QUEENS BENCH DIVISION
London WC2A 2LL
B e f o r e :
|THE QUEEN on the application of JOHN SMITH||Claimant|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
|THE METROPOLITAN POLICE COMMISSIONER||Interested Party|
|THE DIRECTOR OF PUBLIC PROSECUTIONS||Interested Party|
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)
Steven Kovats (instructed by Treasury Solicitor) for the Defendant
Jonathan Rees for The Director of Public Prosecutions
Crown Copyright ©
Mr Justice Jack:
The relevant law
'In my view the question to be asked is whether there is a real risk to the life of the prisoner if he is not admitted to a PWU, rather than some alternative regime, for whatever period is being considered. However, immediacy requires that the risk must be present and continuing. A real risk is one that is not simply a fear felt by the prisoners but disclosed by all the information available.'
Circular 9/1992 the Annex and the decision-making process
'3. The police should initially notify the Home Office Police Adviser, Directorate of Custody, at Prison Service Headquarters of their intention. The Police Adviser will be asked to obtain a comprehensive report from the police officer in charge of the case. The application for protected witness status must be supported by the CPS and the report endorsed at (at least) Assistant Chief Constable level. This report will form the basis on which a decision is reached by Prison Service Headquarters about an informant's eligibility to he treated as a protected witness and should include information about his criminal record, the present charges and details of the help which the police envisage that the informant will provide. Once a decision has been reached in principle that the informant will be treated as a protected witness, contact will be made by the Prison Service with the police force or Regional Crime Squad handling the case in which the protected witness is expected to give evidence. Some indication will be sought from the police as to when the informant is likely to come under the jurisdiction of the Prison Service.'
The claim for a declaration that the Circular and Annex were and are inadequate for decision-making in the claimant's case
(1) The transfer of the claimant to police custody was made by the Prison Service at A after seeking advice from the Police Liaison Section of the Prison Service at Prison Headquarters. The transfer was not, however, known to the National Operations Unit, which deals with the placement of protected witnesses within the prison system.
(2) At an early stage, I am uncertain exactly when, the police told the claimant that they would put him forward for protected witness status. This was known to staff at A.
(3) When the time came for the police to return the claimant to prison, the staff at A were reluctant to receive him as they understood he was to be placed in a Protected Witness Unit. In order to secure his safety, he was placed in the healthcare unit, which was empty at the time. I take this from paragraph 5 of the first statement of Stephen Moore. Following this there were discussions within the Directorate of High Security Prisons at the Prison Service Headquarters as to where the claimant should be held. The Directorate did not then know what information he had given to the police, nor the identity of the person or persons against whom he had given information. It was decided he should remain at A being kept from other prisoners as much as possible in the healthcare centre. I take this from paragraphs 5 and 6 of the first statement of Simon Beecroft. It seems that the Directorate made no attempt at this stage to obtain further information.
(4) About a fortnight before the claimant's return to A, the police contacted the CPS representative in charge of the case to which the information provided by him related, stating that the police would be seeking protected witness status. The representative informed the police that the CPS would need a report in accordance with the Annex together with the statement made by the claimant and other relevant material. At about the time of the claimant's return to A the representative received material according with Annex A from the police. Later further material was provided. The material provided to the CPS by the police included the formal application by the police that the claimant be given 'resident informant status'. The senior officer making the application stated that the case met the criteria set out in the Circular and that the application had his full support.
(5) Some 2 months after the return of the claimant to A it was decided by the CPS at a conference with counsel that the claimant would not be called as a witness at any trial concerning the crime or crimes to which his information related. The consequence of this was that the CPS took no further steps to progress the procedure under the Annex which would have led to a decision by the Home Department whether or not to accord the applicant protected witness status with the consequence that he would have been held, in a PWU.
(6) About a month after the claimant's return to A it was decided to move him to prison B because of concerns for his safety at A. The decision was made within the Directorate of High Security Prisons — paragraph 7 of Mr Beecroft's statement.
(7) Shortly after his arrival at B the claimant was moved to the hospital wing following his expression of concern for his safety.
(8) At the time that the. CPS decision not to use the claimant as a witness was communicated to the police and by the police to the Prison Service Headquarters an assessment by the police of the risk to the claimant was provided to the Directorate of High Security Prisons. This assessed the probability of the risk occurring to the claimant's safety as 'high', and the impact if the risk occurred as 'serious'. It appears that there were earlier such assessments but their distribution is uncertain. Save for the last sentence, I take this from paragraph 10 of Mr Beecroft' s statement.
(9) Mr Beecroft is responsible for population management within high security prisons. Following the CPS decision and his receipt of the police risk assessment he considered in liaison with others where the claimant should. be held in the long term.
The claim for a declaration that a prisoner does not have to have given, or be going to give evidence to be admitted to a PWU.
The claim for a declaration that the claimant should now be held in a PWU, and should have been held in one since he returned to prison having given information.
In consequence his decision was flawed.
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 PWU and anyone else outside the unit, other than those with a legitimate reason, and proper authority, for access.....