QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
The Courthouse, 1 Oxford Row
Leeds, LS1 3BG
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|- and -
|GOVERNOR OF HMP LINCOLN
SECRETARY OF STATE FOR JUSTICE
David Manknell (instructed by Government Legal Department) for the Defendants
Hearing dates: 9 October 2020
Crown Copyright ©
Mr Justice Julian Knowles:
"5. By reason of the severe trauma experienced by the claimant at Birmingham prison on 15 September 2018 the claimant was terrified at the prospect of sharing a prison cell with another inmate.
7. The claimant received no adequate treatment for his PTSD or any formal diagnosis.
12. On 11 October 2019 the first defendant conducted a cell share risk review (CSRR) and decided in effect that the claimant would require to share a cell with other prisoners (sic).
13. The claimant was found not to be at elevated risk with respect to those who did not pose him an immediate risk of severe cell violence.
14. Following the CSRR the claimant was required to cell share and from 20 January 2020 the claimant chose to self-isolate as the lesser of two evils in a segregation unit where he remains, until his release which is scheduled for 11 March 2020.
20. By requiring the claimant to share a cell, without diagnosing, or adequately treating his PTSD, the defendant has failed to address the substantial grounds for believing that it would expose the claimant to a real risk of inhuman treatment contrary to Article 3 ECHR by triggering his PTSD, re-traumatising him or by causing him to relive the trauma of 15 September 2018 and/or other trauma from his personal life.
a. a mandatory order 'for the first defendant to carry out a lawful cell sharing risk assessment';
b. a declaration 'that the second defendant's internal guidance on cell sharing and PTSD is unlawful'.
a. damages under the Human Rights Act 1998 and aggravated damages for:'… the severe trauma, anxiety and distress [the Claimant] has experienced and continues to experience by self isolating in response to the defendant's refusal to place him in a single cell'; and
b. a declaration:'that second defendant's (sic) guidance is unlawful in so far as it suggests that a cell share risk assessment is confined to the risk a prisoner poses to another prisoner in a locked cell and in failing to require an assessment of the psychological harm that cell sharing may cause a prisoner who was the victim of severe cell violence in the past or who is otherwise at real risk of experiencing severe mental trauma in being required to share a cell without any or any adequate treatment for PTSD or other significant mental health condition.'
a. The claim should be dismissed against the First Defendant because the Secretary of State is responsible for the actions of the Governor and so it was unnecessary to add the Governor as a Defendant (at );
b. The claim was academic because on the day it was lodged (10 March 2020) the Claimant and his representatives knew that the Claimant was due to be released the following day and hence the pleaded 'ongoing failure' in relation to cell-sharing was academic because the Claimant was no longer going to be in a cell at all (at , -);
c. The case was not one of those exceptional ones which should be allowed to proceed despite its academic character (at -);
d. The Claimant had failed to exhaust alternative remedies, namely the internal prison complaints procedure and/or the Prison and Probation Ombudsman (at -);
e. In relation to the Claimant's complaints about medical treatment, that was not something for which the Secretary of State or the prison governor have responsibility. Any complaints about mistreatment or a failure to diagnose the Claimant's alleged PTSD was not the Defendants' responsibility because they 'have neither the duty nor the right to provide medical care'. That is because under the Health and Social Care Act 2012, commissioning responsibility for prisoners' healthcare passed to the Secretary of State for Health via NHS England in April 2013 (at -);
f. So far as the CSRR is concerned, the decision that the Claimant should share a cell was taken after consideration of all relevant information at three meetings of the relevant prison Board on 12 September 2019, 19 September 2019 and 11 October 2019; it involved Nottinghamshire NHS Healthcare NHS Foundation Trust, whose staff did not recommend that the Claimant should be accommodated in a single cell for healthcare reasons; and thus the Board's conclusion that the Claimant should be assessed as standard risk for cell sharing was one which was reasonably open it (at -);
g. The complaint about the alleged unlawfulness of PSI 20/2015, namely that it only allowed for assessment of risk arising from prisoner on prisoner violence, was wrong as a matter of fact. At [3.28] the PSI states that healthcare staff may determine that a prisoner be accommodated in a single cell for healthcare reasons (whether physical or mental). In the present case the medical advice was that the Claimant would benefit from sharing a cell as part of his recovery (at -).
The judge's decision on the papers
a. the challenge to the lawfulness of PSI 20/2015 is not arguable;
b. whatever its merits, the damages claim should form part of the ongoing private law damages claim against the Secretary of State, and that is the appropriate forum for its determination. Judicial review is not an appropriate procedure for what inevitably will be a detailed fact-finding exercise involving, no doubt, disputed evidence. In any event, there is no arguable case that the Defendants were responsible for any failures in the Claimant's healthcare and thus the claim as presently presented is bound to fail.
"I am content to accept that as a matter of law a policy which cannot be operated lawfully cannot itself be lawful; further, it seems to me that there is clear and binding authority for the proposition that a policy which is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision-making is itself an unlawful policy."
"(iii) An administrative scheme will be open to a systemic challenge if there is something inherent in the scheme that gives rise to an unacceptable risk of procedural unfairness."
"… In my view the correct approach in the circumstances of the present case is, straightforwardly, that the policy/guidance … will be unlawful, if but only if, the way that they are framed creates a real risk of a more than minimal number of children being detained. I should emphasise, however, that the policy should not be held to be unlawful only because there are liable, as in any system which necessarily depends on the exercise of subjective judgment, to be particular "aberrant" decisions – that is, individual mistakes or misjudgments made in the pursuit of a proper policy The issue is whether the terms of the policy themselves create a risk which could be avoided if they were better formulated."
"13. The PSI at [3.3] states in terms that a CSRA [cell sharing risk assessment] process is a requirement of the case law of the European Court, but the PSI does not address the risk that it may be contrary to Article 3 to require a victim of severe cell violence, who may have significant PTSD, to share a cell.
14. PTSD is the entirely predictable sequela of a prison attack and although the PSI at [1.3] is meant to support victims, no account is taken of the likelihood that a victim of severe cell violence may develop significant PTSD, rendering them unsuitable to share a cell, unless reasonable steps are taken to eliminate the risk that it will lead to the infliction of inhuman or degrading treatment."
"If healthcare staff determine that a prisoner should be accommodated in a single cell for healthcare reasons which do not cover CSRA risk issues, the CSRA process is not to be used. For instance, a prisoner with an infectious disease will not necessarily be a serious risk to or from others in a shared cell. Healthcare staff should therefore note the requirement for a single cell in the medical records and advise residential staff appropriately."
"14. In refusing permission, HHJ Davis-White QC referred to the fact that whilst his cell sharing classification may no longer be relevant to the Claimant, he also has a damages claim. However, a damages claim is not itself good reason for bringing a judicial review claim.
15. In this case, the position is even more clear, given that the Claimant already has a damages claim in progress in respect of the attack upon him by his cellmate, for which he is claiming damages for the effects of that attack upon him. To the extent that he claims that his suffering was exacerbated by subsequently sharing a cell at HMP Lincoln, that would need to be a matter in that damages claim. Damages for the same injury cannot be simultaneously assessed in two different Courts."