Hawke, R (On the Application Of) v Secretary of State for Justice

The claimants sought an order that the Secretary of State transfer a category B long‑term prisoner to a nearer local prison so that his disabled wife could visit without disproportionate difficulty. The key legal issues were (i) the public law duty arising from the Prison Rules (including Rule 35) and related Prison Service policies, (ii) the statutory duty to make reasonable adjustments under the Equality Act 2010 (section 20), and (iii) the public sector equality duty under section 149 of the Equality Act 2010. The court accepted that the Prison Service practice of subdividing category B prisons into training (long‑term) and local (short‑term) prisons is a provision, criterion or practice (PCP) which can place persons with certain disabilities at a substantial disadvantage in relation to visiting. However, the court held that a permanent transfer of a long‑term category B prisoner to a local prison was not a reasonable adjustment in the present operational and resource context; instead the provision of Accumulated Visits was a reasonable and proportionate adjustment. The judge found no breach of the public law duty under the Prison Rules or of the Equality Act section 20 duty, but concluded there had been a failure to give the positive, documented due regard required by section 149. That breach was not, however, the subject of enforceable declaratory relief because section 31(2A) of the Senior Courts Act 1981 (as amended) required refusal of relief where it was highly likely the outcome would not have been substantially different. The claim was therefore dismissed.

Background and facts:

• The second claimant is a convicted category B long‑term prisoner sentenced to an aggregate determinate term of 17 years; his earliest release date is in March 2022. The first claimant, his wife, suffers from fibromyalgia which makes travel by car prolonged distances extremely painful and effectively prevents regular visits to the prison where he was held (HMP Isle of Wight). The couple live in Bude, Cornwall. The nearest category B training/long‑term prison was the Isle of Wight; nearer local (short‑term) prisons include HMP Exeter and Bristol.
• The prisoner was transferred temporarily to HMP Exeter for 27 days in October 2015 to permit a period of Accumulated Visits; more frequent regular visits were not feasible at that establishment on a long‑term basis.

Nature of the application and procedural posture:

• The claimants applied for judicial review seeking (inter alia) a long‑term transfer of the prisoner nearer to home, a declaration that the Secretary of State had breached duties under the Equality Act 2010 including section 149 (public sector equality duty), and damages. This was a first instance hearing in the Administrative Court.

Issues framed by the court:

1. Whether the Secretary of State had a provision, criterion or practice (PCP) of subdividing category B prisons into training and local prisons and allocating prisoners accordingly;
2. Whether that PCP placed disabled persons (such as the wife) at a substantial disadvantage for the purposes of section 20 of the Equality Act 2010;
3. Whether the claimants had identified a potentially reasonable adjustment (transfer to a local prison nearer home) and, if so, whether that adjustment was reasonable;
4. Whether the Secretary of State had complied with the anticipatory duty to make reasonable adjustments under section 20; and
5. Whether the Secretary of State had given the required 'due regard' under the public sector equality duty in section 149.

Court’s reasoning and conclusions:

• The court accepted that the PCP existed and that the wife was a disabled person at a substantial disadvantage in relation to visiting. The anticipatory nature of the duty under section 20 was applied (relying on Finnigan).
• On evidence from prison managers and population officials, the court accepted the operational and resource imperatives underlying the subdivision of prisons: local prisons must hold spaces for high turnover remand and short‑term prisoners, and training prisons are required to provide rehabilitation courses (not available at local prisons). Exeter was shown to lack sufficient capacity for Vulnerable Prisoners (including sex offenders) and did not provide the offender‑specific programmes that the Secretary of State reasonably judged this prisoner needed for rehabilitation.
• The court held that permanent transfer of a long‑term VP to a local prison would be impractical and disproportionate; the Secretary of State’s alternative of facilitating Accumulated Visits (and having done so in October 2015) was a reasonable adjustment in the circumstances and discharged the section 20 duty.
• Although the court found that the Secretary of State had failed to demonstrate the positive, structured consideration required by section 149 (the public sector equality duty), the judge concluded that any fuller discharge of that duty would not have produced a substantially different outcome in this individual case.
• Because section 31(2A) of the Senior Courts Act 1981 (as inserted) mandates refusal of relief where it appears highly likely the outcome would not have been substantially different, the court refused to grant declaratory relief and dismissed the entire claim.

The judgment notes the practical and resource constraints of the prison estate and records the court’s sympathy for the wife’s condition, while concluding the statutory and public law duties were, on these facts, met save for the procedural PSED failing which did not change outcome.

The claim is dismissed. The court held that the Secretary of State had a PCP of subdividing category B prisons which could place the wife at a substantial disadvantage, but that a permanent transfer of a long‑term category B prisoner to a local prison was not a reasonable adjustment in the operational circumstances. Accumulated Visits constituted a reasonable adjustment discharging the section 20 duty. The court found a failure to give the positive due regard required by section 149 of the Equality Act 2010, but was bound by section 31(2A) of the Senior Courts Act 1981 to refuse declaratory relief because it was highly likely the outcome would not have been substantially different; consequently the judicial review claim was dismissed.