Representation of Pearce [2022] JRC 135 (28 April 2022)

1. On 25^th March 2022 the Court sat at short notice to hear a representation issued by Mr Pearce on 21^st March 2022 in which Mr Pearce ("the Applicant") sought relief in respect of decisions made by and on behalf of the Governor of Her Majesty's Prison La Moye ("the Prison") in respect of the conditions under which the Applicant was permitted to attend his father's funeral at the Crematorium on 30^th March 2022. We refused the application and now give our reasons for doing so.

Background

2. By way of background on 17^th December 2020, the Applicant was found guilty of three counts of money laundering pursuant to Article 30 of the Proceeds of Crime (Jersey) Law 1999 and remanded in custody for sentencing. On 5^th July 2021, he was sentenced to a total term of 7 years and 6 months imprisonment. An appeal against that conviction was outstanding at the date of the hearing, although the Applicant quite properly accepted that his application could only be considered on the footing that he was a convicted serving prisoner. On 4^th March 2022, the Applicant's father died suddenly at the General Hospital. The Applicant says that there was no time for the Prison staff to arrange a visit by the Applicant to the hospital which they said they would have done had there been sufficient time to make the necessary arrangements.

Temporary release

3. The Applicant initially applied for temporary release from custody for the purpose of attending his father's funeral. Whether or not to release a person temporarily from the Prison is a decision for the Minister in the exercise of his discretion under Article 64 of the Prison (Jersey) Rules 2007. The request for a temporary release was considered by the Minister and his decision is contained in a letter dated 18^th March 2021. The relevant part of the letter says as follows:

"Rule 64 provides that the Minister may temporarily release a prisoner serving a sentence of imprisonment, for such time or times and subject to such conditions as the Minister may determine, either -

(a) for the purpose of the prisoner engaging in employment or receiving instruction or training; or

(b) in such other circumstances as may be approved by the Minister.

Such a release must be risk assessed based on length of service, behaviour whilst in custody, security and public protection risks and other relevant factors. If the risk is deemed to be too great, prisoners can attend events such as funerals under escort.

Unfortunately, it is considered that your risk is too great to allow for temporary release, principally due to the length of your sentence. Your request is therefore not granted.

I would however like to reassure you that there is no suggestion that you would be denied access to your father's memorial service. You will be able to attend, escorted by Prison Officers who will take a compassionate and respectful approach, and wear appropriate attire. Such escorts are conducted regularly.

There is also an option to attend virtually, which may address some of your concerns, that is open to you. If this is something, you would like to consider I would encourage you to discuss this with officers at the Prison who can talk you through your options.

I acknowledge that this outcome will be disappointing to you. However, this is considered a proportionate approach to balancing your right to private and family life, against the fact you are presently serving a sentence of imprisonment further to conviction by a competent court."

4. In these proceedings the Applicant does not challenge by way of judicial review the decision of the Minister to refuse his application for temporary release, but says that he may do in subsequent proceedings.

5. The challenge is to the conditions under which the Applicant, whilst still in custody, should be permitted by the Prison authorities to attend his father's funeral.

The policy

6. Those conditions are governed by a policy entitled "States of Jersey Prison Service HM Prison La Moye External Escort Policy". The policy document is undated but is referred to as the relevant policy in an affidavit sworn by the Governor of the Prison, Susie Richardson, dated 24^th March 2022. The Applicant queries the terms of the policy which, although every page bears the wording "States of Jersey Prison Service", refers, the Applicant says, to certain matters suggesting that it is in fact extracted from a policy designed for English prisons - such as the reference to Category A, B, C and D prisoners at page 8 which the Applicant says have no application to Jersey. The relevant part of the policy is Section 14 which deals with "Funeral Escorts/Visits To Dying Relatives". There is no dispute that the relationship between the Applicant and his father amounts to a close relationship for the purpose of this policy. The relevant extract of the policy says:

"... Applications will be assessed on an individual case basis, taking care to balance security considerations with those of decency, and will only be refused on security grounds, which need to be clearly evidenced in the risk assessment.

Escorts to off island funeral will not be provided.

All prisoners escorted to visit dying relative or attending funeral will be cuffed at all times. Security Department will complete risk assessment to decide the appropriate strength for the escort (the minimum strength being two officers), as well as the level of advance planning required e.g. whether a pre-visit by the security department is necessary, as well as liaison with the police.

