England and Wales High Court (Administrative Court) Decisions

QUEEN and MANJIT SINGH SUNDER ex parte SECRETARY OF STATE FOR THE HOME DEPARTMENT [2001] EWHC Admin 252 (5th April, 2001)

Case No: CO/2714/2000

Neutral Citation Number: [2001] EWHC Admin 252

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 5^th April 2001

MR JUSTICE STANLEY BURNTON:

Introduction

9. The grounds of this application are essentially that the decision to retain the Claimant's categorisation was procedurally defective, in that he was not given sufficient notice of the case against him, and therefore was not meaningfully able to answer it, so that the proceedings were unfair. He relies on Articles 5 and 6 of the European Convention on Human Rights, and contends that, as a result of the incorporation of the Convention into our domestic law, the law as stated by the Court of Appeal in R v Secretary of State for the Home Department ex p McAvoy [1998] 1 WLR 790 is no longer good law. He further submits that the decision of the Committee was unreasonable and irrational.

10. Before discussing these contentions, it is necessary (a) to mention some preliminary matters; and (b) to summarise the legislative and policy background to the decision under challenge.

Preliminary matters

11. Although the decision to re-categorise the Claimant was taken, at least on a provisional basis, as long ago as March 1998, the Secretary of State expressly disclaimed any assertion that the Claimant should be barred from relief on the ground of his delay.

12. I propose in the first instance to consider the Claimant's case as if the Human Rights Act 1998 was in force at all material times. If I find that there has been an infringement of the Claimant's rights under the European Convention on Human Rights, I shall proceed to consider the affect on his case of the fact that the Act was not in force at the date of the decision under challenge; otherwise, it will be unnecessary to do so.

13. Lastly, it is apparent that the information relied upon by the Category A Review Committee includes sensitive information from police sources. No application has been made to the Court for any information to be withheld on public interest immunity grounds. Such an application could only become necessary if I were to hold that insufficient information had been provided to the Claimant to date; and that in principle procedural fairness requires that further information be disclosed to him, and he be given an opportunity to comment on that information, before the Committee can lawfully take a decision as to his categorisation.

The Background to the Decision

14. Section 47 of the Prison Act 1952 is as follows:

The Secretary of State may make rules for the regulations and management of prisons... and for the classification, treatment, employment, discipline and control of persons required to be detained therein.

15. Rule 7(1) of the Prison Rules 1999 is as follows:

Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by Rule 1 of these Rules.

The previous Rule 3(1) of the Prison Rules 1964 was to similar effect.

16. The directions published by the Secretary of State explaining the basis of categorisation state that Category A is for:

Those prisoners whose escape would be highly dangerous to the public or to the police or to the security of the state, no matter how unlikely that escape may be; and for whom the aim must be to make escape impossible.

17. The criteria for High Escape Risk prisoners, issued by the Category A Committee on behalf of the Secretary of State, state:

They have a history and background which suggests that they have both the ability to plan an escape and the determination to carry it out. There is usually current information to suggest that they have associates or resources which can be used to plan and carry out an assisted escape attempt. There is usually also information that the inmate or his associates have had access to firearms or explosives and have been willing to use them in committing crime or in avoiding capture. Category A high escape risk prisoners are likely to be major criminals. Examples include terrorists belonging to substantial organisations, and armed robbers and major drug dealers who operate in powerful and violent gangs.

18. The process of categorisation of prisoners was helpfully described by Lord Woolf MR in R v the Secretary of State for the Home Department ex p McAvoy [1998] 1 WLR 790, 795:

... it is important to know something more about the categorisation process. The information as to that is provided by an affidavit sworn on behalf of the Home Secretary. That indicates that all convicted adult male prisoners are placed in one of four security categories, which are A, B, C or D. Category A is the highest security category and is reserved for inmates whose escape would be highly dangerous to the public, the police or the security of the state, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible.

