THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33394/96 
by Adele Ursula PRICE 
against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 12 September 2000 as a Chamber composed of

Mr J.-P. Costa, President,

Mr W. Fuhrmann,

Mr L. Loucaides,

Sir Nicolas Bratza,

Mrs H.S. Greve,

Mr K. Traja,

Mr M. Ugrekhelidze, judges,

and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 23 July 1996 and registered on 9 October 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant is a British citizen, born in 1962. She currently has no permanent address.

She is represented before the Court by Paul Bloom of Thimbleby Fisher solicitors, Spilsby.

Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is four-limb deficient as a result of phocomelia due to Thalidomide. She also suffers from problems with her kidneys. On 20 January 1995, in the course of civil proceedings in Lincoln County Court for recovery of a judgment debt, she refused to answer questions put to her concerning her financial position and was committed to prison for seven days for contempt of court. In the applicant’s recollection, the judge ordered that she should be taken directly to Wakefield prison. Before leaving the court the applicant asked a court officer if she could take the battery charger for her wheelchair with her. She was alleges that the officer told her that this would be considered a luxury item and that she would not, therefore, be able to bring it.

Because the applicant’s case had been heard during the afternoon of 20 January 1995, it was not possible to take her to prison until the next day and she spent that night in a cell in Lincoln Police Station. This cell, which contained a wooden bed and a mattress, was not specially adapted for a disabled person. The applicant alleges that she was forced to sleep in her wheelchair since the bed was hard and would have caused her pain in her hips; that the emergency buttons and light switches were out of her reach; and that she was unable to use the toilet since it was higher than her wheelchair and therefore inaccessible.

The custody record states that on arrival, at 7-20 p.m., the applicant informed the custody officer that she suffered from kidney trouble and a recurring ear infection but that she did not require any medication or to see a doctor at that time. At 7-50 p.m. she declined a meal and a hot drink. At 8-50 p.m. the applicant said she was cold so the officer wrapped her in two blankets. When she was checked again at 9-15 p.m. the applicant was still complaining of cold. At 9-35 p.m., since she was still cold and had a headache caused by the cold, another blanket was wrapped around her. She was offered a hot drink which she refused. The applicant was asleep at 10 p.m. but by 10-50 she was awake, complaining about the cold, and again refused a hot drink. At 11-15 p.m. she asked to see a doctor, who arrived at 11-50 p.m. The doctor’s note of his examination of the applicant at 12-35 a.m. states:

“Patient complained of feeling cold, headache and queasy (no food since admission - offered but refused). Talking quite sensibly, not obviously hypothermia, seated in wheelchair. Tells me unable to lie flat and sleeps on sofa, sitting up, at home. On Erythromycin for ear infection. On examination ears NAD Nystigmus J36. Unfortunately the facilities available in the cells for this type of disabled person (sic). Really requires a room temp in the high 70’s as not moving/not able to move around.  
  Insulated with ‘space blanket’ and extra blankets.  
  Offered/given Paracetamol and [bn] stemetil as no co-proxamol available.”

 

 According to the custody record, the applicant slept until 7 a.m. when she was moved to another cell and offered food and drink, which she refused. At 8-30 a.m. she was taken to New Hall Women’s Prison, Wakefield, where she was detained until the afternoon of 23 January 1995.

The applicant was not placed in a normal cell in New Hall, but was instead detained in the prison’s Health Care Centre. Her cell had a wider door for wheelchair access; hand pulls in the toilet recess and a hydraulic hospital bed. On arrival at the prison the applicant completed a medical questionnaire. She stated that she had health worries but that they were “under control - takes it as it comes”. Staff Nurse Broadhead, who countersigned the questionnaire, wrote:

“Admitted into hospital mainly for mobility problems. Inmate has thalidomide and uses an electric wheelchair which would be difficult to use in the main prison due to steps eg to dining room. Has not brought chair charger with her as she says police wouldn’t let her.  
She suffers from urological problems and has intermittent renal failure. … Is able to feed herself if food is cut up, is able to use cup. Manages on and off the toilet to P.U. [pass urine] but will need assistance with B.O. [opening bowels] in order to clean herself.  
Usually sleeps on a couch at home and her dog helps her up during the night. Will need assistance here during the night to get off bed to use the toilet. Will try to use the hospital bed with backrest out. Contacted Dr Rhodes re help for night nurse. Memo done to Night Orderly Officer and Security re assistance at night and need to unlock … .  
She is allergic to many antibiotics … . Needs frequent changes of clothes due to urinary problems.  
Has settled onto unit and eaten dinner.  
PS: Cannot be lifted in normal fashion as she has a persistently dislocated shoulder due to an old injury.”