The risk assessment must give clear instruction about whether to remove/not apply restraints during the escort, having given full consideration to all the facts, including religious sensitivities, which might require that a prisoner remains hands-free in order to prepare the body of the deceased person for burial/cremation. This must be authorised by the Head of Operations or duty governor.

The escorting officers must receive a full briefing before the escort which will include:

· Information about the layout of the venue and communication arrangements with the prison.

· Security information about the prisoner.

· Clear instructions about the arrangements for handcuffing/restraints.

· Information about dress code - prisoner and officers.

· Any special religious considerations."

7. The Applicant says that this policy contains various internal inconsistencies. He says that the reference to the requirement that all prisoners "will be cuffed at all times" is inconsistent with the reference in the subsequent paragraph to a "risk assessment" which may result in the prisoner not being handcuffed during the funeral.

8. It was said on behalf of the Minister for Home Affairs (who was represented at the hearing) that there is not an internal consistency in the terms of the policy as suggested. The general policy requiring offenders to be handcuffed at all times is simply subject to an appropriate risk assessment. On balance we agree with the Minister, although the policy could be better worded and should state that the general approach is subject to risk assessment. The policy should also be dated and reviewed to ensure that all references within it are appropriate for a policy governing external escorts from La Moye and not from prisons elsewhere.

The decision challenged

9. There are two specific decisions that are challenged by the Applicant. The first is referred to at paragraph 10 of his Representation, in which he says that on the evening of 18^th March 2022 the Governor advised him that the Prison Security Department had decided that he was too high a risk to be allowed to attend the funeral unless he was in handcuffs. The reason given was that the policy was that prisoners with more than two years left to serve were not allowed to leave the Prison unless escorted and restrained in handcuffs.

10. Shortly thereafter, a Senior Unit Manager in charge of security, Mr MacDonald, made a decision to the effect that the Applicant could not attend the funeral unless in handcuffs owing to a risk assessment that he carried out. The risk assessment is dated 23^rd March 2022 and was attached to the Prisoner Escort Record Log. This log listed various risk categories and next to each "risk" is a column entitled "Details about know risk (sic)" and then a "Risk Level" stated to be either "L", "M" or (presumably) "H". The risk categorisations for the Applicant were all "L" i.e. low or "M" i.e. medium. The risks assessed as being "medium" level were as follows. First, in respect of "Risk of escape" it is recorded "Prisoner Pearce has been recently sentenced to 7 ½ years. He is currently in the process of appealing his sentence and conviction. Due to the length of sentence, he would be classified as a medium risk and the strength of any escorting staff chose (sic) carefully accordingly." Under "Drugs/Alcohol" the details are "No information received regarding drug abuse. Notes indicate he had a detox from alcohol in his first week in custody". Under "Violence" the details are "Prisoner Pearce's PNC states that he has a previous historical conviction for assault on Police, (1996). Verbal altercations have also taken place with 2 other prisoners whilst in custody as well as with a Senior Officer in respect of him claiming that they had broken Prison rules by opening some legal mail which he had tried to send out using another prisoners account, (DP was placed on report for this)." Under "Stalker/Harasser/Sex Offender" the details are "Prisoner Pearce was convicted for making a Hoax/Annoying/Anxious/Inconvenient Phone Call while on bail in 2007." Under "At Risk of Abuse from Others" the details are "Should prisoner Pearce be seen in the public domain by a member of the public who has been defrauded or felt wronged by him, then he COULD be at risk of abuse both verbal and physical."

11. In the Governor's affidavit she highlighted the "risk of escape", "violence" and "risk of abuse from others" categorisations. In the opinion of the members of the Court the categorisations appeared to be reasonable, although the assessment that the Applicant was at medium risk owing to "drugs/alcohol" appeared to be difficult to justify in the light of a single reference to a "detox" on admission in circumstances where the Applicant has been in custody for a significant period of time. The Applicant says that he should have been given the opportunity to challenge some of these findings pursuant to Article 8 of the Prison (Jersey) Rules 2007, which provides:

"8 Classification of prisoner

(1) The Governor may classify a prisoner according to -

(a) age;

(b) sex;

(d) the offence or matter in respect of which the prisoner is committed to prison;

(e) previous record; and

(f) the prisoner's conduct within the prison.

