QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE APPLICATION OF|
|MOHAMMAD AHMED HUSSEIN AND|
|MUHAMMAD RAFIQUR RAHMAN||Claimants|
|- and –|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
|- and –|
|- and –|
|NATIONAL COUNCIL FOR CIVIL LIBERTIES|
(Incorporating Beverley F. Nunnery & Co.)
Official Court Reporters and Audio Transcribers
5 New Street Square, London EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
This transcript has been approved by the Judge
MS S HARRISON QC, MR R HALIM and MR S SIMBLET (instructed by Duncan Lewis) appeared on behalf of the Claimants.
MR T ROE QC, and MS H MASOOD (instructed by Government Legal Department) appeared on behalf of the Defendant.
MR R FURNISS appeared on behalf of the Interested Party (MISS E WHEELER attended for judgment)
THE INTERVENOR did not attend and was not represented, but submitted written submissions by Heather Williams QC and Keina Yoshida.
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE HOLMAN:
Introduction and the issues which this judgment addresses
The essential facts
(i) Mr Hussein
(ii) Mr Rahman
(iii) Brook House IRC
(iv) The "lock-in" or "night state"
(v) The Muslim prayer timetable
Grounds (V), (VI) and (VII) and the discrimination-based claims
(i) The claim under the Convention.
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom ... to manifest his religion or belief, in worship, ... practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
"8. There is a room dedicated to those who wish to pray but we cannot use this room at times of lock-in. As a practising Muslim, I must pray my five daily obligatory prayers. However, when we are locked in between 9.00 pm to 8.00 am and 5.00 pm to 6.00 pm, I am unable to use the prayer room to offer my Fajr (sunrise) and Maghrib (sunset) prayers. I would like to undertake these prayers with other Muslims but I cannot do that during the lock-ins. I find it very upsetting that I have to offer prayer in the smelly dirty cell at times of lock-in, as this distracts me from my prayer. The area in which you should conduct prayer is supposed to be clean but this room is not and the environment for prayer is wrong but I have no other option but to force myself to do the prayers in spite of all this ... I wake up at around 5.00 am to offer Fajr prayer and use the toilet and do my prayers and then try to go back to sleep. I have to try not to disturb the others but this is difficult and they can get annoyed.
10. I ask my room-mates to give me five minutes to complete my Maghrib prayer (performed at dusk, before sunset) and request them to be quiet during this time. Sometimes they co-operate, but sometimes they do not and I have to continue my prayer whatever they are doing. It is difficult to offer prayer attentively in these circumstances because my room-mates are making noise or watching TV and I am unable to concentrate on my prayer, which really upsets me."
"12. It is so disgusting that the toilet is in the same room we are sleeping in without any closure to the entrance. I cannot pray in my room as it is not clean, you cannot properly follow Islam with a toilet in the room in which you pray and with this sort of uncleanliness and smell within a cell. I simply cannot concentrate on prayer given the odour and uncleanliness ... The conditions within my cell ensure that I cannot follow Islamic practice as per the teachings of the religion."
"11. Prayer being one of the fundamentals of the Islamic faith, it is very important that all Muslims have to fulfill the order of prayer which is a direct order from God in the holy book the Quran. There are many prophetic statements that Muslims should fulfill the prayer regardless of place and location.
12. As much as it is highly discouraged in Islam that the place of prayer is near to a toilet, in extreme circumstances, prayer can be offered using a prayer mat (when no other option or place is available) which is available from the Chaplaincy department at all times ...
13. There are mosques within the UK who don't have the luxury of having a big beautiful prayer hall at a very far distance from the toilets; they have to make with what they have. In these circumstances as long as the entrance to the toilet is covered and the area is kept clean at all times, then prayer would be permitted ... "
"14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as ... religion, ... "
"The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."
(ii) The claim under the Equality Act
"19. Indirect discrimination
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if -
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
Justification and the failure to discharge 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, harassment, victimisation and any other conduct that is prohibited by or under this Act; ...
