Uddin, R (on the application of) v Governor of HMP Lincoln & Anor

A systemic challenge to a policy on Convention grounds requires proof that the policy itself creates a real risk of unlawfulness in more than a minimal number of cases. It is insufficient that the policy is capable of producing an unlawful outcome or that individual decisions may be unlawful. The relevant risk must arise from the policy’s terms, rather than from isolated aberrant decisions. A cell-sharing policy is not unlawful merely because it focuses on prisoner safety, where it also requires reassessment and permits healthcare staff to require single-cell accommodation for medical reasons. A judicial review claim seeking damages for disputed psychiatric injury is inappropriate where an existing private law claim can determine the connected allegations in one trial.

The claimant, formerly detained at HMP Lincoln, challenged the lawfulness of the cell-sharing policy in PSI 20/2015. He alleged that requiring him to share a cell after an earlier assault exposed him to a real risk of treatment contrary to Article 3 of the European Convention on Human Rights, particularly because of alleged undiagnosed PTSD.

He also sought damages for psychiatric injury, distress and alleged failures in diagnosis, treatment and the cell-sharing risk review. Permission was refused on the papers by His Honour Judge Davis-White QC. The claimant renewed the application and sought to rely on an expert psychiatric report. The issues were whether the policy challenge was arguable and whether judicial review was an appropriate forum for the damages claim.

1. Permission refused. The challenge to PSI 20/2015 was not arguable, and the damages claim belonged in the existing private law proceedings.
2. A systemic Convention challenge must establish that the policy creates a real risk of Article 3 violations in more than a minimal number of cases. It is not enough that the policy is capable of producing an unlawful result or that isolated decisions may be unlawful. The relevant risk must arise from the policy’s formulation, rather than from individual aberrant decisions. The court applied the approach reflected in R(W) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin), R(Miller) v College of Policing [2020] EWHC 225 (Admin), R (Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin), R (Woolcock) v Secretary of State for Communities and Local Government [2018] EWHC 17 (Admin) and BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872.
3. PSI 20/2015 did not require cell sharing where that would breach a prisoner’s human rights. Although its risk assessment process focused principally on prisoner-on-prisoner violence, it also required consideration of wider healthcare issues, reassessment when circumstances changed, and suitability assessment before proposed cell sharing. Paragraph 3.28 expressly permitted healthcare staff to require single-cell accommodation for healthcare reasons outside the CSRA risk issues. The policy therefore did not create the alleged unacceptable risk.
4. The damages allegations required detailed fact-finding concerning the assault, PTSD, treatment and subsequent cell-sharing arrangements. Since related private law proceedings were already pending, the claims should be pleaded and tried together. Judicial review was not an appropriate procedure for that exercise.
5. The defendants were not responsible for the claimant’s healthcare, which was the responsibility of the Secretary of State for Health. There was no arguable basis for requiring them to go behind the NHS Trust’s medical assessments. The application to rely on the psychiatric report therefore became unnecessary to decide.

1. High Court (Administrative Court): His Honour Judge Davis-White QC refused permission on the papers on 22 May 2020.
2. High Court (Administrative Court): Mr Justice Julian Knowles refused the renewed application for permission and declined to determine the application to rely on the expert report.