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 WC2A 2LL
		16 September 2015

Mr Justice Kerr :

1. I have before me an application for judicial review made by Mr Lewis Wood ("the claimant") who attends by video link from Wandsworth prison where he is a serving prisoner. He has been in custody in Wandsworth, I understand from his application, since November 2005 and was convicted in 2006 of offences rape and actual bodily harm, for which he is serving a lengthy prison sentence. He been in Wandsworth prison since then.
2. He has a forthcoming hearing before the Parole Board. The timing of that hearing is not entirely clear. It was said on behalf of the Governor of HMP Wandsworth ("the defendant") that it was not expected to be heard until early 2016 on the basis that certain psychiatric or psychological evidence was awaited and needed; but Mr Wood says that that such evidence, and the delay that would have been caused by awaiting it, is being dispensed with and that the hearing can be expected to take place sooner than early 2016. Mr Wood wishes to make representations to the Parole Board for the purpose of seeking recategorisation within the prison system and not for the purpose of seeking early release.
3. He also has made attempts, and is making attempts, to get into contact with the Criminal Cases Review Commission ("the CCRC") but has not succeeded in engaging the attention of that body to look at or review his convictions.
4. He tells me that he appealed against his convictions but that those appeals were dismissed and that he complained to the barristers' professional body, the Bar Standards Board, about the conduct of his then barrister, which I understand to be the barrister who represented him in the criminal proceedings; and, although I do not have the details, according to Mr Wood, that barrister was found to have fallen short of the required professional standard in some way and, says Mr Wood, was subject to sanctions.
5. I stress that I have no details or written confirmation of that assertion by Mr Wood but it is part of his case which he included in his written application and I proceed on the basis that it is a matter within the factual and legal matrix in which he brings this application relating to IT services within Wandsworth prison.
6. His challenge in the current proceedings is to the alleged failure to maintain and replace "Access to Justice" IT equipment issued to him and a general failure to maintain the prison IT equipment.
7. The matter came before Andrews J on the papers on 17 August 2015, when she granted permission and directed that the hearing be expedited.
8. The claimant relies on his right under article 6 of the European Convention on Human Rights and he says that his right of access to justice, in particular under article 6(3)(b), which refers to provision of necessary facilities, is being impeded by the defendant and that that is unlawful. Article 6(3)(b) refers to provision of facilities for the purposes of access to justice in criminal proceedings.
9. In the grounds of his claim he said that his need for possession of IT facilities has been accepted and that he has been authorised to use them but since a particular laptop stopped working he has tried to get it repaired and replaced and has been met with excuses over an extended period of time.
10. The relief that he seeks (and I quote from section 7 of his grounds) is "a mandatory order that the Government, HMP Wandsworth, conduct an urgent review of Access to Justice at HMP Wandsworth" and that "the review to include communal equipment at the library, printing facilities, privacy and confidential handling, security of data, and that action is taken to ensure effective provisions are in place", and he also seeks "a mandatory order that he be immediately issued with his own laptop to use as an interim measure".
11. the claimant's account is that in late 2013 a laptop that he was then using ceased to work and at that stage he was advised by the prison authorities to obtain a new one, but lacked the funds to do so at that stage. He then, he says, was provided with a laptop by the prison authorities at Wandsworth in 2014, but unfortunately a few months later it developed a keyboard fault and was not able to type certain letters of the alphabet including the letter "e", which is rather a common letter in the alphabet.
12. Mr Wood was able to write documents on that computer until it developed that fault. After attempts to get a laptop that worked properly, he says that in June 2015 he obtained access to one from outside the prison and obtained permission to have it brought for his use within the prison; but on 10 June this year he received from Mathew Burton, the Security Custodial Manager (or he was sent on that date from the Deputy Head of Security at HMP Wandsworth), a letter in response to a written complaint he had made which included this:

Your prison issue Access to Justice Laptop broke a couple of months ago. I arranged for Officer Mangera to remove all the files from the hard drive and place them on a disk. At the same time Officer Mangera reviewed all those prisoners in possession of Access to Justice to Laptops to see if they were still eligible. However, he concluded that all those currently in possession are still eligible for Access to Justice Laptops.

