QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
|THE QUEEN on the application of|
|CHIEF CONSTABLE OF NORFOLK POLICE||First Defendant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Second 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)
Mr.Nigel Godsmark QC and Mr.Adam Clemens appeared for the First Defendant.
Mr.Steven Kovats appeared for the Second Defendant.
AS APPROVED BY THE COURT
Crown Copyright ©
Prison and police procedures
"PURPOSE AND DEFINITION OF PROTECTED WITNESS UNITS
1.6 A Protected Witness Unit is a discrete self contained unit that holds only Protected Witnesses. The Unit operates separately from the host main prison and is directly managed and staffed by a selected group of staff.
1.7 Protected Witness Units maintain the anonymity of, and provide secure and safe custody for Protected Witnesses, whose lives may be endangered were they to encounter other prisoners. Accommodating such prisoners in a PWU, ensures that there is no contact between a PW and anyone else outside the unit, other than those with a legitimate reason, and a proper authority, for access. The Units must adhere to these operating standards and to all other relevant PSOs, manuals and PSIs.
THE NATURE OF PROTECTED WITNESS UNITS (PWUs)
1.13 Managers must ensure that standards of security and behaviour on the unit are not eroded….
2.1 …PW's are vulnerable to attack from others, and many of the security tasks undertaken on a PWU must aim to prevent such attacks occurring…."
I do not regard the sentence "whose lives may be endangered" as attempting to lay down precise criteria for admission. This is a description of PWUs.
"N.B. The Police have a fundamental role to protect life. If emergency security measures are required in order to carry out a proper assessment and to take a statement then these will not preclude the assistance outlined in paragraph (d) above [i.e. the full assistance only after a written statement has been made]."
And there is reference to the positive obligation, in the light of the judgment in Osman v. United Kingdom, to which I shall return later, on the police to protect the right to life to the witness from criminal acts of a third party.
"9. EXCLUSION FROM THE SCHEME
If a witness, who is the responsibility of the Witness Support Scheme compromises him or herself by:
a) Committing crime
d) Stepping outside the guidelines/rules laid down as part of the Scheme or contravene the terms set out in the Document of Protocol
Then the witness will be considered to have fundamentally breached the initial agreement, and consideration will be given to exclude the person from the Scheme. …
The witness will be warned, initially, as to their future behaviour and all relevant facts will be considered and a decision made as to what action will be taken. In extreme cases the witness will be removed from the Witness Support Scheme…".
"A lesser degree of likelihood is, in my view sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. "A reasonable chance", "substantial grounds for thinking", "a serious possibility" - I see no significant difference between these various ways of describing the degree of likelihood of detention or restriction of the fugitive on his return …".
"37. … What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right involved …".
"68. (5) … We agree with the tribunal that the issue is not to be determined by the onus of proof. However, in our judgment the right approach here once it is accepted that the fears of the soldiers are based on reasonable grounds should be to ask: is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk? It is here that Sir Sydney Kentridge rightly relies on Lord Diplock's opinion in … Fernandez."
When what is at stake is the safety of the former soldiers and their families, adopting Lord Diplock's approach, the risk is extremely significant. After all, the individual's right to life is … the most fundamental of human rights….".
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law".
"102. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see the McCann and Others v the United Kingdom  ECHR 18984/91, judgment of 27 September 1995, Series A No. 324, pp 45-46, paras 146-147).
"115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the LCB v United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, para. 36). It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties. 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see para. 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life … Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2 (see, mutatis mutandis, McCann and others (1996) 21 EHRR 97, para. 146). For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case." (My underlining).
"79. … where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimising, incidental loss of civilian life".
"28. In Fernandez, after adumbrating the various phrases which he considered expressed the same degree of likelihood of risk, Lord Diplock referred to the alternative of “applying, untrammelled by semantics, principles of common sense and humanity”. We believe that there is much to commend that approach in the present case. The search for a phrase which encapsulates a threshold of risk which engages Article 2 is a search for a chimaera. The phrases advanced by Mr Clarke were all taken from decisions involving contexts quite different from the present. These decisions provide no authoritative basis for adopting the phrases as a threshold test for art 2 purposes. Of one thing we are quite clear. The degree of risk described as ‘real and immediate’ in Osman, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was ‘the real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party’ which was, or ought to have been, known to the authorities. Such a degree of risk is well above the threshold that will engage art 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context. 29. In ex parte A at p 1877 Lord Woolf said:
" … the right approach here, once it is accepted that the fears of the soldiers are based on reasonable grounds, should be to ask: is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk?"
