QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (on the application of ALAN LORD)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Karen Steyn (instructed by the Treasury Solicitor) for the defendant
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Mr Justice Munby:
"whose escape would be highly dangerous to the public or 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".
"The test to be applied when reviewing the security category of a Category A prisoner is the level of dangerousness he/she would present if unlawfully at large regardless of the likelihood of escape."
"to be informed of the gist of any matter of fact and/or opinion relevant to the determination of his security category".
"For my part, I accept that it is desirable, when something has the impact which being placed in category A has on a prisoner, that the approach should be to ensure, so far as practical, that fairness is achieved. However, in considering whether in any particular situation the procedure which is adopted is fair or unfair, one has to reach a decision not only in the light of the situation of the prisoner, but also in the light of the practical considerations which must apply to the proper running of a prison. The very fact that we are talking about prisoners who have been categorised as category A indicates that they are among those who are the most dangerous within the system. There can be considerable difficulty within the prison service in the managing of those prisoners …
… in the end it seems to me that the question this court has to answer is whether the procedure which is in fact adopted on the review of categorisation is one which complies with the requirements of fairness, having regard to the nature of the exercise being carried out. As to that, I have no doubt, having seen the material in this case, that the way the process was carried out in this case was perfectly satisfactory and perfectly fair.
I can see difficulties for the prison services in adopting the approach which the applicant would urge upon them of normally disclosing all the material which is relied upon and, whenever it was appropriate to do so, seeking public interest immunity. A procedure of that nature seems to me to be inconsistent in that it is too formal for the sort of administrative decision which is being reached in relation to categorisation.
The House of Lords in Doody's case  1 AC 531 endorsed an approach which involved providing the gist of the material relied upon rather than the actual material itself. It seems to me that in a great many cases the interests of a prisoner will be fully protected if the procedure envisaged by Lord Mustill in Doody's case is adopted. In my judgment the procedure which is being followed at present by the Prison Service in relation to the review of the category in which a prisoner is placed accords with Doody's case. That is a perfectly satisfactory procedure, particularly and most importantly because, where appropriate, the Secretary of State or those responsible for the review in practice are prepared to reconsider, in the circumstances of any particular case, whether additional information should be made available.
In my judgment what is done in pursuance of that policy provides sufficient safeguards for a person in the position of the applicant. It does not seem to me that he should receive either the actual information or the names of those providing that information. It is sufficient if the gist of the reports plus any special information is provided to him."
"The Prison Service's current policy and practice on disclosure follows the principles laid down in Duggan. The practice is to provide prisoners with a gist of the information which will be taken into account so they have the opportunity to make effective representations. The policy is to disclose as much information as fairness requires. In the normal case a gist is all that will be required although there could be particular cases where fairness might require the disclosure of an actual report. The Head of the Category A Review Team at Headquarters will decide whether, exceptionally, a particular case requires disclosure of an actual report. " (emphasis in original)
"the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests".
"A prisoner's right to make representations is largely valueless unless he knows the case against him and secret, unchallengeable reports which may contain damaging inaccuracies and which result in continuing loss of liberty are, or should be, anathema in a civilised, democratic society."
"Reports towards this review have been prepared by Frankland prison staff.
Reports advise that since your arrival at Frankland in the summer of 1999 you have made enormous progress. You are now participating in the sentence-planning process and have made significant progress of late. This was clearly illustrated at the Sentence Planning Board in January where it was recognised that you had completed your previous targets and agreed further targets for the next 12 months. You have attained the enhanced level of the Incentives and Earned Privileges scheme, having only one proven adjudication levied against you since your last review for abusive words or behaviour. It is noted that you have had negative Mandatory Drug Tests and Voluntary Drug Tests.
Reports state that you have been made an education orderly and maintain an effective, if limited, degree of interaction with staff. It is reported that you are well behaved on the wing, keeping yourself to yourself, however, you do associate with a select few inmates. One report states that you have matured and mellowed with age and that your attitude has changed so that you now look at life in a better view and appear relaxed and settled. It is noted that you are completing a GCSE course in Painting and Drawing and could move on to a higher course next year.
