England and Wales High Court (Administrative Court) Decisions

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

		York County Court Piccadilly, York
		28/07/2015

His Honour Judge Clive Heaton QC:

1. The Claimant here is Mohammed Ali. He has been represented before me by Flo Krause. The Defendant is the Secretary or State for Justice. He has been represented before me by David Manknell.
2. This is a judgment following a substantive hearing in Judicial Review proceedings. Although the hearing took place in October 2014 the matter has been delayed by the Court allowing the parties an opportunity to make further submissions in the light of a decision of Mr Justice Collins addressing similar issues handed down just over a month after the hearing in this matter.

The essential background

3. At the time the claim was brought the Claimant was a serving prisoner at HMP Full Sutton, a category "A" prison. The Claimant has been convicted of murder and other offences and sentenced to life imprisonment with a 22 year tariff.
4. The Claimant is of Kurdish Sorani descent. His mother tongue is Kurdish. He has tried for some time to obtain, through the prison, books, DVDs and CDs in Kurdish but has been unable to do so through lack of availability. The Claimant does have some knowledge of English, he has a Level 1 certificate in English Adult Literacy and Level 1 in the Cambridge Progression Unit in English.
5. In 2013 the Claimant was sent some items by his family at his request. The items were purchased abroad but sent to the Claimant by his cousin from here in the UK. The items comprised a cookery book, a dictionary, 28 DVDs, 8 further books and 9 CDs all in Kurdish. The Claimant was not permitted to receive these items by the prison authorities. He complained and the reception manager informed him on the 22^nd October 2012 that he would not be permitted these items.
6. The Claimant utilised the internal appeal process. In a response of 26^th October 2012 the Claimant's appeal was refused. It was reiterated to the Claimant that all commercial DVDs must come from an approved supplier and that if the Claimant wanted any books added to the religious\faith library he should contact the chapel staff.
7. The Claimant then made a complaint to the Prison and Probation Ombudsman (PPO) on the 23^rd November 2012. The PPO had some criticisms of the way the Claimant's request had been dealt with but on the key issue the PPO was satisfied that the general restrictions on material being sent in by families were reasonable and that provided certain steps were taken there should be no need for exceptions. The PPO did not consider that the Claimant should be issued with his DVDs or CDs and did not uphold that part of his complaint. The PPO did recommend inter alia that NOMS should identify appropriate suppliers of music, films and books for foreign nationals and circulate this to high security prisons by 2^nd April 2014.
8. There were further developments during the time the matter was with the PPO. The prison agreed to permit the Claimant to have the opportunity to have the cookery book and dictionary which had been sent in by his family.
9. Further in November 2013 the Claimant placed an order through the prison to a supplier "AB" (not its name) for 4 Kurdish DVDs. That order was cancelled and the Claimant's money returned. The reasons for this action did not relate directly to the Claimant. AB was at the time suspended as a supplier (although it has now been reinstated) due to concerns as to sexually explicit and strong adult content of some of the DVDs within the AB catalogue.
10. Mr Ali's solicitors wrote a letter before claim on the 5^th February 2014. In short form the following points were made:

(i) Whether or not the PPO's recommendations had been followed the Claimant had not been able to access appropriate material from an approved supplier

(ii) The Claimant had not been able to access any Kurdish material at all

(iii) The Claimant was the only Kurdish prisoner in the prison

(iv) Other foreign nationals had been able to keep material

11. The Defendant replied on the 21^st February 2014 saying: it had given its best efforts to looking for material for the Claimant; that it had liaised closely with the PPO and had complied with his recommendations; and that there was another Kurdish prisoner at the prison, but he could not be co-located due to that prisoner's status. The prison went on to say that it would not be proportionate to allow the material in from the family even if subject to checks.

