England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		21 June 2007

MR JUSTICE FORBES:

Introduction

1. This is an application for appropriate relief by way of judicial review in respect of the defendant's decision (i) to locate the claimant at HMP Bronzefield and (ii) to treat the claimant in a manner that allegedly interferes with her right to a fair trial. A further matter is no longer pursued.
2. The claimant currently faces trial at the Central Criminal Court. It is said that the arrangements for transporting her between prison and court means that she is exhausted, constantly nauseous and unable concentrate when she arrives for the day's hearing. In addition, it is said that she is produced at court either shortly before the start of the hearing or after the scheduled start so that her ability to provide instructions to her lawyers is severely reduced. Accordingly, the issues that arise in the claim are (i) whether the treatment of the claimant amounts to a violation of her rights under Article 6 of the European Convention on Human Rights ("the ECHR") and/or (ii) whether the treatment of the claimant amounts to a violation of her common law right to a fair trial.

The factual background

3. As I have already indicated, the claimant is a defendant in a trial currently being held at the Central Criminal Court. She is charged with withholding information, contrary to section 38B of the Terrorism Act 2000. The trial itself commenced on Wednesday 23 May 2007 and is scheduled to last for five weeks. The claimant is due to give evidence and to be subjected to cross-examination. It is anticipated that this will occur at some date either on or very shortly after 20 June 2007.
4. The claimant is presently detained as a "restricted status" prisoner at HMP Bronzefield. HMP Bronzefield is located in Ashford, Middlesex. It opened in 2004 and is administered by a private company, United Kingdom Detention Services. It is said that until HMP Bronzefield opened, almost all women prisoners facing trial at the Central Criminal Court would have been detained at HMP Holloway. As it happens, the Prison Service website describes the reception criteria for Holloway in the following terms:

"All adult and young offenders remanded or sentenced by the courts with the exception of Category A."

5. The claimant's categorisation and general circumstances are fully explained by Mr Gary Nicholls ("Mr Nicholls"), the Head of Operations and Casework within the Directorate of High Security, in paragraphs 4 to 16 of his witness statement dated 19 June 2007, the material terms of which are as follows:

"4. PSO 900 sets out the classification arrangements for male prisoners. PSO 900 applied in relation to female prisoners up until 2005. In 2005, a new regime for the classification of female prisoners was introduced and in this respect PSO 900 is in the process of being updated. For female prisoners there are three levels of categorisation, namely restricted status prisoners, those prisoners within closed conditions and those prisoners within open conditions.

5. The restricted status system has been running for a period within the Male Young Offender Estate and the National Security Framework describes restricted status prisoners for the purposes of young offenders as follows:-

'Offenders sentenced to detention at a Young Offender Institution whose escape would present a serious risk to the public and who are required to be held in designated secure accommodation.'

6. This same standard is applied in determining whether a particular female prisoner should be categorised as restricted status.

7. HMP Bronzefield was opened in 2004 and when the new system of categorisation was introduced in 2005 for female prisoners, HMP Bronzefield was assessed and designated as being suitable to hold all restricted status female prisoners, as it is the most secure establishment within the female estate. More lately HMP Low Newton has been approved to hold female restricted status prisoners. HMP Low Newton is located in the north of England. There are currently seven restricted status prisoners, all of whom are held at HMP Bronzefield in a separate unit.

8. HMP Holloway has never been used to hold restricted status prisoners. This is because it does not meet the required security standard due to the fabric of the buildings and staffing levels. HMP Holloway is not an appropriate prison to locate the claimant at due to her categorisation. HMP Holloway is an old prison, which has not been assessed as being suitable to house restricted status female prisoners. HMP Holloway did hold the occasional Category A prisoner many years ago, but since that time improved security facilities offered by more modern prisons such as HMP Bronzefield have come on stream.

9. Prior to the introduction of the new categorisation regime for female prisoners all category A women prisoners were held in a special unit within HMP Durham, which was at that time a male high security prison. If there ever was a need for those prisoners to attend courts in London they would be held in a wing in isolation within HMP Belmarsh. This would be by special arrangement and would require the particular wing used to house that particular prisoner to be emptied of all male prisoners who would be located elsewhere within the establishment. That female prisoner would be located by herself on that wing. However, this was prior to HMP Bronzefield being used to house restricted status female prisoners."

6. I interpolate at this stage to indicate that I have been told that it was no later than the early 1990s that category A female prisoners were, on occasions, located in HMP Holloway. I am also told that this happened on very few occasions because there were very few category A females. Furthermore, it is also worth noting that the male high security prison, HMP Belmarsh, is at approximately the same distance from the Central Criminal Court as HMP Bronzefield.
7. I continue with Mr Nicholls' witness statement at paragraph 10:

"10. HMP Belmarsh would not be appropriate to accommodate a female prisoner at this time due to the availability of accommodation at HMP Bronzefield. Further it would require an area of a wing to be emptied of male prisoners at a time of extremely high prisoner numbers. Effectively the whole wing would have to be staffed for one female prisoner the cost of which is prohibitive and there is the added difficulty of finding alternative places for the male category A prisoners who would have to be moved out.

11. The restricted status regime recognises that such prisoners do not require the very highest standards of security whilst in a secure environment. However, due to the risk posed to the public, they would require high levels of category A security whilst outside of the establishment, such as when they are being transported to and from court.