It is also indicated that those prisoners who are categorised as category A are divided into three classes, depending on the extent to which they are regarded as an escape risk. Those are standard escape risk, high escape risk and exceptional escape risk. Standard escape risk is the classification applied to most category A inmates. High risk are a small proportion of category A prisoners. They have a history and background which suggest that they have both the ability to plan an escape and the determination to carry it out. There is usually current information to suggest that they have associates or resources which can be used to plan and carry out an assisted escape attempt. There is usually also information that the inmate or his associates have had access to firearms or explosives and have been willing to use them in committing crime or in avoiding capture. Category A high escape risk inmates are likely to be major criminals, such as terrorists belonging to substantial organisations, armed robbers, major drug dealers, etc. We do not need to concern ourselves with the exceptional escape risk classification because the applicant was never within that category. However, they are in general criminals who pose a particularly grave danger to the public and who are regarded as extremely valuable members of their organisations or groups. They are inmates who would be strongly motivated to attempt to escape.

As I have indicated, the review takes place annually. It is normally conducted by a category A review team, which refers to the committee only those cases in which the overall recommendation of the reports is to downgrade or where the case of the particular prisoner has not been before the committee for five years. That is the normal procedure, but it can be varied. In fact, the applicant's case did not conform to the normal criteria for reference to the committee. The applicant's case was, exceptionally, referred to the committee because of the representations which were made on his behalf. It is emphasised that this illustrates that the procedure is flexible.

19. I turn to consider the grounds for challenging the categorisation of the Claimant.

Procedural fairness: (a) Articles 5 and 6 of the European Convention on Human Rights

20. Article 5 is as follows:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the lawful detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deprtation or extradition.

21. As is apparent, Article 5 is concerned with deprivation of liberty. It was submitted on behalf of the Claimant that the decision in question in this case did deprive him of liberty within the meaning of Article 5, since his re-categorisation will postpone his release from detention, and have the effect of prolonging his detention.

22. However, the Claimant was deprived of his liberty not by the decision of the Category A Review Committee, but by his sentence for the offences of murder and manslaughter to which he pleaded guilty. His detention is lawful "after conviction by a competent court". It is apparent from the plain words of Article 5 and on authority that it is not engaged by a decision to re-categorise a prisoner: see Ashingdane v UK (1985) 7 EHRR 528 at 541-545; Boolan v UK (Unreported; 4^th May 2000 EctHR); Pelle v France (1986) 50 D&R 263 (EcommHR); R v SSHD ex p Gunn (Unreported, 14^th July 2000, C.A); R v SSHD ex p Sarsfield (Unreported, 21^st September 2000, Richards j); R v SSHD ex p Burgess (Unreported, 3^rd November 2000, Div Ct), and, most recently, Greenfield v Secretary of State for the Home Department, an unreported decision of the Divisional Court of 22 February 2001. The fact that the Claimant's continued categorisation as a Category A prisoner may well prolong his detention does not bring the decision as to his categorisation within the scope of Article 5, since his continued detention is justified under Article 5.1(a).

23. Article 6 is similarly irrelevant. The decision of the Category A Committee did not determine any of the Claimant's civil rights or obligations or any criminal charge against him. To the extent that he has been deprived of his civil rights, that was not by the decision of the Category A Committee but by his conviction and sentence in 1990. It is significant that the Claimant has not challenged the Home Office system for categorisation of prisoners, but only the decision of the Category A Committee in question. If Article 6 did apply, the Category A Committee would be incompetent to consider his categorisation, since it is not "an independent and impartial tribunal established by law", but part of the Prison Service.

24. Mr Harjit Singh submits that Article 6 does apply in the present case, on the basis that the Claimant is accused of matters which constitute serious criminal offences, involving the fomenting of terrorism in India. I disagree. The fact that the matters taken into by a Category A Review Committee constitute a criminal offence does not necessarily mean that their procedures and decisions constitute the determination of a criminal charge for the purposes of Article 6, any more than an argument between a driver and his insurance company as to the former's responsibility for a collision involves the determination of a charge of careless driving: c.f. McFeeley v UK [1980] 3 EHRR 161 and Pelle v France [1986] 50 DR 263. In the latter case the Commission held that a disciplinary sanction imposed on a prisoner for making a death threat against a warder, involving a period in a punishment cell and the risk of loss of remission, was outside the scope of Article 6.

