B, R (on the application of) v GSL UK Ltd

MRS JUSTICE DOBBS: In this case the claimant challenges the decision relating to security measures put in place whilst he received medical treatment. Permission was granted by the Single Judge on 28th March.

The background to this application is as follows. The claimant is a serving prisoner. He is serving a sentence of 20 years imposed on 16th December 1996 at the Central Criminal Court, having been convicted by the jury, of an offence of conspiracy to cause an explosion. This conspiracy was in relation to the well known explosion at the Israeli Embassy. He became eligible for early release on 21st April 2005. He is now a category C prisoner and has been so categorised for four years. That category applies to prisoners who cannot be trusted in open conditions, but who do not have the resources and will to make a determined escape attempt. He has also achieved enhanced status.

The claimant has been receiving medical treatment for testicular cancer. He was referred for treatment in August 2006. During the course of this treatment, he was handcuffed to and from hospital and, it is alleged, during treatment at the hospital, including when he was recovering from an anaesthetic. There have been other occasions when he has been required to participate in consultations and treatment in the presence of prison officers, despite, it is said, his sensitive condition. It is alleged that he has also been notified that he has been required to supply samples including semen in the presence of prison officers. This, it is submitted, breaches Article 3 and 8 of the European Convention on Human Rights.

Relying on the statement of the claimant, that of his solicitor, D G and the claimant's girlfriend, E V W, the chronology of the claimant's case in summary is as follows. On 4th September, the claimant's solicitors wrote to the Deputy Director at Rye Hill Prison, where the claimant is based, asking that his medical appointments be conducted in private and out of hearing of prison officers. On 6th September 2006, the claimant was transferred to hospital. Double handcuffs were used during the journey and he was handcuffed whilst being seen by the doctor. The chain attached to the handcuffs was too short to enable the consultation to take place in private. On 7th September, the claimant had an operation to remove one of his testicles. He went into surgery and awoke from the anaesthetic in handcuffs. He was handcuffed on his way back to prison. On 8th September the claimant's solicitors wrote a chasing letter to the Deputy Director, seeking response to their earlier letter. The Deputy Director responded on 11th September indicating that he did not consider handcuffing of the claimant to be inhuman or degrading.

On 15th September, the claimant's solicitors wrote again to the Deputy Director expressing concern about prison officers being present during confidential medical appointments. On the 18th, the Deputy Director responded, saying that detailed reasons would not be given for the security arrangements during the claimant's medical considerations (sic). On the 21st, the solicitors wrote again, expressing concern about him being double handcuffed en route to hospital. They complained that he had been subject to more intrusive security measures than had been in force when he was taken to the Maudsley Hospital when he was a category A prisoner. The Deputy Director replied on 22nd September, stating that the medical staff had not objected to the claimant being handcuffed.

On 6th October, the claimant attended hospital. He was handcuffed, it is said, throughout his visit, save that they were removed for medical purposes. However, he was chained to a prison officer. The same day, the solicitors applied under the Data Protection and Freedom of Information Acts for disclosure of risk assessments and security policies relevant to the arrangements in place. On 13th October, the claimant was requested to supply semen samples at the prison. He declined, apparently because he had no confidence in the abilities of the prison authorities to handle the samples appropriately. On 20th October he was taken to hospital to supply samples. He was single handcuffed. Initially it was suggested he should do so in the presence of officers and, when he declined, the room was checked and he was allowed to do it in private. On 2nd November he went to hospital again. He was single handcuffed. The prison officers were unwilling this time to remove his handcuffs despite the same room being used and the claimant declined to provide a sample. On 8th November, he returned to hospital. He was single handcuffed and a sample was provided.

