Qazi & Anor, R v

A sentencing court must respect Article 3 of the European Convention on Human Rights, but it may ordinarily rely on an effective system through which the executive provides prisoners with necessary medical care. It need not investigate allocation to a particular prison or the facilities there. An inquiry is required only where cogent medical evidence shows that imprisonment itself would create a real risk of an Article 3 breach. That will be exceptionally rare.

After a lawful custodial sentence has been imposed, an offender’s ill-health may mitigate its overall length. Complaints that prison medical treatment breaches Article 3 are generally matters for civil remedies, rather than the criminal appellate court.

Qazi and Hussain pleaded guilty to extensive insurance, mortgage and financial-services fraud. The insurance scheme included fabricated and staged road traffic accidents, some involving innocent motorists. Each received a total sentence of five years and six months’ imprisonment at the Crown Court at Luton.

Qazi, who had severe Beta Thalassaemia Major requiring regular transfusions and specialist care, appealed on the ground that imprisonment and the medical care initially provided in prison engaged Article 3 of the European Convention on Human Rights. His transfer to HMP Spring Hill and a care plan meant that a continuing Article 3 breach was no longer alleged. He nevertheless sought further sentence mitigation for his ill-health.

Hussain renewed his application for permission to appeal on the ground that his sentence was excessive. The central issue in Qazi’s appeal was the respective responsibility of the sentencing court and the executive for ensuring Article 3-compliant prison medical care.

1. Disposition. Qazi’s appeal was allowed only to reduce his total term from five years and six months to five years. Hussain’s renewed application for permission to appeal was refused.
2. Article 3 responsibility. Article 3 requires the State to detain prisoners in conditions respecting human dignity and to secure their health and well-being through requisite medical assistance. The executive, in particular the Secretary of State responsible for prisons, bears primary responsibility for meeting that obligation. If a breach can be remedied only by release, the executive must release the prisoner. The court must assess the system’s practical operation, not merely its formal rules.
3. The sentencing court’s limited inquiry. Under Human Rights Act 1998, section 6(1), a sentencing court must have regard to Convention rights. Where effective arrangements exist for prison healthcare and allocation, it may rely on them and need not investigate the facilities of a particular prison. An inquiry is required only where proper medical evidence establishes that imprisonment ipso facto would expose the individual to a real risk of an Article 3 breach. Such a case would be exceptionally rare. The evidence must be from a properly qualified expert, supported by a statement of truth, and served sufficiently early for a response.
4. Post-sentence consequences. Unless custody itself should not have been imposed for that exceptional reason, medical condition bears on the overall term under the principles in Bernard [1997] 1 Cr App R(S) 135. Alleged failures in prison treatment are for civil remedies, not this court.
5. Application. Qazi’s condition could be managed in custody under the care plan. Earlier delay and difficulty in arranging care did not show that imprisonment itself breached Article 3. The judge had allowed for Qazi’s ill-health, but further mitigation was justified. His four-year sentence for the insurance fraud was retained; the consecutive sentence for the mortgage and financial fraud was reduced from 18 to 12 months. Hussain’s sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): Qazi’s appeal was allowed only as to sentence, reducing the total term to five years: [2010] EWCA Crim 2579. Hussain’s renewed application for permission to appeal was refused.
• Crown Court at Luton: HH Judge Kay QC sentenced Qazi on 3 December 2009 and Hussain on 11 January 2010 to total terms of five years and six months’ imprisonment for insurance, mortgage and financial-services fraud.