The applicant was examined by a doctor, Dr Kidd, whose notes state:

“New reception.  
Thalidomide victim with numerous deformities including absent arms upper/lower with dislocating L shoulder and no use in R upper limb. Both lower limbs are absent with small feet.  
Bladder - is unable to empty completely and gets frequent retentions (when she needs catheterisation) and infection …  
Bowels - … unable to manually clean herself.   
At home she is relatively independent tho’ has numerous services including electric wheelchair - which may need recharging over W/E [weekend].  
In hospital has difficulty with  
 bed - too high   
 sink - unable to reach  
 mobility - battery running down  
 fluid intake - likes to take juice and there is none  
 diet - vegetarian  
 general hygiene - needs help. …  
Needs fluid intake  
  batteries recharged  
  adequate temperature … .”

During the applicant’s detention she was the subject of a “continuous medical record”. The first entry dated 21 January 1995 states:

“I asked duty Governor, Mr Ellis, to give permission for a battery charger for Adele’s wheelchair to be brought in if we could arrange it. He agreed to this and whilst here we pointed out the numerous problems staff may encounter with this inmate i.e.  
 (1) Needs lifting in and out of bed and she says this is usually done by one person standing behind her with arms around her midriff then lifting her either onto the bed or onto her wheelchair.  
 (2) She has, at home, a device worked by compression that gets her in and out of the bath. If she doesn’t have a daily bath she risks developing sores, especially where her foot lies across her ‘leg’.  
 (3) Because of recurrent urinary infections she should take two litres of fluid daily but usually has juice and doesn’t like water, therefore will probably reduce her fluid intake. After some consideration Mr Ellis decided that if we could find Adele a suitable place in outside hospital he would licence her to go, but we do not have any medical condition to admit her to hospital with. Dr Kidd will review Adele tomorrow, as he thinks there is a likelihood she will develop a UTI [urinary tract infection].”

The nurses who cared for the applicant during her detention kept a contemporaneous record, which states for the night of 21 January 1995:

“Impossible to toilet during the night. Have been into Adele’s cell twice. Took over 1/2 hour to toilet her then could not get her back on the bed. Given analgesia and she is getting a great deal of pain through laying on a solid mattress. Very difficult to care for her with one nurse.”

The applicant alleges that on the evening of 21 January 1995 she was lifted on to the toilet by a female prison officer, but was then left sitting on the toilet for over three hours until she agreed to allow a male nursing officer to clean her and help her off the toilet. The Government submit that on 21 January 1995 there was only one female nurse on duty, Nurse Lister, and that she enlisted the help of two male members of staff, Senior Officer Tingle and Officer Bowman; that the two male members of staff assisted Nurse Lister in sitting the applicant up and then left the room while the applicant moved her bowels; and that Nurse Lister then cleaned the applicant and laid her back down. It is unclear from the Government’s submissions whether Senior Officer Tingle and Officer Bowman were nursing staff or whether they were prison officers without nursing qualifications. The applicant further claims that later in the evening of 21 January 1995, a female nursing officer who was assisting her onto the toilet removed her bedclothes in the presence of two male prison nursing officers, thereby exposing her, naked from the chest down, to the male officers. The Government deny that these incidents occurred. They point out that prior to her release the applicant made a complaint to the Prison Governor concerning the lack of adequate facilities, but containing no mention of the above events.

An agency nurse was employed to care for the applicant during the night of 22-23 January 1995. The entries in the nursing record for 22 January state:

“Says she finds bed uncomfortable and there is a risk of her developing bed sores, but she is not completely immobile and is able to shift her weight about the bed. No problems with diet but fluid intake diminished due to her not liking water. There is a need for us to separate Adele’s little whims from her genuine problems.  
Bowels opened, says she’s in retention and has not PU’d [passed urine] since 0100 hours, refusing to drink water, refuses to get ready for bed until 8 pm.  
Night - 21-50 asked to be put to bed. When asked why she was not in bed says day staff said agency nurse was going to wash her and put her to bed.  
23-10 asked to be moved as she was having pains in ‘legs’. Coproximol given and sat up. Settled and slept later. Has not PU. Has been drinking.”

The remission provisions in sections 45 and 33 of the Criminal Justice Act 1991 meant that the applicant had only to serve half the sentence imposed, i.e.. three and a half days. Prior to her release, on 23 January 1995, the applicant was examined by Dr Kidd and found to need catheterising due to urine retention. The medical record states:

“For release this afternoon as soon as transport arrangements can be made. …  
To have bath and bladder emptied via catheter before leaving.  
When asked if she had any specific medical complaints  
 - she only asked for a bath and to be catheterised.   
She had some complaints about her sleeping arrangements. Said that Gv. Mr Ellis had said that she could sleep on a chair and have her cell door open all night. Given that she is due for release today she said her Governor’s application was immaterial. …”.

The applicant was collected from prison by a friend. She claims to have suffered health problems for ten weeks as a result of her treatment in detention, but has not provided direct medical evidence in support of this claim.

