CASE OF YOUNG v. THE UNITED KINGDOM
Violation of Art. 6-1;Violation of Art. 6-3-c
Nicolas Bratza
6. The applicant was born in 1965 and lives in London. In or around late 1999 the applicant breached an earlier probation order (concerning a charge of deception) and was sentenced to six months’ imprisonment. It was her first time in prison. 7. Her term of imprisonment began in November 1999. She was accorded an unconditional release date of 23 January 2000. 8. The applicant suffered from cerebral palsy, a disorder of the central nervous system which can inhibit voluntary muscle control. She used a wheelchair and could only walk a few steps with assistance. She did not have voluntary control of her bladder meaning that on occasion she either could not urinate for several hours or she urinated uncontrollably and required medication to restrain this. The condition did not affect her intelligence but rather her ability to process information so that she required explanations in plain language and sufficient time for full comprehension. 9. A short medical report from a general practitioner dated 15 August 2000 noted that the applicant was a patient of the relevant practice and that her condition could have affected her ability to produce a urine sample on demand as voluntary control of the nervous system is always affected by cerebral palsy. While he suggested obtaining a neurologist’s report on these matters, the applicant stated that she could not afford to obtain one. 10. The prison psychotherapist’s report of 31 January 2000 noted that the applicant had been referred in December 1999 given her distress and difficulties in coping with her imprisonment. It noted as follows: “Largely confined to a wheelchair, [the applicant] manifests obvious physical symptoms of cerebral palsy as well as somewhat less obvious mental ones. [The applicant] possesses an excellent vocabulary and a reasonably well-developed capacity to think logically that places her well in the highest range of mental functioning for those who have the condition from which she suffers. Thus it seems that she often strikes those who meet her as an individual with a normal range of mental functioning but a difficult personality. In fact, [the applicant] experiences problems dealing with any sort of symbolism in language: she is openly vocal about her distaste for what she calls slang. Any explanation given to her needs to be couched in concrete terms devoid of metaphor or simile. Often it may be advisable or necessary to write down an explanation so that she may study it at her leisure in order to take it in fully and remember it. When this procedure is followed, she proves well able to make use of information or advice. From [the applicant’s] standpoint, these features of her mental functioning often make it difficult for her to think things through completely and thus to envision what the consequences of her actions may be. From the view point of those who deal with her, it often may seem that she is being difficult or uncooperative when it is in reality the case that she simply has not fully grasped the nuances of the subject at hand. [The applicant’s] life circumstances seem to have been troubled and unhappy. She has felt it necessary to fight ferociously to consolidate and maintain her independence. Thus the stay in <prison> appears to have been a sobering experience for her. It seems rather graphically to have brought home to her the consequences of some of her own actions – actions for which she previously had been unable to envisage consequences. It is difficult for [the applicant] to trust anyone completely, as she feels herself to have been badly let down by key figures in her life (including her mother, foster carers et al). Yet, in a relationship which [the applicant] experiences as one of confidence and caring, she is able to show herself as a warm, even endearing individual.” 11. The applicant was detained in the medical wing of the prison since the normal prison cells were not wheelchair accessible. 12. At about 11.20am on 6 January 2000 a female prison officer asked the applicant to leave her education classes. They were then met by two other female prison officers. One of them asked the applicant if she had heard about MDT. The applicant replied that she had not and she was informed that it was mandatory drug testing. One of the officers requested the applicant to provide a urine sample immediately. The applicant alleged that she said that she would not be able to produce a sample: the Government did not accept this. 13. She was taken to the MDT unit, given a container and asked to provide a specimen. While the applicant claimed that she said again that she could not provide a urine sample, the Government maintained that she simply refused to provide a sample. She claimed that she began to explain why she could not provide a sample but that her explanation was brushed aside. She was offered a cup of water, which she declined. She maintained that this was because she knew that the water would not assist because the problem was not whether her bladder was full or not but whether she had the motor control to provide a specimen on demand and because she was concerned as to whether the water was fresh. 14. The applicant was taken to her cell by the officers and she was told that she could provide her sample there. A female officer remained in the cell with her and the applicant felt distressed by this. She claimed that, at about midday, she reiterated that she could not urinate. She submitted that the prison officer appeared irritated and informed her that she was going to put that down as a refusal which could result in additional days’ detention. The Government claimed that she refused once again to provide a sample. 15. She claimed that the officers who dealt with her were brusque and business-like. None of the officers asked her about her condition or whether she would need assistance in providing the urine sample and she was not offered the possibility of speaking confidentially with a medical officer or a structured manner of providing the sample over several hours. She admitted, however, that she did not explain to them that she could not urinate as a result of her disability. She alleged that she did inform the officers that she was menstruating (the Government disputed this) but, in any event, she accepted that she did not use her menstruation as an excuse for not providing a urine sample. 16. On 7 January 2000, at approximately 7.00-7.30 a.m., a male officer came into the applicant’s cell and read an “official-sounding” paper about “a refusal”. The applicant was asked to sign it but refused to do so. She maintained that this was because she had just woken up and did not understand what was happening. The paperwork was left in her cell. This paperwork appears to have been a notice of report, which informed the applicant that she had been placed on report for the alleged offence of disobeying a lawful order to provide a urine sample. 17. Later that day, she was sent to see the Governor when it was explained to her that she was being “put on report”. There were two officers in the room at the same time. Her account was that, feeling intimidated and not understanding the jargon they were using, she asked if she could have someone with her. The Governor refused, stating that this would only be allowed for someone with severe learning difficulties. The Governor did not ask her if there were any medical reasons why she should be assisted. The Government disputed the applicant’s account of this meeting. 