On 16th November, the claimant was due to be taken to hospital for chemotherapy. He was double handcuffed in preparation for the trip and told that the cuffs would remain during the treatment. He therefore decided to refuse treatment. On 22nd November, he was again taken to hospital. There had been a previous response by the prison service to the Data Protection Act on 20th November, with some documents provided by the defendant but not the risk assessments. On the 22nd, the claimant was again taken to hospital for chemotherapy. He was double handcuffed. The double handcuffs were removed after intervention by the doctor. Single handcuffs were then used. On 30th November, the solicitors wrote to the Deputy Director expressing concern that the claimant had been handcuffed during his appointments with doctors. The solicitors also argued that they should be allowed to see the risk assessments which were not sent to them in the previous correspondence. By the end of November, chemotherapy was completed and three monthly follow up appointments were envisaged. On 5th December, the Deputy Director at Rye Hill declined to make disclosure. Additionally, no response at that stage was made to the Freedom of Information Act request; accordingly the solicitors wrote a letter before claim. On 22nd of January, an attempt was made to take the claimant to hospital, but he declined due to the fact that he was going to be double handcuffed. On 26th January, solicitors acting for the defendant wrote in response to the letter before claim. The defendant pointed out that the claimant is a convicted terrorist, convicted of a very serious offence; he is in a secure environment; he is subject to a deportation order once his sentence had been completed; he is convicted of conspiracy, meaning that there were others involved and that there would be others sympathetic to his cause. Risk assessments were carried out and no issues have been raised by the medical staff as to the arrangements and no concerns raised by medical staff. It is made clear in the letter that the security risk posed by the claimant outweighed the obvious matter of concern of the use of handcuffs.

The claimant says that he felt humiliated, demeaned and suffered from pain and discomfort during the various visits. His privacy was invaded at a time when he was feeling vulnerable.

Counsel for the claimant relies on the case of Mouisel v France [2004] 38 EHRR 34. In that case, the European Court of Human Rights found a violation of Article 3, in a case where a prisoner was serving a 15-year sentence for armed robbery, kidnap and fraud. The court took the view on the facts, that the use of handcuffs was disproportionate to the needs of security in similar situations. Counsel relies on the following extract from the case at paragraph 47:

Relying also on the case of Spinks v Secretary of State for the Home Department [2005] EWCA Civ 275:

There is also reliance placed on the case of Tarariyeva v Russia, application no. 4353/03, where the European Court found at paragraphs 109 to 110:

It is submitted that if the treatment is not so severe as to invoke Article 3, then in the alternative then reliance is placed on Article 8. Citing the case of Z v Finland [1998] 25 EHRR 371, counsel relies on the recommendation contained in the Committee for the Prevention of Torture (CPT), previously referred to, that all medical examinations of prisoners should be conducted out of hearing and, unless the doctor concerned requests otherwise, out of sight of prison officers. Reliance is also placed on the National Security Framework containing the prison service policy and security arrangements. This states that restraints are applied when out of prison up to the point of medical consultations or treatment and restraints will be taken off at this point, unless the risk assessment shows that the risk of escape is too high. It is submitted that once interference is shown with Article 8, then the authority has to show justification.

The claimant makes the following main submission. The fact that the claimant has been convicted of terrorist offences is insufficient by itself to justify such treatment when such a conviction occurred ten years earlier and particularly in the light of the fact that the claimant has been downgraded from category A to category C. There is no evidence to justify the conclusion that he has sympathisers or collaborators and that is inconsistent with his downgraded status. He has been on bail and appeared for his court trial. The logs prepared during the hospital visits did not suggest that he was an escape risk. On a previous occasion, when he was a category A prisoner, he was subjected to less intrusive security. The measures were not in accordance with the CPT and the Framework. The assessments were pretty summary and, if analysed, they seem to be relying on the offence itself, to assess the claimant as being a high risk. The assessments failed to take into account the claimant's behaviour during the series of treatment and also failed to take into account the recent reports which were positive in terms of the claimant's risk. The assessment form itself seems to give no weight to the need to protect medical confidentiality and, drawing those threads together, the claimant submits that the Article 3 rights have been violated. Alternatively, if the court does not so find, then it is submitted that the Article 8 rights have been violated with insufficient justification.

