Jersey Unreported Judgments

Appeal against decision of the Royal Court.

[2022]JCA257

Court of Appeal

23 November 2022

Before     :

Sir Wyn Williams, President; Sir William Bailhache; and Mr Richard McMahon, Bailiff of Guernsey

 

The Appellant in person.

Crown Advocate S. A. Meiklejohn for the Respondents.

Advocate L. A. Ingham, Amicus Curiae.

judgment

bailhache jA:

This is the judgment of the Court.

Introduction

1.        The Appellant is incarcerated at HMP La Moye (the "Prison").  On 17 December 2020, he was found guilty of three counts of money laundering contrary to Article 30 of the Proceeds of Crime (Jersey) Law 1999.  On 5 July 2021, he was sentenced to a total term of 7 years and 6 months imprisonment.  He is due for release on 15 December 2025, and he will not be eligible for conditional early release until late in 2024.  On 26 January 2022, this Court, differently constituted, dismissed the appeal against conviction and declined to grant leave to appeal the sentence.  The Appellant has applied to the Judicial Committee of the Privy Council for permission to appeal the Court of Appeal's order and that application remains outstanding.  For present purposes, as indeed he accepted in the court below, the Appellant is to be treated as a convicted serving prisoner.

2.        The Appellant's father unfortunately died on 4 March 2022.  The funeral was scheduled for 30 March and the Appellant applied for a temporary release on licence to attend the funeral, or failing that, a permission to attend escorted but unrestrained, that is to say without handcuffs or other restraint.  There was some delay in dealing with that application but on 18 March 2022 the Minister for Home Affairs wrote to the Appellant denying his application for temporary release under Rule 64 of the Prison (Jersey) Rules 2007 (the "Prison Rules").  On 21 March 2022, the Appellant filed a Representation with the Judicial Greffier seeking the Court's intervention on the matter of temporary release on licence or unrestrained escort to enable him to attend his father's funeral.  The Representation was called on 25 March 2022 and, given the urgency of the matter, was considered immediately.  In terms of evidence, the Court had the benefit of an affidavit sworn by the Second Respondent on 24 March with exhibits.  The most relevant of these was the Prisoner Escort Log, which contains the risk assessment on the Appellant, made as we understand it on 21 March. 

The Appellant's Representation

3.        Having referred to the funeral date and Rules 64 and 79 of the Prison Rules, the Appellant claimed that he had been advised on 17 March that he would not be granted a temporary licence, but he would be allowed to attend the funeral escorted by two officers but not restrained in handcuffs, subject to a security department review.  It was asserted that on 18 March the Second Respondent had advised the Appellant that the security department had decided that the Appellant was too high a risk to be permitted to attend the funeral unless in handcuffs.  It was said that the reason given was that the policy was that prisoners with more than two years left to serve were not allowed to leave the prison unless escorted and restrained in handcuffs.  It was said that the Senior Unit Manager in charge of security had no authority to compose and implement any other policy without supervision, as this was the exclusive responsibility of the First and/or Second Respondent.  No evidence having been supplied in any formal sense by the Appellant, the Court below seemingly relied on his Representation as containing the facts which the Appellant wished to assert. 

4.        The Appellant claimed that, had he been imprisoned in England and Wales, he would be given category D status and would already be eligible for day release from an open prison, such status being available to all prisoners with less than three years left to serve.  He contended that he was classified as an enhanced prisoner under the classification system used by the Jersey Prison Service.  In the summary of his contentions, he asserted that the reasons for denying his applications, either for release on a one day licence or the more limited application to attend the funeral service accompanied by prison officers but not handcuffed, were arbitrary and contrary to the demands of natural justice for a number of reasons set out in the Representation.  These included assertions that his fundamental human rights under the European Convention on Human Rights (the "Convention"), in particular his rights under Articles 3, 6, 8 and 13, had been disregarded.  The prayer for relief sought an order that he would be permitted temporary release on 30 March in order to attend his father's funeral, failing which he be permitted to attend the funeral unrestrained, albeit in the company of prison officers. 

5.        In the light of what has been submitted later, we observe that there was no express claim in the Representation that the Respondents had committed the tort of misfeasance in public office, and there was no prayer for damages.  As indicated, it is clear that in his Representation the Appellant made claims consistent both with judicial review and with the Human Rights (Jersey) Law 2000 (the "Human Rights Law").

The hearing on 25 March

6.        The Royal Court (the Deputy Bailiff sitting with Jurats Christensen and Averty) sat at short notice to hear the Appellant's Representation.  Having heard from the Appellant, who was unrepresented, and Advocate Brown on behalf of the First Respondent, the Court refused the application with reasons reserved.  The Deputy Bailiff established that the Appellant had enhanced status within the prison as a result of his exemplary conduct.  The reasons for the Court's decision were contained in the judgment [2022] JRC 135 handed down on 28 April, albeit not received by the Appellant until 16 June.  At paragraph 4 of that judgment, the Deputy Bailiff indicated that the Appellant did not challenge by way of judicial review the decision of the Minister to refuse his application for temporary release but noted the Appellant's statement that he might do so in subsequent proceedings.  We will return to that statement later.  The judgment indicates that there were two specific decisions that were challenged by the Appellant - the first, referred to at paragraph 10 of the Representation, involved the statement by the Second Respondent that the Prison Security Department had determined that the Appellant was too high a risk to be allowed to attend the funeral unless in handcuffs for the policy reason referred to earlier, namely that prisoners with more than two years left to serve were not allowed to leave the prison unless escorted and restrained in handcuffs.  The second decision challenged was the decision made by or on behalf of the Second Respondent to the effect that, having regard to the risk assessment carried out on 23 March, the nature of the offence for which the Appellant was serving his sentence and the absence of a history of absconding, the Prison Service would authorise the use of a closeting/escort chain if the Appellant chose to attend the ceremony in person.  That proposal was said to have been communicated to the Appellant but was unacceptable to him.

