Faizovas, R (on the application of) v Secretary of State for Justice

Art 3 of the European Convention on Human Rights (“the Convention”) contains an important safeguard against the ill treatment of prisoners. It guarantees the right that a prisoner shall not be subjected to inhuman or degrading punishment. In this case, we are concerned with the use of handcuffs on a prisoner while attending hospital appointments outside the prison. There was no physical suffering but there was a sense of humiliation.

According to the jurisprudence of the European Court of Human Rights (“the Strasbourg court”), ill treatment must meet a minimum level of severity if it is to fall within art 3 of the Convention. However, as Buxton LJ, with whom Tuckey and Keene LJJ agreed, pointed out in R(C) v Secretary of State for Justice [2008] EWCA Civ 882 at [58]:

“We tend to think of obligations under art 3 in terms of extreme violence, deprivation or humiliation. Convention jurisprudence however makes clear that depending on the circumstances art 3 may be engaged by conduct that falls below that high level. Two circumstances that have been identified as imposing special obligations on the state are that the subject is dependent on the state because he has been deprived of his liberty; and that he is young or vulnerable. That is the uniform jurisprudence of the ECtHR, to quote by way of example only the court's judgment in Selmouni v France (1999) 29 EHRR 403, 7 BHRC 1…”

When considering whether treatment was "degrading" within the meaning of art 3, the Strasbourg court will have regard to whether its object was to humiliate and debase the person concerned and whether the treatment "adversely affected his personality in a manner incompatible with art 3". As regards handcuffs, the basic principle to be applied is that the wearing of handcuffs by a prisoner when he is outside the prison and there is reason to believe that he will abscond or cause injury to others does not in general amount to degrading treatment. These propositions are taken from Raninen v Finland (1998) EHRR 563 at [55] and [56].

In a detailed judgment given on 9 May 2008, Dyson LJ, sitting as a judge of the Administrative Court, held that the circumstances of the present case did not require any departure from the normal rule. On this appeal, we are asked to set that decision aside, applying the decision of the Strasbourg court handed down after Dyson LJ’s judgment in Uyan v Turkey (Application no. 7496/03), 8 January 2009. The Convention is interpreted as a living instrument and it would thus not be surprising if the standards set in earlier cases had been increased in a later decision.

Dyson LJ rejected an alternative claim under art 8 of the Convention, which guarantees respect for private life. We must consider the appeal against his rejection of that claim also.

First, as to the background, Mr Faizovas was convicted of a serious sexual assault on a woman and sentenced on 15 December 2006 to 42 months’ imprisonment (less 205 days spent in custody on remand). He was 49 years old, and had no previous convictions. He was a Lithuanian. He spoke little English. He had previously suffered from pancreatic cancer. The sentencing judge took this into account and imposed what he described as the minimum term for the offence. The sentencing judge said that Mr Faizovas did not represent any danger to the public of serious harm from a further specified offence. Mr Faizovas claimed the right to reside in the United Kingdom.

Mr Faizovas was taken to HMP Highpoint, where he was assessed as Category C, that is, as a prisoner who, while he could not be trusted in open conditions, did not have the resources or will to make a determined escape attempt. On 17 January 2007 an OASys assessment was completed summarising the risk posed by him to the public or a known adult as medium, and that his risk in custody was low. Medium risk for this purpose meant that he had the potential to cause harm but was unlikely to do so unless there was a change in circumstances, such as alcohol misuse. In June 2007, Mr Faizovas was involved in a fight with other prisoners for which he was given a light punishment.

In October 2007 Mr Faizovas was informed that the cancer had spread to other organs. His consultant advised that he had some four to eight months to live. An application was made for release on compassionate grounds. The Secretary of State refused this application on 18 December 2007 on the grounds that Mr Faizovas’ life expectancy could exceed three months and that there was no sufficient evidence that the risk to the public was past because of Mr Faizovas’ ongoing denial of guilt.

