G, R (on the application of) v Secretary of State for the Home Department

B e f o r e :

MR JUSTICE JACKSON ____________________

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Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

MR I WISE (instructed by Birnberg Peirce & Partners of London) appeared on behalf of the CLAIMANT MR S GRODZINSKI (MISS KATE JUTTNER - solicitor - attended on 20 September) (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT ____________________

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MR JUSTICE JACKSON: This judgment is in six parts, namely Part 1 introduction, Part 2 The Facts, Part 3 The Present Proceedings, Part 4 Is the categorisation decision flawed?, Part 5 Is the defendant in breach of the duties owed under Article 2 of ECHR?, Part 6 Conclusion.

In this action the claimant, a life sentence prisoner, challenges (a) his continued categorisation as Category A and (b) the lawfulness of his transfer to Belmarsh Prison and the lawfulness of the conditions in which he is held at Belmarsh Prison.

The defendant in these proceedings is the Secretary of State for the Home Department who, of course, acts through the Prison Service. The person who made the decision on the claimant's categorisation as Category A was the Prison Service Director of High Security ("the director").

It is necessary at the outset to read out the various statutory provisions, orders and instructions which are particularly pertinent to the issues in this case. Section 47 (1) of the Prisons Act 1952 provides:

Pursuant to Section 47 (1), the Secretary of State made the Prisons Rules 1999. Rule 7 (1) of the Prison Rules provides:

The various directions and policies which guide the Prison Service in the discharge of its functions are set out in Prison Service Orders ("PSOs") and Prison Service Instructions ("PSIs"). PSO O900 deals with Categorisation and Allocation. Paragraph 1.1.1 of PSO O900 provides:

Paragraph 1.2.3 of PSO O900 provides:

PSO 1010 deals with Reviews of Security Category for Category A prisoners. Paragraph 1.2 of PSO 1010 contains a revised definition of Category A. This reads as follows:

Mr Grodzinski submits, and I accept, that the definition of Category A in paragraph 1.2 of PSO 1010, in effect, supersedes the definition of Category A in paragraph 1.1.1 of PSO 0900.

The Prison Service Security Manual (PSO 1000) sets out further details about the categorisation and re-categorisation of prisoners. For present purposes it is not necessary to read out any provisions of the manual.

PSI 71/2000 deals with the arrangements to be made in respect of protected witnesses. Protected witnesses are generally criminals who give evidence for the prosecution and, as a result, require protection from other members of the criminal community. PSI 71/2000 includes the following provisions:

I intervene to say that the letters PWU are an abbreviation for Protected Witness Unit.

At the present time there exist only two Protected Witness Units: one is at HMP Woodhill for Category A prisoners and one is at HMP Parkhurst for Category B prisoners.

Having dealt with these matters by way of introduction, it is now time to turn to the facts of the present case.

In 1993 the claimant was arrested and charged with offences of robbery. In due course the claimant agreed to plead guilty and to assist the prosecution. The claimant made a lengthy statement to the police implicating six men ("A, B, C, D, E and F"). In March 1995 the trial of those men was due to begin. B pleaded guilty; C and F failed to appear; A, D and E all pleaded not guilty. They were convicted, in large part due to the claimant's evidence, and they received lengthy prison sentences. In March 1995 the claimant pleaded guilty to two offences of robbery and one offence of attempted robbery. In due course he was sentenced to three-and-a-half years' imprisonment. The length of that term of imprisonment was substantially less than those offences would normally merit. The reduced length of sentence was attributable not only to the plea of guilty but also to the claimant's co-operation with the police and the prosecuting authority.

The claimant served his sentence at the Witness Protection Unit of HMP Woodhill. While the claimant was serving his sentence F was apprehended and stood trial. The claimant declined to give evidence against F. F was acquitted.

Following the claimant's release from prison, it appears that he was attacked on two occasions. Those attacks appear to have been motivated by the claimant's earlier co-operation with the prosecution. During the period when the claimant was at liberty he committed further, very serious, criminal offences. In June 1998 the claimant pleaded guilty to burglary, aggravated burglary and wounding with intent. The claimant received a mandatory life sentence with a tariff of eight years (later reduced to seven-and-a-half years) as well as various concurrent sentences. The claimant duly began to serve his sentence. Steps were taken to segregate the claimant from other prisoners for his own protection. However he was not placed in a witness protection unit.

