On 8 February 2013, the Divisional Court handed down judgment in the case of R (on the application of Hall) v University College Hospitals NHS Foundation Trust.
H had been convicted of smuggling 3kg of cocaine into the country following a trip to Peru in November 2011. He suffered from Friedreich's ataxia, an incurable disease of the brain and spinal cord which affects the major systems of the body causing progressive disablement. Since 1997, he had been confined to a wheelchair. Since 2003, he has needed day and night care.
The governor of Wormwood Scrubs had confirmed to the court that the prison had facilities to provide proper care for H.
He began serving his sentence in July 2012. On 22 August, he was transferred to hospital. On 31 December, the hospital informed him that he was fit to be discharged. His solicitors brought an application ex-parte and out-of-hours to restrain the trust from discharging H.
H applied for permission to judicially review the decision of the trust to discharge him from hospital back to prison.
H alleged that his treatment in prison between July and August 2012 was such that his life was put at risk so to discharge him back there would expose him to similar risk and would be in breach of Article 2 ECHR. He also alleged that his treatment in prison had breached both Articles 3 and 8 ECHR and that the prison had breached the Equality Act.
The court noted that following Savage v South Essex Partnership NHS Foundation Trust, Article 2 is only engaged where there is a "real and immediate" risk of death. They concluded that the Article 2 claim was unarguable as there was no evidential basis for many of the assertions made and the trust was of the opinion that the discharge was safe. The court specifically noted that was a matter of clinical judgment and that they would be slow to interfere with that.
With regard to Articles 3 and 8, the court reminded itself that Article 3 was drafted in the shadow of the atrocities of World War Two. It noted that it required a "high minimum level of severity" and that, absent of physical injury, it required such severity that undermines or has a significant adverse impact on the personality or will of the individual or some impact akin to that. However, they highlighted this did not mean that complaints which fell short of this high threshold must go unconsidered and that there were ways in which they could be addressed including by way of complaint. Again, the court concluded that the Article 3 claim was not arguable. They noted that in light of the claimant's medical condition, detaining him and providing him with the care he needed was clearly challenging for the prison. However, they said that merely because the level of care he received fell below that to which he was accustomed did not make it contrary to his human rights.
With regard to Article 8, they noted that although a prison regime was no doubt capable of interfering with a person's privacy, no Strasbourg Article 3 cases also invoked Article 8.
Therefore, all in all, permission to proceed with the judicial review was refused.