7.        Although not in the prescribed form for applications for judicial review, the Royal Court treated the application in that way.  The Court accepted that the Appellant was unrepresented, that it was an urgent matter, and in the circumstances that it was difficult for him to comply with the correct procedure.  The Court then noted that:

"15.    ...pursuant to part 16 of the Royal Court Rules that, generally, judicial review proceedings should be made in accordance with the Rules.  However, pursuant to Royal Court Rule 6/14, if a person seeks relief that should have been sought by way of application for judicial review under part 16, the person against whom such relief is sought may apply to the Court for an order striking out the claims and abuse of process and the Court shall make such an order unless, inter alia, the Court considers that in all the circumstances of the case it is just and convenient to allow the action or representation to continue 'provided in each case that the Court is satisfied that leave would have been given to move for judicial review if an application for leave had been made'.

16.      Accordingly, it was for us to determine whether or not on the material before us an application for leave for judicial review would have been granted had this application been made in proper form."

8.        The Court set out a number of considerations under the Human Rights Law, referring also to the guidance on case law relevant to prisoner rights published by the Council of Europe on 31 December 2021.  Following a review of that material, the Court concluded:

"29.    From these authorities we draw the following conclusions.  First, there is no question of a breach of Article 3.  The conduct of the prison authorities in this case does not amount to torture or involve human or degrading treatment or punishment.  There is no question of punishment.  There is no medical advice or evidence to the effect that restraint would be inappropriate.  In our view, the policy to which we have referred was designed to define the circumstances in which serving prisoners may attend funerals or visit dying relatives.

30.      Having regard to the case law, the relevant policy, subject to the caveat set out above, was in our view reasonable and proportionate in the context of the applicant's sentence and other circumstances referred to in the risk assessment.  Further, the policy, on the evidence supplied to us was applied fairly to this Applicant.  Therefore, there is no breach of Article 8.  Accordingly, this is an application for judicial review which, had it been made in the proper form, would not have been subject to a grant of leave.  Leave would have been refused on the footing that the application had no realistic prospect of success; indeed it was bound to fail.

31.      The Applicant also said that the facts of this case may give rise to a civil law claim in tort.  Although this was not pleaded, such a claim would presumably be advanced on the footing that the unlawful application of handcuffs would amount to an assault or other tort and the Applicant would be entitled to seek an interlocutory injunction preventing the application of handcuffs in these circumstances.  Although such a claim is not articulated in the Representation, it would also be doomed to fail.  The Applicant is a serving prisoner; whether he wished to attend his father's funeral subject to the terms of the policy in the light of the risk assessment was a matter of choice for him.  He could voluntarily submit to the conditions under which such attendance was proposed or could decline to attend.  Those conditions, having regard to the policy as a whole are, as we have found, consistent with the Applicant's human rights and would not, in our view, amount to an assault or any other inappropriate deprivation of liberty.

32.      Accordingly we dismiss the application."

9.        No application was made to the Royal Court by the Appellant for leave to appeal.

10.      Following the decision that was given on 25 March, the Appellant attended his father's funeral, restrained in handcuffs, but has nonetheless brought this appeal against the Royal Court's decision.

The appeal contentions

11.      In brief summary, the contentions of the Appellant before us cover the following ground:

(i)        The Appellant is innocent of the charges of which he was convicted and is appealing to the Judicial Committee of the Privy Council in that respect.

(ii)       On the facts, the Deputy Governor informed the Appellant on 17 March that he would not be granted a temporary release to attend the funeral of his father, although no assessment of risk had been undertaken prior to making that decision.  He was informed that he would be able to attend without the use of restraints, subject to a security review.  The following day he was informed that he had been designated as high risk, and that it would be a requirement of his attendance at the funeral that he be restrained, albeit that would be facilitated by the use of an escorting chain, and thus the escorting officers would be at a distance from the Appellant who would be able to sit with his siblings. 

(iii)      On 23 March (i.e. following the filing of the Representation), the Appellant was informed that he was assessed as medium risk, but would still be required to be subject to restraint, in handcuffs on a closeting chain. 

(iv)      On 25 March, the hearing took place in respect of his Representation.  He did not have time to prepare his case and was not legally represented, and the hearing did not comply with the requirements of Article 6 of the Convention.  At that time, the Attorney General was said not to have produced the majority of the essential information to determine whether the Appellant should be restrained, including case law and key policies, nor had he produced any of the information which would be required for the Court to review the decision not to grant a release on a temporary licence. 

12.      In his contentions, the Appellant mentions the following five areas of concern to him:

(i)        The Royal Court erred in treating the Representation as seeking leave for judicial review rather than as a breach of Human Rights.

(ii)       The policies of legal aid in Jersey to deny legal aid to prisoners seeking to bring civil claims against the Prison Service was contrary to Article 6 of the Convention.

(iii)      The Minister for Home Affairs failed to ensure that policies and procedures existed which are compliant with the Human Rights Law, specifically in the areas of attendance at family funerals and the use of restraints is a misfeasance in public office.

(iv)      The Attorney General (presumably as counsel for the Minister) failed to present to the Court the possibility that that application should have been treated as one under the Human Rights (Jersey) Law 2000 and did not present to the Court the information the Court needed to consider a request for release on temporary licence in order for the Appellant to attend the funeral. 

(v)       The Second Respondent or her officers in fact chose not to comply with the representations made to the Royal Court in the Second Respondent's affidavit of 24 March regarding the use of restraints on the Appellant whilst attending his father's funeral.  This constituted perjury and misfeasance in public office.

13.      In his contentions on behalf of the Respondents, the essential points made were these:

(i)        At the hearing on 25 March, the Appellant did not challenge the refusal to issue a temporary licence for his release, and that issue could not therefore form part of the appeal.

