Mentally disabled prisoner discriminated against by authorities
20 May 2010
R (on the application of Dennis Gill) v Secretary of State for Justice – Read judgment
The Secretary of State for Justice should have done more to enable a prisoner with learning difficulties to participate in programmes which could have helped him gain an earlier release. In finding that the prisoner was discriminated against, the High Court has set down a precedent which will affect many other learning disabled prisoners.
Mr Justice Cranston held that participation in offender behaviour programmes would have made it easier for Mr Gill to persuade a Parole Board that he was suitable for release. His participation in them had been recommended but his learning difficulties had prevented him from taking part, and as such the Secretary of State for Justice had discriminated against him contrary to the Disability Discrimination Act 1995.
In order for Mr Gill, who was serving a life sentence, to be released from prison, he had to satisfy a Parole Board that it was no longer necessary for him to be confined. Although participation in offender behaviour programmes is not necessary to show this, in practice it can assist a prisoner in reducing his or her risk of reoffending and in demonstrating that.
Mr Justice Cranston noted in the first paragraph of his judgment,
“In essence his case is that this has greatly impeded his ability to reduce his risk and progress towards release, and that this constitutes not only a breach of the Disability Discrimination Act 1995 (“the 1995 Act”) but also a breach by the Secretary of State for Justice (“the Secretary of State”) of the public law duties imposed on him.”
In relation to the 1995 Act, Mr Gill alleged that in three ways, the Secretary of State had acted unlawfully:
“(i) in breaching his duties to make adjustments, and to provide aids and services, to enable [Mr Gill] and inmates with learning disabilities to undertake offending behaviour work; (ii) in directly discriminating against [Mr Gill] by refusing to provide him with offending behaviour work; and (iii) in failing to comply with the duty to eliminate discrimination under section 49 of the 1995 Act by not putting in place practices relating to the provision of offending behaviour work for those with learning disabilities similar to [Mr Gill]’s.” (Paragraph 48)
Cranston J considered that the case concerned a purely governmental function: the continued detention of Mr Gill. At section 21B(1), the 1995 Act prohibits the discrimination against disabled people in the carrying out of governmental functions by public authorities.
The six step Lunt test
Cranston J applied the six step test used in R (on the application of Lunt) v Liverpool City Council  EWHC 2356 (Admin) for a public authority to apply when facing an indirect discrimination claim, such as Mr Gill’s.
The first question is whether the public authority has practices, policies or procedures regarding access to offender behaviour programmes: clearly, this is the case.
Secondly, did the practice, policy or procedure make it impossible or unreasonably difficult for disabled persons to receive any benefit that is or may be conferred by the public authority? Cranston J considered that it was impossible for Mr Gill to make use of offender behaviour programmes, because his intellectual ability prevented him getting a place on a programme, despite his participation in such programmes being recommended by a Parole Board, among others.
The third leg of the test is to ask whether the Secretary of State came under a duty to take such steps as were reasonable in all the circumstances of the case to change the relevant practices to allow Mr Gill access to the programmes (section 21(1) of the 1995 Act ). Cranston J found that this duty did arise.
Fourthly, the question of whether such steps were taken was answered in the negative. Cranston J noted, “One dimension to the Secretary of State’s failure to comply with his duty to take reasonable steps is that he has not explored adequately making adjustments to existing behaviour programmes so [Mr Gill] could benefit” (paragraph 70). Options would have been giving a programme on a one-to-one basis, or providing Mr Gill with a suitably qualified person to assist him in undertaking a programme. He could also have been transferred to another establishment which could better meet his needs.
However, no steps taken by the Secretary of State had provided Mr Gill with access to a service as close as it is reasonably possible to get to the standard ordinarily offered. This answers the fifth question: whether the effect of the failure to take steps has made it unreasonably difficult for the disabled person to access the benefit in question.
Finally, the question of whether the failure to comply with the duty is justified arises. Cranston J did not find any sufficiently persuasive reason for the failure.
These findings led to the conclusion that there was a breach of the 1995 Act.
Failure to comply with policies
Cranston J also found that the Secretary of State breached the public law duty
“to comply with his policies unless he has good and clear reasons for not doing so... In particular, it was submitted, the Secretary of State was in breach of PSO 4700, in not prioritizing offending behaviour programmes for [Mr Gill]; PSO 2855, in not consulting specialist organizations or considering alternative offending behaviour work; PSI 2008/31, in not ensuring access to offending behaviour work or considering reasonable adjustments to existing programmes or transfer; and the May 2007 and May 2009 policy statements, in the assessment of his suitability for offending behaviour programmes ” (paragraph 77).
The Secretary of State’s response was that there had been compliance with these policies and that they were not as definite in their wording as Mr Gill contended.
Cranston J found that,
“once offending behaviour work became…part of [Mr Gill]’s sentence plan target, albeit prospective, certain of the Secretary of State’s policies applied. PSO 4700 provides that an essential element for short tariff lifers is that they “complete any assessment required”. PSO 2855 is another example: as quoted earlier, it provides that where attendance at particular courses is necessary for the successful completion of a prisoner’s sentence, reasonable adjustments must be made to allow prisoners with disabilities to participate. Under PSI 31/2008 prisoners with disabilities must be able to follow their sentence plans and satisfy the conditions for parole. None of these policy requirements were fulfilled in the case of [Mr Gill] through enabling him to access some type of offending behaviour work. The Secretary of State has not put forward good and clear reasons for such breaches” (paragraph 79).
Consequently, there was also a breach of this type of duty. A declaration of breach by the Secretary of State was granted.