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 5th April 2001
THE HONOURABLE MR JUSTICE STANLEY BURNTON
THE QUEEN
and
MANJIT SINGH SUNDER |
Claimant | |
- ex parte - |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - - - -
HARJIT SINGH (instructed by Mandla Bhomra & Co for the claimant)
PHILIP SALES & MISS J. RICHARDS & SAM GRODZINSKI (instructed by the Treasury Solicitors for the defendant)
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE STANLEY BURNTON:
Introduction 1. The Claimant, Manjit Singh Sunder, pleaded guilty in 1989 to the murder
of Darshan Das and to the manslaughter of Joga Singh. The applicant was then
aged 26. He was sentenced to life imprisonment for the murder and to eight
years' imprisonment concurrently for the manslaughter. The trial judge
recommended that he serve at least 20 years in prison.
2. Following his sentence, the Claimant was formally confirmed as a Category A
prisoner pursuant to a decision of the Category A Committee on 8 June 1989. In
August 1990, following review by the Category A Committee, he was downgraded to
Category B. He remained a Category B prisoner for over seven years. However,
in March 1998 his security category was reviewed and he was provisionally
placed again in Category A with a High Escape Risk Classification. He was
given written reasons for his re-categorisation, as follows:
Your security category was recently reviewed in the light of information
received from Police sources and it was decided that you should provisionally
be placed in Category A High Escape Risk classification.
This information indicates that you have maintained strong connections with a
faction of the International Sikh Youth Federation (ISYF), an extremist
organisation which supports the establishment of an independent Sikh state of
Khalistan in India by violent means. The information received also indicates
that you have, from within prison, been in contact with members of the
leadership of a Sikh terrorist group based in Pakistan and with their
supporters in the United Kingdom, and that you have played an active role in
fermenting terrorist activity in India.
In the light of the above information it was decided that you would present a
serious risk to the public and police if unlawfully at large and that you
should be placed in Category A.
With regard to your escape risk classification, it was decided that, in view
of your connections with an extremist organisation which is involved in acts of
terrorist violence and who could be called upon to assist in an armed escape
attempt, you should be classified High Escape Risk.
Your security category will in due course be reviewed by the Category A
committee. An information sheet on categorisation procedures is enclosed.
3. These reasons were given by the Category A Team. Representations were then
made by the Claimant's solicitors to the Category A Review Committee by letter
dated 8 April 1998. The letter referred to the Committee's refusal to provide
further information in regard to the allegation made against the Claimant
beyond that contained in the written reasons referred to in the preceding
paragraph, and stated that in the absence of further information it was
difficult both for them and for the Claimant to make any meaningful
representations or to give meaningful explanation of the matters concerning the
Committee. The Claimant's solicitors stated:
A cloud of secrecy on your part in this respect is neither fair, nor in the
interests of justice nor does it give our client an opportunity to make any
realistic or meaningful representations to you other than to deny the
allegations similarly in the general terms. Our client is not knowing or
maintaining any connections with any extremist organisations who promotes its
objectives by violent means.
4. The letter pointed out that the Claimant was a "model prisoner", that he had
been moved from prison to prison on numerous occasions using normal, and not
high risk, transport and with a minimum of staff, and that only about three
months previously he had been taken by taxi to see his sick mother. It
asserted that the Claimant was trusted "and he did not betray his trust and at
no stage did he make any attempt to escape". The letter continued:
Our client is very sorry that he has given the Prison authority cause for
concern. The authorities may have a good reason for making the allegations
that are now made against our client, but in so far (as) he is concerned his
such alleged involvement has been innocent.
5. The Prison Service responded that in its view adequate reasons for the
decision to upgrade the Claimant's security had been given. In a letter dated
20 May 1998 Mr Sprunt, a Senior Executive Officer in the Prison Service
Headquarters stated:
The information on the basis of which it was decided that your client should
be placed in Category A was provided to the Prison Service from police sources.
The relevant details of that information were set out in the notification sent
to your client.
6. The Claimant's security category was most recently reviewed in or about May
2000, and by letter dated 4 May 2000 he was informed of the decision made by
the Category A Review Team that he is to remain in Category A (High Escape
Risk). The letter referred to the gist which had been provided to him of the
matters which had led to his categorisation as Category A, to the
representations which had been received from his solicitors, to his good
conduct in prison, and his willingness to engage in offending behaviour
coursework. It concluded: Balanced against this, however, was the very serious nature of the present
offences during which you and your co-defendant discharged firearms at a public
meeting leading to the death of three men, one of whom was wilfully murdered,
the information from police sources that links may still exist with extremist
groups who have access to firearms and explosives and a lack of sufficient
evidence, through offence-related work or otherwise, to indicate that the risk
of you re-offending in a similar way, if unlawfully at large, has significantly
diminished. 7. By the present proceedings the Claimant seeks an order quashing that
decision and an order directing the Category A Committee to reinstate him as a
Category B prisoner.
8. The Categorisation of the Claimant as a Category A prisoner has implications
for the conditions and place of his detention, and of course for the prospects
of his release: see R v the Secretary of State for the Home Department, ex
p Duggan [1994] 3 All ER 277.
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; 4th May 2000 EctHR);
Pelle v France (1986) 50 D&R 263 (EcommHR); R v SSHD ex p Gunn
(Unreported, 14th July 2000, C.A); R v SSHD ex p Sarsfield
(Unreported, 21st September 2000, Richards j); R v SSHD ex p
Burgess (Unreported, 3rd 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.
© 2001 Crown Copyright