England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(Mr Justice Tucker)

		Royal Courts of Justice Strand London WC2 Friday, 26th April 2002

1. LORD JUSTICE SEDLEY: Mr Cooper comes in person before the court in order to renew a group of applications for permission to appeal. I am pleased, if I may say so, that the Prison Department of the Home Office has put him up so that he may do this. He has been of much assistance to me, presenting his case with clarity and courtesy. I am also grateful to the Home Office and the Treasury Solicitor for responding to my request for information and documents and for sending Mr Patel along to present them and to make submissions today.
2. I am not going, as one generally does in giving judgments on these applications, to run through the detail of them because, in refusing permission on the papers, I set out in some detail over three typescript pages the essence of the cases and the essence of the problems. What I decided to do was to refuse permission to appeal in all but one of the cases (for reasons which I explained and to which I am now going to return) and to adjourn the one of them that troubled me most, numbered 2001/1042, so that I could have the assistance which I have now had from the Home Office. The papers have come back before me having first been submitted to Mr Cooper for his comments. His comments alerted me to the fact that there were earlier documents needed, which have now been provided.
3. Let me deal first with those cases in which I refused permission to appeal. I have heard Mr Cooper's renewed applications in relation to them. He submits, in particular, that they all raise Article 6 issues of access to justice which are of general importance. The stopping of his letters he also submits represents a violation of the Post Office Act 1972. The difficulty, however, with all of these applications is not only that they are out of time, but that they represent water under the bridge. In most respects they also represent things done which could not anyway be undone by judicial decision. In those circumstances Mr Cooper has not persuaded me that I ought to reverse my decisions on the documents refusing permission to appeal in those cases.
4. I turn, therefore, to the one that has troubled me most. This concerns what is known as the "three strikes" system, which is operated in no doubt slightly different ways according to different local schemes in different prisons, but which derived, at the time when these matters arose for Mr Cooper, from a Direction to Governors, IG 74/95, which has since been superseded by Prison Service Order 4000.
5. It is necessary, first, to note that the Prison Rules have a carefully spelt out adjudication system, the proper operation of which is a legal precondition to the imposition of any penalty, in particular the penalty of cellular confinement. It is clearly not acceptable that any prisoner should suffer punishment except in conformity with the rules governing punishment. On the other hand, it is clearly desirable that in the prison system good conduct should be rewarded; and the obverse of that proposition is that poor conduct will not be rewarded. To that end, the Incentives and Earned Privileges scheme places at risk a number of privileges - access to cash, improved visits, own clothes, and so on - which will be treated as no longer earned if three infractions falling short of disciplinary offences occur. The scheme is not engraved in stone, but it is clear that, unless something exceptional supervenes, that is what happens to prisoners in these prisons.
6. There are obvious difficulties in a scheme of this kind. The carrot is always legitimate; the stick is not always necessarily legitimate because, if the stick represents punishment, punishment will not be lawfully administered if it is not administered under the Prison Rules. It can be seen that education, although its place is somewhat parenthetic in the scheme, has been exempted from the notion of privileges. The schemes that I have been shown make it clear that reversion to "basic" on the ground of three strikes is not to carry loss of education, training, employment or attendance at offending behaviour courses, precisely because these are not privileges. That is something which seems to me to be of very great importance, given the leading one of the Prison Rules which is too often forgotten, Rule 3:

"The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life."

7. In the 1999 Prison Rules rule 32 governs education. Without reading it out, it is fair to say that it does not make education a right, but it does require reasonable facilities to be afforded to any prisoners who wish to profit by educational facilities.
8. Mr Cooper was a prisoner in Littlehey when, because of three infractions (none of them amounting to, or treated as, a disciplinary offence) he was put on basic regime. Apart from the fact that there was the legal minimum of association for an hour a day, he has contended that that regime was indistinguishable from cellular confinement. But the hour of association is a difference, and I do not think it is possible legally to say, on that ground alone, that the two things were the same. Much more important from his point of view was that his studies on an Open University degree course were interrupted because the result of going on basic regime was that he was denied further access to educational facilities.
9. A letter before the Queen's Bench Division dated 22nd February 2000 from the Governor of Littlehey said:

"We place the emphasis on assisting prisoners to use their sentences constructively. To this end we are willing to consider applications from those prisoners on Basic who wish to continue their education or training. There are currently several prisoners who are on Basis but who continue to attend their place of work or learning."

10. That seems to me, with respect, to be the reverse of what the prison regime requires. Far from making it a presumption that going on to "basic" does not prevent access to education, the approach in Littlehey appears in practice to have been that prisoners on basic regime lost their education unless they were able successfully to apply for its continuation. If this were all that was involved, I would give permission to appeal, because that seems to me to be an issue of real seriousness.
11. But an enormous amount of water has flowed under the bridge since that time. Mr Cooper, in the later part of the year 2000, was moved to Risley, where he still is. I do not conceal my depression at the information he has given me that in Risley there is effectively no education at all for anybody: there is basic skills training and that is about it. But these are matters for politicians, not for judges. Judges have no power to bring about the provision of education in prisons because they do not deploy any resources.
12. Secondly, Mr Cooper did not give proper notice of his wish to appeal against the refusal of permission to apply for judicial review for a good year. He tells me today that he did not appreciate that a form needed to be completed, and that he did write to the court promptly to say that he was going to appeal. I do not think I can find this an acceptable excuse. To somebody in Mr Cooper's position above all it must have been continuously apparent that you do not get anything in life without filling in a form. Legal appeals are no exception.
13. The passage of time, however, has not simply meant that some good reason has to be found for allowing the claim to get back on its feet. If that were all, I might very well be disposed to say that this is an important issue - for Mr Cooper anyway. What the passage of time has also meant, however, is that Mr Cooper is approaching his release date. He will be released, all being well, in February 2003. Meanwhile, he is in a prison in which, depressingly, on or off basic regime, he has no access to worthwhile education. It is a pretty dismal situation, but it is not one that is susceptible of legal redress. Nor is it a situation in which the arguable wrong that was done to him in Littlehey is capable of recurring; and before long he will be out of the prison system altogether. It is in those circumstances that I have to stand back and look at his application for permission to appeal a year or so out of time, and I am afraid that I cannot find, with the best will in the world, that sufficiently powerful grounds are there for enlarging time.
14. I have, however, gone out of my way not merely to decide this application on the time question. I have deliberately indicated that, if it were not for the time question, I would have taken the view that Mr Cooper had a point - and a very serious point -which required an answer - and a very serious answer - from the Home Office. I hope that, without the need of further litigation, this will be taken on board by those who have responsibility for these things, and that prisoners who find themselves in the future on the wrong end of an Incentives and Earned Privileges scheme will not find that their education (which is of fundamental importance, even if it is not a legal right, to prisoners) has gone too. To that extent I think that Mr Cooper has done a valuable service in bringing the issue to the attention of the court.
15. Accordingly, the extension of time which was refused will again be refused. The result is that there can be no permission to appeal in the present case. But, as I say, it has not been time wasted.
Order: Extension of time refused and applications dismissed.