England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		11th December 2008

1. MR JUSTICE BLAKE: This is an application for judicial review of decisions taken on behalf of the Secretary of State for Justice and by or on behalf of the Governor of HM Prison Belmarsh in respect of this claimant, Paul Allen, who is a remand prisoner at HM Prison Belmarsh and is currently being tried for an offence of armed robbery at the Central Criminal Court.
2. The context for the challenge is that the claimant was detained in 2006 in Morocco on suspicion of committing the offence of armed robbery, returned to this country, remanded in custody when charged with this offence, and has been a remand prisoner in at least three high security prisons, HM Prison Woodhill, Milton Keynes, HM Prison Strangeways, Manchester, and more recently, for the purpose of the trial, HM Prison Belmarsh. He has at all times been assessed as a Category A prisoner under the well-known system of prison classification according to risk, Category A being the highest, a high escape risk.
3. The claimant makes no complaint of that categorisation, but he does complain about decisions first taken on or about 9th October 2008 when he was reclassified within the classification of Category A as an exceptional escape risk (for present purposes "EER"). That was a higher assessment than had previously been the case when he was assessed as high escape risk, and it may be that he had been given some other classification somewhat earlier in his history, but that, if so, is immaterial.
4. This system of classification is not governed by statute and is essentially a matter of prison management. It is obvious that category A prisoners are prisoners whose escape would be of serious concern to the public, and prisons will undoubtedly seek to manage their resources by focusing attention upon those who have greatest concern about.
5. The rolled-up complaints that have been ventilated in the written grounds, the skeleton argument and the oral submissions heard this afternoon from Mr Glen QC and his junior, Mr Byrne, can be fairly summarised as follows. First, he was given no notice of this reclassification or opportunity to disabuse the governor as to the factual basis for that reclassification.
6. Secondly, he has, even today, not been given the full particulars of the basis of that classification, although he now knows considerably more than he did on 9th October, particularly pursuant to (a) a letter written on behalf of the defendants to the claimant's solicitors in November 2008, and (b) a quantity of material which has been disclosed in the acknowledgement of service and summary grounds of defence, as well as the skeleton argument, of the defendants in resistance to these proceedings. There are clearly matters which he has had some notice of as a gist or a substantive allegation, but not the full basis of the report. It is likely that there are other matters that he has had no notice of, which it is considered cannot be disclosed without some damage to the risk assessment system.
7. Thirdly, it is submitted that the cumulative effect of the measures taken in consequence of that EER status within Category A are so excessive and intrusive on the daily regime of the claimant as a remand prisoner as in various ways to be unlawful, particularly in breach of his human rights.
8. From the information supplied by both claimant and defendants, it does certainly appear that the regime to which he is presently subject is an intrusive one. It involves, first, him being kept separate from other prisoners in a high-security prison and his human contacts would therefore be prison officers, whilst he is in prison apart from visits. He does not associate with other prisoners. He is indeed the only EER Category A prisoner at present, not only within Belmarsh but the whole prison estate.
9. Secondly, it involves a considerable number of intrusive searches, strip-searches -possibly (there is an issue about it) including cavity searches, but strip-searches are intrusive enough for present purposes - as he makes his way from the prison to the prison van, from the prison van to the court where he is facing his trial, and then the process in reverse at the end of the day. It is said that if there are legal visits plus the routine checks made at each moment as he progresses through from the high security spur where he presently is to the court, it could amount, on the worst possible day, to ten strip-searches a day. The court would not need a great deal of evidence or persuasion to recognise that such a number is demoralising, depressing, intrusive and could readily be seen as demeaning and, from the claimant's point of view at least, perhaps overly intrusive.
10. Thirdly, he submits on top of all that, there were restrictions upon the conditions in which the claimant could communicate with his lawyers and his visits to his family are in closed conditions, which essentially means behind glass partitions.
11. Fourthly, it is pointed out that the claimant is brought to court in a prison van which the windows are blocked out and that makes him feel a little unwell or nauseous in the course of travel to court. This being a high profile, high-security trial, there are police measures in terms of security that he says are impacting upon the trial process and may impact upon the jury's assessment of the evidence in the case when they come to reach their verdicts, as they are likely to do shortly.