(ii)       The complaints of the Appellant should have been brought by way of judicial review.

(iii)      The Court of Appeal should not hear submissions, or admit new evidence, in respect of matters which were not before the Royal Court and on which the Royal Court made no order.  That included the Appellant's request for an order that the Second Respondent's actions constituted misfeasance in public office, his complaints regarding legal aid, the request for temporary licence, his sentence and the accusations of perjury and misfeasance. 

(iv)      This was an application to the Court of Appeal which required leave because it amounts to an interlocutory decision and is thus covered by Article 13(1)(e) of the Court of Appeal (Jersey) Law 1961.

(v)       Many of the factual points raised by the Appellant in his contentions were denied.  The Court should proceed on the basis of the facts set out in the Second Respondent's affidavit of 24 March.

(vi)      The Attorney General, at extremely short notice, provided information and authorities to the Court below.

(vii)     The policies of HMP La Moye were sufficiently clear and the use of restraints was in line with them.

(viii)    There was no breach of any of the requirements of the Convention either in the application of handcuffs or in the risk assessment that was made.

14.      In his contentions, the Amicus suggested that the following issues were matters properly within the scope of this appeal:

(i)        Whether there was any error in law in treating the Appellant's application to the Royal Court as being one to seek permission for judicial review.

(ii)       Whether the decision of the Minister to refuse temporary release for his father's funeral was unlawful as being in breach of the Appellant's Convention rights.

(iii)      Whether the decision of the Governor not to allow the Appellant to attend his father's funeral unrestrained was unlawful as being in breach of the Appellant's Convention rights.

(iv)      If the answer to either of the second and third questions was affirmative, the appropriate approach to a remedy.

15.      With some preliminary remarks, we intend to follow broadly the suggestions of the Amicus in dealing with the relevant issues, although it is in our judgment unnecessary to deal in any detail with the availability or otherwise of temporary release because both in the Royal Court and before us that has not been addressed by either the Appellant or the Respondents as a live issue. 

What is not arguable on this appeal

16.      There are a number of points raised by the Appellant which are clearly not arguable on this appeal.  These include:

(i)        Whether the Appellant has been rightly convicted and sentenced.  This Court has already heard and determined those appeals - see Pearce v Attorney General [2022] JCA 017.

(ii)       Whether the Appellant should be awarded compensation for the harm which he alleges he has suffered.  No such claim is to be found in the prayer in the Representation.

(iii)      Whether the Second Respondent's actions constitute the tort of misfeasance in public office.  Again, that is not pleaded in the Representation.

(iv)      Whether the policies of Legal Aid Jersey to deny legal aid to prisoners seeking to bring civil claims against the Prison Service, if that be their policy, is contrary to Article 6 of the Convention.

(v)       Whether the Attorney General has failed in his duty to the Court to provide all possible arguments which runs contrary to the arguments of the Respondents, given the fact the Appellant is unrepresented.  That overstates the duty of counsel for an opposing party especially in circumstances where the court has appointed an amicus to assist.

(vi)      Whether the Governor of HMP La Moye has committed perjury and/or misfeasance in public office.

Procedural issues

17.      It is relevant first then to consider the Royal Court's approach by which it treated the Appellant's Representation as an application for judicial review.  For this purpose, we start with the Royal Court Rules 2004 (the "Royal Court Rules"), the relevant extract from which is as follows:

"Part 16   Applications for judicial review

16/1   Application and interpretation

(1)       Except in cases where an appeal is available against a decision of a public authority or body, and subject to paragraph (3), an application for a declaration, injunction or any other order in any public law matter must be brought by way of an application for judicial review made in accordance with this Part unless the Court otherwise orders.

(2)       For the purposes of this Part, an application is made in a public law matter if the application relates to the validity of a judgment, decision, order or other action of a public authority or body, or seeks relief to compel a public authority or body to perform a duty owed by it in public law or seeks to restrain it from acting in a way that would be invalid.

(3)       In determining whether an application falls within paragraph (1), the Bailiff or Court shall have regard to -

(a)        the nature of the matters in respect of which relief is sought;

(b)        the nature of the persons and bodies against whom relief is being sought; and

(c)        all the circumstances of the case.

...

16/2  Grant of leave to apply for judicial review

(1)       No application for judicial review may be made unless the leave of the Bailiff has been obtained in accordance with this Rule.

(2)       An application for leave must be made ex parte to the Bailiff, sitting as sole judge and constituting the Inferior Number of the Royal Court, by filing with the Bailiff -

(a)       a notice substantially in the appropriate form set out in Schedule 5 containing a statement of -

(i)         the name and description of the applicant,

(ii)        the interest of the applicant in the matter to which the application relates,

(iii)       the judgment, decision, order or other proceeding in respect of which relief is sought,

(iv)       the relief sought and the grounds upon which it is sought,

(v)        any alternative remedies which are or were available to the applicant, and if they have not been pursued, the reasons why,

(vi)       the reasons for any delay in making the application for judicial review,

(vii)      the name and address of the applicant's advocate or solicitor (if any), and

(viii)     the applicant's address for service; and

(b)       an affidavit setting out the facts relied on.

.....

16/3  Delay in applying for relief

(1)       Subject to paragraphs (2) and (3), an application for leave to apply for judicial review must be made promptly and in any event not later than 3 months from the date when grounds for the application first arose.

(2)       The Bailiff may refuse an application made within the period of 3 months if satisfied -

(a)        that the application is not sufficiently prompt; and

(b)        that if the relief sought were granted, on an application made at this stage, it would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration. "

18.      The provisions of Rule 16/1 are particularly important for two reasons.

19.      Judicial review is not available unless the leave of the Bailiff has been obtained in accordance with Rule 16.  That requirement for leave operates as an impediment which a prospective applicant or plaintiff has to overcome.  The question of whether the duty owed by the public authority is owed in public law is a critical part of the equation - thus, for example, the duty of a public authority to abide by the terms of a contract, or not to commit a tort would generally be expected to be a private law duty and not a public law duty, even though the defendant in question would be a public authority or body. 

