Case No. CO/2719/2015
2-3 December 2015
Link to judgment
Summary of case
Both claimants are in their 50s. They have been married for many years and have two adult children. Their home is at Bude in Cornwall. While awaiting trial, the prisoner was held on remand in HMP Exeter, which is the nearest local prison to Bude. In October 2013 the prisoner was convicted after a trial of very grave sexual offending.
The Prison Service categorise prisoners from A to D to reflect the likelihood of the prisoner escaping or absconding, and the risk of harm to the public if he were to escape or abscond. After his conviction, the prisoner in this case was categorised as B; namely, a ‘prisoner for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult’. The categorisation of the prisoner was not challenged.
The Prison Service subdivide category B prisons into local, or essentially short term, and essentially long term, prisons. The starting point is, therefore, that this prisoner requires to be detained in a category B long term prison. He was therefore transferred to HMP Isle of Wight.
The wife has suffered for several years from the debilitating affliction of fibromyalgia. This is a long term illness, which causes severe and continuous pain all over the body, as well as swelling of the joints and stiffness of the joints and muscles. She says (without challenge by the Secretary of State) that it is a very painful and debilitating illness, and that the pain is particularly severe when she stays in the same position for long periods of time, as, for instance, when travelling in a car.
The wife has found it so extremely painful to visit her husband that she is no longer going to do so and they are asking for him to be transferred to HMP Exeter.
The High Court considered that no regard had been given to the Public Sector Equality Duty (PSED) when the decision to place him in HMP Isle of Wight was made noting however that ‘neither claimant has suffered any loss as a result, since even if the Secretary of State for Justice or his staff or officials had fully and duly discharged their duties under that section, the outcome would have been, and will still be, the same’. Holman J had considered making a declaration to this effect when attention was drawn to the new sections 31(2A) and (2B) of the Senior Courts Act 1981 as inserted by the Criminal Justice and Courts Act 2015:
31(2A) The High Court –
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) [which relates to damages] on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
Having considered this new section Holman J concluded that this case did not give rise to an ‘exceptional public interest’ and he did not have power to make the declaration that he had intended and he said:
I am not satisfied on the facts and in the circumstances of this case that the Secretary of State for Justice or his officials of staff have given the positive due regard which section 149 of the Equality Act 2010 requires, and on the facts and in the circumstances of this case, there has been a failure by the Secretary of State for Justice to discharge his duties under that section. I intend those words to represent ‘a declaratory judgment’ of the kind contemplated by Blake J in paragraphs 58 and 61 of his judgment in Logan. I am confident that the Secretary of State for Justice or appropriately senior officials will consider and take heed of what I have said.
Prior to this he did consider when an exception public interest might arise:
If even after a ‘declaratory judgment’ a public authority persisted in failing to discharge its public sector equality duty under section 149, then there may come a time when, on proof of that failure, a claimant may be able successfully to persuade the court that enough is enough and that the exceptional public interest under subsection (2B) has become engaged. Alternatively (without in any way deciding the point), it may be that if a body such as the Equality Commission, which has very express responsibilities in this field, reached a considered decision that a public authority was in such continuing breach of the public sector equality duty that it was necessary to obtain a formal declaration from the court, then such a body may be able to persuade the court that the exception in subsection (2B) is engaged, even though, by the nature of the body, it would not be able to show that the outcome for it would have been substantially different.