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
"41. Despite her criticisms of the aims identified by the Secretary of State and the courts below, [leading counsel for the claimant] accepts that in principle the different provision made for men and women might be justified. Her complaint is that the Ministry of Justice has never properly addressed its collective mind to the problem of providing sufficient and suitable places in APs for women which achieve, so far as practicable, the policy of placing them as close to home as possible. There are other options which could have been considered, including ... "
"42. Cranston J's finding that the Secretary of State was in breach of the public sector equality duty also means that the ministry is not in a position to show that the discrimination involved in the different provision made for men and for women is a proportionate means of fulfilling a legitimate aim. It may or may not be. But it is for the Secretary of State to show that the discrimination is justified. Given that the ministry has not addressed the possible impacts upon women, assessed whether there is a disadvantage, how significant it is and what might be done to mitigate it or meet the particular circumstances of women offenders, it cannot show that the present distribution of APs for women is a proportionate means of achieving a legitimate aim."
" ... direct discrimination against women ... which is unlawful unless justified ... No such justification has yet been shown by the Secretary of State."
I emphasise the word "yet" in that quotation.
"In principle whether a limitation on the freedom to manifest one's religion is justifiable cannot logically depend on whether the state thought about this at the time."
" ... has to justify something which he did not even consider required justification. In these circumstances the court should consider with great care the ex post facto justifications advanced at the hearing."
Ground VIII of Mr Rahman's claim
14. I am a smoker. My first room-mate was also a smoker. Within the second room that I was given at Brook House, I shared with two other detainees. Both of them were smokers.
15. Both of my room-mates smoked during the course of the night. I used to have two or three cigarettes throughout the night, but my other room-mates would smoke many more cigarettes per night. The cigarette smell got very strong as the time passed and even as a smoker it became too much for me. I would try to limit my smoking two or three cigarettes during the overnight lock-ins to try and keep to a minimum but the others did not do this.
16. In the last room I was in, I shared with one other detainee. He was a smoker. He would not only smoke during the overnight lock-in, but also during the two daytime lock-ins ...
18. The cigarette smells constantly remained in my rooms. The smoke made the room feel even more congested. I kept my smoking to a minimum in order to avoid this. But other detainees did not as there is no limit on how many cigarettes people can smoke in these rooms.
19. I did not have the right to tell them how much to smoke as everybody smokes a different amount if they are stressed, upset, scared or just bored."
"1(1) This Chapter makes provision for the prohibition of smoking in certain premises, places and vehicles which are smoke-free by virtue of this Chapter."
"2. Smoke-free premises
(1) Premises are smoke-free if they are open to the public. But unless the premises also fall within subsection (2), they are smoke-free only when open to the public.
(2) Premises are smoke-free if they are used as a place of work -
(a) by more than one person (even if the persons who work there do so at different times, or only intermittently), or
(b) where members of the public might attend for the purpose of seeking or receiving goods or services from the person or persons working there (even if members of the public are not always present).
They are smoke-free all the time.
(3) If only part of the premises is open to the public or (as the case may be) used as a place of work mentioned in subsection (2), the premises are smoke-free only to that extent.
(4) In any case, premises are smoke-free only in those areas which are enclosed or substantially enclosed.
(6) Section 3 provides for some premises, or areas of premises, not to be smoke-free despite this section.
"3. Smoke-free premises: exemptions
(1) The appropriate national authority may make regulations providing for specified descriptions of premises, or specified areas within specified descriptions of premises, not to be smoke-free despite section 2.
(2) Descriptions of premises which may be specified under subsection (1) include, in particular, any premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes, and prisons and other places where a person may be detained).
"8. Offence of failing to prevent smoking in smoke-free place
(1) It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking.
(4) A person who fails to comply with the duty in subsection (1), or any corresponding duty in regulations under subsection (3), commits an offence.
(5) It is a defence for a person charged with an offence under subsection (4) to show -
(a) that he took reasonable steps to cause the person in question to stop smoking, or
(b) that he did not know, and could not reasonably have been expected to know, that the person in question was smoking, or
(c) that on other grounds it was reasonable for him not to comply with the duty."
"One of the submissions I developed yesterday on behalf of the Secretary of State was that Brook House IRC is not 'smoke-free premises' within the meaning of Part 1, Chapter 1 of the Health Act 2006 because it constitutes Crown premises, to which Part 1, Chapter 1 therefore does not apply.
On further reflection, the Secretary of State does not wish to pursue this submission. She is therefore content for the court to decide the smoking issue on the footing that Part 1, Chapter 1 of the Health Act 2006 does apply to Brook House IRC and the sole question is whether the individual rooms in it (in some of which, smoking is currently being permitted to take place in limited circumstances) are 'private dwellings' falling within the exception in the 2007 regulations."
