London, WC2A 2LL
B e f o r e :
MR JUSTICE ROYCE
| R (on the application of 'A')
|- v -
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)
Ian Burnett QC and Jonathan Swift (instructed by Treasury Solicitors) for the Respondent
Eleanor Grey (instructed by Capsticks) for an Interested Party (West London Mental Health Trust)
Crown Copyright ©
"The interviews may take place provided they are recorded by the HM Prison Service and conducted within the earshot of officials at all times, and provided that they remain within the scope indicated in paragraph 20 of J. Manel's witness statement of 12 March 2003 and paragraph 21 of Chris Elliott's witness statement of 13 March 2003. The BBC has already accepted that the interviews may be monitored; see letter from John Manel to Mr Turner of 17 September 2002, under 'conditions of interview'. These conditions are accepted in paragraph 19 of Danny Shaw's witness statement dated 4 March 2003. The Guardian has also accepted that the interviews may be monitored, albeit by tape recording; see paragraph 20 of Chris Elliott's statement dated 13 March 2003.
No recording equipment may be brought into the prison by those involved in carrying out the interviews. This is in accordance with normal practice for journalistic interviews conducted in prison."
As is clear from that extract, the journalists had already indicated a willingness to accept the monitoring conditions which the Secretary of State imposed and, as Mr Ian Burnett QC for the Secretary of State told us, it was at that stage believed that the action would come to an end. It did so in so far as it concerned the representatives of the media. But the claimants themselves were not happy with the conditions, and it is those conditions which we are now considering. As one of the claimants is a patient the West London Mental Health NHS Trust, which is responsible for Broadmoor Hospital, has sought leave to be joined as an Interested Party and we have granted that leave.
Tha Claimants objections to monitoring.
Why the Secretary of State wants monitoring.
(1) Good order and discipline at the prisons where the claimants are held, and –
(2) The national security of the United Kingdom.
Monitoring is not unusual in relation to prisoners. Rule 34(6) of the Prison Rules provides that unless the Secretary of State directs otherwise "every visit to a prisoner shall take place within the hearing of an officer or authorised employee". The provision does not apply to visits by lawyers or members of the Criminal Cases Review Commission etc, but otherwise it is applied.
"1. Everyone has the right to freedom of expression. This right shall includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, or the prevention of disorder or crime…. for the protection of the reputation or rights of others …."
Some reliance was at one time also placed on Article 14 (the non-discrimination provision) and on Article 6, but before us it was accepted by Mr Tim Owen QC on behalf of the claimants that for present purposes those Articles add nothing to Article 10.
The Claimants submissions.
"Consistently with order and discipline in prisons it is administratively workable to allow prisoners to be interviewed for the narrow purposes here at stake notably if a proper foundation is laid in correspondence for the requested interview or interviews. One has to recognise that oral interviews with journalists are not in the same category as visits by relatives and friends and require more careful control and regulation. That is achievable."
Mr Burnett also relies on that passage. He submits that the Secretary of State has acted in accordance with it in this case.
"There is not simply a general striking of a balance between individual rights and the public interest with deference being shown to the views of the state authority; the starting point is the Convention right, which it is accepted in principle remains in play. The authority must demonstrate a proper basis for interfering with it, and show that nothing short of the particular interference will achieve the avowed objective."
Mr Owen points out that in the present case although the claimants are lawfully held in prison there is no penal objective, so he submits that the Secretary of State must demonstrate a proper basis for interfering with the right to give an interview without being monitored. For the Secretary of State it is pointed out that no lesser and equally effective form of monitoring has been proposed by anyone.
Submissions for the Secretary of State.
"There remains a category of situations where the denial of a face to face interview can amount to an unjustifiable denial of the right of the prisoner to communicate and his legitimate interest to pursue his attempts to obtain a review of his conviction or sentence. The category is exceptional. It will not be the extensive and unregulated right which those standing behind the applicants appear to visualise."
Lord Hobhouse went on to mention the need for special arrangements, and Lord Millett adopted a similar cautious approach saying at 146B that if the governor –
"Is satisfied that the visitor is a responsible journalist investigating a possible miscarriage of justice, that his investigations cannot be reasonably be completed or taken further without a personal interview, and that he is willing to comply with appropriate arrangements for the supervision and control of the interview and the scope of the material to be submitted for publication, then permission should normally be granted."
