Muhammad Ibrahim v Ministry of Justice

Web: www.martenwalshcherer.com DISTRICT JUDGE RICH:

1. The case before me today is a claim brought by a serving prisoner, Mr Muhammad Ibrahim, against the Ministry of Justice.

2. The procedural history is as follows. Mr Ibrahim issued this claim on 6 February 2024.

3. The defendant, the Ministry of Justice, did not file a defence within the time stipulated in the Civil Procedure Rules (“CPR”) and so a judgment in default of defence was entered against them.

4. That judgment was set aside by my colleague, DJ Rouine, by his order of 6 September 2024. His order gave a time limit for the filing of the defence.

5. Instead of filing a defence, the Ministry of Justice issued the two applications now before me. The first is pursuant to Part 3.4, CPR and invites me to strike out the claimant’s claim as an abuse of the process or as frivolous or vexatious. The second, in the alternative, asks for summary judgment under CPR 24.3 on the basis that the claim has no realistic prospect of success at trial.

6. The rules are clear that, where an application to strike out a claim or for summary judgment is outstanding, this suspends the need for the party applying for such an order to file further statements of case. If the defendants’ applications fail, I will, of course, give directions for the defence to be filed in short order.

7. The applications are supported by the witness statement of Ms Tresa Joseph of the Government Legal Department dated 23 October 2024 and also I have a helpful skeleton argument from Ms Nagesh, as counsel for the defendant. No further evidence has been adduced by Mr Ibrahim. He has been assisted today by his McKenzie Friend, Mr Truter, and I would like to thank Mr Truter for his assistance to his friend and thus to the court. He has performed his role admirably, if I may say so. I am also grateful to all sides for the courteous way that this hearing has been conducted.

8. This case is about a “Veterans in Custody Wing” at HMP Littlehey, a prison maintained by the defendants, where Mr Ibraham is a serving prisoner. A preliminary point therefore arose as to whether I should hear the applications. This is because I, myself, have served in the military, and so had to ask whether as a result I should recuse myself. I raised the issue with both parties. Neither party wished me to recuse myself, nor did I think I needed to.

9. During the course of the hearing, it became clear that Equality Act 2010 considerations were engaged by the litigation. For the record, I would also like to make it clear that I am, in point of fact, authorised by the Designated Civil Judge for Birmingham to hear Equality Act cases.

10. So much for the background. Let me turn to the claim itself and what it is about.

11. The claim form itself gives these brief details, typography slightly amended by me:: “On 18 December 2023, HMP Littlehey engaged in a frolic of their own by creating a landing that is specifically for Veterans in Custody (‘VICs’). This landing, located on B-Wing, has all the privileges that an enhanced landing has, even though it is not connected to “standards of behaviour” that is allowed under Ministry of Justice (‘MOJ’) policy. This landing relates to employment history and allows for the special treatment of a minority of prisoners that is not afforded to any other group of prisoner, this includes protected characteristics. The creation of this landing breaches Rule 8 of the Prison Rules 1999 and Incentives Policy Framework. As a consequence to not adhering to these, the Defendant is in breach of Article 14 Rights under the Human Rights Convention by way of differential treatment on the basis of an ‘other’s status’.

12. Under value the Claim Form states: “ The claim is for breach of Article 14 rights = £10,000.”

13. In the course of argument before me it was properly accepted by Mr Ibrahim that a claim under Article 14 of the European Convention on Human Rights, as incorporated into UK law by the Human Rights Ac 1998, could not be sustained as Article 14 does not establish a fresh right but rather deals with how other Convention rights are to be delivered without improper discrimination.

14. That is not the end of the matter as Mr. Ibrahim seeks to put the matter before me on the alternative basis of a breach of the Equality Act.2010. His case is that by setting up a wing which has got enhanced facilities for those with a particular occupational background, and where those conditions or facilities are in some way more advantageous than those available to the general population of the prison, then that is inherently discriminatory against others without that background.

15. He contends that such a regime is in breach of the Prison Rules 1999 as it allows access to privileges not attributable to behaviour but to another cause. He also submits that such a policy also constitutes a breach of the public duties imposed on the defendants by the Equality Act 2010 .

16. What are the circumstances applying to this wing? The factual background is explained to me in Ms Joseph’s statement. She explains that the “Veterans in Custody Landing” prisoners are not awarded, or maintained on, an advanced or enhanced privilege regime simply by virtue of being on that landing.

17. Mr Ibrahim replies that the facilities on that landing are better than elsewhere in the prison and draws my attention to the availability of things like cooking facilities, protected access and other benefits.

18. Ms Joseph also explains to me that the wing was created on the operational authority of the prison governor based on the defendant’s (that is the Ministry of Justice’s) previous analysis that ex-service personnel prisoners are known to need a greater degree of support in certain areas, for example in respect of alcohol misuse.

