R (ALAN LORD) and The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby,MR JUSTICE MUNBY |
| Judgment Date | 01 September 2003 |
| Neutral Citation | [2003] EWHC 2073 (Admin) |
| Docket Number | Case No: CO/5109/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 September 2003 |
[2003] EWHC 2073 (Admin)
The Honourable Mr Justice Munby
Case No: CO/5109/2002
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Ms Phillippa Kaufmann (instructed by Prisoners' Advice Service) for the claimant
Ms Karen Steyn (instructed by the Treasury Solicitor) for the defendant
The claimant was convicted of murder and sentenced to life imprisonment on 2 October 198He remains in prison: currently HMP Frankland. He is a Category A prisoner. That means (and the definition, as we shall see, is important) that he falls within the category of those
"whose escape would be highly dangerous to the public or the police or the security of the State, no matter how unlikely that escape might be; and for whom the aim must be to make escape impossible".
Prison Service Order 1010, in which that definition is to be found in paragraph 1.2, continues in paragraph 1.3:
"The test to be applied when reviewing the security category of a Category A prisoner is the level of dangerousness he/she would present if unlawfully at large regardless of the likelihood of escape."
Category A prisoners are placed in one of three escape risk classifications (see PSO 1010, paragraph 1.4): "standard escape risk", "high escape risk" or "exceptional escape risk". The claimant's classification has been downgraded from "exceptional" to "high" and is now "standard". He continues, nonetheless, to be assessed as a highly dangerous prisoner who requires Category A security conditions.
The security classification of Category A prisoners is reviewed annually by the Category A Review Team and the Category A Committee – both based at Prison Service Headquarters – in accordance with the procedures laid down in PSO 1010. Part of that process involves the preparation of reports (which for convenience I shall refer to as "Category A reports"): reports by staff in the prison where the prisoner is currently detained (ordinarily including reports by the prisoner's Personal Officer, the Wing Manager, the Medical Officer and the Security Department), reports by other involved professionals (for example, a psychologist and a probation officer) and an overall recommendation by the Governor or Deputy Governor.
Ordinarily the prisoner is not shown the Category A reports. The practice is for a document summarising their content – known as the 'gist' – to be prepared and copied to the prisoner. Importantly, the gist maintains the anonymity of the report writers: nothing referred to in the gist is attributed to any particular source.
This practice stems from R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 (see per Lord Mustill at p 560G). It was in effect endorsed by the Divisional Court in R v Secretary of State for the Home Department ex p Duggan [1994] 3 All ER 277 and was explicitly approved by the Court of Appeal in R v Secretary of State for the Home Department ex p McAvoy [1998] 1 WLR 790.
It suffices for present purposes to set out a short passage from Rose LJ's judgment in ex p Duggan and a rather longer passage from Lord Woolf MR's judgment in ex p McAvoy.
In ex p Duggan at p 288f Rose LJ said that "on the first and subsequent annual reviews, fairness, in my view, requires that the gist of the reports be revealed in order to give the opportunity for comment". He made clear at p 288g that what the prisoner is entitled to is (and I emphasise this):
"to be informed of the gist of any matter of fact and/or opinion relevant to the determination of his security category".
In ex p McAvoy starting at p 798H Lord Woolf MR said this:
"For my part, I accept that it is desirable, when something has the impact which being placed in category A has on a prisoner, that the approach should be to ensure, so far as practical, that fairness is achieved. However, in considering whether in any particular situation the procedure which is adopted is fair or unfair, one has to reach a decision not only in the light of the situation of the prisoner, but also in the light of the practical considerations which must apply to the proper running of a prison. The very fact that we are talking about prisoners who have been categorised as category A indicates that they are among those who are the most dangerous within the system. There can be considerable difficulty within the prison service in the managing of those prisoners …
… in the end it seems to me that the question this court has to answer is whether the procedure which is in fact adopted on the review of categorisation is one which complies with the requirements of fairness, having regard to the nature of the exercise being carried out. As to that, I have no doubt, having seen the material in this case, that the way the process was carried out in this case was perfectly satisfactory and perfectly fair.
I can see difficulties for the prison services in adopting the approach which the applicant would urge upon them of normally disclosing all the material which is relied upon and, whenever it was appropriate to do so, seeking public interest immunity. A procedure of that nature seems to me to be inconsistent in that it is too formal for the sort of administrative decision which is being reached in relation to categorisation.
The House of Lords in Doody's case [1994] 1 AC 531 endorsed an approach which involved providing the gist of the material relied upon rather than the actual material itself. It seems to me that in a great many cases the interests of a prisoner will be fully protected if the procedure envisaged by Lord Mustill in Doody's case is adopted. In my judgment the procedure which is being followed at present by the Prison Service in relation to the review of the category in which a prisoner is placed accords with Doody's case. That is a perfectly satisfactory procedure, particularly and most importantly because, where appropriate, the Secretary of State or those responsible for the review in practice are prepared to reconsider, in the circumstances of any particular case, whether additional information should be made available.
In my judgment what is done in pursuance of that policy provides sufficient safeguards for a person in the position of the applicant. It does not seem to me that he should receive either the actual information or the names of those providing that information. It is sufficient if the gist of the reports plus any special information is provided to him."
Category A reviews, as I have said, are carried out in accordance with the procedures laid down in PSO 10Consistently with ex p Duggan and ex p McAvoy, PSO 1010 provides in paragraph 4.1 that:
"The Prison Service's current policy and practice on disclosure follows the principles laid down in Duggan. The practice is to provide prisoners with a gist of the information which will be taken into account so they have the opportunity to make effective representations. The policy is to disclose as much information as fairness requires. In the normal case a gist is all that will be required although there could be particular cases where fairness might require the disclosure of an actual report. The Head of the Category A Review Team at Headquarters will decide whether, exceptionally, a particular case requires disclosure of an actual report. " (emphasis in original)
The forms of report that are to be used, as set out in PSO 1010, are prominently marked "Category A reports must not be disclosed to prisoners or their representatives". The Secretary of State points to this as showing that there will be an expectation of confidentiality on the part of those filling in the forms.
R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498 , [2002] 1 WLR 2264, is an example of the "exceptional case" or "special circumstances" (both phrases used by Judge LJ at para [32]) in which the court ordered full disclosure of the Category A reports to a prisoner.
Why does fairness require the type of disclosure referred to in ex p Duggan and ex p McAvoy? In one sense the answer is obvious, and indeed it is recognised in PSO 1010 at paragraph 4.1, but it bears repeating. It is because, as Lord Mustill put it in Doody at p 560G:
"the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests".
In this context I draw attention also to what Rose LJ said in R v Secretary of State for the Home Department ex p Creamer and Scholey (1992) in a passage "wholly endorse[d]" by Lord Woolf MR in ex p McAvoy at p 798C:
"A prisoner's right to make representations is largely valueless unless he knows the case against him and secret, unchallengeable reports which may contain damaging inaccuracies and which result in continuing loss of liberty are, or should be, anathema in a civilised, democratic society."
In the present case the claimant's annual review with which I am directly concerned took place in Autumn 2001. The relevant 'gist' was dated 28 June 2001. The claimant was anxious to obtain full disclosure of all the Category A reports on which the gist was based. He did not seek to bring himself within the "exceptional" or "special" category recognised in Williams. Rather he sought to outflank the restrictions of the system approved in ex p McAvoy by relying upon the provisions of the Date Protection Act 1998.
In October 2001 he made a request for information in accordance with section 7 of the 1998 Act. A substantial quantity of...
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