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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Faizovas, R (on the application of) v Secretary of State for Justice [2008] EWHC 1197 (Admin) (09 May 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1197.html Cite as: (2008) 103 BMLR 28, [2008] ACD 82, [2008] EWHC 1197 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9 May 2008

1. LORD JUSTICE DYSON: The claimant is a serving prisoner. He is now 49 years of age and, sadly, suffers from cancer. He was born in Lithuania and speaks little or no English, and understands little of the language. In these judicial review proceedings he challenges decisions that he should be handcuffed whilst out of prison for the purposes of attending hospital appointments. He contends that his being handcuffed in these circumstances violates his rights under Article 3 and/or Article 8 of the European Convention on Human Rights ("the Convention").
2. On 15 December 2005, he was sentenced to 42 months' imprisonment for a serious sexual assault on a woman, an offence which was said by the judge to have fallen short of attempted rape. He was a man of previous good character. The judge said that there was no significant risk that the claimant would seriously harm members of the public. Prior to his conviction, the claimant had been diagnosed as suffering from pancreatic cancer and was released on bail to undergo surgery. He did not breach the terms of his bail.
3. In October 2007, it was discovered that the cancer had spread. In consequence, the claimant started to receive chemotherapy as an out-patient. On 18 January 2008, his consultant estimated that he would survive for no more than between four and eight months.
4. During his stay in prison, he attended West Suffolk Hospital as an out-patient on 17 occasions between March 2007 and February 2008. Each time he left prison to attend hospital for chemotherapy, he was accompanied by two prison officers. On the journey from prison to hospital, he was restrained by handcuffs. At hospital, the handcuffs were usually replaced by an escort chain. This is a chain 2.5 metres in length, linking a handcuff attached to the claimant and a handcuff attached to an officer. An escort chain was used to facilitate treatment unless the proposed treatment was such that the nursing staff said that handcuffs could remain in place. He would wait in the waiting room for an average of 30 minutes, in full view of members of the public who were also awaiting treatment. He would then be taken to a consultation room for the treatment. The chemotherapy would be administered by means of a cannula in his left arm. This would last about 30 minutes. He remained handcuffed or attached by means of the escort chain throughout the procedure.
5. In his witness statement, he describes one occasion when the treatment caused him to vomit over the officer to whom he was attached. This incident is disputed by the defendant. Mr Southey does not place reliance on the incident. He is right not to do so, since in these judicial review proceedings it is not appropriate for me to seek to resolve such a disputed question of fact.
6. In November or December 2007, the claimant, who is a Category C prisoner, applied to be released from prison early on compassionate grounds. His application was supported by the Governor of HMP Highpoint, where he was being detained. It was refused by the Secretary of State on 18 December for a number of reasons. These included:

"... in order to qualify for early release on compassionate grounds, the risk of harm to the public must be past. In your case, the pre-sentence report writer considered you to be of a low to medium risk of re-offending. The sentencing court took the view that there was not a significant risk of harm to the public of you committing a further specified offence. The sentence planning risk predictor finds you to be a raised risk of further sexual offending within two years. Although the OASys report finds you to be a low risk of re-offending (with a weighted score of only 10), it assesses you of being a medium risk of harm to the public and to a known adult. The seconded probation officer notes that it is difficult to assess risk in your case owing to the on-going denial. There is also no evidence of risk reduction through offence-focussed work. Although the seconded officer believes there might be a low risk of further offending, and the Governor too considers risk can be managed on release, we are not persuaded that there is sufficient evidence of risk reduction to be able to conclude that the risk you present to the public is now past."