Between March 2007 and February 2008 Mr Faizovas was given a course of chemotherapy involving 17 visits to West Suffolk Hospital. He was handcuffed by standard handcuffs (one on his arm and one on the arms of a prison officer) and attended by two prison officers. On arrival, the standard handcuffs were usually replaced by an escort chain of some 2.5m linking Mr Faizovas and a prison officer. During those visits he sat in waiting areas between the prison officers. He had to wait about 30 minutes and could be seen by other members of the public. Mr Faizovas said in his witness statement that he found it very embarrassing and humiliating. He received treatment, which took about 30 minutes, while remaining handcuffed, generally on an escort chain. Mr Faizovas said in his witness statement that he had had no dignity or confidentiality during treatment. His condition did not however render him incapable of escaping from custody.

Mr Faizovas was due to be released on 18 February 2008, but he was held for deportation purposes until 25 February when he was released on bail. On 21 May 2008, he died as a result of his cancer. This appeal is continued by his daughter, Inga Faizovaite, as his personal representative, pursuant to CPR 19.8. Her basic complaint is that it was unnecessary for Mr Faizovas to be handcuffed during his visits to hospital.

HMP Highpoint had carried a detailed assessment of the physical premises of West Suffolk Hospital for escape risks. The assessment noted for instance that there were several escape routes from outpatient waiting areas and that consulting rooms had windows which opened fully and led directly outside.

There is a national security framework for the operation of prisons, on which local policies are based. The national security framework states that, while restraints should be worn by prisoners taken on outside hospital visits, the restraints should be removed at the point of medical consultation or treatment unless the risk assessment shows that the risk of escape is too high. The local policy, however, provided for the removal of restraints at this point only for medical reasons. In Mr Faizovas’ case, there was no request by a medical practitioner for the handcuffs to be removed. The evidence of Ruth Stephens, the deputy governor of HMP Highpoint, was that the healthcare manager of the prison had been consulted. There were short consultations with the consultant on three occasions, for which an interpreter was required. So far as Mr Faizovas was concerned the most objectionable time for the use of handcuffs was when the treatment was dispensed.

The risks of Mr Faizovas absconding and his causing harm to the public were also assessed on the occasion of each visit. He was initially assessed as medium risk to the public and medium risk of escape. The assessment forms specifically raised the question whether restraints should be removed for treatment. On each occasion the answer given was no (unless the presence of the restraint was life-threatening), subject to a caveat that the duty governor could be contacted. In fact, the cuffs were removed on a visit on the 23 October 2007 for the purposes of a CT scan. No adverse comment was made on Mr Faizovas’ behaviour during his visits to hospital on the parts of the assessments that were completed during and after each visit.

The risk of harm to the public and of escape was reduced to low from 11 December 2007 (save that the risk of harm to the public was raised back to medium for one visit on 18 December). He still remained in handcuffs, however, for treatment.

The principal authority on art 3 and the use of handcuffs on serving prisoners who are seriously ill is Mouisel v France (2004) 38 EHRR 34, cited by Dyson LJ. In that case, the prisoner had been sentence to 15 years’ imprisonment following his conviction for armed robbery, kidnapping and fraud. While in prison he was diagnosed with leukaemia. His condition worsened and he required chemotherapy sessions at a local hospital. The Strasbourg court cited a recommendation of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment that medical checkups and treatment should be out of the sight of law enforcement officials. He was so weakened that he no longer posed any danger. He gave evidence that he was in pain when receiving treatment. The Strasbourg court held that by failing to release him on compassionate grounds the authorities had violated art 3. The use of handcuffs (if this had taken place) also violated art 3 because he was so weakened by his condition that he did not pose any realistic risk of escape or of harm to anyone else.

The question whether art 3 has been violated depends on the particular circumstances of the case. Mouisel was considered by this court in R(Spinks) v Secretary of State for the Home Department [2005] EWCA Civ 275, on appeal from Elias J (as he then was). The appellant was a prisoner serving a sentence of life imprisonment and he challenged his continued detention while suffering from colon cancer on the grounds that it violated art 3. He was handcuffed on hospital visits. His claim was rejected on the facts both by Elias J and this court. One of the reasons for distinguishing Mouisel was that there had been individualised risk assessments showing that Mr Spinks continued to be a risk to the public.