20.      Article 7 of the Human Rights Law provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention Right, and the definition of 'public authority' includes any person whose functions are functions of a public nature except where, in relation to a particular act, the nature of the act is private.  In our judgement, the expression 'public authority or body' should receive the same interpretation in Part 16 of the Royal Court Rules as is found in Article 7 of the Human Rights Law.  That is implicit both in the test provided by paragraph (2) of Rule 16/1, as to whether the duty is owed in public law, and by the requirement for the Bailiff to have regard to all the circumstances of the case and the nature of the matters in respect of which relief is sought under paragraph (3).

Nonetheless, the fact that the Rule creates in secondary legislation an impediment on what is otherwise an unimpeded statutory right in primary legislation to bring proceedings creates a potential difficulty.

21.      In considering this question, it is necessary to note that although the Human Rights Law is modelled upon and very similar in large measure to the Human Rights Act 1998, there are differences between Article 8 and Section 8 respectively, quite apart from the fact that in Jersey there is a single court to which all applications of this kind would be made, whereas in England and Wales, there is a different juridical structure.  Any English authority on this narrow issue would therefore have to be carefully considered as much for the similarities as the differences.

22.      Article 8 of the Human Rights Law expressly contemplates that the statutory requirement that actions claimed to be unlawful under Articles 7 and 8 must be challenged within a year of the date on which the act took place, unless rules made by the Royal Court provided that they must be brought within a stricter time limit.  There is therefore nothing inconsistent in Rule 16/3 which provide for judicial review applications to be brought within three months in that respect.  However, the absence in the primary legislation of a delegated power to the Royal Court to restrict the circumstances in which the right to bring an action under the Human Rights Law can be brought - by introducing a requirement for leave - does suggest by implication that no such restriction is possible. 

23.      Indeed, to conclude that a claim under the Human Rights Law against a public authority can only be brought by way of judicial review is inconsistent with the terms of Article 8 of the Human Rights Law.  Paragraph (1) of that Article contains the right to bring proceedings claiming a remedy where the authority in question has acted in a manner contrary to the Convention. Paragraph 2 provides:

"(2)     If the proceedings are brought on an application for judicial review, the applicant is to be taken to have sufficient interest in relation to the unlawful act only if he or she is, or would be, a victim of that act."

The introductory word to that paragraph is conditional.  Clearly the legislature contemplated more than one way of bringing claims under the Human Rights Law.

24.      Furthermore, the existence of Rule 9A of the Royal Court Rules demonstrates that claims under the Human Rights Law can be brought as stand-alone claims quite apart from applications for judicial review.  If judicial review were to be the only way of bringing such claims, there would be no need for a separate Rule addressing them. 

25.      In the circumstances the clear conclusion is that claims under the Human Rights Law can be brought either by way of judicial review or by separate action in the Royal Court.  To the extent that the Royal Court Rules say anything different, in our judgment they must be read down accordingly. In any event, secondary legislation cannot override the provisions of primary legislation.  

26.      This is not to say that human rights claims cannot be incorporated within claims for judicial review.  They can. Indeed, where there are claims which assert both traditional public law complaints and a complaint that the applicant's rights under the European Convention on Human Rights have been breached, it may be that they would naturally be treated as a claim for judicial review, as happened here. 

27.      In such claims, the court will follow the established approach of a more intense scrutiny of executive action on judicial review where the allegation is that the public authority has breached the human rights of the applicant.  This is necessary to ensure that applicants complaining of a breach of their Convention rights have a real and effective domestic remedy.

28.      These questions come together when one considers whether the Royal Court was right to treat the Appellant's Representation as a claim in judicial review.

29.      It is clear that it would be contrary to the overriding objective if, in the absence of Rule 16 requiring proceedings to be commenced by judicial review, the Bailiff or the Royal Court found themselves obliged in the ordinary civil case alleging a breach of Convention rights to allow an absolutely hopeless case to proceed to trial.  The ordinary strike out rules would apply.  We therefore do not find that the filter which Rule 16 brings to human rights claims that the Convention had been disregarded is, of itself, incompatible with the legislation; nonetheless, in our judgement it is essential that the Bailiff or Royal Court, when considering a leave application in circumstances which call upon the Court to assess the administrative action against the rights contained in the Convention, recognise that it would in most circumstances be wrong to place an impediment on an applicant's right to bring such proceedings under Article 7 and 8 of the Human Rights Law.  In particular, the Court should be diligent to consider its power under Rule 16/1(1) to make an order that the application for a declaration injunction or other order should proceed otherwise than in accordance with the procedure for judicial review.  That will include occasions when an order is made because it is considered that pleadings in the formal sense would be more useful to identify which facts are in issue, or because the general disclosure rules in an ordinary civil case would more appropriately fit the proper handling of the application which the applicant brings to Court.  

30.      In the present case, the Royal Court was faced with an urgent application.  The Representation came to Court for the first time on 25 March, a Friday, where the Appellant sought relief in respect of his father's funeral which was to take place the following Wednesday.  Had the Representation been treated outside the rules for judicial review, it could easily have been taken as a cause de brièvité.  Indeed, this is probably the best way of viewing what took place in the Court below where the Appellant was admirably given a mechanism for an early determination of what he wanted to bring to Court, even though he had not complied with the relevant rules which would have required him to swear an affidavit setting out the facts upon which his application for judicial review was based. 

