If one asked a member of the public what they expected a sentencing judge to worry about, one of the last things would be “have you considered whether this is a suitable prison for the defendant having regard to his special needs?” Sentencers normally take no such pro-active role. The judiciary are virtually dependent upon what the defence, the pre-sentence report and to a lesser degree the prosecution places before them. A different view was taken early in July, when the former leader of the Conservative Party, Iain Duncan Smith MP, who is also founder of the Centre for Social Justice, told a crowded Annual General Meeting of the Sheriffs’ and Recorders’ Fund that sentencing judges should maintain involvement and interest in the offender after the sentencing exercise. 

Judicial obligations

There is one—but significant—exception to the usual practice, and which requires the judge to undertake his own enquiries, independent of counsel, on pain of being in breach of art 3 of the European Convention on Human Rights, the provision which prohibits torture, inhuman and degrading treatment. This is when an offender with special needs falls to be imprisoned. There is an absolute duty upon the sentencing judge to satisfy himself that the institution to which the defendant might be sent is fully equipped to provide for him. To date, the case law has only dealt with defendants with severe disabilities.
The duty to ensure this is upon the court, but more precisely, the judge.

The steps to be taken

In Price v UK (2002) 34 EHRR 53 the European Court of Human Rights (“ECtHR”) considered a case where the applicant, a four limb deficient thalidomide victim with numerous health problems including defective kidneys, was committed to prison for seven days for contempt of court in civil proceedings. It was obvious that there were no proper facilities to look after someone in her condition. Prior to sentencing, the judge had taken no steps to ascertain where she would be detained or to ensure that it would be possible to provide facilities adequate to cope with her.

The ECtHR held that there had been a clear violation of her rights under art 3. The fact that there had been no positive intention to humiliate or debase the applicant was irrelevant. In a separate judgment, Judge Bratza, joined by Judge Costa, said, “I can see no justification for the decision to commit the applicant to an immediate term of imprisonment without at the very least ensuring in advance that there existed both adequate facilities for detaining her and conditions of detention in which her special needs could be met … In my opinion, everyone involved in the applicant’s imprisonment—the judge, police and prison authorities—contributed towards this violation [of art 3]. Each of them could and should have ensured that the applicant was not put into detention until special arrangements had been made such as were needed to compensate for her disabilities …”

Put another way, before the sentencing exercise has commenced, the judge must be satisfied that the place of detention is properly equipped to undertake the standard of care required by the defendant.  The principle that medical care of a reasonable standard be afforded to all prisoners is well-founded. In Gelfman v France (para 50) the ECtHR observed that the State is required “to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that given the practical demands of imprisonment, their health and wellbeing are adequately secured by, among other things, providing them with the requisite medical assistance”. This is not to say that defendants with special needs cannot be imprisoned, but there is a process that is demanded of the sentencing judge.

Domestic consideration of ECtHR rulings

In R v Hetherington [2009] EWCA Crim 1186 the Court of Appeal recently considered the ECtHR rulings in the case of a defendant who suffered from spina bifida, hydrocephalus and incontinence, and who had received an 18 month sentence. The sentencing judge did engage in an exercise at the time of sentencing. He had ample evidence of the defendant’s condition but (as I submitted as defence counsel) only a cursory letter which said that HMP Birmingham, Winson Green, alone had the healthcare facilities which could accommodate the defendant. It was the defence case that he therefore lacked sufficient evidence to ensure that “the defendant was not put into detention until special arrangements had been made”. Lacking that evidence he should have heeded the judgment of Judge Bratza. Instead of proceeding on the basis that the medical needs could be dealt with at Winson Green (unless it became apparent that another institution was better able to deal with his needs), the judge should have accepted that he was obliged to find a suitable non-custodial sentence instead.

When the matter came before the Court of Appeal several months later the court considered fresh evidence of what had actually happened at Winson Green. The court acknowledged that they had “a good deal more evidence than was available to the sentencing judge” and the judgment lists various factors. For example, the appellant needed to catheterise himself overnight, so the prison arranged to provide cold water for him through a hatch of the cell door which he could then heat with a kettle. Although the Court of Appeal was working from a different factual basis than the sentencing judge it held that the subsequent information “demonstrates that he was right to conclude” from the prison letter “that the facilities at Winson Green Prison are such that the applicant’s detention there is compatible with his Convention rights”. And “he was entitled to do so on the material before him”. Although “the prison authorities and healthcare authorities have continuing obligations to ensure that the applicant’s dignity and rights are respected” they rejected the contention that the applicant’s medical condition was such that a sentence of imprisonment contravened his Convention rights.   

This cannot be the driving force behind the ECtHR’s observations in Price. Nicholas Bratza in that case directs judges to undertake comprehensive enquiries of sentencing institutions prior to any term of imprisonment being handed down. The judgment must be designed to make sure that special needs defendants are not sent into custody blindly by the court. Failure by the sentencing judge to comply with that practice is the violation.

This is even so if, after later and appropriate enquiry is made, at appeal  an institution is found to be adequate. It cannot be right that when the ECtHR directs, in strong terms, a required level of enquiry by the court, that failure to do so can be ratified by later enquiry. If it were otherwise it would be possible for a court at first instance to avoid its responsibilities under Price and rely on the Court of Appeal to put it right.

So we find ourselves back to the position of judges having very little role to play in the welfare of a defendant before and beyond sentencing, a position criticised by Mr Duncan Smith only a few weeks ago.

Greater involvement?

But perhaps more optimistically, the MP told his audience that he knows of many judges who want to have more information and involvement with defendants outside of the sentencing exercise. Perhaps in this context it is important to remind judges at the earliest opportunity, ideally at the plea and case management hearing that the court will be expected to conduct thorough enquiries into available places in custody for special needs defendants.

While the debate has gone on about whether art 6 has afforded as much “fair trial” protection for a defendant as say the Police and Criminal Evidence Act 1984, it is disappointing that other aspects of the Convention  have not been given the status within the criminal justice system that they deserve. Article 3 and its protection of unsentenced defendants with special needs is a fundamental example of this. The Bar must pursue Convention points in the Crown Court. Although we are overcoming the original scepticism as to the usefulness of this, one can still detect an almost apologetic tone in many submissions which frame a Convention argument.
There still seems to be a reluctance within the courts to fully embrace the protections offered by the Convention. One can almost hear the feared rushing of water through the “floodgates” when counsel utter the letters “ECHR”. This results in a narrow interpretation of authorities such as Price which restricts the protections offered by one of the most important articles in the Convention.
A wave of pragmatism seems to sweep through the Court of Appeal on this issue. Their recognition that the duties placed upon sentencing judges are becoming more onerous, should not artificially restrict the duty of a judge to protect special needs defendants and take a full and comprehensive role in the future of offenders.

Judge Bratza is the keynote speaker at the forthcoming Bar Conference on 7 November.

John Cooper is a barrister at 25 Bedford Row