Hall v R

A sentencing court should not investigate the adequacy of individual prison medical arrangements unless imprisonment itself will inevitably cause inhuman or degrading treatment contrary to Article 3. That exceptional threshold arises only where no adequate care can be provided in custody or through hospital transfer. Care in prison need not match the defendant’s home regime.

Independently of that threshold, grave illness or disability may mitigate sentence. The court may reduce a custodial term because imprisonment has a markedly greater impact on the offender, or as an exceptional act of mercy. Serious offending may nevertheless require custody, and future deterioration or public protection may limit the reduction.

The appellant pleaded guilty to importing 2.8 kilograms of high-purity cocaine concealed in the cushion of his wheelchair. He had severe, progressive medical conditions requiring extensive daily care. At Isleworth Crown Court, the judge rejected the contention that custody would inevitably breach Articles 2 or 3 of the ECHR and imposed three years’ imprisonment after substantial mitigation.

The appellant sought leave to appeal sentence. He contended that imprisonment was unlawful in principle or, alternatively, that the term was manifestly excessive given its exceptional impact upon him. The central issues were whether custody inevitably entailed a Convention breach and whether further exceptional mercy was justified.

1. The court extended time, granted leave and allowed the appeal against sentence. It substituted 18 months’ imprisonment, being the term already served, and made a three-year serious crime prevention order.

2. Applying R v Qazi [2010] EWCA Crim 2579, a sentencing court need only examine individual prison-care arrangements where imprisonment will inevitably expose the offender to Article 3 treatment because no adequate arrangements can be made in prison or hospital. The medical evidence did not establish that result. Custodial care did not have to be identical to the appellant’s home care; it had to be sufficient. The subsequent hospital admission did not show a failure of the system or an arguable breach of Article 3, still less Article 2.

3. Independently of Convention rights, the court could mitigate sentence for the greater effect of imprisonment on a seriously ill or disabled offender, or as an individual act of mercy: R v Bernard [1997] 1 Cr App R (S) 135. The appellant’s first offence was grave, but his disability, the greatly increased burden of custody, and his later deterioration made this an exceptional case for a further reduction. His condition was not a passport to avoiding punishment, but the three-year term was excessive in the circumstances known on appeal.

4. Under section 19 of the Serious Crime Act 2007, the court considered a preventive order appropriate to reduce the risk of renewed drug importation. It required surrender of the appellant’s British and Nicaraguan passports and prohibited him, for three years, from applying for or using travel documents to leave the United Kingdom. Taken with the reduced sentence, the order was not more severe overall than the Crown Court’s disposal.

• Court of Appeal (Criminal Division) — By [2013] EWCA Crim 82, the court granted leave out of time and allowed the appeal against sentence, substituting 18 months’ imprisonment and making a serious crime prevention order.
• Isleworth Crown Court — The appellant pleaded guilty to cocaine importation and was sentenced by HHJ Denniss to three years’ imprisonment.