7. The claimant became eligible for automatic release on 18 February 2008. However, he was subject to deportation proceedings and remained liable to be detained under the immigration legislation. He was eventually granted bail on 25 February 2008.
8. Before the commencement of these proceedings, the defendant served a witness statement by Ms Ruth Stephens, the Deputy Governor at HMP Highpoint. At paragraph 23 of her statement, Ms Stephens identified the factors which were taken into account in deciding the level of restraint to which the claimant was subjected when he made his visits to hospital. These were:

"(a) The Claimant's index offence, a violent sexual offence;

(b) The Claimant is subject to Multi Agency Public Protection Arrangements;

(c) There being no evidence of risk reduction through participation in offending behaviour work or otherwise;

(d) The claimant is subject to deportation, but claiming UK residence;

(e) The claimant's medical condition was continually reviewed. His condition at all relevant times was not such as to enable the possibility of escape to be discounted;

(f) The hospitals are large insecure public buildings, with many avenues of escape;

(g) The fact that, particularly during latter appointments, due to the nature of his treatment, the Claimant had regular pre-booked appointments of which he would have had prior knowledge. This is contrary to Prison Service policy that due to the potential risk of escape, prisoners should not have prior knowledge of external appointments;

(h) The Claimant was found guilty at an adjudication in June 2007 for fighting, indicating a risk he was still prone to violence;

(i) An application made by the prison for a compassionate early release in view of his medical condition was declined by the Secretary of State."

9. In her statement, Ms Stephens continued:

"24. In all the circumstances it was concluded that the level of restraint - namely the use of the escort chain while the Claimant was undergoing treatment was appropriate given the need to balance the interests of security and the risk of the Claimant escaping and the Claimant's rights to receive medical treatment unhindered. The healthcare manager at HMP Highpoint was consulted during this process and, as the Risk assessments indicate, that there is no medical objection to the use of the restraints to suggest that having the escort chain applied would impede Mr Faizovas's medical treatment or recovery.

25. The decisions which were arrived at in relation to the balance of risk need to be understood in the context of the Prison Service's duty towards keeping prisoners in lawful custody, public protection issues, and the fact that apart from appearances at Court a visit to hospital now offers one of the few opportunities for an attempted escape either assisted or unassisted."

10. On the subject of security, Ms Stephens concluded at paragraph 30:

"In all the circumstances it is my view that any further relaxation of the security arrangements applying in respect of the Claimant's visits to hospital such as to permit him to move from the taxi and through the public parts of the hospital and grounds unrestrained, or to permit him to remain in the consulting room during treatment without the presence of officers, would have posed too great a risk of escape and risk to public safety."

11. Mr Southey has drawn my attention to the National Security Framework, which states that prison management of all closed and semi-open prisons should undertake a risk assessment to decide the level of escort and restraint required for the safe custody of each prisoner. The normal arrangements for prisoners on escort from closed establishments are that restraints must be used unless there are medical objections. There should be a two officer escort; restraints are applied when out of the prison up to the point of medical consultation or treatment; the restraints will be taken off at this point unless the risk assessment shows the risk of escape is too high; restraints will be reapplied immediately following the treatment or consultation.
12. Ms Stephens has exhibited the escort risk assessments that were made in respect of the claimant prior to each hospital visit. In the first assessment dated 14 March 2007, it was said that the claimant posed a medium risk to the public and was medium escape potential. These judgments appeared in the succeeding risk assessments, although it was noted in the assessment dated 12 September 2007 that "previous hospital appointments no problems". The assessment dated 29 June recorded an adjudication. The claimant had been involved in an incident of fighting with two other younger inmates. The charge of fighting was found proved by the governor against all three. Subsequent assessments continued to record, however, that there had been no problems with hospital appointments. The assessment dated 11 December reduced the risk to the public and escape potential to "low". The assessment dated 18 December raised the risk to the public to "medium", but left the escape potential at "low". No reason was given in the assessment for the re-rating of the risk to the public. The "low" rating was restored in the following assessment.
13. These assessments were made on a standard form, which includes questions: "Restraints to be used?" and "If yes, can restraints be removed for medical treatment?" The answers to these questions in every escort assessment in respect of the claimant were "yes" and "no" respectively. In addition to the regular escort risk assessments, there was also an OASys risk assessment of the claimant completed on 17 January 2007, to which it seems the Secretary of State was referring in his letter refusing compassionate early release. In the OASys risk assessment on page 32 of 37, there is a section headed "Risk", which contains four grades of risk, of which the third is "medium", and in respect of which the text is as follows:

"There are identifiable indicators of risk of harm. The offender has the potential to cause harm but is unlikely to do so unless there is a change in circumstances, for example failure to take medication, loss of accommodation, relationship breakdown, drug or alcohol misuse."