Reports advise that you acknowledge guilt for the offence, but did not intend to kill your victim. However, you still hold the view that you thought you were punching the victim rather than stabbing him.
Reports indicate that you now have a desire to undertake the Enhanced Thinking Skills course and are awaiting assessment. It is noted that you are also willing to undertake the Anger Management course if it is deemed necessary. These are huge steps forward, however they do not in themselves reduce your risk. It is suggested that you need to be totally focused on self-development and tackle offending behaviour issues so that you are able to demonstrate your level of progress and at the same time make progress in risk reduction. It is noted that you have discussed with the education department the life and social skills modules, however, you declined to attend as you felt that you had the appropriate skills already.
Reports draw attention to the very serious nature of the present offences, your offending history and your escape history. Reports state that there is no evidence through offence related work or otherwise that your security category should be downgraded at this time.
Your case will carefully reviewed."
" … he has the inclination to escape if a chance arises and I have no doubt he would do the same again if he could."
" … Mr Lord has made some progress this sentence … He has yet to complete any offending behaviour work and, until he has done so, he should remain a Category A prisoner."
"His attitude has changed and now looks at life in a better view, and I believe that he is not a danger to the public … I do not think that he is an escape risk. I think he could be downgraded to category B and transferred to a prison with less security."
"Has demonstrated a change in behaviour and attitude over an extended period and a willingness to progress further … I consider that he could be safely downgraded to Category B."
"These are huge steps forward, however they do not in themselves reduce his risk. Whilst acknowledging his excellent progress in the last two years, I could not in good faith recommend recategorisation prior to completion of ETS which should serve to reduce that risk"
"There is a matter which concerns me in the light of the documents in exhibit "ES2" and which, in the first instance, I wish to consider in camera with the Secretary of State's representatives but in the absence of Mr Lord's representatives. For that reason I did not refer to the matter in open court last week.
"ES2" contains six reports from HMP Frankland. Three of these reports recommend against recategorisation but two recommend recategorisation. One expresses no views on the point.
The 'gist' document … contains nothing I can see to indicate that there is this seemingly significant difference of opinion. Indeed, arguably, the penultimate sentence – "Reports state that there is no evidence through offence related work or otherwise that your security category should be downgraded at this time" – is if not wrong then significantly misleading.
I am concerned that the 'gist' document may not be, to use Lord Woolf's words in McAvoy, "perfectly satisfactory and perfectly fair". And if this 'gist' document is not, then the question may arise as to whether there can be appropriate confidence in the present system as a whole."
"The most important document for the Category A review – and gist – process is the Governor's or deputy Governor's recommendation at pages 1 & 2 of "ES2". This is not "a Category A report", but is the crucial document for the gist purposes as it is the assessment of current progress and the recommendation may have the effect of overriding what may otherwise appear in the reports, in so far as there may be any difference of opinion. It represents the prison's recommendation, which may not coincide with the views of all those who have written Category A reports on the particular prisoner.
I believe that it is because of the primary importance of the prison's recommendation that the final sentence of the penultimate paragraph of the gist in the Claimant's case is drafted in negative terms. It was intended to be a reference to the prison's recommendation. Unfortunately, as drafted, and particularly because of the reference to "reports" in the plural, that sentence would, I accept, be capable of giving the Claimant the impression that none of the report writers had expressed the view that the Claimant could be downgraded to Category B. I believe that it is unlikely that the Claimant was in fact misled because he was aware that at least one of the report writers, his Personal Officer, had expressed the view that he could be downgraded to Category B … "
"In this case, I believe that the final sentence of the penultimate paragraph of the gist could be amended to read as follows, without the disclosure of that additional information leading to the identification of individuals or prejudicing the purpose of preventing or detecting crime:
"Some reports express the view that you could be downgraded to Category B, whilst others recommend that you should not be downgraded. Overall, in view of the lack of evidence through offence related work or otherwise that your security category should be downgraded, the prison's recommendation is that your security category should not be downgraded at this time.""