12. That is quite a list of complaints, added to which it is a theme of the submissions made that there has been no opportunity hitherto to challenge the factual basis of that assessment. It appears that there may be in the future no adequate means of challenging the factual basis or the proportionality or necessity of these measures in any other hearing, there being no statutory provisions for appellate review in such matters.
13. It is necessary at this stage to disentangle some aspects of this claim from others. I seek to do so under the general heading "fair trial rights". In the course of his submissions to the court, Mr Glen QC submitted that these measures were impacting upon the fairness of the trial in various ways, particularly the contact with his lawyers, the state in which he arrives at court and the adverse inference of the security measures. It must, however, be recognised that the court is dealing with essentially a matter of prison classification rather than judicial review of police measures, which may go hand in hand with an assessment of risk but are certainly not before the court today.
14. The phenomenon of concern and anxiety about security measures taken in high profile trials at the Old Bailey is long-standing and has existed long before this claimant, this trial or this class of issues. It is a feature that trial judges of great experience have to warn the jury that these are routine matters which do not bear upon any assessment of the evidence in the case. It is a fact of life that defence counsel in high profile, high-security cases will well be able to address and invite the judge, where appropriate, to make the appropriate comments in due course. Certainly, it is not a basis for judicial review in this case, which is concerned with the sub-classification of EER within Category A.
15. I would readily accept that a trial judge is bound by law to secure a fair trial for an accused person and has inherent jurisdiction as well as jurisdiction through the statutory and rules regime that govern criminal trials, as well, if he needed it, as the jurisdiction under the Human Rights Act and his duty under section 6 to ensure compliance with a fair trial - to intervene and to take measures that directly impact in his or her judgment upon the fairness of the proceedings which he adjudicates upon. Therefore, the judge has power to direct access to lawyers in conditions of privacy, where there is no breach of confidential communications. A judge will be conscious of suspicion, whether well-founded or not, that there may be intercommunication between members of the prison service and members of the police service and so forth.
16. However, this application is not concerned with those matters. The court has been informed and would expect that when at one stage it appeared that the package of measures pursuant to this regime was affecting the ability of lawyers to meet face to face outside the hearing of a prison officer, the judge did intervene and that issue has been addressed. I am not surprised to hear that. I would be surprised if anyone sought to frustrate the orders of the judge that are designed in that respect to protect the fairness of the trial. If they were, I have no doubt that the judge would be able to bring to the attention of any person seeking to frustrate such an order what his powers are in respect of such a person.
17. Beyond that, of course, the trial judge is not primarily concerned with prison security or indeed the security arrangements for escorting prisoners to trial. Although one can never exclude that in the latter class of case there may be some case for judicial review, it is not this case, not on this material and not today.
18. I then turn to the question of the classification of EER within Category A. The claimant challenges the sufficiency of the reasons which have now been given and submits that they were procedurally flawed, in so far as that he was not able to make representations about them until this regime was put in place and it has now been going on for two months. The next review, the court is told, will depend upon the outcome of the criminal trial and its date.
19. In respect of the complaint of opportunity to disabuse, in my judgment it is premature and wrong for this challenge to be brought and for permission to be granted. This is not a case of the future treatment in the prison estate of a convicted prisoner, whose classification at a particular period of time of course is a matter of importance to him or her and has some impact upon his prospects and timing of any application for parole. We are a long, long way from that class of case, where the courts have set down some minimum requirements of fairness that ought to operate in such a context. That is not to conclude that there is no scope for minimum fairness in an EER assessment that has the intrusive implications that the court has sought to summarise a little earlier in this judgment. However it is the very nature of risk assessment that one may need to act promptly. Indeed, if one is not to give rise to the very risk that the regime is designed to avert, it would be wrong to rule that there is an arguable case of a minimum requirement of fairness to notify the person before the measures are put in place of the basis on which it is assessed there is a risk of escape or exceptional escape risk in advance. The very nature of risk requires that those who have the obligations to prevent untoward events and to make assessments of risk have to have the freedom to move in the way that they conclude is best, having regard to the nature of the risk, the consequences and suchlike.