3. Private accommodation
(1) A private dwelling is not smoke-free except for any part of it which is -
(a) used in common in relation to more than one set of premises (including premises so used in relation to any other private dwelling or dwellings); or
(b) used solely as a place of work (other than work that is excluded by paragraph (2)) by -
(i) more than one person who does not live in the dwelling;
(ii) a person who does not live in the dwelling and any person who does live in the dwelling; or
(iii) a person (whether he lives in the dwelling or not) who in the course of his work invites persons who do not live or work in the dwelling to attend the part of it which is used solely for work.
(2) There is excluded from paragraph (1)(b) all work that is undertaken solely -
(a) to provide personal care for a person living in the dwelling;
(b) to assist with the domestic work of the household in the dwelling;
(c) to maintain the structure or fabric of the dwelling; or
(d) to install, maintain or remove any service provided to the dwelling for the benefit of persons living in it.
(3) In this regulation, 'private dwelling' includes self-contained residential accommodation for temporary or holiday use and any garage, outhouse or other structure for the exclusive use of persons living in the dwelling.
4. Accommodation for guests and club members
(1) A designated bedroom in a hotel, guest house, inn, hostel or members' club is not Smoke-free.
(2) In this regulation 'a designated bedroom' means a room which -
(a) is set apart exclusively for sleeping accommodation;
(b) has been designated in writing by the person having the charge of the premises in which the room is situated as being a room in which smoking is permitted;
(c) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid, floor-to-ceiling walls;
(d) does not have a ventilation system that ventilates into any other part of the premises (except any other designated bedrooms);
(e) does not have any door that opens on to smoke-free premises which is not mechanically closed immediately after use; and
(f) is clearly marked as a bedroom in which smoking is permitted.
(3) In this regulation 'bedroom' does not include any dormitory or other room that a person in charge of premises makes available under separate arrangements for persons to share at the same time.
5. Other residential accommodation
(1) A designated room that is used as accommodation for persons aged 18 or over in the premises specified in paragraph (2) is not smoke-free.
(2) the specified premises are -
(a) care homes as defined in section 3 (care homes) of the Care Standards Act 2000;
(b) hospices which as their whole or main purpose provide palliative care for persons resident there who are suffering from progressive disease in its final stages; and
(3) ... "
Detention Services Order 2/2014
"2. Broadly, the regulations require all indoor areas to be smoke-free and for arrangements to be in place to minimise the dangers of passive smoking. Unlike prisons, where legislation [viz the regulations] makes provision for accommodation for persons aged 18 or over to be exempt from being smoke-free, subject to specified conditions, no such exemption applies to the immigration detention estate. However, given the particular circumstances of the estate, it has been decided that a pragmatic approach should be applied in the implementation of the legislation so far as it affects detainees in removal centres and residential short-term holding facilities. This is based on the principle that these premises are, in effect, detainees' places of residence during their period of detention. For staff, the premises are places of work so the same considerations do not apply."
The DSO then describes a policy permitting in specified circumstances smoking in bedrooms.
(i) I grant permission to both claimants to apply for judicial review on grounds (V), (VI) and (VII) of their respective amended grounds.
(ii) I grant permission to Mr Rahman to apply for judicial review on ground (VIII) of his amended grounds.
(iii) I refuse permission to both claimants to apply for judicial review on any other grounds.
(iv) I declare that in continuing to authorise and/or permit the maintenance of the lock-in (or night state) regime at Brook House and/or the conditions of the detention generally and/or in the claimants' cases, the SSHD failed to have any regard to the public sector equality duty under section 149 of the Equality Act 2010.
(v) I declare (subject to precise drafting by counsel) that the night state or lock-in regime at Brook House, in conjunction with the presence of internal unclosed lavatories and shared rooms, (i) constitutes indirect discrimination contrary to Article 9 of the European Convention on Human Rights read with Article 14, which is unlawful unless justified; and (ii) unless justified, constitutes unlawful indirect discrimination contrary to section 19 of the Equality Act 2010 No such justification has yet been shown by the SSHD.
(vi) I declare that the practice and policy of permitting smoking within any of the areas of Brook House which are enclosed or substantially enclosed, including the detainees' rooms, was, at the time the claimant Mr Rahman was detained there, and still is, unlawful.
(vii) I declare that insofar as DSO 2/2014 applies to Brook House or other private IRCs it is unlawful.
(viii) I decline to make any mandatory orders.
MR JUSTICE HOLMAN: I think we had a little discussion last week. I am very confidently assuming that counsel will be able now to draft an order that gives effect to all of that.