The assessment of the claimant's risk in the community in relation to the public and known adults is in both cases "medium".

The jurisprudence in relation to Article 3.

14. The leading decision of the European Court of Human Rights on restraint of prisoners and Article 3 of the Convention is Mouisel v France [2004] 38 EHRR 34. In that case, the applicant had been sentenced to 50 years' imprisonment for a series of offences. He was suffering from leukemia and received chemotherapy in hospital. He complained of the conditions to which he was subjected during the hospital visits, including the behaviour of the guards, and the fact that he had been chained to the hospital bed. Medical reports recommended that he be transferred to a specialist clinic, but there was delay in acting on that recommendation. Subsequently, he was released on licence, subject to the condition of obtaining medical treatment.
15. There were two main complaints of breach of Article 3. First, there was the failure to release the applicant from custody in the face of the medical advice. Secondly, there was complaint about the circumstances in which he had been restrained and handcuffed. The court made these general observations in relation to Article 3:

"37. The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim ... Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 ..."

16. In relation specifically to handcuffing, the court said:

"47. The Court reiterates 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 use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage ... In the instant case, having regard to the applicant's health, to the fact that he was being taken to hospital, to the discomfort of undergoing a chemotherapy session and to his physical weakness, the Court considers that the use of handcuffs was disproportionate to the needs of security. As regards the danger presented by the applicant, and notwithstanding his criminal record, the Court notes the absence of any previous conduct or other evidence giving serious grounds to fear that there was a significant danger of his absconding or resorting to violence. Lastly, the Court notes the recommendations of the European Committee for the Prevention of Torture concerning the conditions in which prisoners are transferred to hospital to undergo medical examinations – conditions which, in the Committee's opinion, continue to raise problems in terms of medical ethics and respect for human dignity ... The applicant's descriptions of the conditions in which he was escorted to and from hospital do not seem very far removed from the situations causing the Committee concern in this area."

17. A number of other handcuffing cases have been cited to me. These are Gorodnichev v Russia (Appeal No. 52058/99), a decision of the European Court of Human Rights dated 24 May 2007; R(Graham) and (Allen) v Secretary of State for Justice [2007] EWHC Admin 2940; and Spinks v Secretary of State for the Home Department [2005] EWCA Civ 275. Mr Southey submits that Gorodnichev indicates a particular predisposition on the part of the European Court of Human Rights to find a violation of Article 3 established for the unjustified use of handcuffs to restrain prisoners. The facts in that case were that the applicant was brought to court and handcuffed when in the dock because the dock was insecure and when it was thought there would be a risk to the public if he were to escape from the dock. No individual consideration was given to the risk posed by the applicant. The court held that there was a breach of Article 3. At paragraph 103, the court repeated, with modifications that are immaterial for present purposes, paragraph 47 of Mouisel. At paragraph 102, the court said that it attached particular importance to the circumstances in each case, and examined them on a case-by-case basis in order to assess the need to hinder prisoners outside penitentiary surroundings. The critical passage is in paragraph 105:

"To justify this measure in the realms of Article 3, the Government asserts that it was necessary for the protection of the safety of the public, which was not separated by a barrier from the dock. However, it does not provide any argument regarding the behaviour of the applicant and does not indicate at any moment what would lead it to believe the individual concerned constituted a danger to the public in the room. For its part, the Court cannot discern anything from the file that could lead it to suppose that the absence of handcuffs during the appearance of the applicant before the Kirovskii Court would have made it fear the risk of violence, damage, escape or anything else to prevent justice from being carried out. It does not consider then that the recourse to handcuffs was intended to restrain the individual concerned in a reasonable manner ... and considers that this measure was disproportionate to the security requirements invoked by the Government."