12. In terms of locating prisoners within police cells as an alternative whilst the trial is ongoing, there is no precedent for such a system. There have been occasions when prisoners have been lodged over-night when travelling times have been outside the accepted timescales but this only applies to overnight stops.

13. In this matter we have considered all options and there is no alternative but to locate the claimant at HMP Bronzefield for the reasons explained above.

14. In terms of the issue of travelling time taken to transport the claimant to court, the summary grounds of resistance confirms that the claimant's journey generally takes between one hour fifteen minutes and one hour and forty minutes. The distance from HMP Bronzefield to the Central Criminal Court is approximately twenty miles. HMP Bronzefield is located in Ashford in Middlesex, south of Heathrow Airport. I detail below the time taken to transport the claimant to court from 4 June onwards, as follows:

4 June 2006 - 07.46 to 09.20 - 1 hour and 34 minutes.

5 June 2007 - 07.35 to 09.05 - 1 hour and 30 minutes.

6 June 2007 - 08.00 to 09.50 - 1 hour and 50 minutes.

7 June 2007 - 08.01 to 09.40 - 1 hour and 39 minutes.

8 June 2007 - 08.00 to 09.15 - 1 hour and 15 minutes.

11 June 2007 - 07.50 to 09.50 - 2 hours.

12 June 2007 - 07.35 to 10.15 - 2 hours and 40 minutes.

13 June 2007 - 07.45 to 09.45 - 2 hours.

14 June 2007 - 07.35 to 10.05 - 2 hours and 30 minutes.

15 June 2007 - 07.28 to 09.25 - 1 hour and 57 minutes ...

16. In terms of the claimant's categorisation this involves assessing the risk presented by an individual prisoner and the standard applied is detailed in paragraph 5. In reaching a conclusion account is taken of the particular charges faced by the individual concerned and any information provided to us by outside agencies, such as the Police. In this instance the claimant is facing certain terrorist charges. Further, Counter Terrorist command recommended to us that the claimant should be placed in the highest category, namely restricted status due to evidence of her links to explosives, martyrdom, jihad and evidence of a farewell letter written to her husband. On this basis the claimant was categorised as restricted status."

8. It is the claimant's case that having to travel between prison and court in the high security van, with cramped conditions and limited windows, has caused her to suffer from dreadful travel/motion sickness and to be sick in the van and/or shortly thereafter. The claimant's medical problems have resulted in her being placed on medication. It is said that the medication has certain side effects, including causing drowsiness and, it is said, has almost caused the claimant to faint when she was required to stand as the jury was empanelled in her trial.
9. The second statement of Ms Gareth Peirce, the claimant's solicitor, states as follows (see paragraph 9):

"During the past ten days, since an application for judicial review was initiated, [E] has continued to be extremely ill in her travel to and from the Central Criminal Court. On two days last week, she was even more violently sick than she has been previously. She is eating very little indeed, for very obvious reasons; she is not only finding it hard to eat because her appetite generally is affected by her constant sickness, but since she is furthermore apprehensive now of eating as the food she does eat will inevitably increase the volume of sickness experienced on each journey."

10. Miss Peirce continues in her witness statement at paragraph 10, emphasising the important stage the trial has now reached, as follows:

"Up to the present moment, [E] has been required only to sit in court and attempt to pay attention to the case as it unfolds. She seeks to pay close attention to the evidence which, in her case, has not remained static but has changed in its content and impact as prosecution witnesses have given evidence. The material to be dealt with is dense and difficult to follow, in so far as it depends largely on what was contained in her husband's computer. [E's] tiredness and weakness from sickness and lack of food means that she is not able to concentrate in court as she should, however hard she tries, although she is trying seriously and to the best of her ability."

11. At paragraph 11 of her witness statement, Ms Peirce goes on to state:

"I have spent considerable periods of time with [E] at HMP Bronzefield since beginning to represent her in November 2006. She is an intelligent woman, who works hard on her case and who can understand and contribute to the preparation of her defence. However, within the more than two hours that I spent with her on Thursday morning (7 June 2007), I found that her ability to concentrate and follow what was being said to her was considerably diminished. She is a very slight woman in frame; to my eyes she has lost weight since the trial began; she has become exceptionally pale and gaunt; even more importantly, she cannot sustain concentration in the way she sustained concentration previously; she appears exhausted, is finding it hard to take in information and respond, she is speaking more slowly and her ability to find the right words in English appears to have diminished."

12. Ms Peirce then goes on to express her further concerns, which are said to be shared by the claimant's leading counsel, Baroness Kennedy QC, about the ability of the claimant to participate in the impending most important part of her trial as follows:

"What is in issue here is our apprehension on her behalf that within a week she will begin her defence case, that she will be required to give evidence, and that on present expectation she will thereby be required for a yet further week to do her best and yet will have experienced by then the further cumulative effects of travelling upon her. She will therefore come to give evidence in the worst possible circumstances; there is no doubt that the prosecution will wish to cross-examine her vigorously; there is no doubt that the jury will be watching her very carefully and will be seeking to understand what she has to say by the one method of observation open to a jury, mainly by assessing her performance in the witness box. There is no doubt that we as her lawyers will wish to produce careful evidence from her in chief as to her background thoughts, ideas and beliefs yet as lawyers we have now the most serious apprehension that the exhaustion and physical weakness that we ourselves now see clearly may be misinterpreted by a jury as indicating a lack of robust confidence by [E] in her own case, which would seriously belie the reality of the situation."