(2) Where a prisoner is classified according to the matter described in paragraph (1)(c), (d), (e) or (f), the Governor shall inform the prisoner, in writing, of the reasons for the classification."

12. The Applicant says that the risk assessment effectively amounts to classification, and he should have been informed of the contents and the reason for each assessment, in order that he had an opportunity to challenge them. We think this is incorrect, as the risk assessment deals with matters that are different from those which are the subject of Rule 8 of the Prison Rules.

13. The Applicant says that if he was a prisoner serving in England and Wales, he would be a category D prisoner eligible for day release from an open prison and may be eligible for temporary release on licence in those circumstances. However, he is a prisoner in Jersey pursuant to Jersey legislation and Jersey rules and the position elsewhere is of no relevance. Further, there was a second and subsequent decision made by or on behalf of the Governor referred to in the Governor's affidavit to the effect that having regard to the risk assessment carried out on 23^rd March 2022, the nature of the offence for which the Applicant is serving his sentence and the absence of a history of absconding, the prison authorities are "able to authorise the use of a closeting/escort chain if he chooses to attend the ceremony in person and can ensure that staff take him there in sufficient time to change over from handcuffs (required for travel) to the escort in chain once he is securely in the Crematorium building and before the arrival of other guests". This proposal was communicated to the Applicant but was also unacceptable to him.

Form of proceedings

14. Although as the Minister correctly pointed out, the Applicant's application was not in the prescribed form for a judicial review application, we elected to treat it as such. The Applicant was unrepresented, this was an urgent matter and, in these circumstances, we accepted it was difficult for him to comply with the correct procedure.

15. We note pursuant to part 16 of the Royal Court Rules that, generally, judicial review proceedings should be made in accordance with the Rules. However, pursuant to Royal Court Rule 6/14, if a person seeks relief that should have been sought by way of application for judicial review under part 16, a person against whom such relief is sought may apply to the Court for an order striking out the claims and abuse of process and the Court shall make such an order unless, inter alia, the Court considers that in all the circumstances of the case it is just and convenient to allow the action or representation to continue "provided in each case, that the Court is satisfied that leave would have been given to move for judicial review if an application for leave had been made".

16. Accordingly, it was for us to determine whether or not on the material before us an application for leave for judicial review would have been granted had this application been made in proper form.

Human rights

17. The Applicant also relied upon various provisions of the European Convention on Human Rights, as incorporated into our domestic law by the Human Rights (Jersey) Law 2000. The relevant rights relied upon were:

(i) Article 3, which prohibits torture or unhuman or degrading treatment or punishment.

(ii) Article 8 which provides:

"Article 8 Right to respect for private and family life

1) Everyone has the right to respect for his private and family life, his home and his correspondence.

2) There shall be no inference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

(iii) Article 6, which is the "Right to a fair trial". As the Applicant has already been tried and this application does not concern part of the trial process that relief is clearly unsustainable.

(iv) Article 14, which prohibits "discrimination". However, the Applicant put forward no evidence to the effect that he was being treated differently from other prisoners in similar circumstances, and accordingly that claim was also unsustainable.

18. As to the claims under Article 3 and Article 8, we were assisted, bearing in mind the brief period that both parties had to research relevant caselaw, by the guide on caselaw relevant to prisoners' rights under the European Convention on Human Rights published by the Council of Europe on 31^st December 2021.

19. The relevant section in the guidance is contained at paragraphs 87 to 91 inclusive. We do not set out the whole of the section but note the following:

"87. In the cases of Schemkamper -v- France (75833/01 18October 2005), Sannino -v- Italy (72639/01 3 May 2005) and Ploski -v- Poland (26761/95 12 November 2002) the Court had regard to certain factors to assess whether the refusals of leave to visit a sick relative or to attend a relative's funeral were "necessary in a democratic society" such as: the stage of the criminal proceedings against the applicant, the nature of the criminal offence, the applicant's character, the gravity of the relative's illness, the degree of kinship, the possibility of escorted leave, and so on. Thus, a violation of Article 8 was found in the Płoski case, where the applicant, who had not been convicted, was charged with a non-violent crime and sought leave to attend the funerals of his parents, who died within one month of each other, whereas the authorities did not give compelling reasons for the refusal and did not consider the possibility of escorted leave. By contrast, in the Sannino case, the refusal was justified because the applicant had been convicted of murder and had difficult personality. He sought leave to visit his grandfather who was not a close relative and whose state of health was not really precarious. In more recent case, Schemkamper, the Court also found the refusal justified because the applicant's father was not so unwell as to be unable to visit the applicant in prison.