18. In Graham, the claimant was suffering from Hodgkin's lymphoma. He was admitted to hospital as an emergency in-patient. His doctor said at that time that there was absolutely no question of the claimant having the ability to abscond from the hospital independently. He was a Category C prisoner. He was escorted to the hospital and handcuffed to two officers. The head of operations and security at the prison decided to authorise the removal of the restraints due to the deterioration in the claimant's health. Thereafter his health improved as a result of the medical treatment and he was discharged back to the prison. He attended a number of out-patient sessions at the hospital for further chemotherapy. On these occasions, he was handcuffed. I do not need to consider the facts in any more detail. At paragraph 16, Mitting J said:

"Secondly, by the time that he returned to Broomfield Hospital on 28th February 2007, and throughout the period during which he was attending that hospital as an in-patient, there appears to have been, objectively, little or no basis for concluding that he was anything other than a fairly minor drug dealer who posed no risk of violence to members of the public, whatever his state of health. It appears that that view was shared by those who knew of his circumstances within Chelmsford Prison. The decision by officers other than Mr West to require that he be restrained during chemotherapy treatment and medical consultation sessions appears to have had no objective justification."

19. Having referred to authority, Mitting J said this:

"The propositions that I draw from that case law is that the unnecessary use of handcuffs on a prisoner who is receiving treatment, whether as an in-patient or an out-patient, at a civilian hospital is capable of infringing Article 3 in two respects: either because it is inhumane or because it is degrading, or both. The use of handcuffs to guard against an adequately founded risk of escape or of harm to the public in the event of escape does not infringe Article 3, absent perhaps particular considerations arising from the medical condition of a prisoner. A dying prisoner, properly assessed as posing a risk of escape when fit, and a risk of violence to the public were he to escape, could properly contend that handcuffing him during his dying hours was nonetheless an infringement of his right not to be treated inhumanely or in a degrading manner.

28. Assessment is very much a matter for the prison officials who must make the assessment. Their assessment will ordinarily and properly include the following: the crime for which the prisoner has been sentenced; his previous history of offending; his category as a prisoner; his prison record; his fitness; in appropriate cases, information about the ability or willingness of others to facilitate his escape, and no doubt many other factors. Prison records cannot be expected to be perfectly adequate. As in the case of Mr Graham, a prison official can properly act upon a PNC record which is itself inaccurate where there is no ground to believe that it is. Records of prison discipline at one prison may not always be accurately transposed in the records of the receiving prison. Errors of this kind will not make unlawful a decision based upon them or cause such a decision to infringe the Article 3 rights of the prisoner.

29. Nevertheless, there will come point in relation to any individual prisoner when the judgment that he poses a risk of escape or of danger to the public if he were to escape must be made in the light of his medical condition. When, as in the case of Tarariyeva, it is known to be impossible for an individual prisoner to pose any such risk, there can be no question of it being lawful to handcuff him and handcuffing him will almost certainly involve a breach of Article 3. It will be inhumane and it will be degrading. The routine handcuffing of a prisoner receiving treatment at a hospital, without there being an assessment of the risk in his individual case, is likewise likely to be unlawful and to involve a breach of Article 3: see Mouisel and Gorodnichev."

I interpose that I respectfully agree with this analysis. Neither counsel sought to suggest that it was incorrect in any way.

20. Then finally at paragraph 34, Mitting J said:

"34. In relation to the out-patient visits, against the concession properly made that the decision to handcuff the claimant during periods of treatment and medical consultations was not lawful because then there is no rational explanation for it in the light of Mr West's proper decision that he should not be handcuffed during those times, I can find no basis upon which handcuffing can be justified. Mr Patel submits that nonetheless, even though handcuffing was unnecessary, it did not cross the threshold of inhuman or degrading treatment prohibited by Article 3. I do not agree. The restraining by handcuffs of a man receiving chemotherapy is, at a minimum, degrading. I would also hold it to be inhumane, unless justified by other considerations. There were none here. He posed, on any sensible view, no risk whatever of escape while being treated and no risk of causing harm to the public were he to do so."