While in prison it appears that the claimant came under pressure to assist A in his appeal against conviction. The claimant initially succumbed to that pressure, and he made a statement retracting his evidence against A. The claimant subsequently withdrew that retraction. In the meantime the claimant became increasingly concerned about the refusal of the Prison Service to treat him as a protected witness. The claimant commenced proceedings in this court to challenge that refusal. Those proceedings were heard by Mr Justice Crane in August 2002. On 15 August Mr Justice Crane gave judgment quashing the Secretary of State's decision not to treat the claimant as a protected witness. Thereafter the judgment of Mr Justice Crane was considered by all parties. The claimant's solicitors made further representations to the Prison Service.

In March 2003 the Prison Service decided to classify the claimant as a protected witness. The claimant was then placed in the Protected Witness Unit at HMP Woodhill. In the meantime the X Constabulary were considering the degree of risk the claimant would face on release from prison. By May 2004 the X Constabulary informed the claimant's solicitors that upon release from prison the claimant would be accepted on to the X Constabulary Witness Support Scheme. This would involve both relocation and a new identity for the claimant.

During 2004 it appears that tensions built up in the Protected Witness Unit at HMP Woodhill. On 10 November 2004 four table legs were found in the cell of a prisoner. Intelligence indicated that these were intended to be used against the claimant by other inmates who were allegedly fed up with the claimant's intimidatory tactics (see the undated security report prepared in early 2005). On 7 January 2005 an incident occurred at the Protected Witness Unit of Woodhill. This was a "passive sit-down protest and refusal to lock away". It appears from the evidence that the claimant did not directly take part in this incident, but he orchestrated events.

Following this incident the Prison Service decided that the claimant should no longer be accommodated in the Protected Witness Unit at Woodhill. There does not exist a designated Protected Witness Unit in any prison other than Woodhill. In those circumstances, on 11 January the claimant was transferred to HMP Manchester and accommodated in the normal segregation conditions. On 14 January the claimant was transferred back to Woodhill and held in the segregation wing. On 25 January 2005 the claimant was transferred to HMP Belmarsh, and that is where the claimant has remained. Since Belmarsh Prison does not have a designated witness protection unit, special arrangements have been made for the claimant's accommodation there. The claimant is housed in a self- contained unit on the lower east wing of the health care centre. The staff at Belmarsh Prison cannot reproduce precisely all the conditions of a Protected Witness Unit. Nevertheless, the claimant is held in conditions where no other prisoner can gain access to him. In addition, strenuous efforts are being made to preserve the claimant's anonymity.

A protocol for the management of the claimant was drawn up on 2 February 2005. This includes the following passages:

The claimant's transfer to HMP Belmarsh coincided with the period when reports were being prepared for a review of the claimant's categorisation. The claimant had been categorised as a Category A prisoner ever since he was sentenced in 1998. The reports which were prepared on the claimant in late 2004 and early 2005 included a report by the Governor of Woodhill Prison, a security report, a report by the medical officer and a psychological report. The final decision on categorisation fell to be made by the Director of High Security.

On 12 May 2005 Prison Service staff submitted a summary of the relevant material to the director. On the same day the director decided that the claimant should remain "Category A (Standard Escape Risk)". The reasons for that decision were set out in a letter to the claimant dated 24 May 2005. That letter reads as follows:

The claimant was aggrieved by the conditions in which he was held in Belmarsh. The claimant was also aggrieved by the decision to continue his categorisation as Category A. In order to challenge the decisions of the Prison Service in this regard, the claimant commenced the present proceedings.

On a date in June 2005, which is not apparent from the bundle, the claimant issued proceedings for judicial review in order to challenge -

The relief which the claimant sought was the following:

During the short life of this litigation the nature of the claimant's claim and the grounds upon which it is based have changed progressively and completely. The challenges based upon Articles 3, 6 and 8 of the European Convention on Human Rights have been abandoned. A challenge based on Article 2 of the European Convention on Human Rights has been added by way of amendment. The claimant no longer seeks an order that he be transferred to a witness protection unit. Instead the claimant seeks a declaration in the following terms, as formulated by counsel during oral argument yesterday:

Furthermore, the grounds upon which the categorisation is challenged have evolved considerably since their original formulation.

