Case No: CO/4620/2002
Neutral Citation Number: [2003] EWHC 406 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL

Friday 7th  March 2003
Before:

THE HONOURABLE MR JUSTICE JACK

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Between:
THE QUEEN on the application of JOHN SMITH
Claimant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
and

THE METROPOLITAN POLICE COMMISSIONER
Interested Party
and

THE DIRECTOR OF PUBLIC PROSECUTIONS
Interested Party
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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Michael Bromley-Martin QC and John Hardy (instructed by Edward Fail, Neale & Co) for
the Claimant
Steven Kovats (instructed by Treasury Solicitor) for the Defendant
Jonathan Rees for The Director of Public Prosecutions
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Judgment
Mr Justice Jack:

Introduction

1.	The claimant on this application for judicial review is a long term prisoner. The name, John Smith, is a pseudonym used for reasons which will become apparent. In order to preserve his anonymity it will be necessary in this judgment to deal with the facts with some imprecision. The application was first heard on 17 January 2003 when it was adjourned at the request of the Secretary of State to 25 February 2003. Both hearings took place in private. The claimant’s aim in the proceedings is to achieve his accommodation in a Protected Witness Unit. The proceedings were begun on 8 October 2002. As the situation concerning the claimant has changed, so to an extent has the relief sought on his behalf.

2.		The claimant has provided information to the police concerning serious crime. He is not, however, to be called as a witness: it has been decided that his evidence should not be used. It is his case that he is seriously at risk of attack by other prisoners in consequence of his having provided information. Home Office Circular 9/1992 and its annex makes provision in relation to what are called ‘resident informants’. I will refer to it as ‘the Circular’ and to its annex as ‘the Annex’.

3.	The first relief which is claimed is declaratory relief relating to the inadequacy of the past decision-making process in the applicant’s case. It is asserted that the provisions of the Annex are inadequate in that they do not cover situations such as arose in the claimant’s case. Second, a declaration is claimed that the fact that the claimant is not going to give evidence is not a bar to his being accommodated in a Protected Witness Unit if his safety requires it. Third, a declaration is claimed that he should now be accommodated in a Protected Witness Unit and should have been accommodated in one since he provided information. It is the first part of the last declaration which is most important to the claimant.

The relevant law

4.	The duties of the Secretary of State in connection with the admission to Protected Witness Units of prisoners who have provided information and the question of the court’s review of decisions made concerning such prisoners have been considered in two cases. The first is R on. the application of Bloggs 61 v Secretary of State [20021 EWHC 1921 Admin, 31 July 2002, Crane J. The second is R on the application of DF v the Chief Constable of Norfolk [20021 EWHC l738 Admin 15 August 2003, Ouseley J. I am grateful to both for their examination of the authorities and principles. I need not retread the same ground.

5.	It is accepted that the Secretary of State is under a duty at common law towards prisoners who may be at risk from other prisoners, because they have provided information. It is also accepted that in making decisions regarding such prisoners the Secretary of State must act compatibly with Articles 2 and 3 of the European Convention on Human Rights. In DF’s case Crane J considered the question which had to be asked in connection admission to a Protected Witness Unit, a ‘PWU’. He stated in paragraph 38:

‘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.’

6.	In Bloggs 61 Ouseley J. accepted that, because the decision involved Article 2, it fell to be tested within narrower limits than unreasonability in the Wednesbury sense (paragraphs 83 and 89).

Circular 9/1992 the Annex and the decision-making process

7.	The Circular begins ‘This circular offers guidance to chief officers on the handling and supervision of resident informants (referred to in the Prison Service as “protected witnesses” and on the procedures for securing their temporary release from prisons where appropriate.’ The reference to chief officer is to a chief officer of the police. The Circular does not, therefore, purport to lay down a comprehensive procedure to deal with the risks facing a prisoner who has been released into the custody of the police for the purpose of providing information and is then returned to prison. Nor does it.

8.	Paragraph 2 of the Circular defines a ‘resident informant’ as ‘an active participant in a serious crime or a succession of serious crimes who, after arrest or conviction, elects to identify, give evidence against and provide intelligence about fellow criminals involved in those or other offences. Paragraph 4 states that the ‘Circular’s main message concerns the need to proceed with resident informants in a way in which later allegations of inducement can be rebutted.’