Unfortunately HMP Wandsworth has no spare Laptops at present but I have placed you first on the reserve list for a new one when it becomes available. However, we are still awaiting the allocation of more Access to Justice Laptops here at HMP Wandsworth so I cannot guarantee when this will be.

You cannot get your own Laptop sent in as the ones we receive from head office are specially adapted for security purposes.

When we receive a new Access to Justice Laptops you will be allocated a new one depending if you are still eligible at the time.

13. That pretty much accords with the policy document that I have been shown dating from July 2015, a little bit later than that letter. The July 2015 version of that policy document is an intermediate version of an evolving policy in the course of review, which I was told about by Ms Slarks, and which is described in the witness statement of Mr Nash made yesterday on behalf of the defendant. Mr Nash describes a national review which is ongoing, has produced the intermediate document dated July 2015, and is expected to be completed in the latter part of 2016, but does not include, and is not expected to include, routine access to laptops with a facility to write and print documents.
14. There were developments in this case yesterday when, as I have heard in very recent communications to the court from both parties, in the last 48 hours or so Mr Wood was given, or offered, what is called an Access to Justice (or A2J) laptop, and Mr Wood tells me that he has rejected that laptop on the ground that it is of no use to him. It is common ground that it does not include a facility to write or print documents but that it is a reading tool, as Ms Slarks described it.
15. I understand it is also common ground that it does include the ability to read documents from a CD-ROM or DVD onto which documents are loaded from external sources such as legal materials in the prison library. Mr Wood is not content with that laptop and it is apparent from the facts I have just outlined that it does not give him the unusually high level facility that he had last year of a laptop that he was allowed to use which did include the ability to write documents.
16. Turning to the law, it is not necessary to go through all the cases in detail. I have been shown and have myself looked at the cases on this topic going back to 2002 and I will just state quickly what they are for the record: R (Ponting) v Governor of HM Prisons Whitemoor [2002] EWCA Civ 224; more recently, the decision of Hickinbottom J in R (Kenyon) v Governor of HMP Wakefield & Secretary of State for Justice [2012] EWHC 1259 (Admin); and yet more recently, in February 2014, the decision of Andrews J in R (Jackley) v Secretary Of State For Justice [2014] EWHC 407 (Admin).
17. It is sufficient to recite a few of the paragraphs from the latter case, a copy of which Mr Wood helpfully confirmed he has, and we referred to it together during the hearing:

5. The Defendant is obliged to afford a prisoner a right of access to justice. That includes a right of access to a fair means of looking after his or her own interests as a self-representing litigant in any appeals against the first instance decisions that have gone against them, but that right is balanced against the security risks inherent in introducing computers into prisons. The types of misuse which can and have occurred include communicating with outside persons with a view to facilitating criminal activities, the making of malicious allegations by prisoners against prison staff, unauthorised disclosure of confidential documents and of course, the creation of a potential risk to internal prison security measures. Therefore, a policy had to be developed in order to resolve the tensions between the right of access to justice and those risks.

6. There are a number of different types of computers that are available in a prison. These include so-called "A2J computers" which are laptops that are specifically provided, in certain circumstances, for legal work; and educational computers.

...

9. The most recent helpful guidance is provided by a decision of Hickinbottom J in the case of R(Kenyon) v Governor of HMP Wakefield and Another [2012] EWHC 1259 (Admin), 22 March 2012. In that particular case, Hickinbottom J was concerned with questions of access to justice and with the policy which I have quoted. He also had to consider the earlier decision of the Court of Appeal in R (Ponting) v Governor of HMP Whitemoor and Another [2002] EWCA Civ 224.

10. Essentially, what was decided in Kenyon was that every case has to be looked at on its own facts, that article 6 requires access to be reasonable and that every party who wants to represent himself must have an equal opportunity of presenting his case, but that only extends to being given a reasonable opportunity. That means an opportunity ensuring that that that party concerned is not at a substantial disadvantage vis-à-vis his or her opponent. Equality of arms requires a fair balance to be struck between the parties with any limitations on the access to the tribunal being proportionate.

11. In the case of Kenyon, the governor of the prison concerned had concluded on the facts that the Claimant had failed to show that unless he were provided with IT facilities, his right to fair process in his criminal proceedings would be potentially compromised. The judge agreed with that decision, making it very clear that each case is fact specific.