"I have carefully considered whether the gist on the Claimant's 2001 reports is, in all the circumstances, fair. In so doing I have taken on board the Court's concern as to whether the gist is an accurate reflection of the reports (or, as outlined above, the recommendation) in the Claimant's case. As I have said above, I accept that the final sentence of the penultimate paragraph of the gist would have been capable of misleading the Claimant. This is an unfortunate error, for which I apologise on behalf of the Prison Service. As I have explained above, I believe that it has arisen because the overall prison recommendation, along with the Governor's or deputy Governor's assessment will naturally be given more emphasis in the gist than the views of individuals.
Apart from this slip, I believe that this gist is a fair and accurate summary of the reports, and it accurately reflects the prison's recommendation. Whilst I would accept that different caseworkers preparing gists may have different styles, the actual content of the gist is dictated primarily by the matters of fact detailed in the reports. In this case, the detail contained in the Governor's or Deputy Governor's assessment has been fully set out and the detailed comments in the Category A reports have been incorporated in the gist in so far as it was possible to do so without identifying the individual report writers or prejudicing the purpose of preventing or detecting crime. In particular, the caseworker who summarised these reports was careful to ensure that the positive comments made by … were conveyed in the gist.
I believe that the Court can have confidence in the present gist system as a whole. I believe that in general gists do summarise the Governor's or deputy Governor's assessment, the prison's recommendation and the Category A reports in a "perfectly satisfactory and perfectly fair" way, as Lord Woolf believed to be the case in the case in McAvoy."
"I note that Mr [S's] gist contains numerous phrases common to many gists on other category A complainants that I have read elsewhere. I have some sympathy for his solicitors' complaint that the document has become standardised. Mr [S's] gist should have provided him with clear and unambiguous information on which to base his representations. Whilst I can understand the desire for the Review Team to develop its own house style of communicating sensitive information in an acceptable format that does not breach security guidelines, there is a danger that a document which shows over-rigid adherence to a format at the expense of credible content has been produced. The wording of the replies that the Review Team gave to Mr [S's] solicitors in response to their representations only serves to underline this point. If a gist renders itself so anodyne that it could equally apply to any number of prisoners then its effectiveness in providing a prisoner with credible material to understand the reasons behind their categorisation is open to question"
"the Category A Review Team itself reviews the structure of the gist provided to category A prisoners so that it is more flexible in language, tone and scope. It should reflect more closely the individual prisoner and relevant information pertinent to that prisoner."
"Security categorisation in relation to Category A prisoners is concerned with ensuring that highly dangerous prisoners with a high risk of re-offending if unlawfully at large are held in conditions of security that make escape impossible. Security categorisation is a public protection measure concerned with the prevention of crime. Category A reports, which are produced for the purpose of reviewing a prisoner's security categorisation, are invariably processed for the purpose of preventing crime. Such reports may have the additional purpose of detecting crime.
I firmly believe that disclosure of the reports would be likely to prejudice the purpose of preventing or detecting crime. If the court holds in this case that the Category A reports do not fall within the s 29(1) exemption, in future all Category A prisoners are likely to make subject access requests for their Category A reports. This would effectively oust the gist procedure.
The Prison Service has major concerns as to the impact the replacement of the gisting procedure with full disclosure would have on the efficacy of the system for the categorisation of highly dangerous prisoners. In order to undertake rigorous reviews of prisoners' security categorisation, the Prison Service requires prison staff to provide frank personal assessments of some of the most dangerous prisoners in custody. At present they do so in the knowledge that these reports are confidential and the views of individuals will only be conveyed to the prisoner in anonymised form.
