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Prison Law Reports

Sample case report

[2001]
1 PLR
335

R (McManus) v Head of Assisted Prison Visits

Issue: Whether the levels of assistance to families to visit prisoners breached Art 8 European Convention

Court and Reference: Court of Appeal ; C/3428/3794

Neutral Citation: [2001] EWCA Civ 966

Judge: Sedley LJ

Date: 15 June 2001

Facts: M sought to challenge the mileage allowance of 11p per mile for the 148 mile round-trip to visit his son in prison, together with £2.55 subsistence, as inadequate and so a breach of the right to respect for family life under Art 8 European Convention on Human Rights. Permission to apply for judicial review was refused in the High Court and renewed in the Court of Appeal. (There was a separate application in relation to a social security decision.)

Decision: Whilst visits to a son in prison is an aspect of family life, such that an unwarranted ban on such visits might be a breach of Art 8, the question here was how much state assistance should be provided to enable family members to make the journey: on the evidence, the case could not succeed, as there was


[2001]
1 PLR
R (McManus) v Head of Assisted Prison Visits (CA) 336

nothing more than an assertion that the award was insufficient. Permission to seek judicial review was therefore refused.

Appearances: The Applicant in person. The Respondent did not appear and was not represented.

Judgment:

1. Mr McManus applies for permission to appeal in two distinct cases which he has brought, without success, before Blofeld J in the Administrative Court seeking permission to apply for judicial review.

2. The first case concerns the limitation of the amount which the Assisted Prison Visits Unit was prepared to allow him in order to visit his son in prison. Mr McManus first queries whether he needs permission to appeal. At one point he may have been mistakenly advised that he did not. CPR Part 52 para 15.1 makes it clear that permission to appeal is needed, so he is in the right court making the right application today.

3. Mr McManus submitted to Blofeld J that the allowance of 11p per mile for the 148 mile round-trip, together with £2.55 subsistence, is an inadequate amount. Its result, said Mr McManus was that his human rights, in particular the right to respect for family life under Art 8 of the Convention, were being interfered with. I have no difficulty with the proposition that visiting a son in prison is an aspect of family life. Nor, therefore, do I have any difficulty with the argument that, for example, an unwarranted ban on such visits might be a breach of that right.

4. The issue becomes more difficult, however, when it is how much state assistance should be provided to enable family members to make the journey. Much more is required in the way of evidence if such a case is to have any hope of success than the assertion that 11p per mile is not enough, even when that is backed, as it was in this case, by the unit’s own admission that its mileage allowance cannot always keep pace with rises in the price of fuel.

5. As Mr McManus will know, there is at least one organisation concerned with the well-being and rights of prisoners’ families which may well be lobbying on these issues and may be able to give Mr McManus advice or help. Blofeld J, in refusing Mr McManus permission to apply for judicial review, not only came to the correct conclusion that the application could not succeed, but also saved him from a potentially very heavy bill of costs when, as was inevitable, he eventually found himself losing the claim against a represented party. I would not be doing Mr McManus any more of a favour if I were to grant him permission to appeal, because he would again face a heavy bill of costs. At the moment he is not incurring any such costs.

6. Mr McManus has informed me that his application has nothing to do with any of the matters which were canvassed before Blofeld J. He says it relates to his right to an independent and impartial tribunal and to reasons for decisions. I see nothing in the history of the case which suggests that he did not have in Blofeld J an independent and impartial tribunal or that he did not receive good and adequate reasons from the learned judge. In my view, there seems to me no ground for appeal.

7. I turn to Mr McManus’ second application against the Social Security Commissioner. Here, too, Blofeld J refused permission to seek judicial review. Permission to appeal is required.

8. Mr McManus sought a disability living allowance on the ground that he was virtually unable to walk. The Disability Appeal Tribunal rejected this on the basis of the opinion of an examining medical practitioner which the tribunal accepted in preference to Mr McManus’ own evidence about his own condition. The Social Security Commissioner refused permission to appeal, holding that there was no arguable error of law in the light of the facts which the tribunal had permissibly found. Instead, therefore, Mr McManus has sought judicial review of the tribunal itself, alleging partiality and irrationality in its decision and also alleging, by way of procedural impropriety, that the tribunal ought to have consulted an independent cardiologist. He also submits that both the tribunal and the Commissioner breached the European Convention on Human Rights by failing to give their decisions in public.

9. Before the judge Mr McManus argued that, since the Secretary of State was unrepresented, the appeal should have been allowed without more. That is not the law and I hope it never will be. Adjudication is not a game of forfeits.

[Tipstaff removed Mr McManus from court due to interruptions]

10. The tribunal’s job was to decide what entitlement, if any, Mr McManus had on the evidence. That evidence included the opinion of an independent doctor. The tribunal were fully entitled to obtain it, and whether they preferred that opinion or Mr McManus’ evidence was for their expert judgment. They accepted that he had medical problems but not that they were bad enough to bring him within the entitlement he claimed. Indeed his mobility in walking out of court just now demonstrates that the tribunal was right in rejecting his contention that he could barely walk. Mr McManus can not only very adequately walk, he can very adequately talk.

11. There was nothing unreasonable about the decision, however unwelcome it was to Mr McManus, nor was there anything demonstrably


[2001]
1 PLR
R (McManus) v Head of Assisted Prison Visits (CA) 337

wrong with the failure to consult a cardiologist, assuming (and I have seen nothing to substantiate this) that they were invited by Mr McManus to consult one.

12. I am not persuaded that there is any arguable breach of Art 6 of the Convention in the absence of a public delivery of judgment by the Disability Appeal Tribunal and the Commissioner. Their decisions are on public record and that, it seems to me, is quite sufficient.

13. For that reason, these applications are refused.


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