20. Therefore, by definition, challenges to these assessments will almost certainly have to be retrospective to some degree. That is not to say that it is appropriate never to explain a decision or to give reasons for it, or even to give disclosure for it if a request is made, but that will be a request after the event.
21. The authorities to which the court has been referred, notably the case of R v Secretary of State, ex parte Doody [1994] 1 AC 531, do not indicate some more intensive minimum standard of fairness in this context. On the contrary, the court has always been conscious of the potential difficulties of combining minimum standards of fairness as an absolute content against issues of risk. The court would observe that in such cases as Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 their Lordships in the House of Lords concluded that a breach of legitimate expectation of consultation was appropriate in order to change matters before the risk that the change was designed to avoid came about.
22. In so far as the complaint is that this decision was taken without a prior opportunity to disabuse, in my judgment there is no arguable ground that that prior opportunity was required as a matter of minimum fairness.
23. As to the future, the court unhesitatingly concludes that it is appropriate and that any future challenge be applied in a structured way. The first stage of the process is that the defendants to these proceedings permit the claimant and his lawyers, if so advised, to make all representations, supported by such evidence, submissions and anything else that the claimant thinks appropriate, to the defendants, addressing the grounds and the issues which have been disclosed, so they can fully appraise whether the assessments made upon the basis of their assessment of the implications of the information is the appropriate one to continue to be made.
24. Seven heads of material have been relied upon by the defendants. Much of the primary material is not in dispute, but the implications or descriptions or inferences of that material may be the subject of the most acute difference or controversy. However, those seven grounds can be addressed, and one at least has already been, namely the inferences to be drawn from the documents that were in a folder in the possession of a legal assistant in the case when visiting the claimant in Belmarsh prison. There is an explanation given. There has been no witness statement provided as to why a suspicious inference is now maintained in the light of that explanation, but it is not material for that issue to be further investigated by this court. It was plainly not the only reason for the classification in the case. If there had been just one issue, it may be that the court would want to retain this matter for a little further to see just precisely what response is made to it. On the face of the explanation, it seems to be hardly surprising that solicitors' clerks would not enthusiastically explain the contents of their legal files to prison officers who are interested to know about the contents when they go to see their clients in prison. Indeed, the duty to maintain legal professional privilege in respect of the contents of a file does not always sit happily with the requirements of prison security, and there again there is plenty of judicial guidance as to the implications of proportionality. However, further explanations, if they needed to be made, can be and it will then be a matter for the prison service to review them.
25. It may be that if particular reasons are given in the future for maintaining this classification, despite cogent explanation, there will be the room for challenge on rationality grounds. But at the moment that does not exist, certainly taken as whole, rather than overfocusing upon one subhead of seven grounds.
26. I accept the submission of Mr Stilitz, who appears today for the defendants, that risk assessment is a cumulative exercise, dependent upon an assessment of a person who has the information. That assessment is always ongoing. It needs to be continuous and it needs to adjust as events or information change.
27. Further, it is apparent that it may be that this claimant will not be much longer in prison custody if the jury acquit him of criminal charges that he disputes, in which case this unpleasant experience of being subjected to this intrusive regime will have been limited to something like two and a half months and the court can then reflect upon the consequences. If, however, that is not the case, then the one thing which gives rise to a large number of the intrusive searches is the need to transport him to court each day and that will change. So there will be a material difference in the daily life of this claimant, which is the present subject of complaint. It is far better for the court to see precisely how intrusive the regime is some months down the line, rather than to try to guesstimate what may or may not happen in the future.
28. Equally, it has been suggested in the claim form that this may be a case for the appointment of a special advocate. There are two answers to that. First, it is plain from the case law that that is an exceptional measure, tended to be reserved to cases where some element of a fair hearing under a regulatory scheme is indeed required but the normal course cannot be applied because of relevant but exceptionally confidential material. Secondly, again that is to the future, since that could not be a mechanism which could be brought into play to affect the status of this claimant before the end of his criminal trial, which was indeed the prime basis of the urgency by which this application has been brought and directions for early consideration of permission were made. I say nothing to encourage or necessarily unduly discourage the future of that submission in the prison context, but there are well known difficulties to that regime and it may not be the most attractive option from anyone's point of view, given the time, expense, cost and other difficulties involved.