It is my belief, and that of senior management within the Prison Service and my staff, that if the gist procedure is replaced by a system of routinely disclosing Category A reports, this will result in less frank personal assessments from prison staff. Prison staff, especially those in close contact with prisoners, are vulnerable. Yet obtaining full and candid reports from such staff is a particularly vital part of the process of reaching an informed decision on categorisation, with a view to protecting the public from serious harm. Accordingly, retaining the gist procedure is designed to protect the public and prison staff from the risk of harm presented by highly dangerous prisoners.
Some reports may also contain information disclosure of which could prejudice prison security, eg information on a prisoner's associates, manipulation of prison staff or of other prisoners, details of surveillance or monitoring which may be in place. Any report from a security officer would obviously fall within this category. Disclosure of security information could clearly in itself undermine prison security by giving prisoners information as to the importance attached by the Prison Service to particular matters and incidents and as to the surveillance or monitoring that is in place. But reports from other staff may also contain such information.
I accept that there may be instances where reports on Category A prisoners, when looked at individually, would appear to be innocuous and unlikely to prejudice the prevention or detection of crime. This may be so particularly in cases where the prison is recommending downgrading, where one can reasonably expect most, if not all of the reports, to be of a positive nature. But I believe that routine disclosure of any Category A reports would be likely to prejudice the purpose of preventing or detecting crime.
First, if disclosure of Category A reports was ordinarily made it would necessarily become apparent to a prisoner when the Prison Service held specific information on him that it was not prepared to disclose, on the grounds that it would be likely to prejudice the prevention or detection of crime. Thus highly dangerous prisoners would be able to assess whether the Prison Service does or does not have particular information about them relating to any criminal activities that they may be planning or have committed. This may be valuable information for prisoners to obtain, enabling them to thwart the efforts of the prison service to detect or prevent crime.
Secondly, if all positive reports about a prisoner were disclosed, but the gist indicated a negative recommendation it might well be readily apparent to the prisoner, by a process of elimination, who had recommended that he should not be downgraded. This might lead the prisoner to harm or put pressure on the one report writer who he may perceive has caused a decision not to downgrade his security categorisation. Further, fear of this occurring may lead to prison staff being less than frank in the reports they provide to the Category A Committee or Review Team."
"The Category A Review Team have considered the feasibility of disclosure of reports in a redacted form (to remove the report writers' name, or parts of the report itself). We are of the view that redaction is not sufficient to preserve the identity of the writer, which may be revealed by or easily ascertainable from the content of the report. For example, (i) it will be obvious from the contents of any psychologist's report that it is the report of a psychologist, and the prisoner will be aware which psychologist has had contact with them, (ii) the content of reports tends to reveal the extent of involvement that the writer has with the prisoner, including specific conversations that they may have had, and in what context, which will lead to the report writer being easily identifiable.
To the extent that disclosure can be made without prejudicing the purposes of preventing and detecting crime, it is made in the form of the gist document. The Category A Review Team do not consider that greater disclosure, in redacted form, should be made unless (exceptionally) it is required in the interests of fairness."
"I should stress that whilst I believe that this information can be disclosed in this case, there may be cases where it is not possible to refer to any differing recommendations in the gist without risking identifying individual report writers and revealing their views. In such cases the disclosure of the recommendation may need to be limited to stating the prison's recommendation."
i) The procedures by which the Board determines whether prisoners detained at Her Majesty's Pleasure and those serving discretionary or automatic (but not mandatory) life sentences should be released on licence. These procedures are regulated by the Parole Board Rules 1997, promulgated by the Secretary of State pursuant to the provisions of sections 32(5) and 32(6) of the 1991 Act: see rule 2(1), read in conjunction with the relevant provisions of the Crime (Sentences) Act 1997.
ii) The procedures by which the Board determines whether prisoners serving determinate sentences of four years or more should be released early on licence. These procedures are regulated by Prison Service Order 6000.
"(1) … the Secretary of State shall serve on the Board and, subject to paragraph (2), the prisoner or his representative –
(a) the information specified in Part A of Schedule 1 to these Rules,
(b) the reports specified in Part B of that Schedule, and
(c) such further information that the Secretary of State considers to be relevant to the case.