31.      In the circumstances, we find that the Royal Court was in principle entitled to treat the Representation as an application for judicial review, notwithstanding that part of the Appellant's claim was a complaint that his human rights had been breached. It was an application against a public body alleging a breach of a public law right which the Appellant had to have his Convention rights adjudicated and the Royal Court found a convenient mechanism for resolving the claim within the timetable that the nature of the claim demanded.  Whether the Court below was right to dismiss the Representation on the basis that leave would not have been granted is a different question to which we will return later. 

32.      However, the fact that this process was adopted in the Court below does have further implications for the appeal to this Court.  In the first place, it does mean that, on appeal to this Court, it is not open to the Appellant to assert new facts or widen the scope of the relief which he was originally seeking in the Court below.  This is an Appeal Court and not a Court of first instance, and the objections of the Respondents to the widening of the appeal beyond a consideration of what was within the four corners of the Representation below are upheld. 

33.      There is one further procedural difficulty which arises now.  When the Appellant sought to appeal the decision of the Royal Court on receiving a copy of the judgment, he sought advice from the proceedings officer in this Court and was sent the relevant form for appeals under the Court of Appeal (Civil) (Judicial Review) Rules 2000.  In his response of 29 June, he indicated that he accepted that the decision made by the Royal Court was the correct one on the basis of the limited evidence then available, but he asserted that there was a great deal of evidence not made available to the Court; and that he had never sought judicial review, nor did he wish to appeal the decision of the Deputy Bailiff that, had an application for leave for judicial review been made, it would not have been granted.  He went on to say, understandably as a litigant in person, that he did not have any real understanding of judicial review.  He indicated that he wished to pursue his appeal on the basis of breaches of the Human Rights Law and the tort of assault and / or false imprisonment.  That approach it was which led to him filing a Notice of Appeal using the ordinary forms prescribed under the Court of Appeal (Civil) Rules 1964.

34.      Procedurally, this might be thought to be important as a result of Rule 4 of the Court of Appeal (Judicial Review) Rules 2000 which confirms that, except with the leave of the Court, an appellant is not entitled at the hearing of an appeal against the refusal to grant leave inter partes, to rely on any grounds or apply for any relief not specified in the Notice of Appeal.  Furthermore, by Rule 4(3) of those Rules:

"Where a party intends to appeal against the refusal or grant of leave inter partes, the party shall apply to the Court below for leave to appeal to the Court at the hearing before the Court below."

35.      By Rule 4(5), where the Court below does not grant leave to appeal, the party intending to proceed with the appeal must lodge the Notice of Appeal and application to the Court for leave to appeal within seven days from the date on which the order of the Court below was made.  There are further obligations on a prospective appellant in Rules 4(6) and 4(7), and in connection with the latter, Rule 4(9) provides that if the appellant fails to comply with the terms of paragraph (7) then, subject to the terms of Rule 7, the appeal shall be deemed to have been abandoned.  Rule 7 gives the Court power to enlarge or abridge time if necessary. 

36.      We take into account the difficulties which the Appellant has in managing this appeal from the prison.  We also take into account that he is unrepresented.  We agree with the Royal Court that he should have issued his Representation as an application, supported by affidavit for judicial review, and we also agree with the Royal Court's approach in treating it that way despite his failure to comply with Rule 16.  We intend to adopt the same approach in this court and not to penalise the Appellant procedurally.  We hereby extend retrospectively the time within which the Appellant was required to take any steps under these rules in order to bring the appeal forward such that the appeal is not deemed to have been abandoned.  Furthermore, we take the Notice of Appeal and contentions which have been filed as adequate for the purposes of compliance with the rules on appeal. We give leave to appeal because the issues raised are clearly arguable and it is appropriate that they should have been argued.  We take this approach to ensure that the substance of the Appellant's objections is considered, recognising that in most cases a failure to follow the procedure clearly set down in the Court of Appeal Rules will have the consequences which are set out therein. 

Discussion on the substance of the Convention rights

37.      The Royal Court had before it an affidavit of the Second Respondent running to five pages of A4.  There were exhibits to that affidavit, including a copy of a letter from the then Minister for Home Affairs refusing the application for temporary release, a copy of the States of Jersey Prison Service external escort policy running to twenty-six pages, a copy of the prisoner escort log comprising four pages and a copy of a letter to the Prison Governor signed by the Appellant's mother asking that the Appellant should be able to attend without being handcuffed for the duration of the funeral service.  The Royal Court had no other evidence before it and must be taken to have reached its conclusions on that evidence.  The Appellant, whilst not producing any evidence himself, had the opportunity to address the Court and take issue with anything which is set out in the affidavit and exhibits.  We have reviewed the transcript of what took place in the Royal Court and it is not apparent that there was any serious challenge to the facts which are set out in the evidence which we have described. 

38.      In the circumstances, we do not think that we should proceed on any other factual basis.

Temporary release

39.      Rule 64 of the Prison Rules covers the question of temporary release of prisoners serving a sentence of imprisonment.  Discretion is given to the Minister for Home Affairs to permit such a release temporarily for the purposes of the prisoner engaging in employment or receiving instructional training, or in such other circumstances as may be approved by the Minister.  In his letter of 18 March 2021 (sic), the Minister informed the Appellant that any release had to be risk assessed based on the length of sentence, the prisoner's behaviour whilst in custody, security and public protection risks and other relevant factors.  The Minister's decision was set out thus:

"Unfortunately, it is considered that your risk is too great to allow for temporary release, principally due to the length of your sentence.  Your request is therefore not granted."

40.      At this time, it is not apparent that any risk assessment had taken place.  In the circumstances, it seems to us that the statement that the risks posed by the Appellant must have been almost exclusively focused on the length of the Appellant's sentence. 

41.      The Minister went on to say that it would be possible for the Appellant to attend the funeral, escorted by prison officers who would take a compassionate and respectful approach and wear appropriate attire.  The Minister mentioned the option to attend the funeral virtually. 