"I would accept the Secretary of State's submission that the reciprocal co-operation between the United Kingdom and other states in combating international terrorism is capable of promoting the United Kingdom's national security, and that such co-operation in itself is capable of fostering such security 'by inter alia, the United Kingdom taking action against supporters within the United Kingdom of terrorism directed against other states.' There is a very large element of policy in this which is, as I have said, primarily for the Secretary of State. This is an area where it seems to me particularly that the Secretary of State can claim that a preventative or precautionary action is justified. If an act is capable of creating indirectly a real possibility of harm to national security it is in principle wrong to say that the state must wait until action is taken which has a direct effect against the United Kingdom."
Lord Steyn agreed and said at 185E –
"Even democracies are entitled to protect themselves, and the executive is the best judge of the need for international co-operation to combat terrorism and counter terrorist strategies. This broader context is the backcloth of the Secretary of State's statutory power of deportation in the interests of national security."
At 192 B paragraph 50 Lord Hoffmann said –
"There is no difficulty about what 'national security' means. It is the security of the United Kingdom and its people. On the other hand, the question of whether something is 'in the interests' of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive."
He developed that theme over the next few paragraphs of his judgment, and in a postscript at page 195 paragraph 62 he wrote that the terrible events of 11th September 2001 "are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security."
"In a society based upon the rule of law and the separation of powers, it is necessary to decide which branch of government has in any particular instance the decision-making power and what the legal limits of that power are. That is a question of law, and must therefore be decided by the courts. This means that the courts themselves often have to decide the limits of their own decision-making power."
In the particular case Parliament was held to be entitled to reflect the public's desire to maintain standards of taste and decency, even if to do so did to some extent infringe the liberty of others. That does illustrate the repeated need to balance the interests of one individual or group and the interests of the community, as noted by Lord Bingham in Brown v Stott  1 AC 681, and there are many cases in which the European Court of Justice has given a wide margin of appreciation to national authorities in relation to their assessments of the requirements of national security. The deferential approach of domestic courts to the exercise of discretion by the executive is consistent with the European approach.
The sixth claimant.
(1) Prior agreement as to the scope of any interview:
(2) That an interview takes place within earshot of an official, and that a tape recording is made by the prison service or the Secretary of State, and-
(3) That no journalist brings any sound recording equipment to record an interview, but may take or arrange for the taking of a short hand note.
Mr Burnett submits that even if the RMO were prepared to countenance an unmonitored interview he or she cannot be the final arbiter when issues arise in relation to national security. I agree. Thus the Trust can impose conditions which the RMO may consider to be unnecessary.
Mr Justice Royce:
- - - - - - - - - - - - - - - - - - - - - - - - - -
LORD JUSTICE KENNEDY: For the reasons set out in the judgment which has been handed down, which is the judgment of the court consisting of myself and Royce J, this application is dismissed. The order will be that the application is dismissed and there be no order as to costs, save that there be detailed assessment of the claimant's costs payable out of the legal aid fund in accordance with paragraph 4 of the Community Legal Service Funding Order 2000.
I understand that there is also an application for leave, Mr Southey?
MR SOUTHEY: There is an application for leave to appeal, my Lord. In my submission, I want to address your Lordship on the second limb of the Court of Appeal's test -- the compelling reason aspect of the test. My Lord, your Lordship will be aware that the provisions that are used to detain the claimants are highly unusual and the subject of a considerable amount of interest due to the fact they are so unusual and have been criticised on one or two occasions.
What this case raises for the first time is not their detention which, of course, is going to be considered by the House of Lords and is regarded even by the House of Lords as a very important case, but what this case raises, which is perhaps equally important, is the correct balance, assuming that detention is lawful, between the interests of the State and the interests of the individual in the way in which they are treated. It is the first time that the issue has come before the court, and for that reason, my Lord, there are issues of importance that are sufficiently compelling, in my submission, to justify a grant of leave to appeal. My Lord, I think that probably covers --
LORD JUSTICE KENNEDY: Yes, and you have seen the written submission made to us by Mr Burnett?
MR SOUTHEY: I have, my Lord. I am sorry I should have drawn it to your attention.
LORD JUSTICE KENNEDY: I just wanted to make sure you had seen it. No, we have had an opportunity to consider briefly the submission and I have now had the advantage of hearing from you. I am afraid we take the view, and I still take the view, that this is a matter which should be considered by the Court of Appeal, if at all. Thank you very much.