21. The final authority to which I should refer is Spinks. This is another case involving a prisoner suffering from terminal cancer, who when attending hospital appointments had been handcuffed to prison officers. The judge, Elias J, had distinguished Mouisel and held that the use of handcuffs was not a breach of Article 3. His decision was upheld by the Court of Appeal. Buxton LJ accepted the submission on behalf of the Secretary of State that there were significant and material differences between the case of Mr Mouisel and that of Mr Spinks:

"The judge dealt with this briefly, but if I may say so satisfactorily and succinctly, in paragraphs 51 and 52 of his judgment. He addressed, first, the matter of the retention in prison of Mr Mouisel as compared with the case of Mr Spinks. He pointed out that Mr Mouisel was said to be in a weak state, but Mr Spinks was, for the moment, fit and mobile and that, in particular, there had been no recommendation that he should be treated full-time in a specialist clinic or be removed to hospital. Nor was there any evidence, in the judge's view, of significant psychological harm. As to the last point, it is fair to say that the doctors considered, and rightly considered of course, that Mr Spinks needed psychological assistance. But there is no actual evidence, contrary to what there was in Mr Mouisel's case, of actual psychiatric or psychological difficulty. It is also the view of the doctors in Mr Spinks' case, contrary to those in Mr Mouisel's case, that he does not need full-time treatment in a hospital or hospice. I have of course noted what Dr Cooper said about the possibility of occasional day care.

43. So far as the matter of handcuffing was concerned, the judge said, first of all, that the treatment of Mr Spinks had not reached a level of severity sufficient to amount to a breach of Article 3, and also that in the case of handcuffing there had, in Mr Spinks' case, been a risk assessment carried out which had reached a conclusion that Mr Spinks presented a continuing significant degree of risk. That was to be contrasted with the way in which the French authorities appeared to approach the matter, and which was the subject to adverse comment by the European Court of Human Rights in these terms. In paragraph 46 of the judgment that states:

'The court notes, however, that the reply from the Regional Director of the Prison Service about the use of handcuffs implicitly suggests that the applicant's illness did not exempt him from being handcuffed and that the manner in which the handcuffs were used is standard practice in the context of detention.'

I think there is no doubt that that was an element which the European Court of Human Rights regarded with severity in that no step had been taken to make a rational decision about the need for the restraint of Mr Mouisel."

22. Buxton LJ then said this at paragraph 45:

"I am bound to say, looking at the matter with care and with the degree of intensity that is required, that I accept the view of the judge below that this case does not meet the high standard that is required to be established before a breach of Article 3 is demonstrated. Sympathetic though one is to the situation in which Mr Spinks finds himself, we do have to remember that Article 3 is an important article not least because it forbids conduct of a serious kind on the part of the State, a serious and wholly unacceptable kind. That is why the obligation under Article 3, in contrast with the obligation under some other articles, is absolute; and the reverse side of that absolute obligation is that a comparatively high standard has to be established before the article can be shown to be broken. That is not, in my judgement - agreeing with the judge - established in this case."