42.      In our judgment, the offer to the Appellant to attend his father's funeral under escort rather than on licence was appropriate having regard to the length of time yet to be served on his sentence.  We note that the Appellant did not challenge this decision to refuse temporary release in the court below.  The substance of the appeal concerns the decision to restrain the Appellant in handcuffs during his attendance at the funeral. 

The use of handcuffs as a restraint

43.      There is nothing in the Minister's letter which deals with handcuffs or other physical restraints if the Appellant was to attend the funeral under escort, but according to the chronology prepared at short notice and set out in the Second Respondent's affidavit, there was a meeting between her and the Appellant on Friday 18 March in which she informed him that he would be able to attend the funeral and any decision about cuffing would be subject to an informed risk assessment.  According to the chronology, it was unlikely that the risk assessment would support a decision to attend the crematorium without handcuffs or prison officers.

44.      The chronology contained in the Second Respondent's affidavit is not entirely consistent with the other factual records.  She describes the Minister's response to the Appellant refusing temporary release as having been sent on 17 March, whereas in fact the letter is dated 18 March.  The chronology also sets out that the security department had commenced a formal risk assessment for the funeral attendance on 21 March, whereas the risk assessment which is annexed to her affidavit is contained in the prisoner escort record log and is dated 23 March.  Given the next entry in the chronology, dated 23 March, that the security department had been asked to ensure the risk assessment was completed by close of play that day, in the light of the intended legal challenge which the Appellant was to bring, we conclude that it is likely that the risk assessment made on 21 March was not contemporaneously evidenced in writing but presumably, in the absence of other evidence, is reflected in the prisoner escort log of 23 March. 

45.      The external escort policy is not directed specifically at attendance at funerals because it is a more widely drafted document which opens with the policy statement that 'Prisoners are only escorted outside of the secure environment of the prison when necessary, under the property authority and, during escort, are kept in secure custody at all times'.  However, there is a specific paragraph which deals with funeral escorts and visits to dying relatives, and which is in these terms:

"14.    There are no restrictions on prisoners in any security category attending the funeral of a close relative.

[A close relative is defined, and on the facts of this case included the Appellant's father].

Applications will be assessed on an individual case basis, taking care to balance security considerations with those of decency, and will only be refused on security grounds, which need to be clearly evidenced in the risk assessment.

....

All prisoners escorted to visit dying relative or attending funeral will be cuffed at all times.  Security department will complete risk assessment to decide the appropriate strength for the escort (the minimum strength being two officers), as well as the level of advance planning required eg whether a pre-visit by the security department is necessary, as well as liaison with the police.

The risk assessment must give clear instruction about whether to remove / not apply restraints during the escort, having given full consideration to all the facts, including religious sensitivities, which might require that a prisoner remains hands-free in order to prepare the body of the deceased person for burial / cremation.  This must be authorised by the Head of Operations or Duty Governor.

The escorting officers must receive a full briefing before the escort which will include:

·         Information about the layout of the venue and communication arrangements with the prison.

·         Security information about the prisoner.

·         Clear instructions about the arrangements for handcuffing / restraints.

·         Information about dress code - prisoner and officers.

·         Any special religious considerations."

46.      Before the Royal Court, and indeed before us, the Appellant contended that this policy is internally inconsistent.  The Court below found that it was not inconsistent and accepted the contention of the Minister that it was to be construed as a general policy requiring offenders to be handcuffed at all times, but that was always subject to an appropriate risk assessment.  In our view the policy is clearly linguistically inconsistent and therefore capable of giving rise to confusion.  Advocate Meiklejohn very fairly conceded that perhaps the right way of construing the policy was that it set out the default position that the handcuffs would stay on unless the circumstances were such that they could be removed without risk.  He also conceded that in most cases prisoners would be handcuffed when attending funerals, bearing in mind the Second Respondent's responsibility to keep prisoners in custody.  We do not find it necessary in this case to decide whether the policy itself is Human Rights compliant, given that the Respondents accept that the general approach is subject to an individual risk assessment in any particular case.  Accordingly, we have ourselves reviewed what happened against that general policy on the assumption that the policy cannot be criticised in circumstances where there is an individualized risk assessment carried out.  

47.      Having considered the detail of the risk assessment, the Royal Court found at paragraph 11 of its judgment that the categorisations which appeared to be "reasonable although the assessment that the Appellant was at medium risk owing to 'drugs/alcohol' appeared to be difficult to justify in the light of a single reference to a 'detox' on admission in circumstances where the Applicant has been in custody for a significant period of time."

Convention Law

48.      We now turn to the authorities which might help us in our conclusions.

49.      The relevant principles can be easily ascertained from the Guide on the case law of the Convention on prisoners' rights published by the Registry of the Council of Europe, updated on 31 December 2021.  In short summary:

(i)        A prisoner has the same Convention rights as anyone else and any interference with a qualified right such as the Article 8 right to respect for private and family life must be justified in the usual way;

(ii)       There is no guaranteed right to a detained person to have an unconditional right to attend the funeral of a relative and every request to do so must be assessed on its own merits;

(iii)      The court's scrutiny is limited to a consideration of the impugned measure in the context of the applicant's Convention rights with a margin of appreciation left to the Contracting States. However, even though, by the very nature of being detained, a prisoner must accept some limitation of his rights and freedoms, it is the duty of the State to demonstrate that the interference with them can be justified as necessary in a democratic society.

