The defendant appealed against sentence, saying that given his serious medical condition, any imprisonment would threaten his human rights.
Held: The court set out the law. A court imposing a sentence should not concern itself with the adequacy of arrangements in prisons save where the nere fact of inprisonmentt will inevitably expose the prisoner to inhuman or degrading treatment contrary to Article 3. The Court was doubtful, given the detailed protocols for the treatment of prisoners, that this would ever arise. However, were it to arise, it would be impossible for the sentencing court to pass a sentence of imprisonment which brought with it an inevitable breach of Article 3.
‘We have reached the following conclusions:
i) The court is entitled to take into account the fact that there are the arrangements that we have outlined at paragraph 23 to 27 above to ensure that prisoners with severe medical conditions in public sector prisons are treated in accordance with their Convention rights, and there are the duties of the Secretary of State of the type set out in Clive Spinks to which we referred at paragraph 21 above, to release the prisoner if that is the only way a breach of Article 3 can be remedied.
ii) On the basis of those arrangements and their continued operation in practice, a sentencing court need not be concerned in the allocation of a prisoner to a specific prison in the discharge of its duties under Article 3. Furthermore, provided that the arrangements that we have set out for the provision of health care under the overall responsibility of the Secretaries of State are maintained and work in practice, a sentencing court does not need to enquire into the facilities in prison for the treatment of a medical condition. The court can be satisfied that there is a proper system for allocation to a prison where health care can be provided in accordance with the procedure we have set out, and that a sentence of imprisonment will not create a risk of a breach of Article 3.
iii) It is only in circumstances where the very fact of imprisonment itself might expose the individual to a real risk of an Article 3 breach that the court will be called upon to enquire into whether sentencing a person to custody will mean a breach of Article 3. That is a quite different circumstance from the kind of enquiry carried out in Hetherington as to whether facilities in a particular prison were adequate. It is an enquiry that can only arise where there is proper medical evidence before a court that any sentence of imprisonment ipso facto would cause a breach of Article 3. We are doubtful if circumstances will ever arise in which such a submission could be made, but if they should ever arise, it would be an exceptionally rare event.
iv) If any such circumstances should ever arise, then the sentencing court must be provided with detailed medical evidence with an attached statement of truth by a properly qualified medical expert setting out the ground why imprisonment ipso facto will cause a breach of Article 3; such a statement must be served on the court and on the Crown Prosecution Service well in advance of the hearing so that the Crown Prosecution Service can, in conjunction with the Secretary of State for Justice, make the appropriate enquiries and produce medical evidence to the court.
v) Once a sentence of imprisonment has been imposed, unless it is to be contended on appeal that the judge should not have imposed a sentence of imprisonment because imprisonment anywhere would ipso facto cause a breach of Article 3, the relevance of an appellant’s medical condition relates solely to the assessment of the overall length of the sentence in accordance with the principles established in Barnard.
vi) Any issues as to breach of the duties of the Secretary of State in relation to medical treatment and conditions in prison are matters for civil remedies and not for this division of the Court of Appeal.’
Judges:
Thomas LJ, Dobbs, Sharp JJ
Citations:
[2010] EWCA Crim 2579, [2011] 2 Cr App R (S) 8, [2011] Crim LR 159, [2011] HRLR 4
Links:
Statutes:
European Convention on Human Rights 3
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Bernard CACD 2-Jul-1996
The court considered the general effect of serious medical condition on sentencing, and how it should allow for such a condition.
Held: A sentencing court is fully entitled to take account of a medical condition by way of mitigation as a . .
Cited – Price v United Kingdom ECHR 10-Jul-2001
The applicant complained that she had been subject to degrading treatment, by virtue of the conditions under which she had first been held in a police cell, and subsequently in prison. She was very severely disabled, and the treatment was unsuitable . .
Cited – Regina (P) v Secretary of State for the Home Department and Another; Regina (Q and Another) v Same CA 20-Jul-2001
The court was asked as to the separation on sentence of a mother from a very young child.
Held: A sentencing court is bound by section 6(1) of the Human Rights Act 1998 to have regard for the provisions of the Convention when sentencing. . .
Cited – Regina (Nathan Brookes) v Secretary of State for Justice Admn 2008
At least a minimum standard of health care was to be provided to those held in prisons. . .
Cited – Gelman v France ECHR 2006
Article 3 requires: ‘the state to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an . .
Cited – Spinks, Regina (on the Application of) v Secretary of State for the Home Department CA 28-Jan-2005
May LJ said that if the State was in breach of its Article 3 obligations, that had to be remedied. If the only way to remedy was to release the prisoner, then the Secretary of State for Justice would be obliged to order his immediate release. . .
Cited by:
Cited – Hall v Regina CACD 8-Feb-2013
The defendant had been convicted of the importation of large volumes of cocaine. He was however at the time of sentencing, ‘a man who suffers from an extremely grave combination of rare long term medical conditions which interfere with virtually all . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing, Human Rights
Updated: 26 August 2022; Ref: scu.425945