On 30 January 1995 the applicant consulted solicitors with a view to bringing an action in negligence against the Home Office. She was granted legal aid, limited to obtaining evidence and seeking counsel’s opinion as to merits and quantum. In his opinion dated 6 March 1996, her counsel referred to the difficulties which the applicant was likely to face in proving that she had suffered the ill-treatment which she alleged, and referred to a judgment of the High Court (Knight and Others v. Home Office and Another [1990] 3 All England Reports, p. 237) which held that, given the lack of resources, the standard of care required of a prison hospital was lower than that which would be required in an equivalent outside institution. Counsel advised that, in the light of this case-law and the difficulties of proof which she faced, the applicant had a limited prospect of success in her claim and that, even if successful, damages were not likely to exceed GBP 3,000. In the light of this advice, the applicant’s legal aid certificate was discharged on 13 May 1996.

B. Relevant domestic law and practice

It is not the normal practice of the County Court to give any direction as to where a particular defendant should be detained. Section 12(1)-(2) of the Prison Act 1952 provide that it is for the Secretary of State to allocate a prisoner to any prison:

“12 (1)  A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.

(2)  Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by the direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.”

COMPLAINTS

The applicant complains that during her time in detention she was ill-treated in breach of Article 3 of the Convention.

THE LAW

1. The applicant complains that her treatment in detention violated Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

2. The Government argue first that the applicant has failed to observe the six month rule under Article 35 § 1 of the Convention. Article 35 provides, so far as material:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. …

4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”

The Government submit that since there was no domestic decision rejecting the applicant’s complaint, the effective date for the purposes of Article 35 § 1 was the final day of her imprisonment, namely 23 January 1995. The application, which was introduced on 23 July 1996, was therefore inadmissible for failure to observe the six month rule.

The applicant submitted that the final decision for the purposes of Article 35 § 1 of the Convention was the discharge of her legal aid certificate on 13 May 1996; alternatively, she submitted that the date of the final decision was 6 March 1996, when counsel advised that an action against the Home Office had limited prospects of success.

The Court must first identify the final decision for the purposes of the six-month time-limit under Article 35 § 1. It considers that, until the discharge of the applicant’s legal aid certificate, the pursuit of an action against the Home Office constituted an effective remedy for her Convention complaint. However, once her legal aid certificate had been discharged on 13 May 1996, it would have been necessary for her personally to conduct the proceedings in the English courts without legal representation.

The Court recalls that the overriding aim of the requirement that an applicant should exhaust domestic remedies is the effective protection of the rights and freedoms guaranteed by the Convention (see the Airey v. Ireland judgment of 9 October 1979, Series A No. 32, § 19). The requirement must be applied with some degree of flexibility and without excessive formalism (see the Cardot v. France judgment of 19 March 1991, Series A No. 200, § 34). The Court considers that it was not clear from the outset that the applicant’s chances of winning substantial damages against the Home Office were so remote as to provoke the removal of legal aid. However, the pursuit of such an action could no longer be considered an effective remedy once the legal aid which she had been granted for this purpose was discharged. In these circumstances the Court considers that the final decision for the purposes of Article 35 § 1 was the decision of the Legal Aid Board on 13 May 1996 to discharge the applicant’s legal aid certificate. Since the application was introduced on 26 July 1996, within the six-month time-limit laid down by Article 35 § 1, the Court must reject the Government’s preliminary objection.

3. As for the merits of the applicant’s complaint, the Government submitted that with the passage of time it was impossible to establish whether or not any indication had been given by the sentencing judge as to where the applicant should be detained, although it was not the normal practice of the County Court to give any such direction. The police and prison authorities had direct knowledge of the facilities available in police stations and prisons and it was, therefore, more appropriate for the courts to leave allocation decisions to these bodies. Even if the judge did not directly consider the applicant’s special needs, this could not in itself amount to a breach of Article 3 unless there was a real risk of serious ill-treatment. There was, however, no such risk, and the treatment she received while in detention fell considerably short of the minimum level of severity necessary to raise an issue under Article 3. Thus, the applicant’s special circumstances were recognised on her reception at New Hall and she was placed in the Health Care Centre, with access to nursing staff who took appropriate measures to ensure that her needs were met with regard to food, drink and hygiene. The Government deny that the applicant was attended to by a male officer or suffered any humiliation or degradation as a result of exposure to male officers, and remind the Court that, according to its case-law, it is for the applicant to prove the substance of her allegations beyond reasonable doubt.

The applicant submitted that the sentencing judge was well aware of her health problems but decided to commit her to prison without first ensuring that there would be adequate facilities. At the police station she was detained in cold conditions which provoked a kidney infection. Her cell in the prison health centre was unadapted to her needs, as was recognised by the prison doctor who examined her on admission, and the nurses and prison officers who cared for her were unsympathetic and did little to help. Throughout the period of her detention she had been subjected to inhuman and degrading treatment which had left her with physical and psychological scars.

The Court considers that the application raises complex issues of law and fact under Article 3 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

S. Dollé J.-P. Costa 
 Registrar President

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- - 33394/96