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July 10, 2017

High Court rejects judicial review calling for action to protect prisoners from suicide

In R (on the application of Scarfe and others) v Governor of HMP Woodhill and The Secretary of State for Justice [2017] EWHC 1194 (Admin), [2017] All ER (D) 138 (May), three relatives of recently deceased prisoners at HMP Woodhill brought judicial review proceedings seeking to challenge what they described as “the Defendants’ failures to comply with their public law, common law and article 2 ECHR duties to protect prisoners at HMP Woodhill from suicide”, contending that those failures were ongoing.

They sought a declaration that the Defendants had breached those duties and an order requiring them to comply with the mandatory provisions of national prison policy. INQUEST intervened in the proceedings.

The context for the application was what was agreed to be the very high rate of self-inflicted deaths at HMP Woodhill. Over the past four years, 18 prisoners had taken their own lives, with seven having committed suicide in 2016 alone. These deaths represent both the highest rate and the highest number of self-inflicted deaths in any prison in the entire prison estate.

As of the time of the judgment (May 2017), 11 inquests had been held, with the Coroner producing a number of PFD reports. The Prisons and Probation Ombudsman for England and Wales has carried out investigations into 13 deaths, finding a number of shortcomings and failures.

The Prison had, without exception, accepted all the recommendations made by the PPO and the Coroner. The Claimants contended, however, that despite accepting these recommendations and preparing such plans in response, “similar failings” were being repeated in successive cases and that the Defendants had breached the general duty under Article 2 ECHR to put in place appropriate systems to protect life.

The High Court dismissed the application. Referring to the explanation provided by Dyson LJ in R (Long) v Secretary of State for Defence [2015] EWCA Civ 770 as to the distinction between a systemic and an operational failure and applying that approach to the instant case, the High Court held that, on the crucial legal issue, the Claimants had failed to establish that the suicides at HMP Woodhill, or some of them, were the result of a systemic failing by the prison.

Viewed analytically, the evidence demonstrated a series of distinct but separate operational mistakes in suicide prevention at the prison; however, their frequency did not, of itself, demonstrate a failure of the system but instead showed that this was a system prone to operational error. Overall, the evidence demonstrated that different mistakes had been made in specific factual circumstances, rather than the same mistake having been made time and time again.

Irwin LJ and Garnham J also indicated that even if they had been persuaded that there was a systemic error, they were doubtful whether they would have concluded that an injunction, or a mandatory order, or a declaration would have been appropriate. In circumstances where the Defendants had accepted the reports of both the Coroner and the PPO and have sought to address the deficiencies identified, it was not precisely obvious what else should be done to address the problem, the Court commenting that the Claimants’ submissions came close to an argument that “something must be done”, without identifying what it is that could be done.

In the Court’s view, a remedy of the sort proposed by the Claimants would serve little purpose. “The Courts can and do provide a remedy for specific failures in specific cases. However the reality, we suspect, is that this is not a problem with which the Courts are equipped to deal in generality. Suicides in prison raise complex societal issues. The solution to those problems, acute as they are, lies not with judges applying principles of public law but with those who have the unenviable task of managing prisons.”

Simon Emslie