25. Similarly, the decision of the Category A Committee did not involve a determination of the Claimant's civil rights for the purposes of Article 6: his rights had been determined by his sentence for murder, and the decision of the Category A Committee was made within the context of that sentence.

26. In R v the Secretary of State for the Home Department ex p Anderson and Taylor, decided on 22 February 2001, the Divisional Court held that the decision of the Home Secretary to fix a tariff for a person sentenced to a mandatory life sentence for murder did not engage Articles 5 or 6. In Greenfield v the Secretary of State for the Home Department, in which judgment was also given on 22 February 2001, a differently constituted Divisional Court held that Article 6 was not engaged by an award of additional days to the sentence of a serving prisoner by reason of his disciplinary offence, which was in essence possession of a Class A drug, on the basis that the disciplinary regime in prison is not within the scope of Article 6.

27. Mr Harjit Singh sought to distinguish the present case from Greenfield in reliance on the decision of the European Court of Human Rights in Engel v The Netherlands (No. 1) [1976] 1 EHRR 647, referred to in paragraphs [18 ] to [22] of the judgment in Greenfield. However, Engel was very different from the present case. It concerned offences against military discipline which had led to a deprivation of liberty. It was not concerned with someone who was serving a lawful sentence of imprisonment and a decision as to the circumstances of his detention. Mr Harjit Singh did not refer to the subsequent decisions of the Commission referred to in Greenfield, namely McFeeley and Pelle v France, which were considered by the Divisional Court in Greenfield and which, if they represent the law (and in Greenfield they were followed) qualify the decision in Engel. Given the consideration of those decisions by the Divisional Court in Greenfield, it is unnecessary for me to consider them further in this judgment.

28. In fact, Greenfield was a far stronger case for the application of Articles 5 and 6 than the present, since in that case there was a charge (although of a disciplinary offence) brought against the prisoner, and the disciplinary decision involved an actual and immediate extension of the detention of the prisoner concerned. In the present case there has been only a decision as to the security categorisation of the Claimant, which involves not the determination of a charge or punishment but consideration of public safety if he were to be released or were to escape.

29. I conclude that neither Article 5 nor Article 6 is engaged by the decision of the Category A Review Committee as to the categorisation of a prisoner serving a mandatory life sentence. It is therefore unnecessary to consider the effect of section 6 or the question concerning the retrospective operation of the Human Rights Act or the issue as to its retrospective effect.

30. I therefore turn to consider the Claimant's submissions as to the common law apart from the Human Rights Act.

Procedural fairness: the common law

31. The common law is more flexible than the European Convention on Human Rights in regard to procedural fairness. Decisions which do not engage Articles 5 or 6 may fall outside the Convention totally, as I have held that the decision in the present case did. The common law imposes requirements of fairness in relation to a broad range of decisions, such as that in the present case, but may vary the requirements of fairness according to the subject matter and circumstances in question. There is a substantial difference between the requirements of disclosure imposed by the common law on a trial of a defendant for a criminal offence and the requirements for the making of an administrative decision such as that of the Category A Committee.

32. A decision in all material respects similar to that which is the subject of these proceedings was considered by the Court of Appeal in McAvoy, to which I referred above. The prisoner in that case complained that the Category A Committee had acted unfairly in recommending that he be retained in Category A, in that they had not provided him with the full reports placed before them on which they had based their decision. He had been provided only with the "gist" of the reports prepared for the Committee. The gist statement in that case is set out at page 793 of the report, and, so far as the extent of disclosure is concerned, for present purposes it is indistinguishable from that provided to Manjit Singh Sunder. Indeed, it is obvious that the gist statement in the present case was, so far as the extent of disclosure is concerned, based on that considered in McAvoy. The Court of Appeal held that sufficient disclosure had been given, and that in consequence the decision in that case had been fairly taken. This case is indistinguishable from that, as I think Mr Sanjit Singh accepted: which is why he strived to persuade me, in the event unsuccessfully, that the decision in McAvoy and the principle it laid down had been overtaken by the Human Rights Act.

33. It follows that Manjit Singh Sunder was fairly given sufficient information to enable him to make representations to the Committee concerning their decisions. He was given adequate opportunity to make such representations. His complaints of procedural impropriety are without legal foundation.