13. The claimant's doctor saw her on 14 June 2007 in order to provide an up-to-date and second report to the court for the purposes of this hearing. In his report dated 19 June, Dr Fluxman, a general practitioner, expressed the following opinion:

"10. The combined medical effects of [E's] rapid weight loss, her on going severe nausea and frequent vomiting, and the effect of various drug treatments would in my opinion make it very difficult for her to properly participate in her trial. As stated above and in my first report the option of medicating her nausea and vomiting is accompanied by risk of sedation and other potential side-effects of whatever medication is used. All of the effective antiemetic agents have a common side effect of sedation and it is standard medical practice to routinely warn patients of this when prescribing these drugs. Therefore there is a risk that [E's] mental functioning will be impaired as a result of taking such medication. I understand that [E] will be giving evidence herself at the end of this week and will be subject to cross-examination. In her present medical condition I do not believe she will be fit to do so.

11. I would strongly recommend therefore that the principal underlying cause of [E's] nausea and vomiting (the travel arrangements to and from court) be addressed as quickly as possible. This is not only to ensure that she receives a fair trial but also to safeguard her health from serious harm."

14. On 4 June the claimant's predicament was brought to the attention of the trial judge. Counsel's note of what took place is in the following terms:

"1. Yesterday, 4 June 2007, HHJ Gordon, presiding over the trial of [E] was told of judicial review proceedings to be pursued in relation her present prison location and travel to court for trial.

2. HHJ Gordon expressed complete surprise that [E] was not being held at HMP Holloway where he assumed she had been located. He was clearly concerned at the lengthy journey to and from court each day and the debilitating effect it has on her.

3. The trial judge was sympathetic to any changes in [E's] accommodation intended to enable her to have a fair trial in which she could properly participate but recognised the limits of his own powers over the prison system."

15. On 14 June 2007, the trial judge apparently invited the prison authorities to review the claimant's categorisation. It is very clear from this limited amount of information that the trial judge is sympathetic and anxious to take whatever is appropriate action within his powers to ensure that the fairness of [E's] trial is not jeopardised by any health problems that she may be encountering. It is also to be noted that, to the extent that any application has been made to the trial judge (eg for time to consult or for the claimant to be absent from the courtroom itself) he has acceded to it. However, no application has been made to stay or adjourn the proceedings for lack of fairness. The judge has rightly indicated that he does not have the power to order the Secretary of State to relocate the claimant within the prison estate. It is only to that extent (as it seems to me) that the trial judge has expressed the view that he is not able to help the claimant deal with her current predicament. However, I wish to make it clear that this particular limitation on his ability to deal with the matter does not, as it seems to me, raise any suggestion that the judge is unwilling or unable to use other appropriate procedures in order to alleviate the situation and to ensure the fairness of the claimant's trial.

The legal framework

16. Section 1 of the Prison Act 1952 provides that:

"All powers and jurisdiction in relation to prisons and prisoners which before the commencement of the Prison Act, 1877 were exercisable by any other authority shall, subject to the provisions of this Act, be exercisable by the Secretary of State."

17. Section 12(2) of the Prison Act 1952 provides that:

"Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison."

18. Article 6(1) of the ECHR provides as follows:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

19. Much of the applicable law in this case is not controversial. In Salabiaku v France [1991] 13 EHRR 379, at paragraph 28, the ECtHR stated "the object and purpose of Article (6), which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law."
20. In Delcourt v Belgium [1970] 1 EHRR 355, at paragraph 25, the European Court of Human Rights stated:

"In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision."

21. The principle of equality of arms is inherent in Article 6. It was described in De Haes and Gijsels v Belgium [1997] 25 EHRR 1, at paragraph 53, in the following terms:

"The principle of equality of arms - a component of the broader concept of a fair trial - requires that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent."

22. The Convention is intended to guarantee rights that are practical and effective, not theoretical and illusory (see Airey v Ireland [1979] 2 EHRR 305 at para 24). Article 6 guarantees a criminal defendant the right to effective participation in his or her trial. In SC v United Kingdom [2005] 40 EHRR 10, at paragraph 28, the ECtHR stated:

"The right of an accused to effective participation in his or her criminal trial generally includes, inter alia, not only the right to be present, but also to hear and follow the proceedings."

23. On behalf of the claimant, Mr Cragg also referred to Barbera, Messegue et Jabardo v Spain App No 10590/83, and the ECtHR's decision of 6 December 1988 ("Barbera"). In that case the applicants who were accused of terrorist offences were transported in a police van some 600 kilometres from Barcelona Prison to their hearing in Madrid on the night before their trial was due to start. Mr Cragg submitted that, in reaching its decision, the court concluded that there had been a breach of Article 6(1) and (3) on the basis of a number of reasons, and the court made the following observations at paragraph 70 of its judgment:

"Mr Barberà, Mr Messegué and Mr Jabardo thus had to face a trial that was vitally important for them, in view of the seriousness of the charges against them and the sentences that might be passed, in a state which must have been one of lowered physical and mental resistance.

Despite the assistance of their lawyers, who had the opportunity to make submissions, this circumstance, regrettable in itself, undoubtedly weakened their position at a vital moment when they needed all their resources to defend themselves and, in particular, to face up to questioning at the very start of the trial and to consult effectively with their counsel.