...

89. In Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, 2019, § 268, where the applicant's request to attend his mother's funeral had been denied apparently due to a short notice he had given, the Court stressed that the time constraints complicating the planning of his attendance at the funeral was not a sufficient reason for refusing it. In the Court's view, it was typical for funerals to be fixed at very short notice and they were generally regarded as a matter of urgency. In this case, it would have been physically possible for the applicant to arrive at the funeral, which was held on the following day in the same city. Thus, the Court found that the refusal to allow the applicant to attend the funeral run counter to Article 8 of the Convention.

90. By contrast, Guimon v. France, 2019, §§ 37-52, concerned a refusal to allow a prisoner convicted of terrorist offences to leave prison under escort to pay her respects to her late father. The Court found no violation of Article 8 of the Convention. The Court had regard to the following considerations: the applicant's criminal profile - she was serving several prison sentences for acts of terrorism and continued to assert her membership of ETA; escort would have had to have been organised for a distance of almost 650 km and the escort arrangements needed to be particularly robust; the time available for the examination of the request, once final permission to leave under escort had been granted, had been insufficient to arrange an escort comprising officers specially trained in the transfer and supervision of a prisoner convicted of terrorist offences and to organise the prior inspection of premises; the applicant had had regular visits from family members and friends; and the judicial authorities had carried out a balancing exercise between the interests at stake, namely the applicant's right to respect for her family life on the one hand and public safety and the prevention of disorder and crime on, the other."

20. After the hearing, our attention was drawn to the decision of the Queen's Bench Division in R (On the Application of Graham) v Secretary of State for Justice [2007] EWHC 2940 (Admin) in which the High Court considered whether or not a sick prisoner receiving hospital treatment who was handcuffed during all or part of his time in hospital had his rights under Article 3 or Article 8 of the Convention infringed. Mitting J observed at paragraph 2 that "It is common ground that such cases must be closely analysed on their own facts". The applicant, Mr Graham, had a 'grievous illness'. He was diagnosed as such in January 2007 and from then on his condition rapidly deteriorated until on 7^th February 2007, a doctor stated that there was 'absolutely no question of him having the ability to abscond from hospital independently'. He was serving a three year sentence and was a category C prisoner. Accordingly, he was 'assessed as posing some risk of escape and some risk to the public should he escape, but a far lower risk than would be the case if he was catergorised A or B'. When he was first seen by doctors in December 2006, the prison assessed that there remained a real risk of escape and it was ordered that he be accompanied by two prison officers and that restraints in the form of handcuffs were to remain in place during his examination. In January 2007, it was still the assessment that he would be able to escape unaided and, again, decided that handcuffs should not be removed during treatment or consultation owing to the risk of escape.

21. However, by 5 February 2007, the prison authorities assessed that Mr Graham should not be subject to restraint at all. The judge called this a 'sensible and humanitarian decision' (paragraph 10 of the judgment). Four days later, he was assessed as suitable for compassionate release on the footing that he was likely to die in the near future. However, his condition improved and on 28 February 2007, when Mr Graham was transferred back to hospital, the prison authorities decided that he should be restrained by an escort chain which was described as a 'lightweight cuff attached to a chain which is in turn attached to a prison officer'. Thereafter, he attended chemotherapy during March, April, May, June, July and August. On each occasion he was accompanied by two prison officers, handcuffed during the taxi journey to the hospital and whilst he remained in the hospital awaiting treatment. During these months on occasions the prison authorities decided that restraints should not be applied when Mr Graham was receiving treatment or having a medical consultation, but on five visits the decision was taken that during consultation Mr Graham should be restrained. The judge observed that there was a "pattern in Mr Graham's case of an acute, life threatening illness which for several weeks plainly disabled him from any significant activity, let alone the possibility of escape; and assessments that were made were not thereafter wholly consistent".