50.      Ploski v Poland (Application no. 26761/95 judgment delivered on 12 November 2002) concerned a remand prisoner charged with larceny and described as a habitual offender, who applied successively for leave to attend his mother's and a month later his father's funerals.  His behaviour in the prison was described as beyond reproach.  Both requests were denied on the basis that he was a recidivist posing a risk of absconding. The Court's assessment was as follows:

"30. The Court reiterates that any interference with an individual's right to respect for his private and family life will constitute a breach of Article 8, unless it was "in accordance with the law", pursued a legitimate aim or aims under paragraph 2, and was "necessary in a democratic society" in the sense that it was proportionate to the aims sought to be achieved....

31. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aims pursued. In determining whether an interference was "necessary in a democratic society" the Court will take into account that a margin of appreciation is left to the Contracting States. Furthermore, the Court cannot confine itself to considering the impugned facts in isolation, but must apply an objective standard and look at them in the light of the case as a whole...

36. Furthermore, the Court considers that the reasons given by the domestic authorities .... for rejecting the applications are not persuasive. In particular, the authorities' concerns that the applicant was "a habitual offender whose return to the prison cannot be guaranteed" and that the charges relating to larceny involved "a significant danger to society" could have been addressed by escorted leaves. However, despite the fact that the possibility of escorted leaves was afforded by domestic law .. the authorities apparently did not even consider it....

37. The Court also notes that apparently the charges brought against  the applicant did not concern violent crime... However, taking into account the seriousness of what is at stake, namely refusing an individual the right to attend the funerals of his parents, the Court is of the view that the respondent State could have refused attendance only if there had been compelling reasons and if not alternative solution - like escorted leaves - could have been found. "

51.      That case of course involved attendance at the funeral and not as here the question of the application of handcuffs.  The latter question was considered in Mouisel v France (application no. 67263/01 judgment delivered 14 November 2002), a case concerning the Article 3 Convention rights of a prisoner, serving fifteen years' imprisonment for armed robbery as part of a gang, false imprisonment and fraud, who had become ill and needed hospital treatment.  The Court said this:

" 46.   The conditions in which the applicant was taken to hospital also raise a number of issues. There is no doubt that the applicant was kept in chains while under escort, although the chains started to be applied less tightly once the doctors advised against using restraints. However, it has not been established that he was chained up while receiving treatment or that members of the prison escort were present on those occasions. The Court notes , however, that the reply from the Regional Director of the Prison Service about the use of handcuffs implicitly suggests that the applicant's illness did not exempt him from being handcuffed and that the manner in which the handcuffs were used is standard practice in the context of detention.

47.      The Court reiterates  that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage... In the instant case, having regard to the applicant's health, to the fact that he was being taken to hospital, to the discomfort of undergoing a chemotherapy session and to his physical weakness, the Court considers that the use of handcuffs was disproportionate to the needs of security. As regards the danger presented by the applicant, and notwithstanding his criminal record, the Court notes the absence of any previous conduct- or other evidence giving serious grounds to fear that there was a significant danger of his absconding or resorting to violence.... "

52.      On this basis, the Court found in Mouisel that there had been a breach of the applicant's Article 3 Convention rights.

53.      Advocate Meiklejohn submitted for the Respondents that although the Appellant complained that the requirement that he attend his father's funeral in handcuffs was cruel and inhuman conduct and amounted to a breach of his rights under Article 3 of the Convention, there was a minimum level of severity before any conduct of a public authority would be regarded as cruel and inhuman treatment for the purposes of this Article.  We agree.  The facts of Mouisel are sufficiently extreme for a breach of Article 3 to have been found in that case, but it is clear from the extract from the Court's judgment set out above that handcuffing does not normally give rise to an issue under Article 3 and we do not think it does here.  We consider that the lawfulness of the direction that the Appellant be handcuffed throughout his attendance at the funeral should be assessed against his Article 8 rights for respect for his private and family life.

54.      It is trite law that where a public authority interferes with the Article 8 Convention right, it is required to justify that interference as having been made in accordance with the law and to the extent necessary in a democratic society to secure the achievement of a legitimate aim.  This is the language of the Convention which gives rise to the shorthand description of the need for proportionality in the taking of executive decisions by a public authority affecting the rights of the citizen.  If there were a policy with a default position of such interference, as we understood the Respondents' case to be, there is always a risk that when it came to consideration of an individual case, those taking the decision might inadvertently neglect the true starting point which is that the onus lay on them to justify the interference. 

Discussion

55.      Thus, we remind ourselves that the application of handcuffs is of itself an interference with the Article 8 rights and needs to be justified in the usual way.  Despite the policy starting point that a prisoner under escort outside the prison will be handcuffed at all times, there is nonetheless a need for a risk assessment to be completed to establish the level of risk given that prisoners are only escorted outside of the secure environment where necessary and must be kept secure, having regard to the purpose of the visit in question.  As Advocate Ingram rightly submitted in his written contentions, the risk assessment should be carried out without fettering the exercise of discretion by a rigid application of any policy starting point. 

56.      Advocate Meiklejohn submitted that the nature of the risk to be assessed involved consideration of any potential harm to the public, which might arise in a number of ways including the risk that the public might lose confidence in the penal system by seeing a prisoner at large, but it would also be obvious in the case of a violent prisoner; harm to the prisoner himself; and the risk of escape, whether temporary or permanent. 

57.      The Second Respondent highlighted particular risks which are found in the prisoner escort record log:

(i)        as to escape, the Appellant was categorised as medium risk because he had recently been sentenced to 7½ years imprisonment and was currently in the process of appealing his sentence and conviction.  Due to the length of sentence, he would be classified as medium risk and the strength of any escorting staff chosen carefully accordingly.  In fact, by March 2022, the Appellant's appeal to this Court against conviction and sentence had been rejected, but we do not think that the risk of escape was increased or reduced by the fact of the appeal or its outcome.  It is clear that the Appellant was classed as of medium risk of escape because he had been sentenced to 7½ years imprisonment. 

