QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|MRS JANICE HAWKE|
|MR JEREMY HAWKE||Claimants|
|SECRETARY OF STATE FOR JUSTICE||Defendant|
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Ms H Slarks (instructed by Government Legal Department) appeared on behalf of the Defendant
Crown Copyright ©
MR JUSTICE HOLMAN:
The essential issue
The essential facts
"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."
"... 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 ..."
The position of the Secretary of State for Justice
"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."
"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."
Public law duty
"... a convicted prisoner shall be entitled --
(a)... ; and(b)to receive a visit twice in every period of four weeks ..."
"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
"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."
"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."
"(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?"
(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.
(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
"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)...
(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;
(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.
(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 ... "
"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 ..."
"No great changes over the past few weeks ... however still feels a little down at times due to his wife's sickness."
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."
"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."
"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 ..."
Impact and effect of section 31(2A) of the Senior Courts Act 1981
"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."
"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."
"[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..."