MR HALIM: My Lord, yes, I think so. I do not know whether it would be best to await the final approved judgment, although----
MR JUSTICE HOLMAN: I do not see why it should. I have read it out very carefully. I will read it out again if you want. You have been sitting there with a laptop. Do you want me to read it out again more slowly?
MR HALIM: No, thank you, my Lord.
MR JUSTICE HOLMAN: Are you sure?
MR HALIM: Yes. We have a note between us which I am sure we can use to draft an order.
MR JUSTICE HOLMAN: I am perfectly happy to read out that last outcome bit. That was the whole purpose of it.
MR HALIM: No. I do not think----
MR JUSTICE HOLMAN: Have you got it with complete clarity? Right. So you should be able to draft something. Yes?
MR HALIM: Yes.
MR JUSTICE HOLMAN: So far as costs are concerned, I think we probably agreed last week that if and insofar as costs cannot be agreed, there would be very concise written submissions. Was that what we agreed? Did we discuss this?
MS MASOOD: My recollection is that that is what was discussed and agreed.
MR JUSTICE HOLMAN: Was not discussed?
MS MASOOD: Was discussed.
MR JUSTICE HOLMAN: Was discussed.
MR HALIM: Yes.
MR JUSTICE HOLMAN: That is what we agreed?
MS MASOOD: Yes.
MR HALIM: Yes.
MR JUSTICE HOLMAN: So I do not need to deal with costs today?
MR HALIM: My Lord, no.
MR JUSTICE HOLMAN: If you cannot agree it, and I would earnestly urge sensible dialogue both as to the principle of costs and the quantum of it, if it cannot be agreed, I am prepared to accept very short written submissions limited to four sides of A4 each on the question of costs.
MR HALIM: Yes.
MR JUSTICE HOLMAN: So the only other matter would be any application anybody wanted to make for permission to appeal. I did say in relation to that that I would extend the time for making any such application for an appropriate period until after receipt by the party in question of the official transcript of the judgment. I think I said that.
MR HALIM: Yes.
MR JUSTICE HOLMAN: So I do not know whether we agreed or specified a period last week.
MS MASOOD: We did not.
MR JUSTICE HOLMAN: What is the normal time for applying for permission to appeal? 21 days?
MR HALIM: Twenty-one days.
MR JUSTICE HOLMAN: I will say that the 21 days is extended to start running on the date that the party in question receives, not what these ladies are very assiduously doing, but the official approved transcript of the judgment.
MR HALIM: My Lord, thank you.
MR JUSTICE HOLMAN: But that is extending the time for applying for permission to appeal and extending the time for appealing, but it is not implied in that that I am giving you permission to appeal. I have never in 22 years yet thought it appropriate to give permission to appeal and I would be surprised if I do in this case. So it is not a grant of permission to appeal; it is merely saying that the time for applying for permission to appeal is extended.
MS MAHSOOD: Does my Lord intend to set down a timetable for costs submissions?
MR JUSTICE HOLMAN: Well, I am open to suggestions.
MR HALIM: My learned friend raises a point that I was going to raise as well. I think that if we do it within----
MR JUSTICE HOLMAN: May I suggest within three weeks of the approved transcript of the judgment being available.
MR HALIM: Yes. So those will be simultaneous submissions, then, I assume, or -- the proposal we were going to make was the ordinary timetable of claimant, defendant, reply and then for the claimant, and then it to go before your Lordship.
MR JUSTICE HOLMAN: I cannot at the moment really visualise any realistic application by the Secretary of State for an order for costs against these claimants.
MR HALIM: No.
MR JUSTICE HOLMAN: She may strongly say there should be no order as to costs. I cannot really see how she can sensibly apply for costs.
MR HALIM: Yes. Our position of course would be we cannot see how the Secretary of State could sensibly----
MR JUSTICE HOLMAN: What?
MR HALIM: Our position, of course, would be we cannot see how the Secretary of State could sensibly resist paying the claimants' costs, but we will deal with that----
MR JUSTICE HOLMAN: All I am saying is I think the effective claimant for any order as to costs is going to be you, so I would suggest sequentially you go first, Secretary of State replies.
MR HALIM: My Lord, yes. If we can have a right of reply seven days thereafter----
MR JUSTICE HOLMAN: I do not want a proliferation of paper.
MR HALIM: We do not wish to use the reply if it is not necessary, but if it is there as a provision.
