England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
BIRMINGHAM CIVIL JUSTICE CENTRE
ADMINISTRATIVE COURT

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		28th May 2010

The Recorder of Birmingham:

1. This case was listed as an application for permission to apply for judicial review and interim relief. The parties agreed, for reasons that will become apparent, that it would be more appropriate and sensible for me to treat this as a rolled-up hearing, namely to consider whether it would be right to give permission to apply for judicial review, and, if I were to find there were an arguable case, to determine the application; in which event, interim relief would go by the wayside. That is what I propose to do.
2. Mr Michael Patrick Regan is currently serving a sentence of two years' imprisonment, a sentence imposed by the Birmingham Crown Court for offences of money-laundering of some description. The precise description does not greatly matter; it was some form of criminal dishonesty involving fraudulent behaviour. I say he was sentenced by Birmingham Crown Court to two years' imprisonment. He was in fact sentenced to three years' imprisonment, but the Court of Appeal reduced the sentence to two years, effective from June 2009; so on 11 June 2010 he will be eligible for automatic release. Because of the nature of his crime, and because of the length of his sentence, he was eligible for Home Detention Curfew. In the normal course of events he would have been given Home Detention Curfew. He was not a prisoner who committed a violent or sexual offence that would be excluded from the scheme; and therefore, unless he came within one of the headings in the prison order 6700 at paragraph 5.13.3, he would be released on Home Detention Curfew. The headings which the Prison Governor had to consider included lack of suitable accommodation for Home Detention Curfew. It is said in the grounds and the skeleton argument filed on behalf of Mr Regan that it was on 25 January 2010 that Mr Regan was told he would not be granted Home Detention Curfew because the West Midlands Police had informed the prison and the Probation Service of a continuing threat to Mr Regan's life. The Prison Service (i.e. the Prison Governor) considered that in those circumstances, given the proposed address was an address at which potentially his life might be in danger, there was a lack of suitable accommodation. That rationale of itself is not the subject of challenge.
3. How did matters progress from there? On 5 February 2010, solicitors instructed by Mr Regan wrote to the Chief Superintendant of Stechford Police Station in these terms:

"We write regarding a threat that was made against Mr Regan in May/June 2009. This threat was towards Mr Regan's life. Officers from the Public Protection Unit had previously assisted Mr Regan and his family when this threat was made. As we understand it, around the relevant period the police became aware of a threat to Mr Regan's life, a panic box was fitted to [what was then his home address] and for at least overnight Mr Regan and his family remained away from that address."

The letter then went on to deal with what happened to Mr Regan thereafter in terms of imprisonment, and the fact that it was now the time when Mr Regan was eligible for release on Home Detention Curfew. It continued:

"We understand that Mr Regan has been refused the same on the proviso that there is still a threat outstanding."

The letter then posed a number of questions in relation to the threat: whether it was continuing, what sort of threat it may be, and so forth.

4. There was a response after a couple of chasing letters. The response came on 16 February 2010 by email from a police officer, described as an intelligence/surveillance manager at Stechford Police Station. It said:

"Mr Regan was made aware of the threat to his life in June 2009 shortly before he was sentenced at Birmingham Crown Court, as he was visited by Police officers on 4^th June 2009 and was served with an R v Osman warning which he signed..."

I have seen that Osman warning; it was produced by the defendant in this case.

The email continued:

"The threat is believed to have continued as West Midlands Police visited [the home address] on 9^th November 2009 to inform the family of the continued threat after receiving further intelligence. The threat is not subject to a current Police investigation; however, the intelligence is regularly reviewed to monitor the threat level.

This intelligence was relayed to the Prison Service after a request prior to any release whether it be temporary or on licence. We can only provide the intelligence we have to the Prison Service and it is they who have made the decision not to release your client."

Then there is a final paragraph about potential addresses.