The defendant's response is as follows. The claimant considers himself to be a political prisoner. He has a large group of supporters in the outside world who believe him to be innocent. Indeed, there was a campaign conducted by his supporters following his conviction. His application for early release has been refused by the Secretary of State. He is a category C prisoner, but Rye Hill is a secure prison of category B type status security wise. He is a medium escape risk when outside prison. However, there is a risk that not only will he attempt to escape, but also that associates or supporters would attempt to remove him from the custody officers. Security arrangements at other institutions, it is said, are not relevant because the decision has to be made in relation to the conditions that apply presently.

Dealing with the particular incidents, the following points are made. It was accepted that on 6th September double handcuffs were used for transporting the claimant and that he was restrained during the consultation. It was considered that the rooms were not sufficiently secure to permit the escort chain to be removed. Only male officers were involved to protect the claimant's modesty. It is denied that great discomfort was caused by the handcuffs. An escort chain was used during the scan that needed to be carried out. In relation to 7th September, it is admitted that the claimant was cuffed to and from the hospital and whilst awaiting treatment, but it is denied that his hands were resting on the operation site on his way back to prison. There was no reasonable ground for the claimant's refusal to provide a sample of semen to the prison on 13th October.

Turning to 20th October, the claimant was single handcuffed on the way to the hospital. That was an error. He should have been double handcuffed and therefore the different approach was not a result of arbitrary policy. It is not admitted that the claimant was asked to supply a sample in front of officers. Officers, having checked the security of the room, stood guard outside, having obtained permission to remove the handcuffs. There were three officers on this occasion, which meant that security was not compromised. On 2nd November, the claimant was single handcuffed again as a result of an error. There were only two officers on this occasion and, because of that, the Deputy Director refused permission for all restraints to be removed. The claimant was placed on an escort chain for his examination. Moreover, the claimant refused to supply a sample. Again, on 8th November, he was single cuffed by way of error. However, there were three officers present, thus the claimant was released into a secure room with officers guarding the exit. On 16th November the claimant was double cuffed. He refused to go to hospital. He was not told that the cuffs would remain on during treatment. That would depend on hospital staff. There were no grounds to be concerned. On 22nd November the claimant was double cuffed. The officers ascertained from the doctor that it would be more convenient if he was single cuffed during treatment and that is what happened.

The defendant also relies on the case of Mouisel, in particular paragraph 47, where the court emphasised that handcuffing does not normally give rise to an issue under Article 3 of the Convention, where the measure has been imposed in connection with a lawful detention and does not entail the use of force or public exposure exceeding what is reasonably considered necessary in the circumstances.

The defendant also relies heavily on the case of Spinks submitting that the facts in the case of Spinks were more serious than in the present case. In the case of Spinks, the claimant spent all his time, approximately three weeks, in handcuffs at the hospital. With regard to sensitivity of condition, it is pointed out that Mr Spinks also had a sensitive medical issue. He had a colostomy bag. The court at first instance and the Court of Appeal found that there was no breach of Article 3. It is agreed that the use of handcuffs is unlawful unless it can be justified, but it is submitted that there is a tension between the prisoner's human rights and needs of security. The use has to be proportionate to the needs of security and each case must turn on its own facts. The question to be posed, submits the defendant, is did the security considerations applicable to the claimant make it reasonably necessary and proportionate to handcuff him?

It is denied that the claimant's Article 3 rights have been violated. He was handcuffed on occasions and on the escort chain at other occasions during some consultations and treatment. It is denied that he has provided a semen sample handcuffed or in the presence of officers. It is argued that the security arrangements are not diminished or lessened by the sensitivity of the claimant's condition. The seriousness of the offence was, contrary to what the claimant has submitted, but one factor taken into account when assessing risk. Not only was the offence a serious and violent one, but it was a conspiracy, which is an offence of association. It was a terrorist offence perpetrated against a background of the claimant being able to behave in a model manner for a long time before suddenly committing this very serious offence. It is an offence which the claimant has consistently denied, thus he has not addressed his criminality. He is likely to have associates outside the prison and, given the international ramifications of his political views, even associates he might not know who would wish to support him.