29. The nature of the decision is not to the detention itself, unlike the case of R (Roberts) v Parole Board [2008] EWHC 2714 (Admin), where the claimant in that case might have had aspirations of release, having served the tariff element of his sentence. It is at present to a sub-classification within Category A. It may well be that, whatever way the trial is resolved, that will have significant impact upon the classification itself. But all those matters are for the future, not for today.
30. So the court would decline to grant permission on a hypothetical challenge to a decision as to the future, having concluded that there was no arguable case to challenge the decision that led to this regime being brought into force in October. To some extent what has happened since then has been an exchange between the parties, whereby the claimant has come to learn more about how this decision was taken and why it is maintained, to which he will be able to respond in the future. The court has been informed that the matter will be reviewed when the result of the trial is known. That would be an appropriate occasion for all relevant submissions to be made that may achieve an amelioration in some respect of some of the intrusive measures which are taken in respect of him, and may go to the question of whether he should revert to some lower status within Category A. It seems unlikely that he will be able to make cogent submissions about Category A for some period of time.
31. Finally I turn to the human rights aspects of this claim, but only to dismiss them. First, apart from the impact upon the criminal trial itself, there is no human right to a trial of the classification within Category A of his security rating. That does not relate to a civil right or obligation, which is the kind of right protected by Article 6(1) of the European Convention on Human Rights. That gets the claimant nowhere. Common law fairness in respect of an adverse administrative decision is his best basis of claim.
32. Secondly, it is suggested, on the basis of a report from a psychiatrist as to the impact of these cumulative measures if maintained for a long time, particularly in the light of an unpleasant custodial experience before he arrived back in this country, that it would have an adverse or disproportionately adverse impact upon his mental health and mental well-being. The standards of Article 3 of the European Convention - no one shall be subjected to torture or to inhuman or degrading treatment - are absolute, but the quid pro quo for that absolute prohibition is that it sets a high standard and a minimum level of severity has to be addressed. Prison conditions maintained over a lengthy period of time that have some of the elements of this case, segregation, strip-search, denial of or restricted access to visitors and suchlike, may go into a mix when viewed with the benefit of hindsight. But the total picture today, intrusive and unpleasant for the claimant as I recognise it must be, in my judgment does not meet within some distance the high standards required by Article 3 and the real issue - for how long they will be maintained - is yet to be determined.
33. I have no reason to doubt that those who are responsible for the classification of this claimant will be as conscious of their obligations under section 6 of the Human Rights Act as the trial judge would be. In looking at that they would want to make sure that the measures that they propose to maintain, if they do, are truly necessary and are justified by very compelling reasons. They must recognise, as they are bound to, that the longer a measure is maintained of this sort, the more onerous and intrusive it is likely to be and the more likely any court who subsequently reviews it will be concerned as to why it was maintained, the period it was maintained for, and the details of the regime to which this claimant may in the future be subject. However, for Article 3 that is a very high threshold and is not met on the data to which the court has had its attention drawn.
34. Article 8 has more inherent flexibility. It covers both family visits and legal visits, and indeed the very dignity to the claimant's life that he complains about in terms of association or intrusive strip-searches. All that in my judgment is within the ambit and scope of Article 8(1) of the European Convention, the right to respect for private and family life. But equally it is apparent from the case law of the European Court, as well as the many decisions on the topic from the United Kingdom courts, that compelling reasons of security and the protection of the rights and freedoms of others and suchlike justify even very intrusive interferences. I simply observe to underline the point that Lord Steyn made in the case of R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at paragraph 26 in his judgment that the measure of proportionality in terms of prison measures includes, in appropriate cases, no more intrusive than is necessary. And the indications in the case law of the European Court of Human Rights in cases such as Van der Ven v Netherlands (2004) 38 EHRR 46 at paragraph 72 is to similar effect. That has been repeated in a great many of the prison cases, where the courts have had to deal with difficult conflicts. The most recent to which the court's attention has been withdrawn is Ramirez Sanchez v France (2006) 43 EHRR 54, but the principles are also stated in the case of Lorsé v Netherlands (2003) 37 EHRR 105.