The Claimant's case

12. The Claimant recognises that the policy operated in this area by the Defendant has a legitimate justification, as it is intended to ensure good order and discipline in the prison, and to prevent crime. The Claimant argues that unlawfulness arises here as the policy, as it is operated at HMP Full Sutton, is unlawful as it is a "blanket" policy and does not provide for exceptions. It should, the Claimant argues, be struck down on the grounds of inflexibility.
13. The Court's attention is drawn to the decision of the House of Lords in R(Daly)-v-SSHD [2001] 2 WLR 1622 which the Claimant argues establishes the principle that the need for security in a prison does not trump competing interests and that a fair balance has to be struck.
14. The Claimant further argues that even if such a policy with its lack of flexibility were lawful it has been unlawfully applied to him. The Claimant draws attention to the following matters:

(i) It had taken over two years to find appropriate material

(ii) The PPO had found against the Defendant

(iii) The Claimant was unable to access material even after suppliers had been indentified

(iv) There is a policy of translating letters in other languages coming into the prison suggesting that the prison has the capacity to check the appropriateness of material in foreign languages

(v) All the Claimant was allowed was a dictionary and a cookbook

(vi) The Claimant had no contact with any other Kurdish prisoner

(vii) If the Claimant has no contact with another Kurdish prisoner then no other prisoner the Claimant has contact with can access the material in that tongue

(viii) Any illicit (such as pornographic) material can easily been indentified

15. The Claimant argues that had the Defendant had proper regard to these matters rather than applying a blanket policy it may have come to the conclusion that it could use its resources to identify some of the material sent in by the family which the Claimant could be allowed. In failing to properly investigate whether an exception to the policy might properly be made in this case, it is argued, the prison has acted unlawfully.
16. Finally, the Claimant argues that the Defendant is in breach of its duties under s149 Equality Act 2010 as the prison is discriminating against the Claimant on the grounds of his race. It is argued by the Clamant that the prison has failed in its duty to take active steps to ensure the full integration and participation in prison life.
17. In response to the arguments of the Defendant the Claimant argues that the Defendant has failed to explain why the Governor has not exercised his discretion given that it is accepted that the Claimant's case is exceptional. The fact that (as is conceded) the policy pursues a legitimate aim is not enough it is argued, the Defendant must show that "The means used to impair the right or freedom are no more than is necessary to accomplish the objective" (see de Freitas-v-Permanent Secretary of Ministry of Agriculture Fisheries Lands and Housing [1999] 1 AC 69 at page 80). In failing to consider whether the exceptional circumstances he had identified in respect of the Claimant triggered the exercise of his discretion and\or in putting such a high threshold on the meaning of exceptional circumstances the Defendant, it is said, acted irrationally and or unlawfully.
18. The Claimant goes on to argue that the Defendant's reliance upon the PPO's conclusions is misplaced, as the PPO had clearly formed the view that it would be possible to access material if certain steps were taken.
19. The Claimant draws the Court's attention to a point raised in support of its claim by the Defendant, that it has attempted to access material from non approved suppliers. The Claimant makes the point that this is a very recent development, and that if the Defendant is willing to go to non approved suppliers why would he not consider the material sent in by the Claimant's family.
20. Finally the Claimant argues that the dictionary and cookbook were allowed; how, it is asked rhetorically, did the Defendant come to the view that these items did not contain illicit material? It is suggested by the Claimant that the Defendant effectively proceeded to provide the books in contradiction of its own policy.

The Defendant's response

21. The Defendant responds to the claim by asserting that the policy is lawful, and has been lawfully applied to the Claimant. The Defendants' case is that there is a general policy applied in prisons contained in PSI 30/2013 to the effect that there is a general presumption against the sending to or the handing of items to prisoners.
22. It is argued that the justification for the policy was explained by the Prison Governor in response to the complaint to the Ombudsman and was summarised in this way:

"36. It is clear from the information provided by Governor Cowans that the policy of disallowing items to be sent into the prison by families is for security reasons. It applies to all prisoners and is designed to prevent pornography and other illicit material from entering the prison. The trafficking of illicit items within the high security estate has potentially serious implications for the maintenance of good order and discipline. Ensuring that property only enters the prison through approved suppliers reduces the amount of searching of property that staff are required to undertake and limits the routes for illicit items to be smuggled in. There is no doubt that the prevention of illicit material entering the prison is a "legitimate aim" of the policy"

23. The Secretary of State for Justice and the Governor are entitled to develop policies necessary for the reasonable requirements of prison organisation and security and the desirability of maintaining a uniform regime, it is argued (see R(P&Q)-v-Secretary of State [2001] 1 WLR 2002 (per Lord Phillips MR at 78).
24. The Defendant further argues that it is relevant that HMP Full Sutton is a High Security prison and as such there are particular risks associated with the introduction into the prison of illicit material. The Defendant draws the Court's attention to he observations of the PPO:

"53 I am satisfied that the general restrictions on items being sent in by families is reasonable in the context of a high security prison and that, providing the measures identified above are implemented, there should be no need for further exceptions. I do not consider that [The Claimant] should be issued with his CDs or DVDs and this aspect of his complaint has not been upheld."