His categorisation as a category C prisoner is based on the fact that he is unlikely to be able to escape from prison. It is not based on his likelihood to escape during a hospital visit. Hospital visits are a well-known critical weak point in security. The decision has to be looked at against that background; against the fact that there were escapes from hospitals already known to the director at the time; that hospital security was an issue; that others outside knew of the claimant's series of treatment, as shown by his ability clearly to communicate his situation, as demonstrated by the letters that came flooding in to the director. Also taken into account was the MAPPA categorisation, which placed him in the highest risk bracket. This would be based on information and intelligence that the various organisations have. He was medically fit and therefore able to escape. He had recently, in the last year, been turned down for early release, which is also a known escape risk.

Reliance is place on the statement of Alan Bramley, the Director of Rye Hill. He explains the procedures and the differences between single and double cuffs. Cuffs, he explains, are not painful; they need not cause discomfort. Escort chains, which are about three metres in length, are also used for providing a measure of privacy. They have a single handcuff at each end and they are used for medical and legal consultations. A risk assessment is carried out for each visit, a risk assessment having already been done for the hospital, to which the claimant would have to go. Because the claimant was generating so much interest in relation to his hospital treatment, the Director of the prison contacted an independent security expert in order for him to review the security arrangements. The expert found that the Director had acted appropriately. That security expert who reviewed the arrangements was Mr Ron Tasker. He concluded that the claimant was a category C prisoner, was closer to category B than D, and that he is held in category B conditions despite his category C status. Mr Tasker took the view that the arrangements put in place were necessary in light of the relevant background factors. He also took view that the medical treatment was able to be carried out unhindered by physical security.

Mr Ferry, who was Deputy Director at Rye Hill at the time, and one of those taking the relevant decisions, makes the following points. The claimant had never been disadvantaged in terms of his treatment; double cuffs do not cause any additional discomfort and are not painful; handcuffs were not used during the medical treatment itself; that hospital staff would not have discharged the claimant following the operation had he not been fit to be discharged; the staff were aware that the claimant would be handcuffed during travel; security was paramount and takes precedence over confidentiality.

The legal principles are not seriously in dispute. Article 3 does not bite if handcuffing has been imposed in connection with lawful detention, provided the force and public exposure does not exceed that which is reasonably considered necessary by the public authority carrying out the handcuffing. The question is was that decision unreasonable or unlawful, in that it breached the claimant's human rights. These issues really boil down to a question of judgment. There is also woven into the question, the issue of whether the decision making process was flawed.

I remind myself that it is not the function of the court to substitute its own view for that of the defendant. It can only interfere if the decision was clearly wrong or if, having looked at the evidence, it takes the view that there was a breach of the relevant articles of the Convention. The court must give due respect to the experience and expertise and information available to the decision-maker when considering these issues.

The claimant submits that, as the defendant is a private company with a commercial interest, less deference should be shown to the defendant's risk assessments. I do not accept that proposition. Reliance is placed on the CPT and the National Framework and, whilst the latter does indicate that restraints are to be removed at the point of medical consultation or treatment, this is subject to the risk assessment and individual judgment, as the Framework makes clear. There is, and there has to be, in these policies a discretion to deal with each individual case on its own facts.

Those in charge of prisons have an enormous responsibility to shoulder when prisoners are conveyed from prison to other premises. They have a duty to protect the public, their staff, the hospital staff, as well as a responsibility to prevent the commission of criminal offences by one of their inmates, namely escape, and any other offence they may commit. It is well-known that hospital visits are when security is at its most vulnerable. On the other side of the coin, it is not disputed that those handcuffed will experience some distress, (especially if they have to spend some time walking in public) inconvenience and, although the defendant does not accept it in this case, possibly discomfort.