12. He did also make clear in paragraph 35 of his judgment that in making an application for access to justice laptops, the burden of proof falls upon the prisoner and the evidence in support is entirely a matter in the prisoner's own hands. It is obvious from the authorities that simply saying that a prisoner requires access to a word processor in order to be able to type rather than handwrite court documents would not in and of itself be good enough. It has to be shown that the denial of the use of those facilities is something which will impede his access to justice. For example, if there is a case which is very document heavy and the opposing side has provided thousands of pages of documentation, it may well be that fairness requires that a computer which has a search facility should be made available in order to enable the prisoner representing himself to search through the documents and access information that is pertinent to the points that he wishes to put.

18. Mr Wood, who presented his case with articulate courtesy and skill, submitted as follows. He said that he is a self-representing litigant who does not have the services of either a solicitor or counsel. Although he has at some times sporadically had them in the past, he has no legal representation at present. He submits that his battle to get his convictions overturned, which he hopes to do by the intervention of the CCRC, is document-heavy and needs higher level IT facilities than he has to secure his article 6 right of access to justice.
19. He says that as to the laptop he rejected yesterday, it is unable to give him the facility to make an application to the CCRC because it is a read-only tool without the ability to write documents or still less print them; and he points out that it may be of use to a person with the services of a solicitor but is not of use to him. He invites me to condemn the policy that is the current government instrument so far as the issuing of laptops to serving prisoners is concerned, and he referred me to paragraph 11 in section 2 of the July 2015 version of that policy, which reads as follows: "A scanner, printer or printing facilities will not be provided at any time". He points out that that on its face does not appear to admit of exceptions and ought not to be regarded as lawful.
20. He submits that in relation to his own position, he cannot get access to legal materials with the laptop that he has recently rejected and that he has been, as he put it, thwarted at every turn in his attempts to do so. He complains that the communal library facilities within Wandsworth prison do not include printing facilities. He mentioned that a year or so ago delivery of new equipment was awaited and there was no timescale. He does, I think, accept that there is now working equipment for the purpose of printing but complains that there is a very recent blanket ban, since 3 September this year, on the printing of documents for prisoners.
21. He accepts that he is able to hand write documents but submits that that is inadequate and insufficient for his purpose, because of the complexity of his case, which includes the need to refer to medical evidence, parts of which he might wish to italicise or underline. That is because, as I understand it, his intention to attack the validity of his criminal convictions includes a wish to rely on new evidence of his own medical condition, which in his understanding may, or he hopes would tend to, exonerate him; and I infer that evidence was not available at the time of his original criminal convictions in 2006.
22. He submits for those reasons that the court should entertain and grant his claim, should find the defendant in breach of his article 6 right and grant relief in his judicial review claim, as well as entertaining a broader challenge to the current policy, which, he complains, is unduly restrictive and insufficient for compliance with article 6.
23. Ms Slarks, for the defendant, points out that in a litigious matter, if documents are received from the opposing party or if legal research is done in the prison library with the assistance of library staff, there is a facility to upload material in electronic form from those sources onto a CD-ROM; and that CD-ROM can then be inserted into the drive of the very laptop that the claimant has rejected and thereby he would be enabled to read material emanating from the opposing party in litigation or from the fruits of his own legal researches.
24. Ms Slarks submitted that the claimant had himself said very clearly that his purpose in wishing to have a computer is to write documents and not just to read them; and she submitted that that amounts to a matter of convenience going beyond the article 6 right of access to justice; and that it has been recognised in the case law, in particular in the judgment of Andrews J in Jackley, that a mere wish to type documents is not enough and that, in normal circumstances at any rate, a serving prisoner can be expected to hand write them and it is not a breach of article 6 to refrain from providing him with the facility to type them.