9.	Paragraph 1 of the Annex is headed ‘Status’. The paragraph shows that ‘resident informant’ is a status to be accorded to the prisoner by the Home Office. A decision must first be made at high level within the police force handling the enquiry, for example, in a provincial force by an Assistant Chief Constable. Following the police decision, the police should consult the Chief Crown Prosecutor, who will refer the case to the Crown Prosecution Service Headquarters for a decision whether to apply to the Home Department for the status to be accorded. This suggests three separate stages of decision making: police, Crown Prosecution Service, Home Department.

10.	Paragraph 3 of the Annex may suggest a different line of communication. It is concerned with persons who are not yet in prison. Paragraph 4 provides that “similar” procedures shall be followed with those already serving a sentence. Paragraph 3 states:

‘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.’

11.	It is important that paragraph 3 does provide for the police to inform the Prison Service Headquarters of their intention at an early stage. There is then to be a police report recommending protected witness status. The recommendation must be supported by the CPS. Then comes the Home Office decision. The paragraph assumes that the person is not yet in prison. That must mean either that he has not been charged with an offence, or that he is on bail or is in police custody. The second is unlikely if serious crime is involved. The third is only possible for a short time.

12.	A prisoner who is accorded protected witness status will be held in a Protected Witness Unit. It is not necessary for a prisoner to have given evidence to be accorded that status. I take this from paragraph 4 of the statement of Barney Clifford. PSI 71/2000 relates to PWUs. I will return to it subsequently. 

The claim for a declaration that the Circular and Annex were and are inadequate for decision-making in the claimant’s case

13.	In 2002 the claimant was being held in prison A. He was removed from prison A into police custody for a number of weeks during which he provided information. Following this lie was returned to prison A. Later he was moved to prison B. In so far as it is necessary for this judgment the events can be further summarised as follows:

(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.

14.	It is unnecessary to go further with the history at this stage, because the claimant’s first and second claims for relief turn upon the events so far described.

15.	The situation with which the court is concerned is that where a prisoner is removed from prison to police custody for a period in which to provide information; where either because of that removal or for some other reason it will be suspected by other prisoners that he has given information; and where in consequence he will be at risk of attack by other prisoners on his return to prison unless appropriate steps are taken. The issues raised by the first claim arc (1) whether the procedures set out in the Annex provide for a decision to be taken as to dealing with the risk of attack, and (2) regardless of the Annex, whether thc. steps taken in the claimant’s case were appropriate. It must, of course, be borne in mind throughout that the decision as to where a prisoner should be held within the prison system is one for the Secretary of State acting through his officials. This court can only interfere if grounds to judicial review are established.

16.	Where a person is not in custody and there is time to complete the process foreseen by the Annex before he is taken into custody and enters the prison system, the Annex covers the situation and no difficulty should arise. Where he enters, or re-enters, the prison system before the process foreseen by the Annex has reached a. conclusion, it is plain that an assessment of the risk to him on his return, and a decision how the risk should be dealt with, must be made outside the ambit of the Annex. For it is necessary that it be done before he returns and not sometime afterwards when the process foreseen by the Annex is complete.

17.	The situation under consideration does present difficulties because, until the person has provided his information and the position has been assessed, a final decision cannot be taken. Even a temporary decision may be difficult, and it may be necessary to err on the side of caution. What is required is a system whereby the appropriate (and precisely identified) body within the Prison Service is informed as early as possible that a situation may arise in which a prisoner requires protection because he has provided information. That body must be kept informed as the situation develops, so that, at the time the person enters, or re-enters, prison a decision has been made as to what the situation requires. I put that in the most general terms because it is not for the court to say what the system should be, only that to say that it is needed. In the days following a return to prison the informant may be at as great a risk as subsequently. The role of informants in combating serious crime is an important one. If informants are to keep coming forward, it needs to be known that they will be properly protected.

18.	The Circular and Annex do not deal with the situation under consideration. Given that the main functions are to set out a process whereby a person is given a permanent, though reviewable, status as a protected witness and to set out procedures whereby later charges of inducement can be avoided, this is not surprising.