5. On 27 February 2010 the Prison Service responded to solicitors who had been making inquiries on the same topic. In shorthand terms: why has Mr Regan not been released? The Prison Service wrote as follows:

"Mr Regan has had two Midlands addresses refused for Home Detention Curfew due to police concerns that his life will be threatened. Police have informed us that his life was threatened in June and November 2009. Given these concerns, we do not feel it appropriate therefore to consider your client for Home Detention Curfew ... Our assessment is that Mr Regan is suitable for the Home Detention Curfew scheme, providing a suitable address and his wellbeing can be secured."

6. Not long after that the Prison Service decided, at least at that time, that a release on Home Detention Curfew was appropriate. On 10 March a pro forma document of a notification of provisional acceptance for Home Detention Curfew was either sent to or served on Mr Regan. That situation very quickly changed, because the Prison Service had determined that after all that -- to use the language of their letter -- the release should be put on hold.
7. That prompted a letter from Mr Regan's solicitors setting out a number of matters; it was a letter dated 12 March, at pages 37 and 38 of the bundle. In the latter part of the letter, which was addressed to the Governor of the relevant prison, the solicitors wrote:

"We had actually advised Mr Regan at the time of Mr Purewal's release [that is the name of another man serving exactly the same length of sentence for exactly the same offences] to take legal action against the Home Office in order to ascertain the real reason (if any) as to why he was be detained longer than his co-accused. However Mr Regan knowing how thoroughly, fairly and decently he has been treated in your Prison did not wish to rock the boat and would not allow us to take that legal action."

8. About a week after that, the solicitors received a reply from the relevant officer of the relevant prison which, to use the words of letter, attempted to clarify the situation. The important parts read as follows:

"Our original HDC decision was a refusal, focusing primarily on the concerns for Mr Regan's own safety (and that of his family). We always seek the contributions of both Police and Probation when considering HDC, and these concerns had been raised at that time. Whilst the HDC assessment concerns the risk posed by the offender to others, we also consider that we have a duty of care to the offender himself. Were Mr Regan to come to harm during the period of HDC, and bearing in mind we were aware of the Police concerns over a threat to his life, then it could certainly be argued that we had not fulfilled that duty of care.

We then became aware that the matter had come to the attention of Headquarters. After a series of exchanges between ourselves and Headquarters we were advised that Mr Regan should in fact be released on HDC, as concern for his own safety was not a basis for refusal. Mr Regan was of course informed of this development.

As indeed he was. I continue:

"Subsequently we received further instructions from Headquarters. We were then told that the matter had been referred to a department called Policy Leads and that legal advice was also being sought. We were instructed that until this was resolved Mr Regan was not to be released. Naturally Mr Regan was made aware of that as well.

Since then two things have happened […] One is that Headquarters came back to us saying there is no particular legal position on this, but that HDC is discretionary and the decision rests with the Governor. This actually takes us back to the very start, where we had decided locally to refuse HDC for the reasons stated. Secondly, I am told Mr Regan has submitted another address for consideration. The normal checks are being made for this new address, and it is hoped that this will prove to be acceptable."

It concludes with reference to:

"If police concerns persist [about the] new address, then we will seek supporting contribution from them regarding the credibility of the threat and the extent to which the risk can be managed."

Thereafter Mr Regan remained in custody. At some point he moved to HMP Gloucester. He now is in HMP Birmingham.