Discussion on Article 3

23. Mr Southey's submissions can be summarised as follows. The claimant has been receiving treatment for a very serious medical condition. The fact that he has been handcuffed while receiving his treatment is sufficient to amount to a breach of Article 3 unless there is justification. There is no sufficient justification in this case. There is no reason to believe that the claimant posed any significant risk of absconding unless he was handcuffed. That is demonstrated by the fact that he was recommended for release by the governor of the prison where he was detained, and the fact that from 11 December 2007 onwards the claimant was assessed as low risk in all areas. That assessment is not surprising in view of his good behaviour during medical appointments.
24. Mr Southey submits that the evidence of Ms Stephens should be viewed with considerable caution. It contains a good deal of ex post facto rationalisation. The most reliable evidence of the assessments of risk are those that were made at the time before litigation was contemplated. Neither the escort assessments nor the OASys assessment suggests that there was a real risk that the claimant would abscond or cause any harm if he did. Further, the claimant had no motive to escape since he required intensive medical treatment. The risk also needs to be viewed against the background of the fact that at all material times he was classified as a Category C prisoner. This suggests that he was not regarded as a high risk prisoner.
25. In the light of all these facts, there was no adequate justification for the maintaining of handcuffs or the escort chain, at any rate while he was undergoing chemotherapy. Mr Southey submits that there were no sufficient up-to-date reports on the claimant's behaviour, and no full risk assessment was carried out. Moreover, there was little information about the index offence, and therefore little information about the extent to which the offence indicated a continuing risk, as opposed to being an isolated incident of offending.
26. He further submits that the decision in Gorodnichev in particular shows how anxiously the European Court of Human Rights scrutinises Article 3 cases involving the handcuffing of prisoners, and how the court will find a breach proved unless the use of handcuffing is convincingly justified. On the facts of this case, the Secretary of State has not provided the necessary justification for the use of the restraints that were employed when the claimant made his hospital visits for treatment.
27. I cannot accept these submissions, largely for the reasons advanced by Mr Johnson. In order to determine whether treatment reached the high minimum threshold required to engage Article 3, it is necessary to have regard to all the circumstances of the case: see Mouisel, paragraph 37. In the present case, the treatment complained of, handcuffing, took place over relatively short periods of time while the claimant was outside prison. The handcuffing caused no physical or mental effects. Although suffering from a very serious illness, the claimant was not particularly frail, and apart from one point of disputed evidence, there is no suggestion that he was significantly impeded by the handcuffs. The purpose of the handcuffing was not to cause the claimant to suffer inhuman or degrading treatment, or to humiliate him or cause him distress. There is no suggestion that the prison officers acted other than in an appropriate and sympathetic manner throughout.
28. The starting point is that handcuffing in circumstances such as the present, where the purpose is related to security, does not normally give rise to an issue under Article 3: see Mouisel, paragraph 47. There was no medical contraindication to the use of handcuffs in this case. The risk assessments that were made - one in respect of each hospital visit - concluded that handcuffing was necessary. These assessments were carried out by different members of staff, and each was countersigned by an authorising member of staff. They were specific assessments made in respect of the claimant, reflecting the circumstances as they changed from time to time. At one time, I thought that the risk assessment "low" meant, for practical purposes, that the claimant was assessed as posing no risk, or at any rate no more than negligible risk. But I am satisfied, in the context of a form which contains only three degrees of risk, namely "high", "medium" and "low" that the category "low" covers a spectrum from negligible to bordering on medium risk. I do not accept the submission of Mr Southey that the evidence of Ms Stephens can in effect be brushed aside as ex post facto rationalisation. If the claimant had brought private law proceedings for damages, no doubt Ms Stephens would have been required to give evidence and could have been cross-examined on her statement. Instead, those advising the claimant decided to issue judicial review proceedings, where the scope for challenging evidence is severely constrained. I see no reason not to accept the evidence of Ms Stephens at face value. It follows that I accept that the assessments of risk and decisions whether or not to require restraints to be applied during hospital visits were taken individually and not by the rigid application of a blanket policy.
29. In my judgment, the critical question in this case is whether the risk of the claimant escaping during a hospital visit was sufficient to justify the use of handcuffs or escort chains, even during medical treatment. I agree with what Mitting J said in Graham at paragraph 28, that the assessment is very much a matter for the prison officials who must make the assessment. The court should be slow to criticise the assessments they make. I accept that in some cases there may be no justification for an assessment, and what purports to be an assessment is no more than a bare assertion. Gorodnichev and Graham are examples of cases where the court concluded that there was no justification: there was no real basis for concluding that there was a real risk that, unless restrained, the prisoner would escape. But in the present case a detailed justification for the assessments has been put forward. The escort assessments themselves show that it was considered that there was a risk that the claimant would escape unless restrained. Paragraph 23 of Ms Stephens's witness statement gives further cogent reasons, which include by reference the yet further reasons given by the Secretary of State in his letter dated 18 December 2007 refusing early release on compassionate grounds. Moreover, the OASys risk assessment provides further evidence that the claimant poses a significant risk of harm to others.
30. Finally, although the claimant was and is very seriously ill, he was not frail at the material time. He was strong enough to be involved in a fight in June 2007. In my judgment, his case stands on a very different footing from that of Mr Mouisel and Mr Graham. In view of the high threshold for a successful Article 3 claim, and the reluctance of the court to impugn an assessment of risk made by prison officials, I conclude that this claim must be dismissed. At its highest, it seems to me that this is a case of what was said in Spinks to be "an overcautious use of handcuffs", but as was said in that case, that is not enough to reach the level required for Article 3: see paragraph 47 of Buxton LJ's judgment.