24. As indicated earlier, this particular problem was not the only reason the court came to the conclusion that there had been a breach of Article 6, and I will return to more details of the reasons for the court's decision at a later stage in this judgment.
25. Barbera was cited by the ECtHR in Makhfi v France, App No 59335/00, in its judgment of 19 October 2004. In paragraphs 35 to 38 the court confirmed that it was of the utmost importance that the accused be able to follow the proceedings, respond to questions and give evidence without being in a state of excessive tiredness. Much of the effect of the very long court days on the applicant in that case therefore was found to constitute a breach of his right to a fair trial and of the principle of equality of arms.
26. Mr Cragg also relied heavily upon the decision of R v Secretary of State ex parte Q [2000] UKHRR 386 ("Q"). In that case, Richards J (as he then was) held that the allocation of a prisoner to a particular prison would be ultra vires if it infringed that prisoner's common law right to a fair trial. Richards J stated (inter alia) that the correct approach for a court considering a challenge to an allocation on this basis is to ask whether there is a real danger that the prisoner will not be able to put his defence fully and freely.

The parties' submissions

27. Mr Cragg submitted that Article 6 of the ECHR entitles the claimant to participate in and follow the trial that she faces. It was Mr Cragg's submission that her Article 6 rights have been violated in the present case by the failure of the Prison Service to take adequate steps to ensure that the claimant is able to participate in a trial that she faces, and that thus the defendant has acted incompatibly with the claimant's Article 6 rights in the exercise of his powers under section 12(12) of the 1952 Act. In support of this submission, Mr Cragg relies in particular upon the following matters.

(1) The claimant is being subjected to what is said to be an unusually long journey to and from prison. It is said that the length of the journey is likely to cause the claimant to feel exhausted when she arrives at court. It is also said that the experience so far has been that the claimant has been exhausted.

(2) The problems caused by the length of the journey are said to be exacerbated by the conditions in which the claimant is transported and the severe motion sickness from which she suffers.

(3) The evidence of the claimant's very experienced legal team is to the effect that the claimant's physical and mental condition as a result of the travel conditions and resulting sickness is such as to make them fear that she will be unable to participate fully in the most important part of the trial process, namely the giving of her evidence. It is the evidence of the experienced legal team and the claimant's doctor that the claimant's condition is primarily caused by the long journey and travel conditions, which are said to exacerbate any potentially existing stress and anxiety and produce the vomiting, lack of concentration, weakness and so forth.

(4) The trial judge has himself expressed concern at the situation in which the claimant finds herself.

28. Mr Cragg submitted that, bearing all these points in mind, the claimant's situation has "undoubtedly weakened [her] position at a vital moment when [she] needed all [her] resources to defend [herself] and, in particular, to face up to questioning" and that she has to "face a trial that [is] vitally important to [her], in view of the seriousness of the charges against [her] and the sentences that might [be] passed in a state which must be one of lowered physical and mental resistance": see the judgment of the court in Barbera supra.
29. Mr Cragg submitted further that it should be remembered that the principle of equality of arms is a central aspect of the right to a fair trial as protected by Article 6. He contended that this is significant in the claimant's case because the prosecution is not required to call its witnesses after they have been travelling for two and a quarter hours in conditions that make them feel sick. Similarly, the prosecutors are not required to participate in the trial after travelling for two and a quarters hours in conditions that cause them to feel sick. As a consequence, Mr Cragg submitted that the claimant's treatment in the way in which she has to travel to and from court, with the consequential adverse effect on her health, amounts to a serious interference with her right to equality of arms.
30. Furthermore, Mr Cragg drew attention to Article 6(3)(b) which provides that everyone charged with a criminal offence has the following minimum rights:

" ... to have adequate time and facilities for the preparation of his defence."

31. Mr Cragg therefore submitted that the claimant's complaints amount to a complaint that she has been denied adequate time and facilities to prepare because of the physical and mental conditions she finds herself in; it is not simply a case of her late arrival at court. Her complaint that she is unable to consult with her lawyers, it is said, clearly comes within the scope of Article 6(3)(b).
32. Further, and in the alternative, Mr Cragg submitted that the failure of the Prison Service to take adequate steps to ensure that the claimant is able to participate fully and properly in the trial that she now faces is unlawful and is contrary to her common law right to a fair trial: see Q supra. Mr Cragg submitted that in Q the court accepted that a decision of the Prison Service to allocate the applicant to a particular prison that infringed his right to a fair trial would be ultra vires. It was therefore Mr Cragg's submission that it is for the court to form its own primary judgment as to whether the right to a fair trial is infringed and that, in order to do so, the court should apply a test as to whether there was "a real possibility" of an infringement of the right to a fair hearing that justifies intervention, discounting any remote or fanciful risks: see the judgment of Richards J in Q at pages 393 to 394.
33. It was Mr Cragg's submission, therefore, that judicial review is the correct form of proceedings in which to raise these issues because, it is said, the trial judge in the current criminal trial lacks any real power to address and deal with the problems. Mr Cragg stressed that the trial judge has been made aware of these current proceedings for judicial review and that he has expressed his surprise at the claimant's current location at HMP Bronzefield.
34. On behalf of the Secretary of State, Mr Sharland submitted that it is not really possible for this court properly to consider the fairness or otherwise of an ongoing criminal trial. He submitted that the ECtHR has repeatedly explained that a decision as to the fairness of a hearing is based on an assessment of the course of the proceedings as a whole: see Clayton and Tomlinson, The Law of Human Rights, at paragraph 11.204 and the cases therein cited; see also Archbold 2007 at paragraph 16-58.
35. Mr Sharland pointed out that in Barbera the ECtHR did not conclude that there had been a breach of Article 6 solely by reason of the defendant's transportation: see paragraph 89 of the court's judgment where the court said this:

"Having regard to the belated transfer of the applicants from Barcelona to Madrid, the unexpected change in the court's membership immediately before the hearing opened, the brevity of the trial and, above all, the fact that very important pieces of evidence were not adequately adduced and discussed at the trial in the applicants' presence and under the watchful eye of the public, the Court concludes that the proceedings in question, taken as a whole, did not satisfy the requirements of a fair and public hearing."

I accept that it is clear from that passage in the court's judgment that the problem relating to the transportation of the defendants was not considered by the court to be the most significant reason for the conclusion that it reached.

36. Mr Sharland emphasised that the claimant's criminal trial is an ongoing trial and submitted that, as such, it is not possible to assess the fairness on the proceedings as a whole. That difficulty, he argued, is exacerbated by the lack of evidence about the current proceedings. Thus, Mr Sharland stressed that there is no evidence before me from the trial judge, the prosecution or the claimant herself. He pointed out that the claimant's evidence is limited to witness statements from her solicitors and doctor. Notwithstanding Mr Sharland's submissions, I am satisfied that, in an appropriate case, this court does have jurisdiction to intervene in an ongoing criminal trial in order to ensure a defendant's right to a fair trial. However, given that the primary responsibility for the conduct of the trial and its fairness is that of the trial judge, I am of the firm view that intervention by this court in an ongoing criminal trial will only be appropriate in the most exceptional circumstances. In my view, that will be even more so in a case such as the present one where there is no evidence to suggest that the judge is in any way reluctant to act or at fault in failing to take appropriate and available steps to ensure the fairness of the trial proceedings before him or her.
37. In my view, Mr Sharland was right in his submission that the primary responsibility for ensuring that the claimant's criminal trial is fair lies with the experienced criminal judge who is presiding over her trial. It is his role, inter alia, to ensure that the claimant receives a fair trial. I agree with that submission, which, in my view, is essentially uncontroversial. In this case, the claimant has put in no evidence to indicate that the trial judge is failing, or will fail, to discharge his duty in that regard. In fact, if anything, the evidence points firmly the other way. Mr Sharland pointed out, for example, that the claimant alleges that the Prison's transport arrangements deny her the right to a fair trial because they prevent her having time properly to instruct her legal team as a result of late arrival at court. However, as Mr Sharland observed, if on a particular day the claimant, because of heavy traffic, does arrive late at court and needs time to speak to her legal team, her counsel can seek to have the hearing delayed to enable such a meeting to take place. To the extent there is any evidence about this aspect of the matter, it is to the effect that this is what has happened in this case, when necessary.
38. There is no evidence before this court that any particular application for time or other assistance has been refused or that the trial judge would be minded to refuse any such application. As I have already indicated, to the extent that there is evidence, it points firmly the other way. Equally, Mr Sharland stressed that the claimant alleges that the effect of her transportation and medication make it difficult for her to concentrate during the hearing. However, as Mr Sharland observed, if this is so on a particular day, the claimant's counsel could apply for regular breaks during the hearing to ensure that she can maintain concentration. Again, as Mr Sharland pointed out, there is no evidence that the claimant's counsel has thought that such an application has been necessary or appropriate. To the extent the matter has been raised at all, it appears that the judge has readily acceded to any measures by way of remedy that has been sought.
39. Furthermore, I stress again that there is no evidence that the trial judge has refused, or would refuse, any application for assistance. To the extent there is evidence at all, as in other matters, it points firmly the other way.
40. Mr Sharland submitted uncontroversially that the defendant has a wide discretion under section 12 of the Prison Act 1952 as to the location of prisoners. In the light of the security risk posed by the claimant, as detailed in Mr Nicholls' witness statement, Mr Sharland submitted, correctly in my view, that the defendant's decision to place the claimant at HMP Bronzefield is not unlawful, nor contrary to Article 6 of the ECHR: see by analogy R v Home Secretary ex parte McAvoy [1984] 1 WLR 1408. As I have indicated, I agree with that submission.
41. Mr Sharland stressed that the claimant is not being denied access to the court; she is attending court every day and is assisted in her defence by highly experienced solicitors and counsel. Mr Sharland contended that any particular difficulties on a particular day can be accommodated by altering the arrangements for the court day. Mr Sharland submitted, further, that the claimant is not being denied any right to equality of arms. She is very well represented. Mr Sharland submitted that the mere fact that some prosecution witnesses may have easier journeys to court does not undermine this equality. I agree.
42. Mr Sharland submitted that invariably, although not exclusively, prosecution witnesses are not detained in prison, but the failure to detain such witnesses does not mean that the prosecution has gained an unfair advantage. Again, I agree with that proposition. The conditions under which a defendant and other witnesses give evidence are often different. The conditions placed on the claimant are, in the defendant's view, no more than is necessary to protect the public and the security of the State. So much is clear from the evidence of Mr Nicholls, and I agree with Mr Sharland's submissions to that effect.
43. Mr Sharland emphasised that the claimant does not, and cannot, challenge the defendant's decision that she should be classified as a restricted status prisoner (the highest level of classification presently applied to female prisoners). Mr Sharland pointed out that the claimant was designated in this category in September 2006 and that at no stage since that classification has the claimant sought to dispute its correctness. It was therefore Mr Sharland's submission that this court should proceed on the basis that the claimant's categorisation is correct and that she would pose a serious risk to the public if she were to escape. Again, I agree with that submission.
44. Mr Sharland then made the point that the claimant's case is that, notwithstanding her restricted status classification, the defendant has erred in law in the exercise of his discretion pursuant to section 12 of the 1952 Act by locating her in HMP Bronzefield, which is the only prison in the south east that has been designated as suitable to accommodate such prisoners. Mr Sharland drew attention to the fact that, in her claim form, the claimant seeks mandatory relief that the defendant transfer her to HMP Holloway. In his closing submissions Mr Cragg confirmed that this relief is still the primary relief sought, notwithstanding the amendment to seek declaratory relief that I granted during the course of the hearing.
45. Mr Sharland stressed that it is the defendant's case that such a transfer, namely to HMP Holloway, would place public safety at risk because this prison, or indeed any other prison location in the south of this country (other than HMP Bronzefield) is not sufficiently secure to accommodate someone of the claimant's security status. It is clear from the evidence of Mr Nicholls that this is correct. Accordingly, the only basis for the claimant's assertion that the defendant has acted unlawfully in locating her in HMP Bronzefield is that, if she remains at that prison establishment, she will be denied a fair trial because of the adverse effect on her health occasioned by the necessary travel arrangements to and from court. As Mr Sharland pointed out, it is not clear whether it is said that, over the last few weeks, the claimant's trial has been rendered unfair, or whether the claimant's case is limited to an assertion that if she remains in HMP Bronzefield it will become unfair at some stage in the future. Mr Sharland stressed that the claimant has not so far made any application to the trial judge presiding over the criminal case that (1) the hearing up until and including 20 June 2007 has been unfair because of difficulties caused by the claimant's health; and (2) the hearing at some time in the future will be unfair because of the difficulties caused by the claimant's health.
46. Mr Sharland also emphasised that the claimant makes no criticism whatsoever of any decision made by the Crown Court judge, and makes no allegation that any action he has taken in the past or may take in the future has or would lead to the claimant receiving an unfair trial.
47. As Mr Sharland submitted, it is the claimant's case that she must be moved from HMP Bronzefield because the journey to and from court is making her too ill to be able to participate in her trial. It is accepted that there have been no applications to the trial judge to obtain any relief to deal with the alleged difficulties caused by the transportation, other than to draw attention to the fact, and to receive from the judge the perfectly correct observation that he was not himself able to exert any power to relocate the claimant in the prison estate.
48. Mr Sharland went on to suggest that there were a number of solutions that could have been canvassed with the judge by way of addressing the claimant's situation but which have not been explored. They are as follows.