The reference to reasonable grounds was, as we understand it, to grounds that were objectively reasonable, but Lord Woolf had earlier commented at p 1876:
"From their point of view it is what they reasonably fear which is important, not the degree of risk which the Tribunal identifies.”
30. In the present appeal, the fact that the soldier witnesses will have subjective fears if called to give evidence in Londonderry is a relevant factor when considering whether it will be fair to require them to do so. Those fears will, however, have much more significance if they are objectively justified. A critical issue is whether such fears are objectively justified, and much of the submissions that we heard were addressed to this issue. 31. We consider that the appropriate course is to consider first the nature of the subjective fears that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to balanced against the adverse consequences to the Inquiry of the move of venue, applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision. This course will, we believe, accommodate both the requirements of art 2 and the common law requirement that the procedure should be fair."
"88. The Court recalls that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction … This involves a primary duty on the State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see the Osman v the United Kingdom judgment of 28 October 1998, Reports 1998-VIII, para 115).
89. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see the Osman judgment, cited above, para 116). In this case, the Court has had to consider to what extent this applies where the risk to a person derives from self-harm.
90. In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies (see eg Salman v Turkey [GC] No. 21986/93, ECHR 2000-VII, para 99). It may be noted that this need for scrutiny is acknowledged in the domestic law of England and Wales, where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on prison authorities in respect of those detained in their custody.
91. The Government have argued that special considerations arise where a person takes his own life, due to the principles of dignity and autonomy which should prohibit any oppressive removal of a person’s freedom of choice and action. The Court has recognised that restraints will inevitably be placed on the preventive measures by the authorities by, for example in the context of police action, the guarantees of Articles 5 and 8 of the Convention (see the Osman judgment, cited above, paras 116 and 121). The prison authorities, similarly, must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned. There are general measures and precautions which will be available to diminish the opportunities for self-harm, without infringing personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case.
The Court was plainly applying the Osman test in the context of the duty to those in prison, albeit after a death. The Court of Appeal, on appeal from Hooper J. in Amin (R. (on the application of Middleton) v. HM Coroner for West Somersetshire, R. (on the application of Amin) v. Secretary of State for the Home Department and another)  EWCA Civ 390, did not refer to Keenan, but cited Osman, at paragraph 31, as setting out the law, in the context of a case of a death in prison.
"There is little doubt that because of what he has done against these other criminals, that his life will be in 'real danger' when he enters the prison system. In fact, because of the calibre of the criminals, his life will always be at risk.
"… In basic terms, he has kept his word and the Senior Case Lawyer from CPS and myself both agree that everything should be done to assist him in the prison system. I believe we are all aware that criminals should be encouraged to take this course of action and for our part, it must be seen that they are given every possible support."
"… the police have received reliable intelligence that his life was in danger, and as such have provided him with safe accommodation.
The level of threat against [F] is outlined in Detective Sergeant Arthurton's report, and there can be little doubt that such a threat is real and substantial. Clearly [F] will be vulnerable and easily identified in the normal prison system unless adequate measures are taken to protect him.
"Provided that this case meet your criteria for allocation to Resident Informant Status, in all the circumstances I would support the application…".
The usual "text" was provided for the sentencing judge, setting out the assistance given by the Claimant.
"It was from this date [the date of the contempt sentence] that direct contact with [F] was severed although a contact was maintained with Prison Officers managing the Special Unit".
"The process for applying for entry into a Protected Witness [sic] involves an Agency dealing with the potential witness, and the Crown Prosecution Service, each sending supportive requesting letters to the Prison Service, who then consider and administer the process. The Prison Service does take the decision, following consultation with the interested parties".
"… I have now received the clarification as to where responsibility for protective witness status for your client lies.
I note from the enquiries made that your client is no longer in contact with the officers who were involved in the case in question.
From the advice given by the Police Adviser to the Prison Service, any claim in respect of your client's Protective Witness status is that of the Police Force who deal with the case at that time.
