R (Cooper) v HM Prison Service

1. This case concerns 2 applications for judicial review of decisions taken by the Governor of HMP Bristol on 21 October 2004 or thereabouts. The first concerns the categorisation of the Claimant from a Category C to a Category B prisoner and the second is a decision not to allow him continuing access to his own personal computer.

2. There was also an application to amend these grounds so as to add a claim concerning what was said to be a policy or practice by the Defendant, and the governors of other prisons where the Claimant had been held, of opening or intercepting his legally privileged mail contrary to the provisions of the Prison Rules. I shall deal with that later.

3. The Claimant was not produced for this hearing as a result of an order made by Walker J after the consideration of written representations. Walker J was concerned that the production of the Claimant would lead to delays in the hearing as a result of his past experience of delay and because he concluded that there was no need for the Claimant to be present. This application was renewed before me or was renewed in the form of a new suggestion that there should be a video link to the prison. I rejected this last minute suggestion in a separate ruling.

4. The Claimant was available to give instructions at the end of a telephone which had been made available to him all day in Bristol. He used it immediately after the short adjournment to instruct both Counsel and Solicitors no longer to act for him and accordingly at that stage, Mr Prior withdrew from the Court. Mr Prior at that stage had completed most of his submissions and had yet to deal with the detail of his arguments on access to the personal computer. He had dealt with the details of the contentions about interference with mail, because that was said to relate in part to the arguments concerning the Claimant's need for access to his own personal computer. He made no application for an adjournment for the Claimant to attend. I have however considered all the arguments raised in the Claimant's skeleton arguments.

5. The Claimant is a prisoner who is serving a discretionary life sentence imposed on 12 September 1997 for 2 counts of rape. He is also serving concurrent determinate sentences for false imprisonment, threats to kill and assault occasioning actual bodily harm. These were committed on the same occasions. His tariff expired in June 2003.

Categorisation

6. In December 2002 the Claimant was moved to HMP Shepton Mallet and recategorised from Category B down to Category C. However, on about 2 August 2004, he was recategorised there as Category B because the police were seeking to question him about a further serious indecent assault which it was alleged he committed in 1992, some 3 to 4 years before he committed the 2 rapes. DNA evidence was said to link him to the earlier offence. Although the recategorisation form refers to the Claimant having been charged at the time of his recategorisation at Shepton Mallet, he was not in fact charged until 3 August 2004. In reality the Governor at Shepton Mallet knew of the allegation against the Claimant because the police would have had to give him 7 days notice in order to have a serving prisoner moved for questioning. The substance of the allegation would have been known to the Governor at that time. The Claimant's trial has been reset for late August or early September 2005, having been postponed from March because the Claimant sacked his barrister on the opening day. The Shepton Mallet decision is not the subject of the judicial review.

7. From 4 August 2004 until 3 September 2004 the Claimant was held in Winchester, as the local prison for Aldershot where the police were questioning him. There, he was categorised as Category B as are all remand prisoners in the absence of exceptional circumstances. No judicial review arises in respect of that period. On 3 September 2004 he was transferred to Bristol where as a "remand" prisoner facing further charges he was initially again treated as a Category B prisoner.

8. Governor Memery, a residential governor at HMP Bristol, who is responsible for several wings of the prison including the lifer wing where the Claimant is detained, explained what happened after the Claimant's arrival at Bristol. Although a remand prisoner would normally be treated as a Category B prisoner anyway, she explained that she had taken the view that it was necessary to consider substantively the security categorisation of the Claimant. On 6 September 2004 the Claimant sought, through a complaint form, a written explanation as to why his Category C status had been removed. Over the course of the days thereafter she had many conversations with the Claimant about his categorisation, because he raised the point with her on her daily round of his wing. He made detailed and strong verbal representations to her amongst many other matters of complaint. He was making the point that even if convicted of this earlier offence, his sentence would run concurrently with his life sentence and so he would not serve any longer time and in any event the indecent assault charge was in his view less serious than the 2 rapes of which he had been convicted and so could not affect his security category. Governor Memery explained to him that the indecent assault charge would be relevant to the view taken by the Parole Board of the risk which he would present to the public and that if he were likely on that account to be detained longer, the risk of escape would also increase. She said that she discussed the categorisation of the Claimant with Governor Bell, the then Governing Governor and with his Deputy, Governor Johnson, and with Principal Officer Philips. She responded on 14 September 2004 to the complaint of 6 September 2004 by saying that the Claimant had been charged and remanded on further serious offences and so his Category had been amended.

9. Two days before that, on 12 September 2004 the Claimant submitted a further detailed written complaint in relation to his Category. He repeated at some length the points which I have already set out in relation to the relative seriousness of the offence and the fact that any sentence would run concurrently with his life sentence. He also alleged that his categorisation was being manipulated by the Prison Service. He denied that new charges would lead to an escape, pointing out that he had not sought to abscond in 1997.

10. The formal process for recategorisation started on 3 October 2004 when Principal Officer Philips completed the relevant form on which such decisions are recorded. He discussed the matter first with Governor Memery. I accept the evidence that, notwithstanding the date of 3 September 2004 on the form, the form was in fact completed on 3 October 2004. I also accept that in discussing the matter with PO Philips, Governor Memery was aware of and communicated to PO Philips the representations in the complaint form of 12 September 2004. The recommendation by PO Phillips was subsequently endorsed and countersigned by the Governing Governor, Mr Bell. Governor...