(1) A request to the trial judge that he summon the governor of HMP Bronzefield in an attempt to address the transportation issues. Such difficulties, for example, could be addressed by ensuring that the claimant left earlier, thus avoiding the rush-hour traffic.

(2) A request to the trial judge that the claimant be granted regular adjournments.

(3) Relocation of the trial for the duration of the claimant's evidence. As to that aspect of the matter, I have to say that that would present, I suspect, insuperable problems.

(4) Application to the trial judge to stay the proceedings as an abuse of process in the event that a fair trial cannot be conducted.

(5) Application to the trial judge that the claimant should give her evidence by video link.

49. Mr Sharland stressed that he was not advocating any particular one of these various possibilities as the solution to the difficulties said to be being experienced by the claimant, but that the important point to note is that none of them has been explored with the judge in an effort to address the alleged problem.
50. It was Mr Sharland's submission that it is not open to the claimant to contend before this court that she will not receive a fair hearing before the trial judge if she remains located at HMP Bronzefield, whilst at the same time failing to seek to explore potential solutions to the difficulties caused by such transportation. I have considerable sympathy with that submission. Indeed, as Mr Lalli's second witness statement indicates, the trial judge did ask the claimant's counsel this week whether she wanted him to do something about the claimant's alleged health issue, and the claimant's counsel indicated that she was merely putting down a marker. What Mr Lalli said about the matter is this:

"I asked Karen Jones [the CPS representative] whether the issue of E being ill had been raised in the criminal proceedings. Again after speaking to junior counsel she said that the issue of E being ill had been raised. She also said that when Baroness Kennedy QC raised the issue of E's illness with the judge on 19 June 2007, the judge had asked Baroness Kennedy QC whether she wanted him to do something or whether she was laying down a marker. I understand from Karen Jones that the response provided by Baroness Kennedy QC was that she was laying down a marker."

