An NHS trust that could not explain why it never considered an alternative way of giving a fasting Muslim prisoner his prescribed codeine has lost its appeal against a finding of unlawful discrimination.
What did the High Court decide?
In Birmingham Community Healthcare NHS Trust v Dahir Ibrahim [2026] EWHC 2468 (KB), handed down on 29 September, Mr Justice Soole dismissed the trust’s appeal against a declaration made by His Honour Judge Najib in the County Court at Birmingham on 5 September 2025. The declaration was that the trust had breached Article 14 of the European Convention, read with Articles 8 and 9, by failing to adopt an alternative procedure for dispensing codeine outside daylight hours during Ramadan 2019. No damages were awarded, and the claims under Articles 8 and 9 themselves were dismissed and not appealed.
What happened during Ramadan 2019?
Mr Ibrahim was fasting at HMP Birmingham. Codeine is an opiate and was never given in possession at that prison, so it was available only at the medication hatch, during hours that fell inside fasting time. For four days he presented and left without taking it, before a GP prescribed paracetamol in possession instead.
- Presents at the hatch during fasting hours and leaves without taking codeine
- Paracetamol prescribed in possession as a temporary alternative
- During the civil trial, escorted to a hatch during lockdown, once at 00.55
- County Court declares a breach of Article 14, no damages
- High Court dismisses the trust’s appeal
Why did the resources defence fail?
The trust relied on prison security and the prioritisation of scarce resources. The first aim was accepted. The second failed, and the way it failed is the lesson.
The judge found that nobody at the trust had raised the question with the prison authorities or with higher management, and that the absence of resources had simply been assumed. The evidence given at trial reflected what witnesses believed they would have thought had the question been considered, not the reasoning of anyone at the time. Soole J held that the judge was entitled to call that bare assertion, and that the trust was in an inherently weak position on the margin of appreciation when it had given the issue no proper thought.
What undid the resources case was the trust’s own practice. During the civil trial in Ramadan 2024, Mr Ibrahim was escorted from his cell to a medication hatch during lockdown to receive medication, once at five to one in the morning. No additional nurses or prison officers appeared to be needed. Against that, the claim that a short hatch opening during Ramadan would have been completely impractical did not stand up.
Does Article 14 need an adverse effect?
The trust also argued that because the alternative medication worked and caused no withdrawal symptoms, the complaint fell outside the ambit of Articles 8 and 9 altogether. Soole J rejected that. Ambit and interference are distinct, a claimant need not show an adverse effect for a measure to fall within the ambit of Article 14, and it does not follow from the absence of a breach that the substantive right was secured.
What should public bodies take from it?
Two practical points follow for anyone advising a public body. A justification defence has to be built at the time the decision is made, because evidence assembled afterwards about what the body would have concluded carries little weight. And any existing exception to a blanket policy, however narrow, will be used to test whether the policy was really unavoidable.
One further note for litigators. The trust argued that the alternative procedures the judge relied on were never pleaded or put to its witnesses. That ground failed because the gist had been put in cross-examination.
Frequently asked questions
Can cost ever be a legitimate aim?
Yes. Saving cost is a legitimate object of public policy, and the court accepted that resources can be weighed when assessing justification. What failed here was the evidence that resources were the actual reason.
Does a claimant have to show harm for an Article 14 claim?
Not for the ambit question. The court confirmed that a measure can fall within the ambit of a substantive article without any adverse effect on the claimant.
Did the prisoner receive damages?
No. The County Court held that a declaration was sufficient just satisfaction, and there was no appeal on that point.
Were the Article 8 and 9 claims successful?
No. Both were dismissed at first instance and not appealed. The finding of discrimination was under Article 14 read with those articles.