(2) Any part of the information or reports referred to in paragraph (1) which, in the opinion of the Secretary of State, should be withheld from the prisoner on the ground that its disclosure would adversely affect the health or welfare of the prisoner or others, shall be recorded in a separate document and served only on the Board together with the reasons for believing that its disclosure would have that effect.
(3) Where a document is withheld from the prisoner in accordance with paragraph (2), it shall nevertheless be served as soon as practicable on the prisoner's representative if he is –
(a) a barrister or solicitor,
(b) a registered medical practitioner, or
(c) a person whom the chairman of the panel [as to whom see rule 3] directs is suitable by virtue of his experience or professional qualification;
provided that no information disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the prisoner or to any other person without the authority of the chairman of the panel."
"as regards any documents which have been received by the Board but which have been withheld from the prisoner in accordance with rule 5(2), whether the disclosure of such documents would adversely affect the health or welfare of the prisoner or others".
"Any current reports on the prisoner's performance and behaviour in prison and, where relevant, on his health including any opinions on his suitability for release on licence … as well as his compliance with any sentence plan."
"Establishments may find it administratively convenient to link security category reviews with other processes such as sentence planning reviews, preparation of F75 [that is, Parole Board] reports for Category A Lifers and parole reviews".
"There are four areas where information may be withheld from the prisoner:
i. in the interests of national security;
ii. for the prevention of crime or disorder. This includes information relevant to prison security;
iii. for the protection of information which may put a third party at risk (it is in this category in which information from the victim should be included);
iv. if, on medical and/or psychiatric grounds, it is felt necessary to withhold information where the mental and/or physical health of the prisoner could be impaired."
i) The gist in the present case, in my judgment, manifestly did not comply with the requirements laid down in ex p Duggan and ex p McAvoy. The gist was not, with all respect to the contrary views expressed by Ms Lewis, either satisfactory or fair. It was in fact extremely unsatisfactory. The claimant, as it seems to me, has not been treated fairly.
ii) The materials I have been shown, and the Ombudsman's report in particular, strongly suggest that what has happened to the claimant in the present case is far from being the kind of isolated and unfortunate error suggested by Ms Lewis. It is not an encouraging picture. I am left with the uncomfortable feeling that there may well be others – how many it is quite impossible for me to say – who have, I fear, been treated as shabbily and unfairly as the claimant.
i) should state in terms whether the views expressed are unanimous or not;
ii) where views are divided, should indicate the numbers of views pro and con; and
iii) should set out the gist of each of the reported views.
"to have communicated to him in an intelligible form –
(i) the information constituting any personal data of which [he] is the data subject, and
(ii) any information available to the data controller as to the source of those data".
"shall have effect notwithstanding any enactment or rule of law prohibiting or restricting the disclosure, or authorising the withholding, of information."
"Personal data processed for any of the following purposes—
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders, or
(c) … ,
are exempt from … section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection."
"(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless—
(a) the other individual has consented to the disclosure of the information to the person making the request, or
(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.
(5) In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.
(6) In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to—
(a) any duty of confidentiality owed to the other individual,
(b) any steps taken by the data controller with a view to seeking the consent of the other individual,
(c) whether the other individual is capable of giving consent, and
(d) any express refusal of consent by the other individual."
"the supply of such a copy is not possible or would involve disproportionate effort".
"If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request."
"In interpreting the Act it is appropriate to look to the Directive for assistance. The Act should, if possible, be interpreted in a manner that is consistent with the Directive. Furthermore, because the Act has, in large measure, adopted the wording of the Directive, it is not appropriate to look for the precision in the use of language that is usually to be expected from the parliamentary draftsman. A purposive approach to making sense of the provisions is called for."