51. Mr Sharland then turned to the medical evidence which forms an important basis for the assertion that the claimant is not well enough to continue with the hearing, and that any continuation would breach her common right to a fair trial and/or constitute a breach of her Article 6 rights. Mr Sharland stressed that, in the timescale of these proceedings, it has not been possible for the defendant to obtain his own independent medical evidence. Accordingly, Mr Sharland emphasised that the defendant does not accept that any particular weight should be placed upon the claimant's medical evidence in this case.
52. Mr Sharland contended that it would be unfair or inappropriate to place too much reliance on the claimant's medical evidence in circumstances where the defendant has been unable to respond meaningfully to it, particularly when it is contrary to the apparent evidence in relation to the claimant's health at the trial (ie there is no evidence either from the nurse at HMP Bronzefield as to ill-health, and no evidence, apart possibly from 18 June 2007, that the claimant or her very experienced legal team have suggested to the court that she was unwell or should be seen by the doctor at court). Mr Sharland also stressed that the CPS has not had any opportunity to intervene in these proceedings or to file evidence in relation to any of these matters, including the medical matters. Mr Sharland then went on to make the following additional points with regard to the medical evidence:

(1) The claimant is seen by a nurse before she travels. She has always been deemed fit to travel.

(2) If the claimant is unwell at court she can be examined by a doctor who can assess her fitness to continue. Apart from possibly one incident on 18 June 2007, on no day between 23 May and 20 June has the claimant or her experienced legal team thought it appropriate to have her examined by the doctor at court. Mr Sharland suggested that it therefore follows that the claimant's legal representatives appear to have accepted that, apart from 18 June 2007, the claimant was actually well enough to participate fully in the hearing.

(3) Mr Sharland emphasised that the defendant does not accept that the alleged ill-health, in particular the vomiting, is caused solely or predominantly by motion sickness. Whilst it is accepted that motion sickness may be a contributory factor, Mr Sharland suggested that it is clear from the evidence, such as it is, that the claimant vomits when she is under stress: see page 34 of the supplementary bundle, page 67 of the main bundle, and paragraphs 80, 81 and 90 of the medical notes. Mr Sharland stressed that there is further evidence that indicates that the claimant has vomited whilst travelling to court, but, importantly, not whilst returning from court: see page 53 of the bundle. Mr Sharland suggested that the logical conclusion to be drawn from this is that the claimant's vomiting is predominantly anxiety related, rather than motion sickness related, otherwise she would be equally sick on the return journey. Mr Sharland therefore submitted that a mandatory order that the claimant be transferred to HMP Holloway would be unlikely to solve the problem of her ill-health.

53. Whilst I have some sympathy with these latter submissions by Mr Sharland, it is not possible to form a final view on the matter because of the absence of any body of considered evidence on the part of the defendant or the Crown Prosecution Service dealing with the overall medical condition of the claimant. This illustrates and emphasises the difficulties facing this court in this application by reason of the absence of a full body of medical evidence.
54. Mr Sharland then turned to deal with the case of Q. His primary position was that Q was wrongly decided in a number of important respects. However, as it seems to me, that is not a matter upon which it is necessary to spend any time. For the purposes of this hearing, I am satisfied that Q is correctly decided. However, I recognise that the defendant has reserved the right to challenge the correctness of that decision in any further proceedings, either in this action or other actions.
55. Mr Sharland submitted that even if the approach adopted in Q was correct on its own particular facts, this present case is fundamentally different. He pointed out that Richards J concluded that "in the particular circumstances of the present case" it was appropriate to examine the substance of the claimant's case: see page 395 at B. Mr Sharland submitted, therefore, that it is clear that Richards J was not seeking to lay down any general principle. I find myself in general agreement with that submission. Mr Sharland pointed out that Richards J went on to note that, although he did not regard the advantage of an application being made to the trial judge as preventing him from considering the claim in the particular case, "it is a reason to exercise caution in evaluating the claim": see page 395 at C.
56. Mr Sharland submitted that the present case is different from Q for the following reasons.

(1) Unlike Q, the nature of the challenge in this case relates to the claimant's health and ability to participate fully in the proceedings. In such circumstances, unlike the circumstances in Q, the trial judge should be able to take steps to ensure that the claimant has a fair trial: see for example the five possible steps that I have set out above. There is no evidence that the trial judge will permit an unfair trial to take place. In contrast, on the particular facts of Q, no such alternative steps were available to the judge. I agree with that submission.

(2) The proposed transfer in Q did not raise any security issues. This court has made it clear that, when security matters are in issue, these are of considerable significance. That is plainly correct: see R v Home Secretary ex parte McAvoy [1994] 1 WLR 1408 at 1417.

(3) Q did not raise issues in relation to the public's rights under Article 2 and 3 of the ECHR. Again, that would appear to be correct.

(4) In the present case, the trial judge is in by far the best position to assess the fairness of the proceedings before him. He has been able to assess the claimant's demeanour and is in the best position to investigate fully the extent of any ill-health to which she is said to be subject during the trial. I agree with that submission, and, in my view, there is no reason to doubt that this trial judge can and will take appropriate steps to deal with any difficulties the claimant may have in participating fully in her trial by reason of any ill-health problems that she may encounter. What is singularly lacking in this case is evidence of any application by the defence for some appropriate relief which has not been granted when any particular problem has arisen.

