Human rights

first_img Flo Krause (instructed by Scott-Moncrieff and Associates LLP) for the claimant; Christopher Mellor (instructed by Hempsons) for the first defendant; Galina Ward (instructed by the Treasury solicitor) for the secretary of state. R (on the application of Hall) v University College London Hospitals NHS Foundation Trust and another: Queen’s Bench Division, Divisional Court: 8 February 2013 Prison – Prison conditions – Disabled prisonercenter_img The claimant had pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a class A drug and had been sentenced to three years’ imprisonment. He suffered from Friedreich’s ataxia, which affected many of the major systems of the body, causing progressive disablement. He required two assistants to be in attendance on him for 24 hours a day. Accordingly, while in prison he was in a hospital wing for which the second defendant secretary of state was responsible. In August 2012, the claimant commenced judicial review proceedings, contending that the prison regime to which he was subject amounted to inhuman and degrading treatment contrary to articles 3 and 8 of the European Convention on Human Rights. He was shortly afterwards transferred to a hospital for which the first defendant was responsible. In December 2012, the hospital informed the claimant that he was fit to be discharged and it proposed to discharge him back to the prison. The claimant initiated a second claim for judicial review on the basis that discharge back to the prison would put his life at risk in breach of article 2 of the convention. He further contended that the prison had breached its obligation under the Equality Act 2010 (the 2010 act) to make reasonable adjustments to ensure compliance with its duty not to discriminate against him on the ground of his disability by not making available various equipment and facilities to him, and by detaining him (as a category C prisoner) in a category B prison. On that ground, the only relief sought by the claimant was a declaration that the prison had acted unlawfully. The court, sitting as the Court of Appeal, Criminal Division, simultaneously heard an appeal against the claimant’s sentence and gave a judgment reducing the claimant’s sentence to the period he had already served (see [2013] All ER (D) 92 (Feb)). It fell to be determined: (i) whether the claimant’s treatment in prison had been in breach of his rights under article 2 of the convention; (ii) whether the claimant’s treatment in prison had been in breach of his rights under articles 3 and 8 of the convention; and (iii) whether the prison had breached its obligations under the 2010 act. The application would be dismissed. (1) It was settled law that the duty under article 2 of the convention included, in the context of persons detained by the state, an obligation to preserve life and to provide the necessary care to preserve life. However, article 2 of the convention was only engaged where there was a real and immediate risk of death (see [17] of the judgment). In the instant case, there was no possible evidential basis whatsoever for the assertion that the claimant had been at imminent risk of death whilst in the prison in July and August 2012, and/or that his treatment in that period had reduced his life expectancy or that he would be at such risk if he was returned there (see [22] of the judgment). (2) The claimant’s claim under article 3 of the convention was not arguable. There were no clear markers that article 3 of the convention was engaged. In the light of the claimant’s medical condition, detaining him and providing him with the care that he had needed had been clearly challenging for the prison. However, merely because the level of care he had received had fallen below that to which he had been accustomed did not make it contrary to his human rights. Looking at the treatment to which he had been subject at the prison as a whole, it had clearly fallen far short of the minimum level of severity that article 3 of the convention required, even given the claimant’s state of health and the fact of his detention by the state. Further, it was difficult to see how article 8 of the convention had any relevance and how a claim under article 8 of the convention could succeed where the claim under article 3 of the convention had failed. None of the matters relied upon by the claimant arguably engaged or breached article 8 of the convention (see [32], [34] of the judgment). (3) The evidence had not established that the prison had acted unlawfully in any respect. Furthermore, as the only relief sought had been a declaration and, as a result of the court’s decision as the Court of Appeal, Criminal Division, the claimant would not be discharged by the hospital to the prison, in the exercise of the court’s discretion, any relief would be inappropriate (see [40] of the judgment).last_img

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