The substance of the Committee's decision: the allegation of irrationality

34. The Claimant denies being or having ever been a member of any terrorist group or supporter of the ISYF; he denies any role in fomenting terrorist activities in India or elsewhere; he states that he is not aware that any of his prison visitors had any connection with terrorist groups.

35. The matters referred to by the Category A Committee for reaching their decision on the categorisation of the Claimant were the offences of which he was convicted and his alleged subsequent connections with Sikh extremists.

36. Mr Harjit Singh, on his behalf, argued that the circumstances of those offences did not establish that the Claimant was a Sikh extremist, that he is not a violent Sikh extremist, and that in relation to his alleged subsequent conduct he had been convicted of guilt by association, merely on the basis of one visit by one alleged Sikh extremist, and that the totality of material before the Committee could not justify its conclusion.

37. There was some controversy before me as to the inferences to be drawn from the Claimant's convictions. However, it is not disputed that the murder and the manslaughter took place in the course of a religious meeting being led by Darshan Das. According to the statement of Mr Sprunt, Darshan Das was the leader of a religious group which admitted people from all religions and whose teachings were very close to Sikhism. Sikh extremists had accused Das of trying to undermine their religion; and he antagonised them further by opposing their demands for an independent state of Khalistan. Mr Sprunt stated that his murder was believed to have been motivated by Sikh extremists views towards him.

38. The account given on behalf of the Claimant is different. According to his solicitor's letter of 22 March 2000:

The person killed was called Darshan Das. The very name implies that he was neither a Sikh nor a Sikh Leader. He was born a Hindu, converted to Islam and re-converted Hinduism and started to fringe sect along the same lines as the Bahai faith. He then alienated Punjabi Youth and like the Moonies had broken up many homes....Sunder's co-defendant was Rajinder Singh Batth, whose case went to trial. During the Trial, the Leading Counsel for Rajinder Singh persistently cross-examined each Prosecution Witness about the manner in which Darshan Das had mocked and ridiculed the Sikh religion and distorted the Sikh holy scriptures, causing great offence to the British Sikh Community. A close reading of the transcript of the proceedings will make it crystal clear that this case had nothing to do with Sunder's Political or Religious beliefs.

39. However, if the murder and manslaughter committed by the Claimant "had nothing to do with (his) Political or Religious beliefs", why did the Claimant commit them? Mr Harjit Singh's answer to my question was that the offences did have a religious basis, and were committed by the Claimant out of "an excess of zeal". However, it would be rational for the Committee not to distinguish excessive religious zeal, leading to murder, from other forms of violent extremism.

40. So far as subsequent matters are concerned, the gist has been supplemented by the information contained in Mr Sprunt's witness statement, which shows that the Claimant has while in prison been visited by Mukhtiar Singh, a person who is alleged to be involved in Sikh terrorist activity in India, and is associated with a faction of the ISYF. In appeals before the Special Immigration Appeals Commission against Secretary of State for the Home Department's decision to deport Mukhtiar Singh, the Commission stated:

In our judgment, on the totality of the material before us (open and closed), we are satisfied that the Secretary of State has proved to a high degree of probability the allegations of terrorism identified in the open Statements in respect of each Appellant. We are satisfied that each of the Appellants had endangered national security. Furthermore we are satisfied to the requisite standard that each of the Appellants is a danger to national security".

41. It is evident from the gist, and from Mr Sprunt's statement, that there is additional information showing the Claimant's continuing connections with violent Sikh extremism. This information has not been disclosed to the Claimant, and for the reasons I have given above, there is no legal obligation to disclose it to him before a decision such as that in question in this case may fairly be made. I approach this case on the basis that the contents of the gist statement provided by the Committee are supported by the information and reports available to them.

42. On the basis of the offences committed by the Claimant and the gist statement, together with the information as to the visit by Mukhtiar Singh, it is impossible to conclude that the decision of the Category A Committee was irrational or disproportionate

Conclusion

43. There is no basis for impugning the decision of the Category A Committee. The application for judicial review of that decision is dismissed.