MR JUSTICE HOLMAN: Four sheets of A4, your initial submissions; four sheets of A4, the Secretary of State's answer to your submissions; two sheets of A4, anything further you wish to say by way of reply.
MR HALIM: My Lord----
MR JUSTICE HOLMAN: The costs issues in this case are pretty straightforward. You have, of course, succeeded on the two significant points upon which I have granted permission, and you have succeeded.
MR HALIM: Yes.
MR JUSTICE HOLMAN: So that of course would normally lead to costs following the event on those issues. What the Secretary of State may say is you tried to raise a whole mass of other issues here which the judge has not allowed you to develop in these judicial reviews. That is the only point that she has got.
MR HALIM: I think that is right.
MR JUSTICE HOLMAN: At best it might support some argument in favour of a less than full costs recovery.
MR HALIM: My Lord, yes.
MR JUSTICE HOLMAN: So it is not a big issue. I do not have a final position on it, but it is -- I will hear what each of you say in writing, but we don't want prolix documents.
MR HALIM: My Lord, no. For our part we anticipate that the issue should be as simple as your Lordship has put it. It is really -- we really ask for that timetable as a backstop.
MR JUSTICE HOLMAN: Do you agree with that?
MS MASOOD: Save for obviously -- the Secretary of State does reserve her position about whether she will wish to apply for her costs. I do not have any instructions about that today.
MR JUSTICE HOLMAN: No.
MS MASOOD: But just for the record, as it were, I agree with the timetable, yes.
MR JUSTICE HOLMAN: I think we all know that attack is the best form of defence but it does not necessarily work. Anyway, of course you can mount that in your document but I think it might bounce back on you. So that deals with that.
So is there anything else with which I need to deal?
MS MASOOD: Just to clarify, so three weeks for the claimants' submissions and then a week thereafter for the Secretary of State's?
MR HALIM: I'm sorry, I just turned my back.
MR JUSTICE HOLMAN: The claimants have got to put in their costs submissions within three weeks after receipt by them of the approved official transcript. Then you have a period within which to reply. I would not make it as tight as one week; I think that is unfair on the Secretary of State and her lawyers. I will say you can have three weeks.
MS MASOOD: I am grateful.
MR JUSTICE HOLMAN: Then we will say that if the claimants wish to put in not more than two further pages of A4, they can do that within a further two weeks. How is that?
MR HALIM: My Lord, I am grateful, yes.
MR JUSTICE HOLMAN: When all that is done, it can all be sent to me and I will rule on it.
MR HALIM: Thank you, my Lord.
MR JUSTICE HOLMAN: So far as permission to appeal is concerned, if anybody is minded to try and apply for permission to appeal, you have got three weeks from the date of receipt by that party of the approved document. I provisionally would suggest that any such application should also be made in writing. Is that agreed, on the same timetable?
MR HALIM: My Lord, yes.
MR JUSTICE HOLMAN: But I am not encouraging any application to me, because I never have the intellectual ability to think that I may have gone badly wrong when I have just given a considered judgment. But you must nevertheless ask me. Anything else?
MR HALIM: No, thank you, my Lord. (Pause) I am going to keep all the bundles and so forth. (Pause).
MR JUSTICE HOLMAN: I think we had a third advocate or second junior, did we not, for the claimants at the substantive hearing. I have got here -- is that right or not? Or is it a solicitor's name? Simblet. Stephen -- no? Who is that?
MR HALIM: My Lord, yes. Mr Simblet attended the hearing as a second junior.
MR JUSTICE HOLMAN: So his name should feature on the cover sheet, that is all. How do you spell Simblet correctly?
MR HALIM: S-I-M-B-L-E-T.
MR JUSTICE HOLMAN: That is the claimants, and then we have got defendant, the Secretary of State for the Home Department. We have got Mr Thomas Roe QC, Ms Hafsah H-A-F-S-A-H.
MS MASOOD: That is right, yes.
MR JUSTICE HOLMAN: Masood. I think the Secretary of State managed with just two barristers, I think. And then we have got G4S, interested party. We had Mr Richard Furniss, and last but not least, what is your correct title?
MISS WHEELER: Miss.
MR JUSTICE HOLMAN: You told me, Miss----
MISS WHEELER: Eleanor, my Lord.
MR JUSTICE HOLMAN: Sorry, I am looking in the wrong place. Sorry, I do beg your pardon.
MISS WHEELER: Not at all.
MR JUSTICE HOLMAN: Sorry. Miss Eleanor Wheeler attended for judgment.