19.	The events which I have set out show that the necessary information concerning the claimant did not reach the appropriate officials soon enough. They show that a decision as to the risk concerning the claimant and, how it should be managed on either a temporary or long-term basis was not made at the time of the applicant’s return to prison or even soon thereafter.

20	I am unclear as to the precise terms in which a declaration is sought under this head or what purpose it is said that a declaration would now serve. In view of the findings which I have made, it may be that one is unnecessary, If need be, I will consider further submissions as to this. 

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.

21	It is the claimant’s perception that, because his request to be placed in a PWU was not supported by the CPS, the possibility of his being placed in one was not considered by the Home Department. It is correct that, because the CPS had decided he should not he called as a witness, the procedure under the Annex stopped. He could not be designated a protected witness pursuant to the Annex and moved to a PWU. It is now stated that, ‘if the Secretary of State were of the opinion that there was a real and immediate risk to the life of a prisoner arising from his providing information to the police or another agency that could not be avoided save by placing the prisoner in a PWU, he would place the prisoner in a PWU even if no recommendation had been made by the police and CPS.’ - paragraph 7 of Mr Clifford’s statement.

22	Where information is provided by a prisoner and he gives evidence, it will be known what he has done. Where he gives information but does not give evidence (which may or may not be a reflection on him. and the information he has provided), it may not be known or suspected that he has done so. So the risk to him may be less, perhaps very substantially less. But that may not be so and he could be at very considerable risk nonetheless. If a PWU is the safest place for him, he should be able to go to one. Paragraph 7 appears to assume that, usually at least, it will be the safer place.

23	 In my view, given the history of this case, some only of which have I set out, the applicant is entitled to a declaration as he claims under this head. I hope that counsel will be able to agree its terms.

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.

24	When the case came before me on 17 January 2003, the position was as follows. The claimant was still held at B in the healthcare centre. At an earlier preliminary hearing some months before, the Secretary of State had given an undertaking not to move him save to a PWU or on compelling operational reasons I have referred in paragraph 13(9) above to Mr Beecroft’s consideration of where the applicant should be held in the long term. This resulted in a decision that, subject to this case, the applicant should be moved from B to prison C. Mr Beecroft’s statement set out matters which he had considered in making his decision but it did not say what the decision was. I requested that instructions be obtained. They were and the information as to the intended move to B was provided. The Secretary of State was released from his undertaking as to moving the applicant. Mr Beecroft’s statement said: ‘However, precautions will be taken to ensure the Claimant’s safety. Senior management and security staff at the claimant’s new location will be briefed as to his background.’

25.	Mr Beecroft ‘s statement did not say that in considering the. claimant’s long term location he took account of the police application that the claimant be accorded resident informant status. It seems to me from reading his statement that this had not reached him. I deduce that it had not got beyond the CPS because the CPS had decided not to progress the application because of the decision not to call the claimant as a witness. That decision meant that the claimant would not be exposed as an informant when he gave evidence. It did not affect the immediate risk to him. The police application has been produced and exhibited by a statement made by the CPS representative. It is not exhibited to any of the statements made on behalf of the Secretary of State. I conclude that prior to making his decision Mr Beecroft had failed to obtain important information which was relevant to the risk to the claimant. He should have obtained the material from the police or the CPS. 
	In consequence his decision was flawed.

26.	The hearing on 17 January was adjourned until 25 February so the Secretary of State could respond to evidence filed at a late stage by the applicant’s solicitor dealing with recent events. An order was made that the further evidence to be relied on by the Secretary of State he filed by 5 February. Unfortunately that date was not met. Mr Clifford’s statement dealing with general matters is dated 7 February. The more important statement made by Mr Moore is dated 21 February. He is Deputy Director of High Security Prisons and head of the Prison Service’s Security Group. He appears to have taken over in the decision-making from Mr Beecroft, though that is not stated.

27.	Shortly before the hearing on 25 February the claimant was moved to prison C. Contrary to the assurance given in Mr Beecroft’s statement, when the claimant arrived at C the prison knew nothing about him. Following discussion between the Acting Governor and the claimant’s solicitor, the claimant was placed in either the Close Supervision Centre or in the segregation unit. Following this he was moved to the hospital wing apparently following a call from the Acting Governor to the Prison Service Headquarters. These events can only throw further doubt on the decision-making process employed, as it then appeared, by Mr Beecroft.