The claimant's case in its final form, as presented in oral argument yesterday, may be summarised as follows: (1) the categorisation decision is flawed because (a) the Director applied the wrong threshold test, and/or (b) the Director fettered his discretion and failed to take into account a relevant factor; (2) the defendant has breached the claimant's rights under Article 2 because (a) the decision to remove him from Woodhill Witness Protection Unit was not proportionate, and (b) the conditions in which the claimant was held at Belmarsh give rise to an unacceptable risk to his life. The above formulation represents my own attempt to summarise the essence of Mr Ian Wise's oral arguments yesterday on behalf of the claimant.

Mr Sam Grodzinski, on behalf of the defendant, submits that the claimant's case in its final form is untenable and must be dismissed.

The arguments of both counsel were excellent and of considerable assistance. The oral arguments lasted for the whole of yesterday.

I shall now give my decision on the issues following the order of counsel's submissions.

The first ground upon which the claimant challenges the director's decision of 12 May 2005 is that the director applied the wrong threshold test. It will be recalled that the final sentence of the director's decision reads as follows:

Mr Wise points out that the definition of Category A, as set out in paragraph 1.2 of PSO 1010, is "a prisoner whose escape would be highly dangerous to the public ..... ". Mr Wise submits that the director applied too wide a test. He asked himself whether the claimant should be regarded as "potentially highly dangerous" rather than "highly dangerous".

In my judgment, this argument is ingenious but unsound. When read in context, the word "potentially" means "if the claimant were to escape". On 12 May 2005 the claimant was not actually dangerous to the public in any way. He was safely confined within the walls of Belmarsh. The Director was therefore considering whether, in the event of escape, the claimant would pose a high degree of danger to the public. That scenario was hypothetical. The director conveyed his meaning succinctly by using the word "potentially". I therefore come to the conclusion that the Director was applying precisely the test which is set out in paragraph 1.2 of PSO 1010. The first ground of challenge therefore fails.

I turn to the second ground of challenge. The argument here is that the claimant was a prisoner who was most unlikely to escape. This was because he would lose the new identity and relocation which the police had promised to provide upon release. Founding himself on Pate v Secretary of State for the Home Department [2002] EWHC 1018 (Admin), Mr Wise submits that the lack of propensity to escape on the part of a particular prisoner is a relevant consideration. The director made no mention of this point in his decision. Accordingly, he must have failed to take it into account. Accordingly, the director fettered his discretion and/or he failed to take into account a material consideration. Therefore his decision is flawed.

In my view, the facts and reasoning in Pate are far removed from the present case. Mr Pate, a sex offender, was aged 60. He suffered from poor health in several respects. In particular, he had such serious injuries to one leg that amputation was a possibility. All in all, it is difficult to see how Mr Pate could possibly have escaped regardless of whether he was held in a Category A or Category B prison. Nevertheless the Prison Service, as a matter of policy, disregarded this consideration. Mr Justice Turner held that that approach was flawed. At paragraph 39 of his judgment, Mr Justice Turner said:

It was this decision of Mr Justice Turner which caused the Secretary of State to amend the definition of Category A as set out in paragraph 1.2 of PSO 1010. At the same time, paragraph 1.3 of PSO 1010 was introduced. This paragraph reads as follows:

Paragraph 1.3 seems to me to be a perfectly proper response to the decision in Pate . The facts of Pate were exceptional. Pate does not open the gateway to a general consideration of escape potential in all cases.

Let me return to the facts of the present case. The claimant is a highly dangerous criminal, who has continued his career of violent crime despite the fact that some in the criminal fraternity regard him as a "grass". The claimant faces the possibility of remaining in prison for many years after the expiry of his tariff period. In my judgment, it is fanciful to suggest that the claimant is a man who falls into the category of low escape potential. The circumstances of this case are very different from Pate . The director's decision cannot be faulted because he failed to consider escape potential. The director faithfully followed paragraph 1.3 of PSO 1010. That policy, in my judgment, is lawful.

In the result therefore the claimant's various challenges to the categorisation decision fail. The answer to the question posed in Part 4 of this judgment is no.