25. Ms Slarks pointed out that, unlike in the Ponting case that I have mentioned, this complainant is not dyslexic or in any way otherwise disabled from producing good handwritten documents. On the contrary, his handwriting, including in the documents by which he makes the present application, is good, highly legible, articulate and cogent. Ms Slarks therefore submits that the provision of the A2J laptop yesterday puts beyond doubt any question of lack of compliance with Mr Wood's right of access to justice under article 6.
26. As to the wider policy and the attempt in this application to launch an attack on it, she points out that the process is underway for review of the current policy and that the document in which the current version is set out, dating from two months ago in July 2015, is part of an evolving process and it would be inappropriate and wrong for the court to exercise its judicial review jurisdiction so as to interfere with that process. The current version of the policy does not, she said, disclose illegality or inconsistency with prisoners' article 6 rights whether in relation to prisoners generally or Mr Wood specifically.
27. As to the state of the library facilities in Wandsworth prison at present, Ms Slarks had to obtain instructions at a late stage in response to documents that were sent to the court in the last couple of days, and the instructions she obtained this morning, she tells me, from Mr Michael Anthony who is responsible for litigation at Wandsworth prison, is, as Mr Wood accepts, that printers in the prison library are in working order, and what are called the A2J library computers are soon to be repaired, according to Mr Anthony.
28. I have considered these matters carefully and I am unable to conclude that Mr Wood's article 6 rights are being infringed by the current regime. It seems to me that the document-heavy and complex nature of his proposed application to the CCRC is very far from made out. He described as a gargantuan task the business of hand writing an account that could be put before the CCRC in an attempt to persuade it to take on his case for reopening his criminal proceedings, and mentioned that there was a need to refer to the many strands, including medical evidence, an account of the trial, an account of the behaviour of his barrister and so forth.
29. But I do not see that there is anything so inherently and innately complex in that exercise that he would be unable to do it by hand. It might be quite a long document but it seems to me that if he sat down for 5 or 6 hours with a pen and paper and wrote down in structured form, chronologically and under headings, each stage of the criminal process, and a numbered list of points attacking the integrity of that process, he would be well able to do that. He is an articulate, intelligent man. He could do it without a laptop.
30. I appreciate that not only Mr Wood but no doubt many judges in the courts would be extremely pleased if he were able to do it using typing; it would be easier for everybody. But it is not, on the authorities, a requirement of a prisoner's article 6 right and I do not accept that he is unable to obtain fair and reasonable access to justice in compliance with article 6 by being required to do so using handwriting.
31. In relation to legal research and materials, I accept the submission of Ms Slarks that, broadly speaking, that can be transmitted in electronic form, if the machines are working properly, via CD-ROM to his A2J computer. When I say "his" A2J computer, I mean the one that he declined to accept. It seems to me that provided the machines in the prison library are working and the staff are co-operative, and he does not suggest they are not, there is an ability at Wandsworth prison to produce electronic material on disk capable of being read by an A2J laptop.
32. So, essentially, that covers the reading side of the task of representing oneself in a litigious matter, and the writing side, unfortunately for Mr Wood, is covered by the ability to write by hand. So, in a nutshell, those are the reasons that I do not accept there has been a breach of Mr Wood's article 6 rights in not affording him sufficient IT facilities at the prison.
33. As for the attack on the policy process, it seems to me that it is not right for the court in this judicial review application to entertain a broader challenge to the current national policy (which is not just about Wandsworth, where the claimant resides, but all prisons) in the absence of any indication that this particular claimant has been treated unlawfully or that there is any inherent or necessary legal flaw in either the current version of the policy which is before the court or the process of updating and reconsidering it and in particular when there is no evidence to suggest that that process or the current version of the policy has prejudiced or infringed or breached Mr Wood's article 6 rights in relation to access to justice.