22. The second case before the Court was very different and involved a Mr Allan. He was seventy-three years old and had been convicted in 2002 of the murder of his wife and two children in 1975. He had a history of heart problems; had a long tariff of eighteen years of which five years had been served and was a category B prisoner. The judge described him at paragraph 22 as a 'long term prisoner convicted of three very grave offences'. As a category B prisoner, his general assessment was that he posed a significant risk of escape and if he escaped to members of the public, despite his age, and despite the medical condition that caused his admission to hospital. In his case, there was no indication from the medical staff that double-cuffing was medically inappropriate.

23. The judge reviewed the case law from Europe in Muisel v France [2004] 38 EHRR 34. The Court said at paragraph 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."

24. This passage was adopted by the European Court in Tarariyeva v Russia [2006]. Having summarised the relevant cases, Mitting J made the following observation:

"27. 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 inhuman 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."

25. Applying the principles of the facts of the case in front of him, the judge found that although it was 'highly unlikely' that at the time of Mr Graham's admission to hospital on 26 January 2007 he would be able to escape or cause harm to others, he did not find that his conveyance to the hospital handcuffed or the retention of handcuffs while he was inpatient for the first few days infringed his Article 3 rights although it came "extremely close" to doing so. At that stage, there had been no view expressed by medical staff that it was inappropriate to restrain him.

26. As to subsequent restraint, particularly after the recommendation for compassionate release on 9^th February 2007, there was no reason to reimpose the restraints and the reimposition of handcuffs in those circumstances did 'just cross the threshold'. The judge held at paragraph 33:

"These are matters of fine judgment. I acknowledge that different views can be taken about them, hence my reticence about finding a breach of Article 3 in relation to the earlier period. But by the time that the decision to reimpose the handcuffs on 28^th February was made, the judgment, in my view, is plain. I am not simply reviewing on Wednesbury grounds the reasonableness of the decision. I am determining whether or not this claimant's rights under the Convention were in fact infringed and I am satisfied that in that period, from 28^th February until 3^rd March, they were."

27. At paragraph 34, the judge held that the restraining by handcuffs of a man receiving chemotherapy was degrading. In paragraph 35, in light of the infringement of Mr Graham's Article 3 rights during three days at the end of February and early March, and twenty to twenty-five minutes on five occasions during the summer months, the judge found that the appropriate award of damages was £500.

28. As to Mr Allan, restraint was justified; the assessments were lawful and the claims dismissed.

Decision

29. From these authorities we draw the following conclusions. First, there is no question of a breach of Article 3. The conduct of the prison authorities in this case does not amount to torture or involve inhuman or degrading treatment or punishment. There is no question of punishment. There was no medical advice or evidence to the effect that restraint would be inappropriate. In our view, the policy to which we have referred was designed to define the circumstances in which serving prisoners may attend funerals or visit dying relatives.

30. Having regard to the case law, the relevant policy, subject to the caveats set out above, was in our view reasonable and proportionate in the context of the Applicant's sentence and other circumstances referred to in the risk assessment. Further, the policy, on the evidence applied to us was applied fairly to this Applicant. Therefore, there is no breach of Article 8. Accordingly, this is an application for judicial review which, had it been made in the proper form, would not have been subject to a grant of leave. Leave would have been refused on the footing that the application had no realistic prospect of success; indeed it was bound to fail.

31. The Applicant also said that the facts of this case may give rise to a civil law claim in tort. Although this was not pleaded, such a claim would presumably be advanced on the footing that the unlawful application of handcuffs would amount to an assault or other tort and the Applicant would be entitled to seek an interlocutory injunction preventing the application of handcuffs in these circumstances. Although such a claim is not articulated in the representation, it would also be doomed to fail. The Applicant is a serving prisoner; whether he wished to attend his father's funeral subject to the terms of the policy in light of the risk assessment was a matter of choice for him. He could voluntarily submit to the conditions under which such attendance was proposed or could decline to attend. Those conditions, having regard to the policy as a whole are, as we have found, consistent with the Applicant's human rights and would not, in our view, amount to an assault or any other inappropriate deprivation of liberty.

32. Accordingly, we dismissed the application.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Prison (Jersey) Rules 2007.

Royal Court Rules 2004.

Human Rights (Jersey) Law 2000.

R (On the Application of Graham) v Secretary of State for Justice [2007] EWHC 2940 (Admin).

Muisel v France [2004] 38 EHRR 34.

Tarariyeva v Russia [2006]

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