Garry Cooper & Anor, R (on the application of) v Secretary of State for Justice

The claim challenged the decision to retain the first claimant, a life-sentence prisoner, in a Dispersal prison (HMP Whitemoor) rather than permanently transferring him to a nearer Category B training/standard prison (notably HMP Lowdham Grange) so that his disabled mother could visit. The claim advanced breaches of the duty to make reasonable adjustments, the Public Sector Equality Duty under section 149 of the Equality Act 2010, interference with article 8 ECHR family-life rights and irrationality.

The court held that the defendant had taken objectively reasonable steps to mitigate the disadvantage caused by the distance by permitting accumulated visits, telephone and video contact and temporary transfers for accumulated visits. Security and risk considerations (including the claimant's offence profile, leadership of a county-lines gang, violent offending and the presence of co-defendants/associates near Lowdham Grange) justified retaining him within the Dispersal/Long Term and High Security Estate. The court accepted the defendant had breached the PSED but concluded, applying section 31(2A) Senior Courts Act 1981, that the outcome would very likely have been the same; accordingly relief was refused. The court also found no established article 8 interference of a kind that would be disproportionate, and in any event any interference was lawful and proportionate given the legitimate aims of public safety and prevention of disorder.

This is a first‑instance judicial review brought by Garry Cooper and his mother (MB) challenging the Secretary of State for Justice's refusal to re-allocate the claimant prisoner from a Dispersal/Long Term and High Security Estate prison (HMP Whitemoor) to a nearer Category B training/standard prison (principally HMP Lowdham Grange) so that MB, who suffers from multiple severe medical conditions and substantial mobility and cognitive impairment, could visit him more easily.

The claimants sought relief on four grounds: (1) breach of the duty to make reasonable adjustments under the Equality Act 2010; (2) breach of the Public Sector Equality Duty (PSED) under section 149; (3) unlawful interference with article 8 ECHR rights to respect for family life; and (4) irrationality of the allocation/transfer decisions. The court treated irrationality as intertwined with the reasonable-adjustments challenge.

Background facts: Mr Cooper is serving a life sentence with a long minimum tariff for murder and related violent and drugs offences; he was allocated to and has been held in a Dispersal prison because of his offence profile, risk and sentence stage. The defendant declined permanent transfer on security grounds but permitted and facilitated periodic temporary transfers for accumulated visits, video and telephone contact and some periods of medical hold and temporary relocation for visits.

The issues the court framed and decided were:

• (i) whether the defendant had failed to take reasonable steps (the reasonable-adjustments duty) to alleviate the disadvantage caused by MB's disability;
• (ii) whether the defendant breached the PSED in the allocation/transfer decision and, if so, whether relief should be granted having regard to section 31(2A)/(2B) Senior Courts Act 1981;
• (iii) whether there was interference with article 8 ECHR rights and, if so, whether any interference was lawful, necessary and proportionate.

Reasoning in brief: the court applied established reasonable‑adjustments principles (including guidance in Rowley) and found that accumulated visits, video and phone contact and the temporary transfers already provided amounted to reasonable and real adjustments in all the circumstances. The court accepted there had been a procedural breach of the PSED but concluded, on the evidence given by the defendant about security measures, risk profile and location of associates/co‑defendants, that it was highly likely the outcome would have been the same and therefore refused relief under section 31(2A). On article 8 the court concluded that visits had not been made "very difficult or even impossible" given the availability of accumulated visits and other contact and, alternatively, any interference was justified by the legitimate aims of public safety and prevention of disorder because of the claimant's assessed risk.

The court therefore dismissed the application for judicial review, while expressing sympathy for the claimants' practical difficulties in maintaining contact.

The claim is dismissed. The court found that (i) the defendant had taken objectively reasonable steps to mitigate the disadvantage caused by the second claimant's disabilities (accumulated visits, telephone and video contact and temporary transfers for visits) and a permanent re‑allocation to a non‑Dispersal prison was not a reasonable adjustment in the circumstances because of security and risk considerations; (ii) although there was a procedural breach of the Public Sector Equality Duty, it was highly likely the outcome would have been the same and relief was therefore refused under section 31(2A) Senior Courts Act 1981; and (iii) visits were not so difficult or impossible as to amount to a disproportionate interference with article 8 ECHR, and if there were interference it was lawful and proportionate given the legitimate aims of public safety and prevention of disorder.