A case which went the other way was the decision of Mitting J in R(Graham) v Secretary of State for Justice [2007] EWHC 2940 (Admin). Here the prisoner was suffering from Hodgkins’ lymphoma. He was handcuffed while receiving chemotherapy. At a certain point the prison authority decided that he should not be restrained due to the deterioration in his health. It was conceded that from this point the application of handcuffs during the administration of chemotherapy was unlawful and the judge held that there was also a violation of art 3.

In this case, Dyson LJ held that there was a high minimum threshold to engage art 3 and that in this case that threshold was not reached. The treatment was for relatively short periods of time and the handcuffing caused no physical or mental effects. There was no medical contraindication against the use of handcuffs. On the contrary the risk assessments suggested that handcuffing was necessary. Dyson LJ accepted that the assessment of risks and decisions as to whether or not to require restraints to be applied during hospital visits were taken individually and not by rigid application of a blanket policy.

On this appeal, Mr Hugh Southey, appearing for Ms Faizovaite, puts the decision of the Strasbourg court in Uyan at the forefront of his argument. He submits that, following Uyan, the prison authorities must now justify the use of handcuffs during treatment. He submits that the court must review the matter with the high degree of intensity (see for example per Lord Walker of Gestingthorpe in R (ProLife Alliance) v BBC [2004] 1 AC 185 at [139]). Mr Southey’s further submission is that the risk of escape was low. The appellant did not need to show that there was no risk. The risk assessments made for the hospital visits were inadequate. They only took account of the index offence. They took no account of the fact that his behaviour on hospital visits was found to be good. The risk assessments also failed to take account of the fact that the adjudication was not serious: it appeared that Mr Faizovas was acting in self-defence. It did not assess the risk at the time of treatment and in any event no account was taken of the fact that the risk assessment went down to low. Mr Southey also criticises the local policy in this case. This simply focused on whether there was a medical contraindication. It took insufficient account of the need to recognise inherent dignity. The effect of the Strasbourg jurisprudence was that there should be no handcuffing during treatment and so the local policy approached the matter from the wrong standpoint.

In Uyan, the prisoner was a woman who had been sentenced to 22 years’ imprisonment for membership of a terrorist organisation. She required an ultrasound scan for a gynaecological condition at a local hospital. She was escorted by three male security officers (two gendarmes and a male prison guard) and one female prison guard. She was taken to a consultation room on the ground floor. There were no bars on the windows. The applicant’s handcuffs were not removed and the male security officers refused to leave the consultation room for security reasons. They stated that they would wait behind a folding screen out of earshot. The applicant refused to be examined under such conditions. The Strasbourg court held that there had been a violation of art 3. It set out its jurisprudence on handcuffs. It also referred to the obligation imposed by art 3 on the state to protect the physical well-being of persons deprived of their liberty, for example, by providing them with medical assistance. The court continued:

“32.

In the present case, the Court notes that the applicant was referred to the hospital by the prison doctor to undergo an ultrasound scan. Consequently, she was taken to the hospital, handcuffed and escorted by one female and three male security officers. The Court recognises the security risk presented by the fact that the applicant had been heavily sentenced for being a member of a terrorist organisation and that the doctor's consultation room was on the ground floor of the hospital with no window bars. Nevertheless, the Court considers that the insistence on the use of handcuffs during an examination by a gynaecologist, and the presence of three male security officers in the examination room during consultation, even behind a folding screen, were disproportionate security measures, when there were other practical alternatives. For example, the officers could have secured the room by leaving the female prison guard there and placing one of the gendarmes outside the window of the consultation room.

33.

However, the doctor and the gendarme officers had acted in compliance with the domestic legislation since, under the terms of the relevant protocol (see paragraph 19 above), the officers had been obliged to stay in the consultation room, keeping themselves at a sufficient distance behind the folding screen to avoid hearing the conversation between the doctor and the applicant. Furthermore, according to the domestic legislation, handcuffs were not to be removed if they did not hinder the medical examination and as long as their removal was not requested by the doctor. These were strict requirements for all prisoners convicted of terrorism-related crimes who had to undergo such examinations. In the Court's view, these strict measures failed to allow a flexible and more practical approach to be taken, depending on the particular risk presented by such a prisoner and the type of medical examination to be performed. In particular, the Court finds that the Government have not demonstrated that the applicant presented such an acute security risk that measures of this nature were required for a gynaecological procedure.