25. The Defendant asserts that the policy is not a blanket policy. The Defendant asserts that individual consideration has been given to the Claimant's case. There is an example of an exception being made, in that the Claimant was allowed the dictionary and the cookbook as an exception to the policy it is argued. Furthermore the Claimant was authorised to try to use non approved suppliers to purchase items. It is further asserted that the Defendant has further reviewed the Claimant's position and the Governor has explained that any further items will be considered on a case by case basis.
26. The Defendant agrees that the Claimant is presently in a position whereby he cannot obtain access to items in Kurdish Sorani it is argued that is not as a result of the policy or unlawful operation of that policy. Rather it is the consequence of the rareness of items in this dialect in the UK. Thus while difficult practical issues arise here there is no public law issue of law, the approach the prison has taken being lawful and appropriate.
27. The Court is reminded of the need to avoid the temptation to micro manage the day decision taken in the prison estate. In this context Counsel drew the Court's attention to R-v-SSHD ex parte Hepworth, Fenton-Palmer and Baldonzy a decision of Laws J (as then) of 25^th March 1997 and that part of the decision relating to Baldonzy where the Court makes the point that while the review of decisions of internal prison management are within the Court's discretion it would take an exceptionally strong case for it to be done. It suggested that bad faith or crude irrationality would have to be shown before the Court would interfere.
28. Counsel also drew the Court's attention to R(oao Potter and others)-v-SSHD and another a decision of Moses J (as then) of the 30^th November 2001. Counsel drew the Courts attention to that part of the judgment between paragraphs 33- 41. That part of the judgment is helpfully summarised in paragraph 41:

"Thus requirements of fairness which are of sufficient flexibility to encompass operational difficulties and problems do provide a standard against which to test the quality of decisions in relation to IEPS. Fair schemes fairly applied are of importance to the quality of a prisoner's life in prison and to effective management, provided it is approached that the courts must be sensitive to those difficulties and alive to the fact that those who manage prisons are better placed to take a wider view of the demands of fairness than an aggrieved prisoner, who must necessarily have a confined perspective."

29. The Defendant finally argues as to s149 Equality Act 2010 that the duty of the Defendant is limited to the duty to have regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not (s149(1)(b)). The duty upon the Defendant was complied with, it is argued, by the application of PSI 32/11 "Ensuring Equality" which sets out those matters that must be taken into account by the prison and the approach to be adopted. The Court's attention is drawn to the evidence of Mr Cowans for proper application of the policy.

The application of the decision in Gordon-Jones

30. Shortly after the hearing in this matter Collins J handed down judgment in the case of R(oao Barbara Gordon-Jones)-v-SSJ and the Governor of HMP Send (hereafter Gordon-Jones) [2014] EWHC 3997 (Admin) a decision handed down on the 5^th December 2014. In the light of that decision I invited further submissions from Counsel.
31. The Claimant here argues that the effect of the judgment is that books are excluded from any test such as exceptional circumstances and there is a presumption that books can be sent in by friends and family without restriction. That presumption can only be displaced it is said on legitimate grounds, such as suspicion, in order to maintain good order and discipline.
32. While the Gordon-Jones judgment relates only to books the Claimant submits that the thread running through the decision is that of rehabilitation, and that principle would apply to CDs and DVDs too.
33. In response the Defendant divides his response into two parts, books on the one hand and other material on the other.

Books

34. As to books the Defendant makes the point that the Court in Gordon-Jones rejected an argument based upon the discretion of the Governor and rejected an argument based on the Equality Act.
35. Counsel informed the Court that given the decision of Collins J the policy under which the Governor's decision here was made was to be revised. In those circumstances I was told that the Defendant intended to make a fresh decision in the Claimant's case once the new policy had been formulated and implemented. The SSJ is in those circumstances willing to concede that part of the claim on that basis and to pay the Claimants' reasonable costs. I was then subsequently sent a letter by the Treasury Solicitor's Department dated 2^nd March 2015 which confirmed that a new decision had been made under the revised policy which had come into force on the 30^th January 2015. That decision, which also refused to issue the books to the Claimant, was not in issue before me.