To that end the Chief Constable of Norfolk should be contacted.
The fact is that the Police initiate entry into the Protective Witness System and any subsequent events resulting from such action.
Currently your client remains in segregation under Prison Rule 45, Good Order an Discipline as a consequence of his behaviour on normal prison location."
"In view of the fact that entry to Protected Witness Status is initiated by the recommendation of the relevant police force, we request that you make the following recommendations to the Crown Prosecution Service and the National Operations Unit of the Prison Service Head Quarters that:
1. [F] re-enters the Protected Witness Unit of the Prison Service; and
2. [F] is granted a new identity when he is released from prison.
Should you decide not to make these recommendations, would you please provide us with your reasons."
The present case is not concerned with the granting of a new identity later.
"Your client was again arrested in June 1998 and charged with a number of serious offences. You will be aware at the time he was provisionally held as a category A because of the serious nature of the offences and the high risk of him re-offending if he was unlawfully at large. The conclusion of the last category A review is that [F] is regarded as highly dangerous and is correctly categorised.
I have reviewed the original decision not to locate [F] in a PWU. I am content that given his further serious re-offending and the need to ensure he is held in accommodation that reflects his security category it is not appropriate or necessary to move him to a PWU.
The Prison Service is aware of the location of those that [F] gave evidence against and his movements will be monitored to ensure that they do not come into contact".
"… It would appear that he was offered the opportunity to be relocated upon release. This was rejected by [F] and it would appear that he has insisted on returning to the … area upon release".
That was not correct.
"There appears to be no specific current intelligence concerning threats to [F] other than the indications given by himself or his mother and brother.
[F] cites a number of issues: The previous character and connection of his co-defendants, particularly [A].
In relation to [A], [F] states he has money and connections to people who could do him serious harm or even killed. [F] states he was told there was a contract on his head.
[F] states that he has had contact within the last couple of years from a Private Investigator working on behalf of [A] who referred to the contract and said that he could make it go away. [F] also stated that he had been receiving abuse and intimidation from prisoners at the various prisons where he had been held during his latest term of imprisonment. …".
[F] also feels that his decision to retract his evidence and then withdraw his retraction will have increased the risk of retaliation from [A] especially when combined with the facts that he put him away … and has refused to assist his appeal".
"The level of threat to [F] whilst in Prison appears to be low. He is being held in a Vulnerable Person wing and has the option to be segregated should he wish. He states he feels vulnerable even whilst on the VP wing at HMP … because other Prisoners are 'not screened' before they go on to that wing at … as they apparently are at other Prisons and therefore someone could ask to be transferred onto the wing with the intention of assaulting [F]. [F] states he has taken to carrying a blade with him whilst showering but there is no indication on his Security file of threats or intimidation to him whilst in Prison during his latest term. The main threat to him whilst in Prison appears to come from [A] and this threat may change depending on the result of [A's] appeal".
"I have sought advice from the Police Advisors Section at Prison HQ in London (DCI Harrison). It is not normally policy for a prisoner to go back into a Protected Witness Unit once they have breached a previous contract. Clearly the issue above as to whether [F] has 'breached a contract' would be a matter for legal advice. He was not apparently served with a Memorandum of Understanding but it is clear from DS Arthurton's report that he was told that should he be imprisoned for future offences then he would be dealt with as a normal prisoner and that his period as a protected witness would be purely for the duration of that sentence. I suggest that once guidance has been given [on whether a duty of care continued] that a written approach is made to the Police Advisors Section at HM Prison Service HQ for their views".
No written document agreed between the police and the Claimant has been found. The Defendants do not rely on what the Claimant was or may have been told about the future. DS Walker went on to suggest that if a duty of care was still owed to the Claimant, it would be appropriate to assist him in relocation away from his home town on his release. That was in the light of the potential risk of intimidation or harassment, although there was no current intelligence indicating a serious threat to the Claimant's life and re-identification would not be required.
"Having studied the attached documentation I am satisfied that Norfolk Constabulary discharged its obligations to [F]. [F] was given protected witness status in accordance with normal procedures and this is well documented. He was briefed as to his obligations and there is nothing to suggest he failed to understand them or the consequences of not fulfilling the same. His actions upon release from prison were a very definite breach of contract meaning Norfolk Constabulary could and should [sc.note] be in anyway responsible for his safety. It ceased to be appropriate for us to recommend his treatment or location either within the prison system or without. In my view we have no further obligation to him."