34.

The Court concludes that, even though no medical examination was performed, the above security conditions must have caused the applicant humiliation and distress, beyond that inevitably associated with the treatment of a prisoner, which was capable of undermining her personal dignity.”

Mr Southey contends that Mr Faizovas should not have been handcuffed on his way to the hospital or while waiting there, but that in any event, during treatment, the position was different. He submits that the more stressful the treatment, the greater the need for justification for insisting on handcuffs. Mr Southey submits that the decision of this court in Spinks must be treated with caution as it was decided before Uyan. There was no particular medical contraindication in the latter case but the effect of handcuffing was to undermine dignity. In those circumstances, it was not necessary for the doctor to intervene. He did not have all the information. Furthermore, Mr Southey drew a parallel between the local policy applying in this case and the domestic legislation described at [33] of the judgment of the Strasbourg in Uyan.

In my judgment, the importance of Uyan is that it focuses on security measures at the point of the prisoner receiving treatment. The Strasbourg court treats this stage differently from that at which the prisoner is, for example, escorted to the hospital. The Strasbourg court thus highlights the importance of separate consideration of the necessity for particular measures at the treatment stage. In considering whether treatment should take place under such measures, the prison authorities had to take account of not only the security risk but also the type of treatment which the prisoner had to undergo. All these matters had to be taken into account. For the first time, the doctrine of proportionality led to a review of the type of security measures in the light of the particular type of treatment. While there is nothing new in the application of proportionality in this area, the application of proportionality in this particular way is, at any rate on the authorities we have been shown, new.

Unlike Mouisel, there is no evidence about the state of health of the applicant in Uyan. In [34] of its judgment, the Strasbourg court found that she must have suffered humiliation and distress beyond that inevitably associated with being a prisoner. At first sight, it is surprising that the Strasbourg court was willing to assume this without proof. But this was a matter that could be inferred from the fact that the prisoner refused treatment under the conditions under which it was offered. This was a serious matter, in view of the state's obligation to take care of a prisoner. The Strasbourg court could also have been concerned that if the prisoner in Uyan was sexually attacked in prison she would not be able to get appropriate outside medical help. Be that as it may, the issue which arose in Uyan would apply to a wide range of treatments for women prisoners and thus raised a matter of general wide concern. In my judgment, the humiliation or distress did not necessarily mean that there had been a violation. Humiliation and distress, however, were an indication that the treatment was degrading. The absence of justification for the security measures in question, having regard to the security risk posed by the prisoner, the particular type of treatment she had to undergo and the possibility of more suitable means of security led to the finding of a violation.

However, Uyan does not, in my judgment, go so far as to hold that handcuffs can never be used during treatment, even where the prisoner is seriously ill. The position in Uyan was that Turkish law required that a prisoner convicted of terrorist related offences to be accompanied during treatment by three security officers where the treatment room was not secure. (The law did not specify whether the security officers were to be male or female but it may be that there could only be male gendarmes under Turkish law). There was therefore no individualised assessment of the factors affecting the particular prisoner. In my judgment, nothing in [32] or [33] of the judgment of the Strasbourg court excludes the possibility of the applicant being handcuffed to the woman prison guard as one of the more flexible and practical measures if the security risk called for those measures. The real objection to the measures in Uyan was the presence of the male security officers during the gynaecological scan. The Strasbourg court did not need to spell out the measures that would meet the requirements of art 3 because it was satisfied that some other measures could have been adopted. The exact definition of those requirements in any event would be a matter for the national court to determine.

The jurisprudence of the Strasbourg court has to be applied in the present case. As this issue involves the potential application of art 3, this court must subject this case to heightened scrutiny. However that does not mean that the court must engage in a merits review of any decision taken by HMP Highpoint as to the need for security. It must review the conclusion with care to see whether it is supported by adequate reasons and is one that could reasonably be come to.