19. She goes on to say that it is commonplace and uncontroversial for prisons to have designated units, or even entire wings, for prisoners with particular needs or attributes. She gives as examples special facilities for prisoners requiring greater support due to substance misuse, or prisoners considered to be at risk from other prisoners.

20. I now turn to review the general framework for privileges regimes in prisons.

21. In principle, it is for the governor of each prison to organise the prison concerned as he or she sees best, subject to compliance with the law.

22. There is a requirement for a prison governor to maintain a privilege scheme and they must have at least three levels; basic level, the standard level and an enhanced level. Mr Ibrahim correctly points out that privilege regimes are governed by rule 8(3) of the Prison Rules 1999 (SI 1999/728).

23. Privileges under Rule 8 (1) may include arrangements under which privileges may be granted to prisoners but by Rule 8(3) only insofar as the prisoners concerned have met, and for so long as they continue to meet, specified standards in their behaviour and their performance in work or other activities.

24. Mr Ibrahim’s case, in a nutshell, is that because, as he sees it, prisoners detained on the Veterans in Custody wing have enhanced privileges by the mere fact of being on that wing, it cannot be part of the privilege scheme because their presence on the wing relates not to behaviour but to their previous employment before imprisonment.

25. He also argues that that is discriminatory because other groups, who may have protected backgrounds, do not have access to such advantageous arrangements.

26. As I said, it is common ground that the claim, insofar as it is based on the Human Rights Act 1998 and Article 14 of the Convention, is doomed to failure because Article 14, prohibiting discrimination, does not give any freestanding rights. It merely qualifies how the substantive rights granted under other Articles of the European Convention on Human Rights, are to be delivered.

27. This brings me on to whether or not the establishment of the Veterans in Custody wing is, at least arguably, in breach of the defendants’ Equality Act 2010 duties.

28. The first point, of course, is that the fact of being a veteran does not, of itself, give anyone a protected characteristic under the Act , nor, on the other hand, is the fact a person is not a veteran a protected characteristic.

29. The governor of the prison does have a power to recognise and address the special needs, insofar as he or she can, of any prisoner or class of prisoners. and they are given a broad discretion in the exercise of that power.

30. I am not satisfied that the establishment of a Veterans in Custody wing of itself breaches the Equality Act. Indeed, Mr Ibrahim himself, in his opening submissions, said that he did not suggest that the existence of a Veterans in Custody wing was of itself objectionable. What he suggested was that the more relaxed regime available to inmates on that wing, but which had not been earned by them, was improper.

31. This wing has been established, I am told by the uncontroverted evidence of Ms Joseph, to deal with the special problems of veterans now in prison. It is within the discretion of the governor, and, in the circumstances as put before me, I do not see that a breach of the Equality Act 2010 is even arguable.

32. That is particularly so in the light of the uncontroverted evidence of Ms Joseph that, in fact, the placing of a prisoner on the wing does not enhance that prisoner’s status for privileges purposes.

33. Ms Joseph suggests that it is merely that there are different living conditions on that wing, as there often are across the prison estate as a whole, a point I accept and about which I am sure all those on this remote hearing will have better experience than I.

34. I therefore find that the regime that applies to the Veterans in Custody Wing at Littlehey Prison does not of itself breach the Equality Act 2010

35. I therefore regard the claim, in so far as it alleges a breach of the Equality Act 2010 , as bound to fail.

36. The doomed Human Rights Act 1998 /Article 14 claim on its own engages CPR 3.4(2), placing the claim in jeopardy.

37. I have gone further in this hearing to explore whether an alternative, as yet unpleaded, claim under the Equality Act 2010 would ever have had any realistic prospect of success and I conclude that it does not.

38. That being so under CPR 3.4(2), I may strike out the case if it appears to the court, as here it does, that the statement of case discloses no reasonable grounds for bringing or defending the claim, or it is an abuse of process or there has been a failure to comply with a rule.

39. Even if I am wrong about the application of CPR 3.4, on the state of the evidence before me and in the light of Ms Joseph’s account of the position, it seems to me that the Claimant would have no realistic prospect of success at trial, even if the claim were amended to argue the Equality Act 2010 point in the alternative.

40. That is because, in my view, the mere fact that conditions on different landings differ does not of itself amount to an infringement of Prison Rule 8 and falls within the governor’s general authority to address the specific needs of specific groups of prisoners differently.

41. It therefore follows, for all of those reasons, that I will strike out the claim.

42. My order will be that the claim is struck out under CPR 3.4(2)(a) and in the alternative dismissed under CPR 24(3) with judgment for the defendants in either event. Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com