CDs and DVDs

36. As to the CDs and DVDs the point is made that the decision of Collins J does not relate to such material and as such does not advance the Claimant's case on that head.

Discussion

37. Turning to the issue of books firstly in my judgment the Defendant's position is the correct one. The Claim succeeds in relation to books on the basis of those matters outlined in the decision in Gordon-Jones..
38. While the issue of a breach of the requirements of the Equality Act 2010 was pursued by Counsel in the end it was difficult to see where the specific public law error arose on that head and I reject that Ground of challenge.
39. That leaves the issue of the application of the Defendant's policy to DVDs and CDs. Here the arguments are very different from those canvassed in Gordon-Jones and I am far from convinced that there is some thread of principle running through from books to this type of material. I am reinforced in that view by the approach of Collins J who says many times in his judgment that he is considering the issue of books, and no other material, in that decision.
40. Turning then to the Claimant's arguments as before me the first argument that HMP Full Sutton operated a blanket policy not to allow prisoners any items sent in by family is not made out here. The Claimant was himself allowed 2 items, both books, and thus it is clear that, while there is a presumption against allowing such items in, there is a discretion to do so.
41. The question here, however, is whether there is a blanket policy on prisoners being allowed DVDs and CDs sent in by family and friends. The document annexed to Mr Cowans first statement at NC 1 sets out the policy as at 6^th December 2013 as follows:

"NB. To ensure that this is not a total blanket policy and that if there is what might be regarded as exceptional circumstances the matter must be brought to the attenuation of the head of Equality and the Head of Ops to decide if the application is exceptional and the rules may be relaxed in the case of written material only. This is to ensure consistency of approach."

42. That might be thought to create a blanket prohibition so far as DVDs and CDs are concerned.
43. However, Mr Cowans in his second statement at paragraphs 23 – 28 sets out the discretion that exists under present policy in respect of items sent in by family and friends. It is clear in this section of Mr Cowans statement that while items such as DVDs and CDs can be purchased through approved suppliers there is no blanket prohibition on the Governor using his discretion to allow a prisoner such items if sent in by family or friends. Mr Cowans tells me that the decision to refuse to allow the Claimant the DVDs and CDs has indeed been reviewed under that policy. I therefore reject the argument that there is a blanket prohibition on friends and family sending in DVDs and CDs to prisoners, and consequently that the policy falls into public law error for lack of flexibility.
44. Has, however, public law error arisen in respect of the way in which the discretion has been exercised here? It seems almost inevitable at present, on the information before me, that if the Claimant is not allowed access to DVDs and CDs sent to him by friends and family he will not have access to such culturally appropriate material. There can be little doubt that the prison has made significant efforts to locate suitable material for the Claimant in Kurdish and indeed in his own dialect. Counsel for the Claimant conceded as much in submissions. Sadly all has been to no avail.
45. Having described that background Mr Cowans explains at paragraph 38 onward of his second statement his reasons for refusing to exercise his discretion. They are:

(i) HMP Full Sutton is a High Security prison which holds some of the most dangerous and difficult prisoners in the country

(ii) DVDs and CDs may contain encrypted, hidden or coded messages, and analysis by a competent IT expert of such material would be required

(iii) The prison's translation services are not equipped to translate DVDs and CDs to ensure that they do not contain any inappropriate content

(iv) Finally, he says having considered the facts he does not think that there are exceptional circumstances here pursuant to the identified discretion

46. Mr Cowans has clearly recognised that he has a discretion here. He has decided not to exercise it. He has come to that conclusion for the reasons given. While on the one hand security, or indeed resources, cannot be a trump card on the other hand Mr Cowans is entitled to take them into account in coming to his decision, and so in some cases considerations around security and resources may be decisive.
47. Furthermore, I must have in mind the need not to micro manage decisions in the prison service for all the reasons the Defendant has outlined above.
48. Ultimately, looking at the exercise of discretion here, I have come to the conclusion that there is no public law error.
49. Accordingly the claim succeeds in respect of books, but fails in respect of DVDs and CDs and on the Equality Act point.
50. As I have indicated above the Defendant has agreed to pay the Claimant's costs, to be assessed if not agreed