34. It is also right to observe that the question of what policy is appropriate, provided it is sufficient to comply with article 6 obligations on the defendant's part, must inevitably be informed by the question of resources (by which I mean money principally) and the availability of IT skills and staff and so forth, which are matters which are not within the court's remit or expertise and I have not seen anything to suggest that the paucity of resources of which Mr Wood also complains is such that it has reached the level where there is some sort of endemic breach of prisoners' article 6 rights up and down the country or anything approaching such a state of affairs.
35. So for those reasons, I decline to grant any relief in relation to the ongoing policy reconsideration. I am not suggesting that IT facilities at Wandsworth prison or anywhere else in the prison estate are necessarily ideal and perfect, article 6 rights do not require as much, and I daresay there have been, and may well be in future, shortcoming in some of the facilities available but I find no basis for granting relief in this judicial review and accordingly I dismiss it. Are there any other matters?
36. MS SLARKS: My Lord, given the delays in this case, it would be inappropriate for me to apply for any substantial costs. However, the bulk of this claim was conceded yesterday morning and we would ask you only to summarily assess the costs of today, which come to less than £500.
37. MR JUSTICE KERR: Do I have to then inquire into Mr Wood's means and ability to pay?
38. MS SLARKS: Yes.
39. MR JUSTICE KERR: Mr Wood, you are probably aware from your previous legal experience that normally the losing party in litigation is ordered to pay the winning party's costs and that it is very common for those costs in this court to be assessed summarily. The defendant has said that he does not seek any costs from you apart from the costs of today's hearing, estimated in the sum of £500. But I have to inquire of you what your financial position is.
40. It is also right, if we are going to be technical about it, that Ms Slarks, you have not served a schedule, have you?
41. MS SLARKS: We have not, no.
42. THE CLAIMANT: Or an acknowledgement of service.
43. MS SLARKS: That is a separate issue. We would be able to serve a schedule very quickly.
44. MR JUSTICE KERR: Given that you are litigating against a litigant in person and that you are not in compliance with the technical requirements of the court, and the point that has just occurred to me, it seems to me that if you wanted your costs summarily assessed you ought to have served, as the rules require, a written schedule at least 24 hours in advance of the hearing on which then Mr Wood has an opportunity to comment.
45. MS SLARKS: That is quite right. In this case, however, as I am not instructed under a brief fee, the costs of today were unknown 24 hours ago. In fact, we did not know even whether this would be going ahead, we did not know how many hours I would spend on the hearing today, so it would have been impossible to say anything other than what my hourly rate was.
46. MR JUSTICE KERR: I am of the view that this hearing might well not have taken place had you responded -- I do not mean you personally, I mean the defendant and encompassing his legal representatives -- swiftly to the order of Andrews J and there was a gap, I note, of a couple of weeks, for which you very properly apologised in your written note, and it does seem to me that it may be that delay on the defendant's part that has informed this hearing taking place. I do not say that it would not necessarily have taken place anyway but bearing that factor in mind and the absence of any written costs schedule -- you can always, where a hearing has not yet taken place, include estimates that can be updated, and there has been no attempt to serve a schedule at all -- it seems to me that I need not trouble Mr Wood with an inquiry into his financial position and I decline to order the costs sought.
47. So, Mr Wood, I am not going to ask you to pay the £500 in costs which are sought against you and I make no order as to costs.
48. THE CLAIMANT: Thank you, my Lord. There is just one thing. I would like to seek leave to appeal. If I can refer you to Jackley, I think the issue of permission to seek leave to appeal is dealt with at the foot of that judgment and it is, according to this judgment, within your power to grant at this stage.
49. MR JUSTICE KERR: That is absolutely right, and the test that you would have to meet, under the rules which are in the White Book, the Supreme Court practice, is that you have to show that the appeal would have a real reasonable prospect of success. Perhaps I will just get the actual words in front of me so that I do not misquote the actual rule.
50. THE CLAIMANT: I think it's probably better if I'm represented next time, my Lord.
51. MR JUSTICE KERR: Bear with me one moment, Mr Wood. I am looking at the Civil Procedure Rules 52.3(6) and I quote:

"(6) Permission to appeal may be given only where –

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

So what do you want to say, Mr Wood?

52. THE CLAIMANT: In part a reiteration. I must respectfully disagree with the contention that I can effectively put my case with pen and paper. For the reasons that I outlined, there is a great deal of evidence on my laptop, evidence from many different sources which I would need to send to the CCRC. Given the ruling that has been made today, which I respect the ruling of the court, I'm unable to do that and I contend that that is a breach of my rights because I have no means to send the information to the CCRC or to anywhere else other than what I copy with a pen from the screen and that, I would contend, is a breach of my right to be able to put my case effectively.
53. MR JUSTICE KERR: Thank you. So the application for permission to appeal is made on the basis that this decision is wrong and that Mr Wood, the claimant, says, in effect, that he has a real prospect of persuading the Court of Appeal to uphold his submission in his case that the use of handwritten material by him is not adequate and that I was wrong to find that it is.
54. THE CLAIMANT: And there is no equality of arms, my Lord.
55. MR JUSTICE KERR: And that there is no equality of arms. But it seems to me that the case law on this is abundantly clear, and I have cited it in my main judgment, and I do not accept that an appeal would have a real prospect of success because the contention sought to be advanced by Mr Wood in the Court of Appeal would be contrary to the previous case law and it does not seem to me that there is any real prospect of persuading the Court of Appeal to change the law and, effectively, alter the course of the jurisprudence in the way Mr Wood's contention would require. So I refuse permission to appeal.
56. THE CLAIMANT: I would seek to rely on Ponting, my Lord, if I may, specifically the section that I quoted in my note to the court, where Lord Justice Cook -- I apologise, my Lord, if you just bear with me.
57. MR JUSTICE KERR: Clarke LJ at paragraphs 50 and 52. Is that the passage you are referring to?
58. THE CLAIMANT: " ... it does seem to me that there are likely to be a significant number of prisoners in respect of whom it can properly be said that without such facilities they are at a sufficient disadvantage vis a vis the other party to litigation such that there is inequality of arms between them. It struck me during the course of the argument ... "
59. MR JUSTICE KERR: Which paragraph?
60. THE CLAIMANT: Paragraph 74, my Lord, and 76.
61. MR JUSTICE KERR: But, Mr Wood, I have said that you are not one of them. Mr Ponting was dyslexic. I am not going to prolong this discussion but I am finding against you on your application for permission to appeal because, as I have said in my main judgment, I do not accept that you are a person that requires IT facilities. You are quite right to point out that one of the judges in that case pointed out that there will be prisoners who may be in a different position, but I have said in my main judgment that you are not one of them. So I am going to conclude this hearing now by just reiterating that I refuse your application for permission to appeal on the ground that I do not accept that an appeal would have a real prospect of success or that there is any other compelling reason why the appeal should be heard. Thank you very much.
62. THE CLAIMANT: Would the court give me an extension of time to make an appeal to the Court of Appeal, as was the case in Jackley?
63. MR JUSTICE KERR: How long do you want?
64. THE CLAIMANT: I think he was given an extension -- let me just see here.
65. MR JUSTICE KERR: The normal period is 21 days from today.
66. THE CLAIMANT: A couple of months, it is paragraph 81, my Lord.
67. MR JUSTICE KERR: So she extended it to –
68. THE CLAIMANT: "I am prepared to extend your time for making an application to the Court of Appeal for permission to appeal until Friday, 4 April. That should give you a couple of months."
69. MR JUSTICE KERR: What have you got on in the next 21 days that prevents you from meeting the normal deadline?
70. THE CLAIMANT: I will need to contact counsel because I would like to be represented next time. I do take on board your comments, but still, referring you to paragraph 74, he does not mention dyslexia or any other disadvantage, he says anybody "suing a public authority represented, say, by the Treasury Solicitor, is seriously disadvantaged if he can only use a pencil, biro or pen while his opponent is equipped with a battery of word processors". He's not talking about somebody's dyslexia, my Lord, he's talking about equality between two parties to litigation.
71. MR JUSTICE KERR: Mr Wood, we are on the subject of an extension. I am prepared to extend time by two weeks.
72. THE CLAIMANT: I am grateful.
73. MR JUSTICE KERR: So that instead of 21 days, it will be 35 days, but that 35 day period runs from today, it does not start to run from some date in the future. Ms Slarks will be kind enough, I am sure, to draw the court's order and a copy of that order while it is in draft will be run past you, Mr Wood, so that you can have the normal opportunity to comment on the order just for the purpose of making sure that it accords with what I have decided. Normally that is done between the lawyers but since you do not have one, Ms Slarks will need to draw up the first draft and then her instructing solicitors will need to check it with you and when it is, as I hope it will be, agreed between you and the defendant's solicitors, it will then be put before me via my clerk for my approval and can be sealed. That is the ordinary administrative process by which the court's order is sealed and made final. But the 35 day extended appeal period runs from today, Mr Wood.
74. THE CLAIMANT: I'm grateful.
75. MR JUSTICE KERR: Thank you all very much.