57. In this case I am very conscious that the claimant is asking me to base my decision on disputed medical evidence, as to which the defendant and the Crown Prosecution Service have had no opportunity to put in any evidence by way of response. The claimant is also asking me to base my decision on various witness statements from Ms Peirce, to which the defendant has also been unable to respond fully and to which the Crown Prosecution Service have been unable to respond at all. Furthermore, as I have already indicated, the Crown Prosecution Service has not been joined as an interested party when, as it seems to me, it clearly should have been. The unfortunate consequence is that any meaningful response to the claimant's evidence as to what is occurring in this trial is not available.
58. It is to be stressed that the present defendant to these proceedings does not have the responsibility for the conduct of the trial. Neither counsel appearing before me on behalf of the defendant or the solicitors that instruct him are in any way engaged in any sense in the criminal proceedings relating to this claimant. They are not in a position to throw any light upon what is happening other than to the limited extent they have been able to obtain information from the Crown Prosecution Service during the course of these proceedings and in the two or three days immediately preceding the commencement of the hearing before me.
59. I accept Mr Sharland's submission that, given those facts and Richards J's comments regarding the need for caution, the appropriate approach is for this court to leave the issue of a fair trial to this experienced trial judge against whom no criticism has been made. I have every confidence in his ability to take appropriate steps to ensure the fairness of the trial taking place before him in the light of any concerns that are raised by the defence and which he will then consider. I accept that to grant relief on the basis of disputed and essentially one-sided information to which the defendant has not had adequate opportunity to respond would be plainly unfair to the defendant. Such a course could potentially jeopardise an important and lengthy trial and possibly prejudice the safety of the public, in circumstances where the prosecuting authorities have had no opportunity to intervene in these proceedings and make their position clear.
60. Moreover, I stress that there is no evidence that refusal of relief in these proceedings will lead to the claimant not receiving a fair trial. My decision merely means that the claimant's lawyers will have to make a suitable application to the trial judge if they are of the view that the claimant's health is such that, on a particular day or generally, she is not able to participate fully and properly in her trial. At no point in the first month, except possibly on 18 June, have the claimant's legal representatives suggested to the court that the claimant's health has prevented her from fully participating in her trial. If and when the claimant's representatives reach the view that such a point has been reached in the trial, then they will be able to apply to this experienced trial judge, who will, I have no doubt, act in accordance with the claimant's common law right to a fair trial and/or in a manner compatible with her Article 6 rights. It goes without saying that any decision on such an issue by the trial judge, which is thought to be wrong for any reason, would be subject to an appropriate appeal to the Court of Appeal.
61. As Mr Sharland pointed out, judicial review is, in a sense, a remedy of last resort. Where there are adequate alternative remedies available in the form of an appropriate application or applications to the trial judge, then judicial review is, generally speaking, not the appropriate course to take. In my view, this is such a case.

Conclusion

62. For all the foregoing reasons, I have come to the firm conclusion that this application must be and is hereby dismissed.
63. Is there anything further?
64. MR CRAGG: Perhaps three matters on behalf of the claimant's point of view. First of all, I am not instructed to apply for permission to appeal. We will take our concerns back to the trial judge as advised. On that point, it seems to me that it might be useful for the judge and the advocates involved in the criminal trial to have a copy of your Lordship's judgment. I know there is an order from yesterday that the details are not published. I wonder whether it would be possible to have an amendment to that order to allow a copy of the judgment, which would have to be --
65. MR JUSTICE FORBES: You are going to draw up the order, are you not?
66. MR CRAGG: I did draw up the order. I managed to show it to my learned friend this morning. I think he agreed it.
67. MR JUSTICE FORBES: Mr Sharland, what do you say about that? Are there any observations you want to make?
68. MR SHARLAND: My Lord, we are neutral on that. Obviously, if it goes to the defence counsel, it would also need to go to the CPS counsel. We do not have an objection to that course of action if the claimant seeks that, my Lord.
69. MR JUSTICE FORBES: As it seems to me, I think the gist of what I have said can be conveyed to the judge. If the judge feels that he will be assisted by a transcript of the judgment, then I will take steps to have one provided to him.
70. MR CRAGG: I am grateful for that indication.
71. MR JUSTICE FORBES: But in a sense it would almost be, not so impertinent, but perhaps a little lacking in tact to send this judge, who I have expressed every confidence in, a copy of my judgment to reassure him. But if he feels he is going to be helped by it, then of course he can have a copy of it.
72. MR CRAGG: My Lord, I am grateful for that indication.
73. MR JUSTICE FORBES: Can I have a look at this order -- the reporting restrictions order. Is there anything you want to say about the form of order, which seems to be all right as it presently stands, Mr Sharland?
74. MR SHARLAND: No, my Lord.
75. MR JUSTICE FORBES: If you both agree, that could be modified slightly by words added to paragraph 1, something to the effect that "save that a copy of this judgment can be provided to the trial judge and counsel if required". You both say counsel at the criminal trial?
76. MR CRAGG: Yes, my Lord.
77. MR JUSTICE FORBES: If you would add words to that effect, agree it between the two of you, that would seem to meet the situation and I will make the order in those terms. If you would then lodge it with the court.
78. MR CRAGG: I am grateful for that indication. It means we will not have to try and undo the order if the judge does want to see a copy of the judgment. My Lord, the only other application I need to make on behalf of the claimant is a detailed assessment of her publicly funded costs.
79. MR JUSTICE FORBES: I do not imagine there is anything you want to say about that, is there, Mr Sharland?
80. MR SHARLAND: No, my Lord.
81. MR JUSTICE FORBES: In that case, yes, detailed assessment of the claimant's publicly funded costs. Is there anything else?
82. MR CRAGG: Not from our side.
83. MR JUSTICE FORBES: I would like to thank both of you for the very considerable assistance you have given me in a difficult case, which both of you had to deal with in a very short interval of time, particularly Mr Sharland. I am very grateful to both of you.