Mr Jeremy Johnson, for the Secretary of State for Justice, seeks to uphold the decision of Dyson LJ. He submits that there were no medical contraindications during treatment that handcuffs should not be worn. He submits that the risk assessments show that very considerable thought was given to the risk posed by Mr Faizovas. His adjudication showed that he was capable of fighting. The fact that the escort chain was used when appropriate, and that all handcuffs were removed for the CT scan, indicates that the situation was reassessed from time to time. There was no evidence of any significant distress. There was no request to have the handcuffs removed.

In my judgment, there is no reason put forward for challenging the decision to use restraints on Mr Faizovas up to the point in time of treatment. The prison authorities clearly considered that he posed a risk of escape and of harm to the public. This was substantiated by the risk assessments completed for each hospital visit. It is not possible to go behind the correctness of the answers given to the questions asked in these assessments. As Dyson LJ pointed out, there was no application for cross-examination of the Ruth Stephens and so there was no basis for refusing to accept her evidence as to the making of the risk assessments on the occasion of each hospital visit. Moreover, Mr Faizovas did not during his sentence cease to be mobile and capable of escaping.

Mr Faizovas continued to be handcuffed during treatment notwithstanding that the risk to the public and escape potential was reduced to low. But, as Dyson LJ pointed out, “low” would include any level of risk below medium and therefore was not negligible. In addition, the assessments would have to have taken account of the reasons given for rejecting Mr Faizovas’ application for release on compassionate grounds. In the light of this, the assessments are not undermined by the fact that Mr Faizovas’ behaviour was good during hospital visits or by the fact that his adjudication in June 2007 was not a serious one.

No evidence is put forward to suggest that the nature of the treatment which Mr Faizovas had to undergo made the use of handcuffs an inappropriate security measure. Evidence is required for that purpose. This case is not like Uyan where it was treated as self-evident that a woman prisoner should not have to have a gynaecological scan in the presence of male security officers. Furthermore, and this is another point of distinction from Uyan, there were risk assessments for each hospital visit. The question whether the handcuffs were to remain on during treatment was expressly considered, and there is no basis on which the conclusions reached on each occasion can be challenged. There is no evidence to suggest that Mr Faizovas’ treatment or recovery was impeded by the use of handcuffs. The officer signing the assessment must have known the type of treatment. Finally, there is no evidence as to practical alternative measures in this case to secure the treatment room. We know that it had a door into other areas of the hospital and at least one window which could easily be used for the purposes of an escape. It may have had had more than one window in which case the room could not be secured by two prison officers. We do know that it would have been difficult to follow Mr Faizovas if he had run off through the door since there were several routes he could take to escape. The medical condition of Mr Faizovas was undoubtedly very serious but there is no medical evidence to suggest that he was not able to walk or run. There is in fact no medical evidence at all beyond the evidence that his prognosis was of terminal illness as set out above. For all these reasons, and considering the matter with the required high degree of intensity, I do not consider that this court can say that the risk assessments were unreasonable. Mr Faizovas’ own sense of humiliation is not sufficient to displace the importance of these assessments.

Mr Johnson submits that the risk that Mr Faizovas would abscond did not necessarily decrease according to the number of visits. On later visits, Mr Faizovas would be more familiar with the layout of the hospital. Moreover, Mr Johnson submits that Mr Faizovas’ diagnosis might have given him an incentive to escape. I regard these arguments as largely speculative and place no reliance on them. In particular it could be that the treatment might equally have given him an incentive not to abscond. It is impossible to form a view on this on the evidence before the court.

I agree with Mr Southey’s submission that the local policy was out of step with the most recent Strasbourg authority. It only contemplated the possibility of handcuffs being removed if it was a life-threatening situation or medical staff requested their removal. It did not address the possibility of the particular treatment making it disproportionate to use handcuffs if there was some other practical alternative. On the other hand, the assessment made for each visit required the authorising officer to consider whether the handcuffs should be removed during treatment. Thus the shortcoming of the local policy cannot affect the result in this case, but it is obviously something that something that HMP Highpoint should address. I would add that in Spink this court agreed with the encouragement to prison authorities given by Elias J to consider whether the use of handcuffs while the prisoner was on a hospital ward was not overzealous (see the judgment of Buxton LJ at [47]). We asked Mr Johnson whether this message had been communicated to prison authorities but we were told that it had not, though the decision of Mitting J had been brought to their attention. This would be an appropriate opportunity to reiterate the message and to state that the need for restraints during treatment should now be reviewed in the light of the decisions of the Strasbourg court in both Mouisel and Uyan.