"(42) … Member States may, in the interest of the data subject or so as to protect the rights and freedoms of others, restrict rights of access and information; …
(43) … restrictions on the rights of access and information and on certain obligations of the controller may similarly be imposed by Member States in so far as they are necessary to safeguard, for example, national security, defence, public safety, or important economic or financial interests of a Member State or the Union, as well as criminal investigations and prosecutions … "
"Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in [the Directive] when such a restriction constitutes a necessary measure to safeguard:
(a) national security;
(c) public security;
(d) the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions;
(e) … ;
(f) … ;
(g) the protection of the data subject or of the rights and freedoms of others."
i) Section 29(1) contemplates an exercise in judicial fact-finding. The question for the court is whether compliance with section 7 "would be likely to prejudice" any of the matters referred to. That, as it seems to me, is essentially a question of fact, albeit to be decided in the light of, and by a process of judicial evaluation of, all the circumstances of the case.
ii) Section 7(4)(b), on the other hand, involves a rather different type of judicial evaluation, that is, a 'balancing exercise' where the interests of the prisoner have to be balanced against the interests of the prison officers and other persons who have made the Category A reports.
iii) Section 8(2)(a) involves a similar type of balancing exercise, albeit the balance that has here to be struck is between the interests of the prisoner and what might be called the administrative interests of the prison service.
iv) Section 7(9) involves the exercise of a pure, and on the face of it untrammelled, judicial discretion.
"… Personal data are exempt from the provisions referred to "in any case in which the application of those provisions to the data would be likely to prejudice" the prevention or detection of crime or the apprehension of offenders. It seems to us that the words taken as a whole – "in any case in which the application of those provisions to the data" – make it plain that the exemption applies only in particular cases where we can talk about "the data," that is to say the personal data to which we may or may not apply the provisions."
"It is clear that in any case where fraud is attempted the Registrar's notice would be likely to prejudice the prevention of crime. In any such case, therefore, the personal data are exempt from the relevant provisions of … the Act and Equifax are free to process data untrammelled by the notice. But in our judgment section 28(4) does not prevent the Registrar from serving such an order in relation to all the cases – the vast majority – where no crime is, or is going to be, committed. The phraseology is "would be likely to prejudice" the matters referred to, not "might conceivably prejudice" those matters."
""likely" does not carry any necessary connotation of "more probable than not". It is a word which takes its meaning from context. And where the context is a jurisdictional threshold to the exercise of a discretionary power, there may be good reason to suppose that the legislature - or the rule-making body, as the case may be - intended a modest threshold of probability."
"a rather higher threshold of probability than merely "more than fanciful" [but] without reaching the threshold of "more probable than not"."
"there may be instances where reports on Category A prisoners, when looked at individually, would appear to be innocuous and unlikely to prejudice the prevention or detection of crime."
i) It may endanger report writers: highly dangerous prisoners will be able to identify who has written a report that has damaged their chances of recategorisation, with the consequence that they will be at risk of revenge attacks or other forms of harm or retaliation.
ii) It may lead report writers to provide less informative, frank and candid reports than at present, with the consequence that highly dangerous prisoners may be placed in lower conditions of security than they should be because their security categorisation has been made in ignorance of important information: since the aim of the security categorisation procedure is to prevent (and sometimes detect) crime, if the procedure is made less efficient this prejudices that purpose.
iii) It may defeat security by showing what importance is attached by the Prison Service to particular matters and incidents and what surveillance or monitoring is in place.
" The critical difference between these two decision-making processes in cases involving discretionary life prisoners is readily identified. Release on licence is a formal step. It means what it says. The release can be and generally is made subject to supportive measures as well as stringent conditions such as supervision or treatment, or both. The released prisoner is normally subject to a measure of immediate and continuing control. In the event of non-compliance, the licence is revocable.
 The Category A Committee is concerned with the risks posed to the public by a prisoner who escapes, something which may occur unexpectedly, at any time. If he escapes, and while he remains at large, the prisoner is uncontrolled and unsupervised, temporarily, at least, untraceable, on the run, subject therefore to the inevitable increased stresses on an individual who, by definition, has not yet satisfied the panel that it would be safe for him to be released on licence.