He went on to conclude that no action was necessary in respect of the Claimant's family, but that the situation should continue to be monitored.
"I have considered the proposal that [F] be readmitted into the Witness Protection Unit within Her Majesty's Prison System. On the evidence presented to me I am unable to reach any conclusion other than that he should not.
[F] was, quite properly, taken into the Protected Witness unit after sentence …. During follow up contact with officers of Norfolk Constabulary he was offered a range of protection measures including change of identity and location for he and his immediate family. As you know he declined this assistance.
Upon release [F] returned to … where he returned to crime, committing and being convicted of some very serious offences. This action is of great significance when considering [F's] request.
There is no dispute that the evidence provided by [F] in 1995 was crucial to the conviction of a number of serious criminals. Neither is there any doubt that following that action Norfolk Constabulary took all reasonable steps to provide the correct level of protection to [F] and his family.
The responsibility for the safety of a person in this position does not rest with the Police and authorities alone. [F] equally had to take responsibility for his and his family's safety. He chose not to take that responsibility.
Norfolk Police made it quite clear to [F] that protection and protected status was dependant on him not re-offending. If he did he would lose his status as a protected witness. I am aware of nothing that leads me to believe [F] did not fully understand that condition and the consequences of ignoring it.
Having considered the above together with all the information available to me. I am not prepared to request [F] be given protected witness status. I will, however, ensure that [F's] concerns are passed on to the relevant prison authority."
"The letter to you from the Norfolk Constabulary is quite clear in that it will not support [F's] application to be reconsidered as a Protected Witness. As stated, he compromised his position following release from his last sentence and when quickly reoffended and took no responsibility for his or his family's safety.
I agree with Superintendent Sturgess that we cannot dispute that [F] was potentially at risk after he gave evidence against others involved in his previous offence, but this does not justify or warrant a return to Protected Witness Status.
As I said in my letter of 19 April, your client was arrested in June 1998 and charged with a number of serious offences. He was held as a provisional Category A because of the serious nature of his offences, and the high risk of him reoffending if he was unlawfully at large. The Category A Committee has concluded that his risk has not sufficiently diminished to warrant a change in his categorisation and he remains Category A.
I have therefore concluded that [F] does not meet the criteria we expect of a Protected Witness and he will therefore remain in his current location. Notwithstanding this, I will ensure that those involved in the oversight of Category A prisoners are aware of the two remaining prisoners who are in custody who [F] originally gave evidence against so that their movements can be monitored".
The original challenge
Events since November 2001
"it may [italics original] be the case that an irrelevant or inaccurate consideration was taken into account, namely the assertion that [A] did not appear to have the financial resources to carry out any threat against [F] (or his family) at the time of the risk assessment. As I am sure will be appreciated, the financial capacity to carry out a threat is distinct from the will (or desire) to achieve it. Further enquiries are being made of the officer who made the background checks.
To the extent that the factors influenced the risk assessment, it may be the case when enquiries are complete that the level of risk to [F] whilst in prison would have to be pitched somewhere higher than DS Walker's "low" assessment. That is not to say that the objective risk to [F] would be regarded as sufficiently real or that the Norfolk Constabulary would necessarily recommend that [F] be admitted to the protected witness unit. Assuming for the sake of argument that the first factor was factually made out and the second factor was perhaps wrongly taken into account or was inaccurate, it would, in all probability, have led to a more extensive dialogue with the governor … particularly with regard to the suggestion of less rigorous screening".
"A key question was "the need for a current, reliable risk assessment to the potential threat in the known individual. Could you provide this on the day please? …"
"All I think we need from the police is a note of any changes in their assessment of the risk posed to [F] since the last risk assessment, which was in September last year. I think a phone call, confirmed in writing, would suffice for this. …"
That request was passed to the Norfolk Police, asking for a response "by the end of this week".
