if otherwise lawful) would require in its train.
CONCLUSION
20. If any policy is to be adopted along the lines of the Policy, it is clear that there is a need for a well thought out and fully considered national policy made after full consultation and with specialist medical advice and it must fully respect the rights of prisoners under Rule 24. The Policy does not meet any of these requirements and accordingly it cannot stand. I therefore order that it be quashed. But I decline to grant the declaration sought. Prisoners in the Unit are not entitled to delivery of three meals a day. They are entitled to be provided with adequate food meeting the conditions set out in Rule 24. It may well be that the provision of adequate food requires the provision of three meals a day, but that is not self evident. What however is self evident is that the Governor should provide three meals a day unless and until he is satisfied that less than three meals is adequate to meet the prisoner's nutritional needs. Such a decision cannot be made lightly. I may add that it should not be thought that the quashing of the Policy offers a licence to prisoners "to get their own way". The Governor may at any time or times give orders to the prisoners to put on prison clothes and collect their meals, and every occasion when such an order is disobeyed is a disciplinary offence. The possible punishment for each such offence includes an additional 42 days imprisonment, which is no insignificant penalty to pay for disobedience. It must be a question for the judgment of the Governor whether to react in this manner. In short a refusal by a prisoner to wear prison clothes when ordered to do so may be dealt with as a disciplinary offence; there is no alternative sanction available in the form of a reduction of the food provided below what is adequate.