 In summary, the panel is concerned with the protection of the public following a supervised conditional release of the prisoner, whereas the Category A Committee or review team concentrate on the risks to the public posed by an escape. This is a difference of substance. They address the same broad issue – public safety – but they are resolving a different problem ... "
"communicat[e] so much of the information sought … as can be communicated without disclosing the identity of the other individual[s] concerned, whether by the omission of names or other identifying particulars or otherwise."
i) The fact that Category A prisoners are highly dangerous.
ii) The reasonable anticipation the writer of a report will have that, if he or she gives a negative report which damages the prisoner's chances of recategorisation, the prisoner may seek revenge: thus there is the risk of revenge attacks or other forms of harm or retaliation to report writers if they continue to provide frank reports or, if they do not, the risk of prejudice to the effectiveness of the security categorisation review procedures with consequent damage to the public interest.
iii) The reasonable anticipation the writer of a report will have that his or her report will be confidential (see paragraph  above).
i) First, she points to the operation of the parole review system. As she correctly observes, the Secretary of State has provided no evidence to suggest that the authors of parole review reports have not been adequately protected by the system which there obtains, a system of full disclosure subject to targeted exceptions in individual cases.
ii) Next, she points to the rejection by the Divisional Court in ex p Duggan of any claim to a blanket exemption. The class claim in that case was rejected on the basis that public interest immunity on a contents basis – that is, targeted non–disclosure on a case by case basis where the circumstances of the individual case justified the withholding of information (for example, information identifying informers or prejudicial to prison security) – was sufficient to meet the legitimate requirements of the prison service and the individuals involved.
iii) Finally, in this connection, Ms Kaufmann points me to R (Daly) v Secretary of State for the Home Department  UKHL 26,  2 AC 532, where (for this purpose drawing no distinction between Category A and other prisoners) the House of Lords struck down a blanket policy excluding prisoners from being present whilst their cells were being searched lest they intimidate or attempt to condition prison officers. Lord Bingham of Cornhill said at p 545E (para ) that "any rule should provide for a general right for prisoners to be present when privileged legal correspondence is examined, and in practice this will probably mean any legal documentation to avoid time-wasting debate about which documents are privileged and which are not. But the rule must provide for the exclusion of the prisoner while the examination takes place if there is or is reasonably believed to be good cause for excluding him to safeguard the efficacy of the search, and the rule must permit the prison authorities to respond to sudden operational emergencies or urgent intelligence." Ms Kaufmann says that this is an example of a judicially approved targeted rule, not excluding Category A prisoners – that is, subject to specified exceptions, a general rule entitling prisoners to be present during a search. That reasoning, she suggests, is applicable here by way of analogy.
"I remind myself, however, that under s 7(9) the claimant would have had to establish that the defendant had failed to comply with a request for disclosure in contravention of s 7(1), and, importantly, that, even in that event, the subsection confers upon the court a discretion as to whether to order the disclosure of such documents. I consider it of extreme significance that, even though s 7(1) speaks in terms of entitlement to disclosure on the part of the subject of data, the court is given a discretion, by the use of the word 'may' rather than any word such as 'must' or 'shall', as to whether to make the order.
It is also important to note that an analogous discretion is reflected in the terminology of s 14. As has been seen, s 14 is engaged only if the court is satisfied that personal data are inaccurate; and, even then, a discretion arises as to whether to order their rectification."