"As I indicated last Wednesday it would have been too short notice to prepare a further risk assessment, by the end of that week, particularly given the need for the information requested about access to the vulnerable persons unit as well as a visit to HMP … to examine [F's] Security file. However, as per your request, I am able to provide an update regarding the individuals believed to be the main threats from the initial risk assessment.
All the individuals mentioned are now out of Prison. I have found no specific intelligence regarding a threat to [F]. However I should add that my enquiries have revealed that some of the individuals concerned would potentially have the ability or contacts to harm [F] is [sc. if] they have a desire to do so. I cannot say whether they have the necessary ability to infiltrate the Prison system.
We would be grateful if you could advise, as a matter or urgency, whether [F's] assertion is, or might, be true and whether there are any recent threats to his safety". (My underlining)
"I have undertaken formally to review your request to place [F] in a Protected Witness Unit.
You will be aware that before a prisoner can be located within a Protected Witness Unit it is necessary for the individual concerned to have his case assessed by an Assistant Chief Constable within a sponsoring Police Force, and for this then to be endorsed by the Crown Prosecution Service and finally forwarded to Prison Service headquarters for consideration.
The most recent assessment received from the Norfolk Police indicate that the threat to your client has diminished since he was first initially accepted into the PW system. They have no current intelligence that he is at risk from those he gave evidence against. I have further confirmed that all those he gave evidence against have now been released from custody and there is no indication that they are planning to locate [F]. … Prison have also carried out a security assessment last year and despite concerns raised by [F] found, no evidence or intelligence to suggest he was under threat at … . This has not changed."
Mr.Golds described the prison regime on the vulnerable prisoners unit, saying that access to educational and other facilities, and visits, were kept separate from those of other prisoners. He continued:
"In previous correspondence I suggested that [F's] security category may have precluded him from being held in a Protected Witness Unit. This is not now the case, the Protected Witness Unit at … has reopened and this would not therefore preclude a Category A prisoner being held there.
However despite the availability of … the evidence I have seen does not support [F's] return to the Protected Witness system. He will therefore remain at … where his location will be kept under close review".
"… I stress that no prisoner is denied a place in a protected witness unit if placing him in mainstream prison conditions would pose a real and immediate threat to his life".
MR JUSTICE CRANE: Before I hand down the judgment, Mr Starmer, perhaps I can address you? I am grateful to all counsel for the editorial corrections and I have used most of them. One of the matters of concern was that there should not be any identification, as far as possible, of the claimant. We are in open court now, although the proceedings were in private. It was always planned that I would hand down the judgment in open court and it would be a public judgment. Are there there any matters of concern that remain? I have removed the names where counsel pointed out the names were still in.
MR STARMER: Not from my point of view.
MR JUSTICE CRANE: Any other counsel concerned?
MR STARMER: You will have seen from my corrections that I did not turn my mind, or your Lordship's, to whether there should be anonymity, for instance, of the officers involved in the case, but given that the priority was location it seemed to me that that was unnecessary because everybody knows who he was involved with. Apart from that, no.
MR JUSTICE CRANE: Very well. I have handed down the judgment that counsel already have. That can be made available. I think there is already in existence an order that the claimant be known only by the initials "DF".
MR STARMER: That is right, my Lord.
MR JUSTICE CRANE: In the course of the judgment I raised the question (I do not know quite why) of the rule numbers that I had intended: 5.4 and 32.13. The question is whether I should make orders restricting access to the documents of the case without leave of the court? Do you have any submissions about that?
MR STARMER: We do ask for those orders because in the documents the identification would be clear. It is carefully worked in the judgment, but I think certainly in the claim form and some of the other documents.
MR JUSTICE CRANE: I cannot remember but has anybody produced a suggested draft?
MR STARMER: I did. I hope you have further draft orders.
MR JUSTICE CRANE:
"Claim forms not to be released... No permission without notice under 5.4, 32.13. Witness statements not open to inspection."
Should that say: "without leave"?
MR STARMER: I think probably 32.13 is unnecessary. That is where an application is made during the course of the proceedings, although I found a case to say that if that is so a witness statement can be seen afterwards. Strictly speaking, I think the witness statement to come within CPR 5.4 anyway. So there are two different provisions. CPR 5.4 is all court documents bar the claim form. CPR 32.13 is witness statements that can be asked for during the course of proceedings. They were not.