9. Mr Regan seeks judicial review, not of anything done by the Governor of Leyhill Prison or indeed any other prison, or what may or may not have been done on behalf of the Secretary of State for the Home Department and/or the Ministry of Justice; rather, judicial review is sought of what was done or not done by the Chief Constable of the West Midlands. The essence of the case put on behalf of Mr Regan really falls into two headings. First, it is said that the Chief Constable owes Mr Regan a duty under Article 2 of the European Convention on Human Rights; that is, to take all reasonable steps to protect him against risks to his life from wherever it comes, in this case the criminal acts of others. It is said that there has been a breach of that duty. Second, it is said that the Chief Constable, in providing information to the Prison Governor, was -- to use the words of counsel who appeared for Mr Regan -- making a decision which was tainted with unfairness, irrationality and unreasonableness.
10. I deal first with the Article 2 point. Mr Regan, as a result of all that has happened, remains in custody. The concerns expressed by the police were undoubtedly to the effect that if Mr Regan is released, then at least potentially there is this risk of harm to him, as it existed in June and November 2009; and it is, so far as the police can tell, a continuing risk of whatever strength. In my judgment, doing that did not breach the duty owed to Mr Regan under Article 2. If anything, it was actually fulfilling that duty, seeking to alert those who might otherwise have released him into the community to the potential risks that such a release might create. He has not been released because of that concern.
11. The real question in this case is whether Mr Regan is right when he says that the Chief Constable, who owes a duty as a public servant to act fairly in any decision-making process in which he engages, was engaged in a decision-making process, and did act unfairly or irrationally or unreasonably, or all three.

12. I have provided with a number of authorities. Of relevance is the case of R v Secretary of State For The Home Department,Governor HMP Whatton ex parte Allen a case heard in the Court of Appeal in March 2000 in the days before neutral citation: it is at tab 1 of the bundle provided for me by the claimant. That was a case to which the old rules applied in relation to HDC. Those rules did not require the Prison Service to tell the prisoner at the time that Home Detention Curfew was being considered of the material they were considering; rather, it required them to inform the prisoner of such material at the appeal stage. An application was made for judicial review of the Prison Governor's decision not to disclose the relevant documentation at what was called the assessment stage. The judge at first instance agreed with that submission and granted judicial review. The Court of Appeal reversed that decision. At paragraph 39 Laws LJ said this:

"39. In my judgment, in the present case, the learned judge has gone too far in holding that all the relevant documentation must be disclosed at the assessment stage. All the more so if, with respect, he meant that that should happen in every case. The principle is that the affected prisoner must know enough about the case against him to respond to it. The gist of the documents will often be enough. But I would go further. In my judgment, the right of appeal, as it has been called, to the governor here is integral to the administrative process of arriving at HDC decisions. If at that second stage the case against the prisoner is (a) made known to him and the gist of any relevant documents explained and (b) the actual documents are provided if requested and (c) he is of course allowed to make representations, then, as I see the matter, fairness is satisfied.."

13. The situation now is different. The provisions under chapter 7 indicate that what previously was not thought to be appropriate now is. In other words, the disclosable reports have to be made available to the prisoner if requested even before the assessment, if the prisoner so requests it. But that change in the rules does not, in my judgment, affect the general principle that was being set out by Laws LJ. That is a case where the prisoner was attacking the decision-making process of the Governor of the prison; here the attack is on what is said to be the decision-making process of the Chief Constable. Mr. Regan knew enough about what was being said by the Chief Constable to be able to respond to it. Insofar as the Chief Constable did engage in a decision making process he did so fairly.

12. In fact I find that the Chief Constable was not engaged in any decision-making in the sense that would make him amenable to judicial review. He was providing information to the Prison Governor. There has been a suggestion in the correspondence that the Chief Constable was acting mala fides, but it is not pursued in this application, and nor could it be on the evidence. He simply provided the information he did and did so in good faith. The decision-maker was the Prison Governor. Mr Regan was entitled to make his representations to the Prison Governor, and in the course of correspondence those who appear for him today he did indeed do just that.
13. The notion that there was a decision by the Chief Constable that is amenable to judicial review is, in my judgment, on careful examination of the factual situation, not a tenable submission. In those circumstances, the relief that is sought is in my judgment not to be granted. I do consider the case was arguable; it raised an interesting and novel point, and so I granted permission for judicial review. But I do not make the declarations or the orders sought, because in my judgment the Chief Constable did nothing as a public body that was, and is, amenable to the review of the kind that is set out in the claim.
14. Whilst I grant permission to apply for judicial review, I refuse the application.

Order: Application refused.

(Post Judgment Discussion)

Mr Quirke: My Lord, may the Chief Constable have its costs; the other side are privately paid, rather than publicly funded.