Article 2 of the European Convention on Human Rights provides as follows:

In Osman v UK [1998] 29 EHRR 245 , the European Court of Human Rights gave the following due guidance about the duty imposed by Article 2 of the Convention:

The English courts have considered on a number of occasions (a) the circumstances in which the State comes under a duty to protect the life of an individual, and (b) the extent of that duty. The most relevant authority for present purposes is R (Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686 ; [2003] 1 WLR 2724 . The claimant in that case was a large scale drug dealer who had pleaded guilty and informed on his co-conspirators. The claimant challenged a decision made by the Prison Service to terminate his status as a protected witness. The claimant's claim failed on the facts. In the Court of Appeal the principal judgment was given by Lord Justice Auld, with whom Lord Justice Mummery and Lord Justice Keene agreed. In the course of his judgment, Lord Justice Auld quoted the passage from Osman , which I read out just now. At paragraph 60 Lord Justice Auld said:

In approaching the issues in this case, I must follow the guidance and principles stated by the European Court of Human Rights in Osman and by the Court of Appeal in Bloggs .

Let me turn from general principles to the facts of this case. The claimant is regarded as a "grass" by a number of people in the criminal fraternity. Because of that circumstance, Mr Grodzinski, for the defendant, does not dispute that there is a real risk to the claimant's life from persons outside Belmarsh Prison. The issue between the parties is whether or not the defendant is taking proper steps to discharge the duty which arises under Article 2. This issue sub-divides into two parts: (1) was it disproportionate to remove the claimant from the only designated Protected Witness Unit which exists for Category A prisoners?, (2) are the conditions at Belmarsh such that the defendant is failing to take proper care to protect the claimant's life?

Let me turn to the first of these two questions. Mr Lawson, from the Directorate of High Security Prisons, summarises the reasons for removing the claimant from the Protected Witness Unit at HMP Woodhill as follows in paragraph 9 of his witness statement:

These observations of Mr Lawson are fully supported by the Prison Service's Enquiry Report dated 9 March 2005. This report reveals that the claimant had been seen threatening to kill a fellow prisoner in the PWU, that he had been gripping other prisoners around the neck and threatening to hit them in the face, that prisoners were fearful of the food the claimant had prepared and, more generally, that the claimant had caused all manner of trouble and problems while he was in the PWU at HMP Woodhill.

From the material available in early 2005, it seems to me that a parting of the ways between the claimant and the other residents of the PWU was inevitable. This was not a matter of punishment. It was a matter of maintaining good order and of preserving the safety not only of the claimant but also other prisoners involved. The fact that quite recently certain prisoners who are no longer in the PWU have made statements in support of the claimant does not affect the conclusion I have reached. The decision to remove the claimant from the Protected Witness Unit at Woodhill was not disproportionate.

Let me turn to the second of the two questions posed above. In relation to this question, it is clear from the evidence that the Prison Service is doing its best to protect the claimant at Belmarsh Prison and to insulate him from all contact with other prisoners. On the other hand, the Prison Service cannot replicate at Belmarsh the ideal conditions which exist in a designated protected witness unit. Mr Lawson put the matter like this in paragraphs 5 and 8 of his first witness statement:

The breaches in security referred to by Mr Lawson are also dealt with more fully both by the claimant and by Mr West in their respective witness statements. There are certain conflicts which arise from the witness statements about these matters. It is neither possible nor necessary for me to resolve those conflicts of evidence. Suffice it to say, on a number of occasions when the claimant was being escorted to or from places such as the exercise yard or the gymnasium he was able to be seen by other prisoners.

In my judgment, this circumstance, although regrettable, does not give rise to any breach of Article 2. I reach this conclusion for four reasons. (1) On the evidence, it seems highly unlikely that any other prisoner has recognised or identified the claimant. (2) Even if other prisoners do know who the claimant is and where he is housed, there is no way they can possibly gain access to the claimant. The security arrangements put in place prevent that. Indeed, very fairly, Mr Wise did not press hard - indeed, he hardly pressed at all - the proposition that the claimant may be at risk while in prison. (3) Even if, unfortunately, other prisoners discover that the claimant is at Belmarsh Prison, that will not increase the claimant's risk upon release. Everyone who is interested in the matter knows that the claimant is currently serving a sentence somewhere in the prison system. The fact that the claimant is presently at Belmarsh is no indication whatsoever of the time when or the prison from which the claimant will ultimately be released. (4) The conditions in which the claimant is held in Belmarsh can have no effect on the present level of risk to which the claimant's partner and child may be exposed. In the future, after the claimant's release from prison (as Mr Wise concedes), any risk to the claimant's partner and child can only be parasitic upon the risk to which the claimant is exposed. There is no separate or freestanding Article 2 claim referable to the claimant's partner and child.