MR JUSTICE CRANE: You will be content with paragraphs 1 and 2?
MR STARMER: Yes, 3 is really an additional. So long as the court's understanding is, as mine is, that unless it is asked for during the course of the proceedings 32.13 does not apply then paragraphs 1 and 2 is certainly enough.
MR JUSTICE CRANE: Why not in paragraph 2 insert the words: "Any document in this case including witness statements"?
MR STARMER: Yes.
MR JUSTICE CRANE: That will make that clear and then 3 would not be needed.
MR STARMER: Yes, certainly. My Lord, I only use the 39.7 in one because I could not see any other way of bringing within the scope of the order the judicial review claim form. It has the same effect, I hope.
MR JUSTICE CRANE: Shall I just see what other counsel think about that?
MR CLEMENS: I agree with that certainly under CPR 5.4. I do not want to waste time. Strictly, I suppose, under CPR 32.13 given that they were not asked for during the course of the trial, although there is the authority referred to by Mr Starmer, the Civil Procedure Amendment Rules made it clear that it is confined to the proceedings, but to be absolutely safe perhaps include them in the earlier part.
MR JUSTICE CRANE: It does not add anything but it does make--
MR CLEMENS: It does not add anything but it makes it absolutely crystal clear if there was any doubt as to whether the request would come close to proceeding.
MR JUSTICE CRANE: Mr Kovats?
MR KOVATS: The second defendant is content.
MR JUSTICE CRANE: What I will do is make orders in the form of the draft which will need to have its date added in paragraphs 1 and 2 of the admission. I would be grateful if a final copy would be prepared for me to initial. I make it clear, since the press are present, that the reasons for these orders, and for the form of the judgment which conceals, as far as possible, identities, is that the claimant, who as the judgment makes clear, has previously given evidence against other dangerous criminals and could be at risk not only from the people who he has given evidence against, but conceivably, if his identity was generally known, from other prisoners.
I say that without prejudice to the merits of the case, but for the purpose of publicity that is the reason that I make orders restricting (separate permission of the court would be given if there is good reason) the papers in the case would from (inaudible). I hope it is clear why I am making those orders. Yes?
MR STARMER: There are further suggested orders which the First Defendant has drafted, which I hope you have also, running to five suggested orders. I think they are consequent upon the judgment. Can I indicate that I certainly agree with all of them. The first of them, if my Lord has it, is the quashing of the decision. That obviously follows. Then 2 and 3 are intended to assist the defendants in terms of what it is they are to do. My learned friend, Mr Clemens, can assist further. I am certainly happy. If they want further guidance so they can get on with the job I am happy with that. My Lord, 4 is being dealt with and 5 we do ask for our costs.
MR JUSTICE CRANE: The 4 and 5 can be new paragraphs of the combined order?
MR STARMER: Certainly, yes. We can run the orders together. I will leave my learned friend to develop 2 and 3, if he needs to. Certainly from our point of view we are happy if that is the guidance they seek. As to 5, we say we set out to quash the various decisions and we succeeded in that. The first defendant is realistically recognising that costs follow from that.
MR JUSTICE CRANE: Let us come to costs last. Can I deal with the other substantive orders first? Mr Clemens?
MR CLEMENS: I am conscious that we are in open court. May I develop 2 and 3 slightly? I have already had the opportunity of discussing them very briefly with Mr Starmer and Mr Kovats. As to 2, really that is just, in my submission, a straightforward remission under 54.19 to Mr Golds because your Lordship's judgment clearly contemplates not a fresh risk assessment but an updated one. Then 3 really is an extension of that. I put it into preserve my client's position because, given the restrictions on the distribution of the judgment, it has been very difficult, or impossible obviously, to take firm instructions.
It seems to me that your Lordship could not order it and that it might be helpful to have just a little steer on this as to whom might conduct the updated assessment, because on the one view D1 could say 'Right we had better go to some other person or other force', but, in my submission, that is not necessary here. I think (I hope I do not tread on toes) Mr Starmer would be content that the updated assessment be carried out by DS Walker.