35. To some extent, therefore, the materials available to the court and the legal context require somewhat more intrusive approach than was the case in 1997, when the Divisional Court gave a decision in the case of R v Secretary of State for the Home Department, ex parte O'Dhuibir and O'Brien [1997] COD 315. But on the basis of all the information presently before it, there is no basis on which one could say that there is an arguable case that the measures from 9th October until to date were either irrational in substance or disproportionate having regard to Article 8 case law.
36. In my judgment, on the face of it, this was a very serious offence, with connotations for the classification within Category A that has happened. A number of the seven grounds on which reliance is placed, taken together, would give a legitimate basis for concern and it would be wrong to castigate the basis for intervention as being either unnecessary or even disproportionate to date.
37. Transport from prison to court and back again does present a risk in the view of the authorities whose job it is to assess it, and one understands why that risk has to be addressed by special measures. As I say, the real issue is for how long it will be maintained and what countervailing measures to improve association and suchlike will be in place in due course. It would be wrong to predict that or to grant permission now in anticipation of a decision that can fall for review at some future date.
38. So having explained the challenges as best I can in this extempore judgment, I conclude that, taken together or taken separately, none of them meets the threshold for the grant of permission. I therefore refuse this application for permission. I have explained the reasons at some length simply to give this indication. This is not the court washing its hands of what happens in prisons. It is not the court expressing to the defendants that it has no jurisdiction or no interest in how these decisions are taken when applied in the future. There is a legitimate basis in an appropriate case at an appropriate time for supervision of the decision-making process and its impact upon a claimant. It may well be that if in the future it is concluded that the measures are arguably disproportionate or illegitimate, this is a case which may come back before the courts again.
39. In the course of the directions given by the court since this claim form was lodged on 26th November, it was anticipated by the first judge, Mr Stuart Isaacs QC, who gave directions in the matter, that if disclosure could not be made a PII certificate may have to be lodged. For reasons which have been explained by the defendant, within the timescale it is not possible to go through the full process for a PII certificate and I certainly discharge that term of the order in the light of the conclusion I have come to on the merits. It is plain that it has been a moving situation, as it frequently is in cases of urgency. Substantial disclosure of information has been given, doubtless not enough to satisfy the claimant and I understand that, but again all that will be for another day and another place. However, I vary the order just so it is clear that the court is not expecting further information from the defendants for proceedings which would be now futile.
40. Is there anything else outstanding?
41. MR BYRNE: Just one brief matter. Would your Lordship consider ordering an expedited transcript in light of....
42. MR JUSTICE BLAKE: Yes. Are you seeking anonymity or is that not really an issue?
43. MR BYRNE: I will be honest, that is not a matter I would have considered. I do not think so.
44. MR JUSTICE BLAKE: I was trying to frame my judgment without going into too many contentious details but obviously had that aspect in mind. So if you think my judgment is lacking in some of the details that you complain of, that is why. Yes, perhaps it would help if you had an expedited transcript though it rather depends when it reaches me. (The judge conferred with the shorthand writer)
45. You will not get a transcript - the question then is whether you are going to pay for one or who is going to pay for one.
46. MR BYRNE: I think the Legal Services Commission pays for it.
47. MR JUSTICE BLAKE: I think in this case, since I have indicated something in my judgment as to how the court anticipates this matter will be dealt with in the future, this is a case in which if anyone wants to see what I have said, they ought to have the ability to read it. So I think a transcript could be appropriate and therefore I order a transcript. Expedition, what does that mean now. I am not going to get it before Christmas now.
48. MR BYRNE: This side of Christmas is what we are hoping for.
49. MR JUSTICE BLAKE: I think with some caveats for both those who have to draw it up and both those who have to correct it, yes.
50. Have I dealt with those matters; yes?
51. MR STILITZ: Nothing from us, my Lord.
52. MR JUSTICE BLAKE: No. Thank you very much for your help.
53. MR BYRNE: Sorry, my Lord, there is the legal aid taxation assessment.
54. MR JUSTICE BLAKE: Yes, you can have CLS assessment of your legal aid taxation. Thank you for your helpful skeletons and reading. That necessarily enabled me to get a brief picture of these applications because of the time constraints, but thank you very much for your submissions.
______________________________