The Recorder of Birmingham: Right. Is that to be assessed, or is there a summary assessment you ask for?

Mr Quirke: No, I ask for it to be assessed if not agreed.

The Recorder of Birmingham: Right. Do you have anything to say about that?

Mr Sandell: My Lord, I do. I did not hear my learned friend's submission, but if it was that my client is publicly-funded, he is not; he is privately funded.

The Recorder of Birmingham: No, that is what he said.

Mr Sandell: That was the indication.

The Recorder of Birmingham: Yes, sorry, that is why he has asked for his costs.

Mr Sandell: Indeed. In which case, I would invite you to make no costs order on this application, my Lord, on the following basis. Eight letters were sent to the Chief Constable or those acting on his behalf in order to try to resolve this matter, to which one reply was received early on in the process, but there was clearly still scope for a conversation which might have resolved this. The pre-action protocol letter was not responded to despite a reminder, and of course the Practice Direction requires the court to take note of compliance with the Practice Direction. Had the police been more compliant with the Practice Direction and the overriding objective of the court, it may be the conversations would have been had that would have resulted in this matter not coming before the court. In those circumstances, I would invite you to direct fall where they lie.

My Lord, I beg your pardon. I would also point out that clearly there is an arguable case, as you have found, which must also be right. And this was only a permission application initially, which must also be relevant to the exercise of the discretion that you enjoy as regards costs.

The Recorder of Birmingham: I see your point about the response to the protocol letter; on the other hand, if the skeleton argument that in due time was lodged by the Chief Constable is anything to go by, the response would not have been very helpful to you.

Mr Sandell: My Lord, I beg your pardon, would have been very helpful?

The Recorder of Birmingham: Would not.

Mr Sandell: Would not have been very helpful to us. Well, my Lord --

The Recorder of Birmingham: I am sorry to interrupt. Nothing that is said in the skeleton argument would have caused you to say, ah right, I see, we will go away then.

Mr Sandell: My Lord, I invite you to take note of the whole course of conduct of what has ended up as litigation, which began from memory on either 5 or 11 of February. My instructing solicitors cannot be criticises for sending enough letters and reminders, courteously phrased, and largely simply requests for information. The defendant at no time, in fact, directed himself to respond to those questions which were set out, and it is likely, in my submission, my Lord, that had the defendant properly engaged with this, as indeed he can be expected to do, he has a legal team acting for him, that the nature of the dispute, and alternative ways of resolving it -- indeed, there have been alternative potential ways of resolving it, had there been a conversation here, and there are other parties involved who could have solved the big problem, then it is likely that we would have not ended up here.

The bottom line is they did not comply with the pre-action protocol, and had they done that, it would have provided another opportunity for us not ending up here, and as my Lord has accepted, we had an arguable case.

The Recorder of Birmingham: Yes, all right. Anything else you want to say, Mr Quirke?

Mr Quirke: Working backwards, had permission been refused, and I asked for my costs, the court would have said, "Well, you were not required to be here on the permission application", but I was required to be here, because this was going to be a rolled-up application, and so I should have my costs then, for today at least. Working one's way backwards, it was apparent from the very early stages that the claimant knew that he should be applying against the prison, if anyone. Two, a full response was given on 16 February, if I have the date right, by email, and the claimant was reminded recurringly in the correspondence that the decision was one for the Prison Governor and not for the Chief Constable, and that is how the court has seen it, too.

The Recorder of Birmingham: Yes, I see. Costs are discretionary. I admit I do not exercise my discretion capriciously, but I do take into account the undoubted fact that however all directed the letters to the Chief Constable may have been, save for one not wholly adequate email, they in effect achieved no response at all. I also take into account that, strictly speaking, this case was listed as an application for permission and interim relief. I think the proper course is for the claimant to pay the costs of the acknowledgment of service and no more.

Mr Quirke: Thank you, my Lord.

The Recorder of Birmingham: Yes, thank you very much.