MR JUSTICE CRANE: I hope my judgment made clear that really I did not have any criticisms of Mr Walker. It seemed to me that he acted conscientiously. There were two lose ends which he identified himself and he produced such further information as eventually has led me to my final concern. I do not regard them as being any valid criticism of Mr Walker as a proper person to carry out the updated assessment. In effect, he said (he may have misunderstood what he was being asked) there was not time to do it and it seems to me he was perfectly capable, as far as the case goes, of doing a proper job. Mr Starmer may not submit that. I hope my judgment made that clear.
MR CLEMENS: The only reason I raise it (I do not want to waste time unnecessarily) is because there was a comment in your Lordship's judgment about, as it were, the repetition of the inaccuracy about relocation and turning down offers about that. It seemed to me that if one was focusing, as the judgment does, on the risk to the exclusion of other things, that he was ideally blessed.
MR JUSTICE CRANE: Mr Walker repeated what he was told about it. He was not responsible for that because he was not in the criminal matter when those events happened.
MR CLEMENS: That is why I call it a repetition. It does not originate with him. I think
Mr Starmer will be happy. I am sure we can shorten it.
MR STARMER: If it assists I make my position clear which is that I do not think there is any good reason for that officer not to carry out the further assessment that is necessary, having read the judgment.
MR JUSTICE CRANE: I fully agree with that. Unless Mr Kovats has anything to add on that?
MR KOVATS: On that point I have nothing to add.
MR JUSTICE CRANE: In fact I believe if he is the proper person I think he is then any updated assessment is going to be much better prepared by him than anybody else because he will be advantaged (?) by the knowledge that he has.
MR CLEMENS: It will certainly be a lot quicker. That is a material consideration. Thank you for that. Second, (and I think again this is something on which counsel are all agreed) that in the way your Lordship has framed the judgment, concentrating, as it does, on risk and the need for an updated assessment, I was not proposing to advise D1 that as part of any updated risk assessment that once it is done by the officer (we now know who will do it) it does not go to recommendation stage of Assistant Chief Constable level, nor does it go to the Crown Prosecution Service. The factors that make a weight with them really are now taken out of the picture.
What is needed is the updated assessment from Mr Golds to see it really affects Mr Kovats more than anybody else. As I understand it, he does not suggest that it needs to go through that process because it is the updated assessment which will then go to Mr Golds.
MR JUSTICE CRANE: I agree. As I think I made it clear, it seem to me that the schemes (if one can collectively call them that) did not really envisage this kind of situation precisely and I have suggested that that might receive attention. The recommendation is plainly when somebody first comes into the system. I think it was Mr Kovats who kindly referred me to something which had not, I think, been referred to in the course of the case: the provision for revising the need for somebody to go into and stay in the Protective Witness Unit. I think, if I remember rightly, that does in fact refer to consultation, or words to that effect, with the officers concerned. It does not require a new recommendation. Even if one looks back at the four corners of the scheme, as it were, updating it does not require the specific recommendations or involvement of the CPS.
MR CLEMENS: Thank you for that. Again, it is not a wasting time exercise it is just trying to make it absolutely clear as to what is expected of the parties, less we are back here in the future discussing what was contemplated by your Lordship's judgment.
MR JUSTICE CRANE: I hope it is clear. It can be written into the orders if that is needed.
MR CLEMENS: I do not think it is. It is clarified certainly, as far as my position is concerned. I do not think anybody else really has anything to--
MR STARMER: Again, if it assists, I have had the chance to discuss it with my learned friend, I agree with him. I did not argue it on the basis it had to go to the Assistant Chief Constable and I do not say that it does now. Therefore I agree with him.
MR JUSTICE CRANE: Is there anything else you want to deal with if we put aside costs for the moment?
MR CLEMENTS: No, thank you.
MR JUSTICE CRANE: Mr Kovats?
MR KOVATS: As regards point 1, as a matter of law, the decision of the second defendant rather than the decision of Mr Golds. With respect to paragraphs 2 and 3--
MR JUSTICE CRANE: The same point arises under 2, does it not?
MR KOVATS: Yes, it does. With respect to those two paragraphs, in my submission your Lordship's judgment is very clear about what needs to be done and it may be that to set out formal orders will not assist and may cloud the issue. My Lord, for that reason the second defendant would be happier if 2 and 3 were omitted, but it is not something that we want to make a great deal of issue about.