I deal first of all with the reliance on the facts of Mouisel. As has already been pointed out, each case must turn on its own facts. In this case, although the claimant had testicular cancer, he was on his own admission a fit person. There were no contra-indications to the wearing of handcuffs and there was no medical condition showing him to be in need of confinement in hospital, even after the operation. Risk assessments were done on each visit in accordance with the policy and procedure. The claimant was assessed as a high risk. I have already alluded to the factors which were taken into account, which, it is said by the defendant, included the claimant's good behaviour record in custody. However, the defendant is entitled to take the view that, this sign alone, does not necessarily show that the claimant is a changed person, particularly in the light of the fact that he still claims his innocence in relation to the offence charged. He has admitted to participation in political activities on behalf of Palestinians involving explosives in the occupied territories, a burning issue at the present time. It is true to say that there is some material which shows that, although his politics may be the same, his methods may have changed. The fact relied on by the claimant that he is a category C prisoner, relates to his status in prison and not outside it and, similarly, the MAPPA level, being the highest risk level, relates to his categorisation on release and not in custody. The fact that the claimant did not jump bail before trial is a point in his favour, but, in my judgment, not a strong one, as he had not then been convicted. It is said by the claimant that the director failed to take into account recent reports which show that the claimant was a low risk -- this is the argument relating to the flawed decision making process. However, on the other side of the coin and balancing matters, the director did not take into account at that time, the report of Dr Young, who assessed this claimant as being a medium risk of committing a terrorist offence in the future. Complaint is also made that no regard was had to the claimant's behaviour at the hospital visits. While, of course, not irrelevant, the counter argument is that if he were to be jumped from hospital or escape himself, he would want to lull the escorts into a false sense of security by his good behaviour. Looking at the assessment forms in relation to the visits from Rye Hill itself, there is a question which deals with the issue concerning previous visits and whether there had been any problems in relation to those visits. Thus this was a matter considered by the decision makers. As regards the previous visit to Maudsley Hospital, when he was a category A prisoner, two points are to be made about this. The defendant did not have that information available at the time and in any event, as the defendant points out, that visit would be in entirely different circumstances from the present situation facing the Director of Rye Hill, particularly as the form of transport for category A prisoners is more secure.

It has been accepted by the defendant that there are some, but not, it is submitted, material, defects in the record keeping. In my judgment, looking at them, they are not such that render the decision making process flawed. What the records show, is that there was flexibility applied during the various visits. Any concern expressed by the doctor was accommodated so far as possible, consistent with the need, as the director saw it, for security. This clearly, unlike the case of Mouisel, was not a "blanket policy" approach to the claimant. It was an individualised approach and one made, on the face of it, in good faith. I also take into account that an independent expert took the view that the decisions in principle were appropriate.

Dealing with the claimant's many visits, it is to be noted in relation to any trips to the hospital for the provision of a sample of semen (which would appear from a letter written by the claimant's girlfriend to the Director of the prison was for the purpose of freezing for future possible insemination should they wish to start a family), that it was the claimant who refused to have the process conducted at the prison. There is nothing in the papers to suggest that the prison was not able to carry out the process. This is something which one can take into account when considering the claimant's evidence about how humiliated he felt. He was going to the hospital for samples of semen to be taken, when they could have been done, it appears, at the prison. Despite this fact and respecting the claimant's rights, the prison did make arrangements to have him taken to hospital for this process.

It is right to note that, since the review in May of this year, a subsequent visit to the hospital in June resulted in the use of single cuffing only. This does not of itself necessarily demonstrate that the earlier decisions were wrong. As explained by Mr McDonnell, the present Director of the prison, there had been a change in circumstance. Firstly, the claimant's approaching release date; second, the imminent parole hearing; thirdly, that JR proceedings were pending and, fourthly, that there has been a history of previous compliance in relation to the series of prison hospital visits that I have detailed. This of itself shows that the issue of previous conduct to hospital has been taken into account. It was clearly not a knee jerk reaction to JR proceedings being instituted, as it is to be noted that, at a previous visit earlier this year, the claimant was double handcuffed, despite the fact that judicial review proceedings had been initiated. Further, it has to be noted that, in June, handcuffing was still considered necessary, albeit reduced to single cuffing.

