R (Bloggs 61) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lord Justice Mummery |
| Judgment Date | 18 June 2003 |
| Neutral Citation | [2003] EWCA Civ 686 |
| Docket Number | Case No: C1/2002/2073 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 June 2003 |
[2003] EWCA Civ 686
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE OUSELEY
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Auld
Lord Justice Mummery and
Lord Justice Keene
Case No: C1/2002/2073
Mr Richard Clayton QC & Mr Robin D Howat (instructed by Glaisyers) for the Appellant
Mr Robert Jay QC (instructed by The Treasury Solicitor) for the Respondent
(NB:The copy of the Draft Judgment handed down on 18 th June 2003 contained a judgment of Lord Justice Keene. This has been superseded by the Judgment contained in this final version.)
This is an appeal by a serving prisoner against the order of Ouseley J. of 31 st July 2002 dismissing his challenge by way of judicial review of the Secretary of State's decision to remove him from a protected witness unit to a "mainstream" prison regime.
The Prison Service has three main regimes for segregation of vulnerable prisoners. First, there is provision for sexual offenders in the form of specially segregated Prison wings. Second, there are vulnerable prisoners' units in prisons ("VPUs") for prisoners who wish to withdraw or who are considered to be at risk. At present some 3,000 prisoners are housed in VPUs in various prisons around the country. Third, there are protected witness units in prisons providing a very high level of personal security to their inmates. There are only two prisons in England and Wales providing such a unit, presently accommodating about 14 protected witnesses between them.
A protected witness unit is an internally secure part of a prison. It provides segregated accommodation for prisoners who have committed serious criminal offences, normally attracting sentences of at least ten years imprisonment, and who have provided information and/or given evidence against others involved in serious crime and who, for that reason, would be at particular risk if held under "mainstream" prison conditions. The risks to prisoners given protected witness status may vary over time. Therefore, the Prison Service in each case reviews annually whether the threat has diminished sufficiently to justify the protected witness's return to mainstream prison conditions or to some other specialist unit, such as a vulnerable prisoner unit. However, it is rare, on such reviews, for a protected witness to be returned to mainstream prison conditions. To preserve their anonymity within the prison system, protected witnesses are all given the name of Bloggs followed by a number; it is known colloquially within the Prison Service as "the Bloggs system".
The issues
There are two, possibly three, main issues in the appeal:
(1) whether representations allegedly made by police officers to the appellant could and did give him a legitimate expectation as against the Prison Service that it would retain him within one of its protected witness units for the length of his prison service;
(2) whether the proposed removal of the appellant from the unit to which he had been admitted would be a breach of his right to life under Article 2 of Schedule 1 to the Human Rights Act 1998; and possibly
(3) whether, with or without such a legitimate expectation or breach of Article 2, the Prison Service's proposed removal of him from a protected witness unit to a mainstream prison regime is so unfair as to amount to an abuse of power.
The legal framework
Before I turn to the facts, I should set out the legal framework of the Prison Service provision for vulnerable prisoners, in particular those who may need protection because of their assistance to the police in one form or another. It is for the Secretary of State, acting through the Prison Service, to determine how and in what circumstances he accommodates each prisoner committed to his charge. The Police, over whom the Secretary of State has a different and much looser overall authority, have no direct responsibility for or control over those matters.
Section 12 of the Prison Act 1952 provides:
"(1) A prisoner … may be lawfully confined in any prison.
(2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison."
And Rule 45(1) of the Prison Rules 1999, made pursuant to section 47(1) of the 1952 Act, provides:
"Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly."
Although Mr. Richard Clayton, QC, who appears for the appellant, demurred at the proposition, it is clear that that Rule, in the use of the words "in his own interests", includes the power to segregate a prisoner who is vulnerable to attack from fellow inmates for whatever reason, including the fact or suspicion that he is a police informer.
A summary of the provision for protected witnesses in the prison system may be drawn from two instruments. The first is a Home Office circular to Chief Constables and Clerks to Police Authorities, Home Office Circular 9/92 – "Resident Informants". The second is Prison Service Instruction 71/2000. The latter, in paragraph 1.7, states:
"Protected Witness Units maintain the anonymity of, and provide secure and safe custody for Protected Witnesses, whose lives may be endangered were they to encounter other prisoners. Accommodating such prisoners in a PWU ensures that there is no contact between a PW and anyone else outside the unit, other than those with a legitimate reason, and proper authority, for access."
The Police Circular is not addressed to the Prison Service or Prison Governors, but, as it records, was prepared in consultation with the Prison Service as well as the Association of Chief Police Officers and the Crown Prosecution Service. The general scheme outlined in the Circular and the Annex to it is that, in any individual case, it is for the Police to initiate the process and, after consultation with the Crown Prosecution Service, for the Secretary of State to grant the person, usually a remand prisoner, the status of "resident informant". The Crown Prosecution Service will only approve an application for such status in "exceptional circumstances".
The move to the next stage of treating such person as a "protected witness" can only take place after his conviction. It is then for the Police to apply to the Prison Service for the prisoner to be given that status. The actual decision is for the Prison Service, though it makes it in the light of a report from the police officer in charge of the case endorsed by an Assistant Chief Constable and with the support of the Crown Prosecution Service. The Annex underlines in paragraph 5 that, despite the involvement of the three agencies in the working of the scheme, it is the Prison Service that decides:
"5. … Nor should promises be made which … [a police] officer has no power to honour, e.g. treatment or location within the prison system … The concern of the CPS is that nothing should be done which could be interpreted by the court as an inducement that would prejudge a trial".
The report of the police officer in charge of the case, though not determinative, is crucial to the Prison Service's decision, as paragraph 3 of the Annex to the Police Circular makes plain:
"… This report will form the basis on which a decision is reached by Prison Service Headquarters about an informant's eligibility to be treated as a protected witness and should include information about his criminal record, the present charges and details of the help which the police envisage that the informant will provide."
As Mr. Robert Jay, QC, for the Secretary of State, emphasised, the level or nature of the risk to a person placed in a protected witness unit may change during his period in custody. The system, therefore, provides for regular review by the Police of a prisoner's status as a resident informant and by the Prison Service of his status as a protected witness. Thus, the police assessment giving rise to the initial decision to regard a prisoner as a resident informant and, if they seek it, his eligibility for treatment by the Prison Service as a protected witness, is not set in stone; it requires periodic review, every three months at least. Paragraph 20 of the Annex to the Police Circular provides:
"The senior officer responsible for the decision to regard a prisoner as a resident informant … or an officer of equivalent rank should periodically review the case (at least) once every 3 months) in consultation with the local Chief Crown Prosecutor to ensure that continued grant of resident informant status is justified."
Similarly, the Prison Service must keep the protected witness status of a prisoner under regular review, in its case, annually. Paragraphs 7.1 and 7.4 of the Prison Service Instruction provide:
"7.1 The responsibility for assigning prisoners Protected Witness status and for allocating prisoners to PWUs lies with the National Operations Units in Security Group. The staff of this unit will liaise closely with Police Advisers Section."
"7.4 NOU [the Prison Service National Operations Unit] will consider, annually, whether the threat to the prisoner has diminished sufficiently that the prisoner may safely be re-integrated in...
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