MR JUSTICE CRANE: I do not think it applies. It is not a matter of fairness but I think on balance the other two parties would be happier with paragraphs 2 and 3 there and I shall leave them there. Does that deal with everything except costs? You have made your position clear.
MR STARMER: I think so, yes.
MR JUSTICE CRANE: What do you say?
MR CLEMENTS: My Lord, you can delete in my draft at paragraph 5 the parts in square brackets. I know that Mr Kovats has a rather different position on costs and he can develop that. Ever keen to jump on bandwagons, if there is one rolling I will jump on it, but it seemed to me that that was the appropriate order. There could have been arguments about the delay in the submission of detailed grounds by D2 and how this has all arisen, perhaps rather late in the day. However, it seemed, having considered it with my instructing solicitor, that the appropriate order, if an order for costs follows the event and the claimant has his costs, would be that on a shared basis rather than making any issue based orders, or any percentage based orders.
MR JUSTICE CRANE: I think the right phraseology is "subject to detailed assessment". Let us see if there is a bandwagon for you to jump on.
MR KOVATS: The second defendant submits that there should be no order for costs other than assessment of the claimant's publicly funded costs. The second defendant submits that each party has been successful in part of its submissions and unsuccessful in other parts of its submissions in roughly equal proportions, and that a no order for costs order is the fairest reflection of the outcome.
Mr Starmer submits that he came to court, he quashed therefore he has won but, with respect to him, that is only a partial summary of this case. Not only has the decision whether to quash been in issue, the whole approach to the matter of law has been an important part of this case and even looking at the issue to quash on its own Mr Starmer succeeded on only one of the various strands of his argument.
To develop that in a bit more detail I would refer to nine matters, in particular, each one briefly, fortunately. First it was part of the relief sought by the claimant that this court should order that he be readmitted to a Protective Witness Unit. That was never abandoned. The claimant has not succeeded on that point. Secondly, it was part of the claimant's arguments that the defendants were in breach of a duty under Article 2 to carry out an investigation. That again was persisted in until halfway through Mr Starmer's submissions.
MR JUSTICE CRANE: He never pressed it.
MR KOVATS: It was certainly persisted in as far as developing skeleton arguments, and so forth, were concerned. Thirdly, it was part of the claimant's arguments on the law that the appropriate test was the lower one as formulated in the Fernandez case. Again the claimant did not succeed on that. Fourthly, with regard to the facts, one of the points that the claimant argued was that the decisions were flawed because they did not consider the points about ease of access to the Prisoner's Unit. That again is something on which the claimant did not succeed.
Fifthly, the claimant argued that even if all the points were considered the decision was an irrational one overall. That again is not the basis on which the claimant succeeded. Sixthly, the claimant relied on threats which he said were made by the private investigator. Your Lordship did not accept that argument. Seventhly, as your Lordship may recall, the claimant's solicitor adduced two late statements dealing with further matters which, in the event, were not relied on at the hearing, but nevertheless had to be responded to by the defendant.
Eighthly, as your Lordship himself remarks, that at paragraph 34 of the judgment it is not easy to identify the correct approach to Article 2 in circumstances such as this, given the guidance from the Court of Appeal in the Widgery Soldiers case. This case has, in my submission, had a public interest function in clarifying this area of the law.
Finally, if it is to be said that the second defendant's decision of November 2001 was found to be flawed, that was withdrawn at a relatively early stage and equally one could say that the claimant's argument on the legitimate expectation was initially a substantial part of it for his case. That again was withdrawn at a relatively early stage. For those reasons we submit that the fair order for costs, reflecting the more detailed approach by and under the Civil Procedure Rules, is no order for costs.
MR JUSTICE CRANE: What do you say, Mr Clemens?
MR CLEMENS: My Lord, certainly some of those points are discrete to D2. It seems to me particularly, for instance, Mr Golds having to respond very late to the late statements about the regime and the number of attacks, and that sort of thing, I cannot not bring himself in line with that. I can bring myself in line with others, albeit that if I were to argue, as it were, against myself and against Mr Kovats, but for Mr Starmer, that he can do it well enough. I would have to accept that, albeit that matters were rather late, that is where the focus of the case really was and where it was argued. I am not trying to argue against myself for obvious reasons, but I hope I adopt a realistic approach.