Mr Southey’s alternative case is that the holding of consultations with a prison officer present was in violation of his right to confidentiality: see Z vFinland (1997) 25 EHRR 371 at [95]. It is clear that where the severity of ill treatment is insufficient for art 3, there may be circumstances in which art 8 could be regarded as affording protection: see eg Raninen v Finland at [63]. There is public importance in communications between a patient and his doctor.

Dyson LJ considered that Mr Faizovas’ contacts with the medical profession were not so much for the purpose of receiving advice as for the purposes of undergoing CT scans and chemotherapy. Mr Southey challenges this but the fact remains that there is no evidence in Mr Faizovas’ witness statement about these consultations. They clearly did not seem particularly important to him in relation to his claim. I would hold that, if there was any interference with Mr Faizovas’ art 8 right, it was justified under art 8(2) as part and parcel of his receiving treatment.

For the reasons given above, I would dismiss this appeal.

I agree that the appeal should be dismissed, essentially for the reasons given by Arden LJ. Mr Southey understandably placed considerable emphasis on the Uyan case, but in my judgment that case turns on its own particular facts. In particular, as Lady Justice Arden has pointed out, there was no specific assessment of risk in that case.

I would add two observations. The first is that I agree with Dyson LJ, in his judgment at first instance, that the indignity suffered by being handcuffed whilst receiving medical treatment was not in the circumstances of this particular case sufficient to attract the protection of art 3. It is clear from the claimant’s own witness statement that his main concern was the humiliation and embarrassment of being seen handcuffed in public. However, the justification for handcuffing in public areas was plainly justified, as Mr Southey came close to accepting. Once Mr. Faizovas was with the doctor in the privacy of the consulting room, any humiliation would be far more limited. This was not one of those cases, such as Graham or Mouisel, both referred to by Arden LJ, where the claimant was so ill that there was no possible risk of escape, the handcuffing was accordingly wholly unnecessary, and the treatment could therefore readily be found to be inhumane or degrading and in breach of art 3.

The second observation is this. As Lady Justice Arden has pointed out, the local policy was to retain handcuffs even during treatment unless there were medical reasons for removing them. That is at odds with the national security framework which starts from the premise that handcuffs should be removed during treatment unless the risk of escape is too high. It seems to me that if that approach had been adopted here, the handcuffs would in all likelihood have been removed during treatment. Furthermore, although I have taken the view that there was no infringement of art 3 in this case, Uyan demonstrates that there will be circumstances where handcuffing during treatment may constitute a breach of that Article, notwithstanding that the risk of escape has not been wholly eliminated. It follows that a rigid application of the local policy could lead to a breach of art 3 in circumstances where the application of the national security policy would not. Accordingly, I respectfully agree with the observation of Arden LJ (para 31) that it is necessary for the relevant authorities to review the current policy concerning restraints during treatment in order to take account of art 3 requirements.

I too agree that the appeal should be dismissed, for the reasons given by Arden LJ. I also agree with the observations of Elias LJ.

I should add that in considering this appeal I have found particularly helpful the analysis of the case law by Mitting J in R (Graham) v Secretary of State for Justice [2007] EWHC Admin 2940 which Dyson LJ cited with approval in his judgment at first instance in the present case.

Nothing in Uyan, in my judgment, undermines the approach and decision of Dyson LJ in paras 27-30 of his judgment. There were two aspects to the complaint in Uyan, that a female prisoner was to be accompanied by three male guards as well as one female guard during a gynaecological scan and that she was to be handcuffed throughout. I agree with Arden LJ that it is not clear whether the objection to handcuffing would have been upheld if no male guards were present and she were handcuffed to a female guard. What is clear is that the application of a mandatory provision of Turkish law that handcuffs were not to be removed unless they hindered the medical treatment or examination and as long as their removal was not requested by the doctor, without consideration of the particular circumstances and the risks posed by the prisoner, was not compatible with the case law of the Strasbourg court.