Handcuffing prisoner at father's funeral was breach of human rights

Monday 05 December 2022

A prisoner had his human rights breached after being forced to attend his father's funeral in handcuffs due to a risk assessment that was "incapable of justification", the Court of Appeal has ruled.

Former Central Market jeweller Darius Pearce was jailed for seven-and-a-half years for three counts of money laundering in 2021.

He had applied for a temporary release licence in order to attend the funeral or, if this was deemed unacceptable, to be escorted by prison officers.

Prison guidelines at La Moye stated that the starting point for any escorted release would be that inmates with more than two years remaining on their sentence would have to be cuffed at all time – although this would be subject to a risk assessment.

The risk assessment had deemed that Pearce was, according to a recent Court of Appeal judgment, "too high a risk to be permitted to attend the funeral unless in handcuffs".

He applied to the Royal Court to have the ruling overturned but his appeal was dismissed.

Now, the Court of Appeal has ruled that an 'error of law' was made and granted Pearce leave to seek a judicial review against the Home Affairs Minister and the Governor of La Moye Prison.

Pictured: Darius Pearce, who ran a business in the Central Market, was jailed for seven-and-a-half years for three counts of money laundering in 2021.

The Court of Appeal, presided over by Sir Wyn Williams with Sir William Bailhache and Guernsey Bailiff Richard McMahon sitting, ruled: "Despite the policy starting point that a prisoner under escort outside the prison will be handcuffed at all times, there is nonetheless a need for a risk assessment to be completed to establish the level of risk given that prisoners are only escorted outside of the secure environment where necessary and must be kept secure, having regard to the purpose of the visit in question."

Several of the reasons offered at to why Pearce was deemed high risk were discredited by the Court of Appeal which added, in its judgement, that the conclusions reached appeared to be a "rigid application of policy without any genuine risk assessment being conducted".

Some of the reasons offered by the prison governor for Pearce requiring handcuffs to attend the funeral were that the length of sentence, and the fact he is appealing it, meant he could be at risk of absconding, that the public could be placed at threat of harm owing to a 1996 conviction for assault and that Pearce himself could have been placed at risk of violence from people he had defrauded.

The Court of Appeal stated that it was "strikingly absent" from the risk assessment that Pearce had no history of absconding from police or custody and that would "surely have reduced the possible risks of escape on what would likely be an extremely emotional occasion when other members of his family would be present with him to pay their last respects to his father".

The judgment continued: "As to violence, reference was made to a historical conviction for assault on the police in 1996, with verbal altercations which had taken place with two other prisoners whilst in custody as well as with a senior officer.

"That altercation had arisen from the appellant claiming that the others had broken prison rules by opening some legal mail which he had tried to send out using another prisoner's account.

"It is obvious that, that being the cause of the verbal altercation, it was not going to arise again on a visit to his father's funeral, and the historical conviction for an assault on the police in 1996 appears to us to be so distant a conviction that it carried little weight.

"In those circumstances, it is extremely surprising that the appellant was categorised as medium risk on the grounds of violence, and insofar as this means a risk to members of the public, the risk was in our view extremely low."

It added that Pearce was found guilty of money laundering and had not defrauding anyone which, the Court of Appeal ruled, is "a serious offence but hardly exposes him to serious risk of abuse from others and his categorisation as medium risk in this context is also surprising".

The judgment continued that the reasons offered for the requirement Pearce be cuffed for the entirety of his time away from prison was "incapable of justification".

"We are called on to assess whether the appellant's rights under the [European] Convention [of Human Rights] have been breached and have concluded that there is no doubt that they were,' the Court of Appeal judgment added.

"On the assumption that the policy was compliant with the Convention because it called for an individualised risk assessment in every case, the failure to show good cause in this case means that the respondents have not demonstrated that they have acted proportionately in accordance with the Convention. In finding otherwise, the Royal Court made an error of law.

"The policy required all the circumstances to be taken into account in determining whether the application of handcuffs throughout was reasonable... If the decision was rightly made – and it was – that the appellant should be permitted to attend his father's funeral, the only questions which then arose were the strength of the escort needed if he was not to be offered temporary release on licence, whether restraint was necessary to protect him or the public, and whether restraint was necessary to ensure his return to custody after the funeral.

"For these reasons, we have concluded that we should grant leave for judicial review and allow the appeal. The application of restraints to the applicant while attending his father's funeral at the Crematorium was without lawful justification and contrary to the Article 8 rights of the appellant and we make that declaration accordingly.

"The declaration is in our judgment just satisfaction for a breach of those rights."

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