28.	Paragraphs 16, 17 and 18 of Mr Moore’s statement come under the heading of risk assessment. He states that he has considered information provided by the claimant’s solicitor, by staff at prison A and at prison B. and by the police, as well as information available from headquarters files. It is unclear whether he has considered information coming from the CPS, which would include all information provided by the police to the CPS. He does not refer to the statement dated 29 January made by the CPS representative, and I should assume that he has not considered it. Mr Moore states that in order to make a thorough and determinative risk to the claimant, it would be necessary to make further enquiries within the Prison Service and to take account of further information from the police and the CPS not available to him at present. This is said when a substantial number of months have passed since the problem first arose. It is consistent with the full collection and collation of information only recently having been put in train.

29	Mr Moore states that therefore his assessment of the situation is only a provisional one, made to ensure that the claimant is held in appropriate conditions until a thorough investigation is made. On the basis of the police assessment of risk to which I have referred in paragraph 13(8) above, he has assessed the risk to the claimant as high. He has concluded that the claimant should be held in the segregation unit at prison C for the meantime with a view to being moved to a particular regime at prison D. The claimant will not be moved to D if he does not wish to go there. Mr Moore states that a PWU would afford the claimant no additional protection. The move to D would be pending a decision as to the claimant’s ultimate location. Mr Moore does not rule out that this might be in a PWU. He states that two reasons have led him to conclude that the claimant should not he placed in a PWU now. One is that a PWU would not offer the claimant any significant additional protection to that available at D. The other is that as the claimant is not an active informant, transfers to and from prison are unnecessary, and one of the functions of a PWU is to facilitate such transfers.

30.	I have referred to PSI 71/2000. This sets out standards for PWUs. Under the heading Purpose and definition of Protected Witness Units’ it provides:

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.....

31	It is implicit in Mr Moore’s statement that the ultimate decision could be that the claimant should be located in a PWU, that a PWU would be considered necessary for his safety. So it is difficult to follow his conclusion that a PWU would not offer the claimant significant additional protection to that available at D. Mr Moore considers that the enquiries which he is making could show that a PWU was necessary. If at the conclusion of the enquiries location in a PWU is found necessary, that is very likely to mean that it will have been necessary all along. Mr Kovats submitted on behalf of the Secretary of State that the fact no harm has yet come to the claimant shows that the decisions made by the Prison Service have been right. I do not consider that that follows. It simply means that the risk has fortunately not materialised. Mr Kovats also submitted that a PWU would be no safer for the claimant than D. That submission has the difficulty I have referred to above. As I see it, it is also contradicted by the function of PWUs as set out in paragraph 1.7 of PSI 71/2000 quoted above.

32.	Mr Kovats submitted that I should not reach any conclusion on this head of the claim but should adjourn it generally with liberty to the claimant to apply. He recognised that it would be an unsatisfactory position, but said that it was less unsatisfactory than the alternatives and would avoid a premature judgment. He urged upon me the strong course that I would be taking if a declaration was made that the claimant be located within a PWU. I have very much in mind that the decision is that of the relevant officials within the prison service and that they have experience and understanding which is lacking in the court. I should only make the declaration asked for, if I am satisfied that location in a. PWU pending the conclusion of enquiries would be the only reasonable course. In assessing whether it is the only reasonable course I should have in mind that the case concerns threats to the claimants’ life and so Article 2 of the Convention is engaged.. I conclude that location within a PWU pending the conclusion of enquiries is the only reasonable course in the circumstances. I include in those circumstances the history of the decision-making since the claimant went into police custody to provide information. I include also a number of disquieting events referred to in the evidence of the claimant’s solicitor which I have not set out in this judgment, first because to do so would provide possible means of identifying the claimant, and second to keep the judgment to an acceptable length.

33.	There will be a declaration that the claimant should be located within a PWU pending a decision after the conclusion of the enquiries referred to in paragraph 16 of Mr Moore’s statement of 21 February 2003.