Article 8

31. As regards Article 8, Mr Southey submits that, if his submissions in relation to Article 3 are rejected, then there has been an unjustified interference with the claimant's rights under Article 8 as a consequence of the security measures taken while he was receiving treatment for cancer. Mr Southey relies on the same submissions in support of his Article 8 argument as in support of his Article 3 argument. Further, he submits that the fact that the claimant's treatment has resulted in his medical confidentiality being breached suggests that Article 8 is engaged: see Z v Finland [1997] 25 EHRR 371 at 95. I fully acknowledge the importance for purposes of Article 8 of respecting confidentiality of a person's health data, but, as Mr Johnson points out, the claimant's contacts with members of the medical profession were not for the purposes of consultation or examination. Rather, they were for the purposes of undergoing CT scans and chemotherapy. The degree of invasion of his privacy involved was less than would have been the case if he had been required to attend for consultation or examination while shackled to the officers. Even if the imposition of handcuffs and escort chains was an interference with the claimant's rights under Article 8(1), for the reasons that I have given earlier in relation to the Article 3 issue, such interference was justified under Article 8(2) as being necessary in a democratic society for the prevention of crime and the protection of the rights and freedoms of others.

Conclusion

32. For these reasons, I would dismiss this application.
33. MR SOUTHEY: My Lord, firstly on the claimant's behalf, I would seek leave to appeal. I am conscious obviously that there has been full argument in this court, but the issue of handcuffing is one that does appear to be arising at the moment on a fairly regular basis. I am aware of, in the last year, five claims, one of which is pending.
34. LORD JUSTICE DYSON: I am sorry, one of which is what?
35. MR SOUTHEY: One of which is still pending. There is another claim I am aware of in the Administrative Court where permission has been granted in relation to this issue which is still, as I say, pending in relation to it. There is, in my submission, an area where there is at least some scope for the Court of Appeal reaching a different conclusion, which is the extent to which essentially it is necessary to establish no risk in simple terms for a violation of Article 3 to be established, or whether the court is entitled to go beyond that and essentially look perhaps at a more direct consideration of proportionality and how much the risk that is essentially put forward by the Prison Service generally justifies the treatment, and to what extent that is a matter of some concern. Of course, the Court of Appeal, when it considered Spinks, did not have any of the subsequent learning from the European Court where handcuffing has perhaps been more directly in issue. They did not have Gorodnichev; (inaudible), and certainly did not have the case subsequent to Spinks but prior to Gorodnichev of Tarariyeva, I think it was, which is another handcuffing and medical conditions case, which cases clearly influenced Mitting J. So for those reasons, in my submission, at least on the basis that it is important, we submit, that permission to appeal would be appropriate.
36. LORD JUSTICE DYSON: Do you want to say anything?
37. MR JOHNSON: My Lord, I understand it is only on the basis of importance rather than arguability, and of course importance is a basis for granting permission. I only observe that this issue has already been considered fairly recently by the Court of Appeal.
38. LORD JUSTICE DYSON: In Spinks?
39. MR JOHNSON: In Spinks, and the Court of Appeal at that stage had the benefit of the European Court's decision in Mouisel, which is the leading decision, and Gorodnichev, and the other cases are simply applications of the principle articulated in Mouisel. So, in my submission, it is not a case of such importance that merits the Court of Appeal's attention, and in any event appeals on that limb, or decisions on permission on that limb, are perhaps more better decided by the Court of Appeal, although my Lord is in a unique position.
40. LORD JUSTICE DYSON: No, I am not going to give you permission to appeal. I think you must ask the Court of Appeal for permission. I appreciate these are troublesome and worrying cases, but it does seem to me that the principles now are pretty well clearly established. I think Mouisel is still the guiding case and, as Mr Johnson says, subsequent authorities and decisions are merely applications of those principles. It seems to me that the present case is no more than that; it is an application of those principles. As I understand it, you are putting your request for permission to appeal on the basis of the importance of the case, rather than that I have demonstrably gone wrong in my application of the principles that have been enunciated thus far. It seems to me that if you want to interest the Court of Appeal, then you must ask them.
41. MR SOUTHEY: The other matter obviously from my point of view is to apply for Legal Services Commission assessment.
42. LORD JUSTICE DYSON: Yes, you may have detailed assessment.
43. MR JOHNSON: There is no application from us.
44. LORD JUSTICE DYSON: Thank you both very much.