18. The matter was adjourned to the following week, to allow the relevant prison officer to attend to give evidence. In the meantime, the applicant was seen by a medical officer who certified her as fit to take part in the hearing. She did not inform the medical officer either that her disability had prevented her from providing a urine sample, explaining that this was because the medical officer never asked. 19. On 11 January 2000 the applicant appeared again before the Governor. The Government submitted the record of the adjudication hearing which was filled out by the Governor at the hearing. Question 7 on Part 2 of the form enquires: “Do you want any additional help at this hearing? (If yes, explain the possibilities of assistance by a legal friend or legal representative)”. The Governor had ticked the box saying “No”. The applicant claimed that her request for legal representation was refused. 20. The applicant submitted that she was not asked any questions about her disability or whether she had problems urinating. The allegation of a refusal to give a sample was put to her. She claimed that she tried to explain as best she could and that the Governor indicated that most people could provide a sample when asked and he noted that she had refused water. She accepted that she did not inform the Governor during the adjudication hearing that her disability had prevented her from providing a urine sample. The Governor found the charge of disobeying a lawful order to have been proven and sentenced the applicant to 14 additional days’ detention. She was informed that she could appeal. 21. With the assistance of the prison chaplain, she obtained and completed on 12 January 2000 a complaint form. She noted in the form that she had not represented herself as well as she wished and would have benefited from a prepared statement. She indicated that she had bladder problems, exacerbated by the stress of her imprisonment and she disclosed that she had been menstruating. She indicated her willingness to provide a urine sample and requested to be allowed the time for which Rule 46A(7) of the Prison Rules 1964 had provided. In an attached statement, she made it clear that she had not refused to provide the sample but simply could not due to her disability. She indicated that she had recently gone more than 24 hours without urinating. She further requested some assistance in order to comply with the prison rules as they had been drafted with able-bodied persons in mind and did not make allowances for those with disabilities. She expressed extreme distress at having to discuss her bodily functions and requested that the 14 additional days’ be withdrawn. 22. On 14 January 2000 the Governor replied that he had spoken to the prison chaplain, read the applicant’s submissions and discussed the case with the prison service area manager, the latter of whom had read the papers. The area manager agreed that the charge had been proven and that the award of additional days could be reduced to 3 additional days (with no association with other prisoners for 3 nights and 7 days’ stoppages in pay). She was also to provide a urine sample under the MDT arrangements. 23. The applicant sought legal advice. Her legal representatives could not contact her by telephone and were offered a visit after her initial release date. Accordingly, they made written representations by letter dated 19 January 2000 to the Governor and to the prison service area manager outlining the applicant’s condition, how that had prevented her providing the sample and her distress and embarrassment. They sought the withdrawal of the 14 additional days’ award, in default of which proceedings under the Disability Discrimination Act 1995 would be pursued. 24. The applicant was released on 26 January 2000. In his letter of 27 January 2000 to the applicant’s representatives (confirming a telephone conversation of 20 January 2000) the area manager stated that, while information was received by the Governor after the adjudication causing him to vary the sentence, that information did not cause the Governor or the writer to consider that the finding of guilt was flawed or should be quashed. He was further satisfied that the adjudication was conducted in a fair and proper manner. He noted that the applicant had not explained her difficulties to the officers involved in the test process, nor availed herself of the opportunity subsequently to talk through the issues with the Governor. That letter indicated that a medical officer had informed the Governor that she had been fit to appear and had made no comment to the Governor that she was unable to comply with an order to provide a sample. 25. On 11 July 2000 the applicant’s representatives complained to the Home Secretary about the prison adjudication matter. They received an acknowledgement dated 8 August 2000. 26. The Court refers to its outline of the relevant domestic law and practice in the case of Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, §§ 31-62). 27. MDT is permitted by section 16A(1) of the Prison Act 1952 (as amended in 1994). Section 16A(2) allows the request for a sample of any other description specified in the authorisation, not being an intimate sample, instead of or in addition to a urine sample. 28. Rule 50 of the Prison Rules 1999 provides as follows: “(1) This rule applies where an officer, acting under the powers conferred by section 16A of the Prison Act 1952 (power to test prisoners for drugs), requires a prisoner to provide a sample for the purpose of ascertaining whether he has any controlled drug in his body. (2) In this rule “sample” means a sample of urine or any other description of sample specified in the authorisation by the governor for the purposes of section 16A of the Prison Act 1952. (3) When requiring a prisoner to provide a sample, an officer shall, so far as is reasonably practicable, inform the prisoner: (a) that he is being required to provide a sample in accordance with section 16A of the Prison Act 1952; and (b) that a refusal to provide a sample may lead to disciplinary proceedings being brought against him. (4) An officer shall require a prisoner to provide a fresh sample, free from any adulteration. (5) An officer requiring a sample shall make such arrangements and give the prisoner such instructions for its provision as may be reasonably necessary in order to prevent or detect its adulteration or falsification. (6) A prisoner who is required to provide a sample may be kept apart from other prisoners for a period not exceeding one hour to enable arrangements to be made for the provision of the sample. (7) A prisoner who is unable to provide a sample of urine when required to do so may be kept apart from other prisoners until he has provided the required sample, save that a prisoner may not be kept apart under this paragraph for a period of more than 5 hours. (8) A prisoner required to provide a sample of urine shall be afforded such degree of privacy for the purposes of providing the sample as may be compatible with the need to prevent or detect any adulteration or falsification of the sample; in particular a prisoner shall not be required to provide such a sample in the sight of a person of the opposite sex.” 29. Rule 51(22) of the Prison Rules 1999 provides that it is an offence against prison discipline to disobey a lawful order.