(ii)       As to violence, reference was made to a historical conviction for assault on the police in 1996, with verbal altercations which had taken place with two other prisoners whilst in custody as well as with a senior officer.  That altercation had arisen from the Appellant claiming that the others had broken prison rules by opening some legal mail which he had tried to send out using another prisoner's account.  It is obvious that, that being the cause of the verbal altercation, it was not going to arise again on a visit to his father's funeral, and the historical conviction for an assault on the police in 1996 appears to us to be so distant a conviction that it carried little weight.  In those circumstances, it is extremely surprising that the Appellant was categorised as medium risk on the grounds of violence, and insofar as this means a risk to members of the public, the risk was in our view extremely low. 

(iii)      as to the risk of abuse from others, it is said that the Appellant might be seen in public by a member of the public who had been defrauded or felt wronged by him and then he COULD be at risk of abuse both verbal and physical.  In our view, it is important to emphasise that the Appellant has not been found guilty of defrauding anybody, nor is there any particular evidence that he has wronged anybody.  He has been convicted of a money laundering offence, which is a serious offence but hardly exposes him to serious risk of abuse from others and his categorisation as medium risk in this context is also surprising.

58.      The prisoner escort record log also refers to the Appellant being convicted of making a hoax/ annoying / anxious / inconvenient telephone call whilst on bail in 2007.  He is thus assessed as medium risk for stalking, harassment and as a sex offender.  It is hard to understand how that conclusion could be supported, not just on the grounds that this occurred fifteen years before but also because the opportunities for stalking, harassment or some sex offence would seem to be extremely limited whilst attending his father's funeral.  The categorisation of the Appellant as presenting a medium risk of drugs/alcohol was rightly discounted by the Royal Court and all the other risk assessments placed the Appellant in the low category. 

59.      In addition to the obvious difficulties with justifying the categorisations in respect of violence, stalking harassment and as a sex offender, and risk of abuse from others, as set out above, it is strikingly absent from the risk assessment that any consideration has been given to the risk of absconding given that (a) the Appellant would be escorted by at least two prison officers (we were advised that in fact there were three) and (b) he would be attending his father's funeral and (c) all this was taking place on an island from which escape was hardly likely.  If there had been an attempt by the Appellant to escape, no doubt one of the prison officers would have been able to follow and if necessary secure him whilst, if necessary, the other could call for back up.  These rather obvious possibilities should, one would have thought, have been reflected in an assessment of the risk that was really engaged by a temporary removal of handcuffs or other restraint whilst in the Crematorium.  

60.      What is also strikingly absent from the risk assessment is any acknowledgment that the Appellant has no record of having absconded from police or prison custody, which must surely have reduced the possible risks of escape on what would likely be an extremely emotional occasion when other members of his family would be present with him to pay their last respects to his father. There is no acknowledgment of his established local connections.  

61.      Furthermore, there was no apparent consideration given to the nature of the premises - the Crematorium - where the funeral was to take place.  It was accepted before us that once the Appellant was inside, the chances of escape, had he been so minded to attempt it, reduced even further given that there is only one public access to that building.  Even given a policy of handcuffs being applied during transit, they could easily have been removed on arrival at the Crematorium.  Thus, the proportionality of interference with his Article 8 rights during transit, where he would not be exposed to third party gaze and could possibly be justified as the loss of a right that prisoners should expect, becomes less easy to justify when he is actually attending his father's funeral with others present in a place where his presence would be easily policed.  

62.      Against these considerations, the view that either for ensuring the Appellant's security as he had more than two years left to serve as claimed by the Appellant or because he was serving a sentence of seven and a half years imprisonment as asserted by the Respondents, he should on this occasion have been restrained in handcuffs for the entirety of his time away from the prison for the funeral is in our judgment incapable of justification.  Such a conclusion looks like a rigid application of policy without any genuine risk assessment being conducted.  

63.      At paragraph 30 of his judgment, the learned Deputy Bailiff confirms the view of the Royal Court that the relevant policy was reasonable and proportionate in the context of the sentence and other circumstances referred to in the risk assessment.  We are called on to assess whether the Appellant's rights under the Convention have been breached and have concluded that there is no doubt that they were.  On the assumption that the policy was compliant with the Convention because it called for an individualized risk assessment in every case, the failure to show good cause in this case means that the Respondents have not demonstrated that they have acted proportionately in accordance with the Convention. In finding otherwise, the Royal Court made an error of law.  The policy required all the circumstances to be taken into account in determining whether the application of handcuffs throughout was reasonable.  The length of the sentence was not of itself a factor which could legitimately be taken into consideration because the application of handcuffs could not properly be seen as part of the continuing punishment which the sentence represented.  If the decision was rightly made - and it was - that the Appellant should be permitted to attend his father's funeral, the only questions which then arose were the strength of the escort needed if he was not to be offered temporary release on licence, whether restraint was necessary to protect him or the public, and whether restraint was necessary to ensure his return to custody after the funeral.

64.      For these reasons, we have concluded that we should grant leave for judicial review and allow the appeal.  The application of restraints to the Applicant while attending his father's funeral at the Crematorium was without lawful justification and contrary to the Article 8 rights of the Appellant and we make that declaration accordingly.  The declaration is in our judgment just satisfaction for a breach of those rights. 

Authorities

Proceeds of Crime (Jersey) Law 1999.

Rule 64 of the Prison (Jersey) Rules 2007.

European Convention on Human Rights.

Human Rights (Jersey) Law 2000.

Representation of Pearce [2022] JRC 135.

Court of Appeal (Jersey) Law 1961.

Pearce v AG [2022] JCA 017.

Royal Court Rules 2004.

Human Rights Act 1998.

Court of Appeal (Civil) (Judicial Review) Rules 2000.

Court of Appeal (Judicial Review) Rules 2000.

Ploski v Poland (Application no. 26761/95).

Mouisel v France (application no. 67263/01).