I have read the papers in this case and, based on the material before me, the claimant has failed to show that the decisions taken were wrong, perverse or irrational; or that there has been a breach of the claimant's Article 3 rights. Whilst one can have every sympathy with the situation in which the claimant found himself, a comparatively high hurdle has to be overcome, in order to show that the authority has acted in a way which is so serious, wholly objectionable and unacceptable. The job of the prison staff was to keep the claimant in hospital and others out at the relevant time. This was to be achieved based on the assessment made. While prison authorities do need to think long and hard about the way they deal with prisoners going outside for medical appointments, each case needs its own scrutiny. The relatively high hurdle previously referred to has not been overcome in this case. With regard to Article 8, whilst there may have been some interference in relation to confidentiality (there are some notes which show that the prison officers were present during chemotherapy and on occasions during consultation, although those notes do not record the intimate details of the consultation), one can also see from the evidence, that efforts were made to protect confidentiality where security allowed. It is to be noted that there was no complaint by the medical staff with regards to this matter. There have been no suggestions of any leaks of confidential information and, given the factors which have already been set out at some length, in my view any interference was not disproportionate.

Accordingly, this application for judicial review is refused.

Yes, Mr Furniss.

MR FURNISS: I ask for costs to follow the event in the normal way, not to be enforced pending an assessment of the claimant's ability to pay would be the normal way of putting it.

MRS JUSTICE DOBBS: Yes.

MR SOUTHEY: My Lady, in principle I cannot object to that. The only point I would make is I think the new wording is assessment pursuant to section 11 of the Access to Justice Act 1999. Your learned associate is nodding that I have it right.

MRS JUSTICE DOBBS: Well, it is a good thing somebody in this court knows.

MR SOUTHEY: My Lady, the claimant also does seek permission to appeal. This case, although in some respects the law is clear, it does raise in our submission important practical issues, or important issues in practice, about the difficult balance to be struck between the particular need for medical confidentiality which is being recognised as significant and the counter consideration of security. Obviously the Court of Appeal did look at Spinks but they looked at Spinks as, your Ladyship was well aware, in a very different context. In particular, they looked at Spinks in the context of a claim that was focused very much on whether he was entitled to release or not and was not complaining about -- not complaining directly is perhaps the better way of putting it -- about the issue of breaches of his confidentiality, which is a very different claim here.

In those circumstances, in my submission, it is appropriate for permission to be granted, particularly also given that there are difficult issues as well involved in terms of the intensity of review that is required in this context. I think there was agreement that obviously there was some form of intense review required but one of the difficulties faced by any court in this context is quite how intense, because there is obviously a spectrum between the classic Wednesbury end of the spectrum and the court taking its own decision and where on that spectrum the particular decision falls raises difficult issues.

MRS JUSTICE DOBBS: Yes.

MR FURNISS: There was no real disputes on the law, my Lady, in this case. You have intensely reviewed this and on the evidence and as the matter of fact. If the Court of Appeal wants to be seized of this case, it should say so. It has been a decision of fact by your Ladyship.

MRS JUSTICE DOBBS: Permission to appeal is sought in this case on the basis that it raises practical issues about the balance to be struck between medical confidentiality and counter considerations of security. It is submitted that Spinks was dealing with a different context and was not really dealing directly with the issues of confidentiality and other issues such as the question of the intensity of review required in a case like this. It is surprising however, given the similarity in the cases, and given that the Article 3 issue was raised in the case, and that Article 8 was not advanced as well. The claimant submits that permission should be granted in order for the Court of Appeal to give consideration to this.

In my view, as I set out earlier, this is really a question of judgment, based on the particular facts in question. As the defendant has said, there is no real dispute on the law and the facts have to be assessed set against that background. I propose to refuse permission to appeal on the grounds of no real prospect of success and no other pressing reason why the Court of Appeal should deal with the case. I make an order as requested, costs to follow the event, not to be enforced pending assessment pursuant to section 11 of the Access to Justice Act 1999.

MR FURNISS: I am grateful.

MRS JUSTICE DOBBS: Can I thank you both for your assistance.

MR SOUTHEY: My Lady, may I apologise also for keeping you beyond 4.45.

MRS JUSTICE DOBBS: Yes. At least you will get to the States Mr Southey, that is the important thing.