"First, I cannot see that the information could be of any practical value to the appellant. Secondly, the purpose of the legislation it seems to me is to ensure that records of an inaccurate nature are not kept about an individual. A citizen needs to know what the record says in order to have an opportunity of remedying an error or false information. In this case the appellant seeks disclosure not to correct an error but to fuel a separate collateral argument that he has either with Barclays bank or with the FSA, litigation which is in any event doomed to failure. I am entirely satisfied on the facts of the case that the FSA have acted at all times in good faith, and indeed there has been no suggestion to the contrary from the appellant; his argument is with Barclays bank not with the FSA."
i) The error, she says, should not be given any weight. It has now been remedied by the disclosure of additional information, so there is no need for any relief to be granted in respect of that information. (In this connection I repeat the point I have already made: see paragraph  above.) There is, she says, no reason why the earlier error should be given any weight in considering whether further disclosure should be ordered under the 1998 Act.
ii) The defendant has already communicated to the claimant the information contained in the Category A reports to the full extent that the claimant is entitled to such information in the interests of fairness. The fact that the Secretary of State has disclosed to the claimant all the information that it is necessary to disclose in the interests of fairness is, says Ms Steyn, a "crucial element" in relation to the exercise of the court's discretion. (Again, in this connection I repeat the point I made in paragraph  above.) The order the claimant seeks under the 1998 Act would have the consequence of circumventing the gist procedure, a procedure endorsed by the Court of Appeal in ex p McAvoy as being a fair procedure.
iii) To direct disclosure would not strike a fair balance between the interests of the claimant on the one hand and the interests of the public and Prison Service staff on the other, having regard in particular to:
a) the strong expectation held by those who wrote the reports, the subject of the application, that their reports – and their names – would not be disclosed; and
b) the risk of revenge attacks or other forms of harm or retaliation to Prison Service staff if they continue to provide frank reports or, if they do not, the risk of prejudice to the effectiveness of the security categorisation review procedures with consequent damage to the public interest.
iv) The claimant could, and should, have awaited the outcome of the investigation by the Information Commissioner before commencing the present proceedings.
i) The problems in the gist system highlighted by the present case add even greater weight to the case for the court to exercise its discretion under section 7(9) in favour of the claimant if – which is the only hypothesis upon which the issue arises at all – the court finds that the Secretary of State's policy cannot be justified under either section 29(1) or section 7(4) and thus breaches the claimant's right to disclosure under section 7(1).
ii) Whilst the court in ex p McAvoy held that fairness did not require the extent of disclosure to which, on this hypothesis, a prisoner is entitled under the Act, it does not follow that more extensive disclosure will not assist in the making of representations to the Category A Review Team or the Category A Committee. In fact, says Ms Kaufmann, there is no question but that more extensive disclosure will assist in formulating better representations and thus in securing a positive outcome. The claimant is doing nothing wrong in seeking to secure his rights under the Act, even if it does mean that he will benefit from the disclosure of more information than he is entitled to at common law. As section 27(5) makes clear, the rights conferred under the Act are intended to be respected notwithstanding that they conflict with another rule of law which prohibits or restricts disclosure.
iii) There is no reason for the court to exercise its discretion against the claimant on the basis of factors which have already been taken into account in ascertaining whether the Secretary of State can rely upon either section 29(1) or section 7(4) and have been found insufficient to deny the claimant what is prima facie his right to disclosure under section 7(1).
iv) The Act does not require a data subject to make an application to the Commissioner first. It confers an unfettered right of access to the court. Moreover, and despite the passage of time, the Commissioner has still not responded substantively. It is unreasonable to expect the claimant to wait so long when the purpose for which he seeks the information is to secure his downgrading and thus to bring forward the date of his release from custody.
- - - - - - - - - - - - - Post Judgment Discussion - - - - - - - - -
MR JUSTICE MUNBY: This is an application for judicial review by a prisoner seeking disclosure pursuant to the Data Protection Act 1998 of confidential prison records.
For the reasons set out in a judgment, a draft of which was sent to the parties last week and which I now hand down in open court, the application succeeds.
By agreement with the parties, I am adjourning until a date in the week commencing 29 September 2003 (that date to be fixed in consultation with my clerk) any consequential issues relating either to the form of the order, costs or any application by the Secretary of State for permission to appeal. Accordingly, time for applying for permission to appeal will be extended until 4.30 pm on Friday 3 October 2003.