R Glyn Kenyon v The Governor Hmp Wakefield and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HICKINBOTTOM |
| Judgment Date | 22 March 2012 |
| Neutral Citation | [2012] EWHC 1259 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5862/2011 |
| Date | 22 March 2012 |
[2012] EWHC 1259 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT IN LEEDS
Leeds Combined Court
1 Oxford Row
Leeds LS1 3BG
Mr Justice Hickinbottom
CO/5862/2011
Mr Matthew Stanbury (instructed by Chivers Solicitors) appeared on behalf of the Claimant
Ms Cathryn McGahey (instructed by Treasury Solicitor) appeared on behalf of the Defendants
(As Approved)
In November 2001, the Claimant was convicted of attempted murder, and was sentenced to life imprisonment with a minimum term of 16 years. An appeal against that conviction was dismissed in March 2004. In the meantime, in February 2002, he was separately convicted of 50 counts of rape, sexual assault and other associated offences, all against two minor complainants. He was sentenced to life imprisonment, with a minimum term of 7 years, consecutive to the minimum term previously imposed. From the information that I have, it in unclear whether those convictions were the subject of an appeal; but, if they were, that appeal was unsuccessful. The Claimant is currently serving those sentences in HMP Wakefield.
On 3 February 2011, he applied to the Governor for the provision of a laptop computer, giving the following as his reasons for the request:
"I have been convicted at two trials. The combination of that and that one of the trials had large volumes of evidence means that I have large amounts to organise and I can't do that properly without access to a laptop.
Due to the above, any submissions I make are likely to be long and complicated and will take much organising to be able to produce them in a style that the court will be able to read it. This will be easier with a laptop, which would allow the amending/addition/subtraction of material."
The trial in which he considered that he had "large volumes of evidence" was the second trial, involving the charges of unlawful sexual activity. The Claimant's application for a laptop computer was refused on 9 February 2011, on the basis that he was not a "registered applicant" and that the prison only supplied "read-only" computers.
This claim, originally challenging that refusal by way of judicial review, was issued on 22 June 2011. In his Statement of Grounds and Facts (at paragraph 2.1), the Claimant indicated that he needed a laptop computer because he intended to make an application to the Court of Appeal for leave to appeal out of time and/or submissions to the Criminal Cases Review Commission in relation to the convictions in respect of which an appeal to the Court of Appeal had already been refused. Following an Acknowledgment of Service, on 3 August 2011, His Honour Judge Behrens, sitting as a judge of this court, gave permission to proceed with the claim to challenge the decision of 9 February.
That prompted the Governor to reconsider the matter and, on 22 August 2011, he issued another decision in the following terms:
"Having considered your application for an Access to Justice computer we are satisfied that, with due regard to the associated regulations as defined within the National Security Framework and supplemented by the Policy, you have failed to demonstrate a real need for access to IT facilities and that refusal to provide you with access to such facilities would not raise any risk of prejudicing the legal proceedings to which you refer."
Having received that further decision, the Claimant indicated to the Governor that he intended to proceed with his claim to challenge, not the original 9 February 2011 decision, but rather that new decision. That, in effect, overtook the permission to proceed to challenge the first decision. On 5 December, the Claimant made an application to amend his grounds to challenge the later decision. On 9 December, on the papers, save in respect of one ground, Langstaff J refused the application to amend, and he set down the applications for amendment and permission in relation to that single ground to be heard on 19 December 2011, when he was again the presiding judge.
That day, the Claimant did not renew his application in relation to any of the refused grounds; and, after hearing submissions during which the Claimant's case was developed further, Langstaff J adjourned the applications before him to be dealt with at a rolled-up hearing to include the hearing of the substantive judicial review if the applications to amend and for permission were successful. In the order made that day, he identified not one but two new potential grounds, as follows:
"1. That the test to be applied when considering a prisoner's application for an Access to Justice laptop should properly be one of reasonableness rather than necessity (or real need) and that the Claimant was entitled to have his application considered on that basis.
2. That the decision of 22 August 2011 was premised upon an interpretation of the policy that was too restrictive in any event, principally because the Defendant [i.e. the Governor] wrongly considered that making submissions to the Court of Appeal (Criminal Division) did not require the Claimant to have the use of a word processor regardless of the test that was applied. The application on this ground is pleaded out of time, but the Claimant will argue that the matter is sufficiently closely linked to the original ground that permission should be granted."
The first ground had substantively been relied upon earlier; but the second ground was new. The application to amend was about four months after the challenged decision and was consequently out of time ( CPR Rule 54.5(1)(b)), although of course the court can extend that time limit if there is good reason to do so ( CPR Rule 3.1(2)(a)).
In terms of substance, the first ground seeks to challenge the policy in relation to the provision of laptop computers to prisoners; whilst the second ground seeks to challenge the application of the policy to the circumstances of this particular case. Because the first ground related to policy, Langstaff J directed that the Secretary of State for Justice be added as a Second Defendant. The Governor (now, the First Defendant) is responsible for the application of that policy, and is the appropriate defendant in respect of the second ground.
I have heard the adjourned rolled-up applications today. Formally, I have before me an application for permission to amend (to include the two grounds which I have described); an application for permission to proceed on those grounds (in the case of a second ground, out of time); and, if permission is granted, the substantive application for judicial review itself. All of those applications are merits-driven, and it is therefore to the merits of the two grounds I now turn.
With regard to the first ground, Mr Stanbury for the Claimant submitted that the test incorporated into the policy for allowing a prisoner access to a laptop computer was contrary to Article 6 of the European Convention of Human Rights, which guarantees a fair trial. He submitted that the common law, which requires unimpeded access to the court, would likely arrive at the same result as the application of Article 6; but he accepted that, if the Claimant failed on the Article 6 basis, then he could not succeed on the common law basis. With that concession, I am in firm agreement. In those circumstances, I need not consider common law rights further.
Article 6 guarantees fair process in the determination of criminal charges, and incorporates a right to effective access to a court and a real opportunity to present one's case in that court including equality of arms with the prosecuting authority. Although Article 6 is not included in Article 15 of the Convention (as a right declared non-derogable, even in times of emergency), the wording of Article 6 gives no room for implied restrictions on the right guaranteed: the right to fair process is a core guaranteed right that cannot be made to give way to competing concerns, even where those competing concerns are of a public nature ( Dyer v Watson [2002] UKPC D1, especially at [73]; and Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28). Consequently, where there has been a breach of Article 6 in the course of criminal proceedings, any conviction will be unsafe. In that sense, the right has been described as "absolute" (see, e.g., Blackstone's Guide to The Human Rights Act 1998, 6 th Edition (2011), at paragraph 7.77).
In respect of the first ground, Mr Stanbury submitted that the relevant policy of the Secretary of State offended Article 6 by actually or potentially robbing a prisoner of a real opportunity to present his case by restricting his access to a laptop computer in circumstances in which it can be safely assumed that the prosecuting authority will have IT facilities. The policy focuses upon "need" and "generalised risk", while Article 6 bestows an individual right and requires a reasonable assessment of an individual's "degree of need" for a laptop balanced against the risk posed by that individual having one. He put the difference between the policy and the requirements of Article 6 essentially as the difference between a test based on need (upon which, he submitted, the policy is founded), and a test based on reasonableness (which Article 6 requires).
The relevant policy is found in the National Security Framework ("the NSF"), and HMP Wakefield's own Access to Justice Protocol, the current versions of which have been effective from...
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