Furthermore it seems to me that, as a consequence of these proceedings, steps have been taken at Belmarsh Prison to improve the security measures taken in respect of the claimant. In particular, Mr Grodzinski stated in oral argument yesterday afternoon that he has received clear instructions that from now on the claimant will be taken to the exercise yard at a time while all other prisoners are locked away. Thus the risk of future sightings of the claimant by other prisoners is significantly reduced.

Mr Wise makes the point that because of the lesser training which prison staff or nurses or others at the prison receive there is a risk that inadvertently they will reveal the identity of the claimant to other prisoners. In my view, this risk is a very low one. And, for the reasons indicated earlier, I do not consider that it is a risk which gives rise to a breach of Article 2 on the part of the prison service.

Let me now draw the threads together. For the reasons set out above, I have come to the conclusion that the conditions in which the claimant is held at HMP Belmarsh do not constitute or give rise to a breach of Article 2 of the European Convention on Human Rights.

For the reasons set out in Parts 4 and 5 above, the claimant fails in each of his two claims. Accordingly the claimant's claim must be dismissed.

Before parting with this case, I wish to refer to paragraph 11 of Mr Lawson's first witness statement. According to that paragraph, there are plans to open a protected witness unit next year within the Category A prison at HMP Full Sutton. I express the hope that when the new protected witness unit is open serious consideration will be given to accommodating the claimant within it.

MR WISE: With regard to the transcript, there needs to be some clarity as to whether the transcript is publicly available. Your Lordship has gone to great lengths to make sure that my client is not identifiable from the contents of the judgment. It seems to us suitably anonymised as it is. This is a judgment that could be circulated. It is entirely a matter for your Lordship. You may have seen in the Pate judgment, at the first page, an order was made that there be no disclosure or reporting of information in the judgment. Do you have that?

MR JUSTICE JACKSON: There is no need for such an order here, is there? I have already directed - although the stenographer was not here at the time - that the case be intituled G v Secretary of State for the Home Department. I have referred to the people against whom the claimant gave evidence by letters. For your information I have attributed to them the letters A, B, C, D, E and F in the order in which those persons' true names appear in your skeleton argument. So you can marry up the letters with the skeleton argument if you wish.

MR WISE: I am sure there is no need to do that. It was a matter that needed some consideration. We felt that at the conclusion of delivery of judgment we would have to give it a bit of thought to ensure there was not any difficulty in the dissemination of judgment. It seems that given the care your Lordship has taken, there should not be a difficulty.

MR JUSTICE JACKSON: If there is anything in the judgment which, on reflection, you consider needs to be edited out or changed, to substitute a name for a letter, would you send a note to me - and copy the Treasury Solicitor in - and I will consider it and, very probably, give effect to it. I have done this in another case recently where both sides needed confidentiality. They both sent in the anonymisations they wanted and it was simply agreed.

MR WISE: Nothing immediately comes to mind. ( Pause ) My solicitor refers to the [name] Constabulary; if we could anonymise that.

MR JUSTICE JACKSON: Yes. Could we call the [name] Constabulary the "X Constabulary". That is a very good point.

MR WISE: There is nothing else that immediately comes to mind, but we will give it some thought. The next matter is that of appeal. The Pate point, if I may put it like that, is a matter of some wider significance as well as being of considerable significance to my client. You have narrowed the Pate judgment down to the very exceptional sort of circumstances that the facts of Pate reveal. We would contend that Mr Justice Turner's judgment has a rather wider application and does extend to encompass the circumstances in which my client finds himself. In those circumstances it could be fruitfully and properly explored in the Court of Appeal. I would invite your Lordship to grant leave to appeal in respect of that point.

MR JUSTICE JACKSON: Miss Juttner, what do you say about that?

MISS JUTTNER: We oppose the application for leave to appeal. But if you are minded to grant leave to appeal, I would ask that we could put in written submissions within seven days.

MR JUSTICE JACKSON: On the leave to appeal point?

MISS JUTTNER: Yes.

MR JUSTICE JACKSON: Mr Wise, I am not minded to grant leave to appeal despite your very considerable powers of persuasion. I think the prospects of success are insufficient.

MR WISE: The only other thing is a detailed assessment of my publicly funded costs.

MR JUSTICE JACKSON: What order should I make?

MR WISE: An order that there be a detailed assessment of the claimant's costs.

MR JUSTICE JACKSON: Yes, certainly, I make that order.

MR WISE: There are no other matters.