R Jackley v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 05 February 2014 |
| Neutral Citation | [2014] EWHC 407 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 February 2014 |
| Docket Number | CO/5773/2013 |
[2014] EWHC 407 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Andrews
CO/5773/2013
The Claimant appeared In Person
Ms J Thelen (instructed by Treasury Solicitors) appeared on behalf of the Defendant
The Claimant, Mr Jackley, is a Category C prisoner at Her Majesty's Prison Coldingley where he is currently serving a 12 year sentence for a number of offences including robbery, attempted robbery and possession of a firearm with intent to commit an indictable offence. This is the hearing of his claim for judicial review which was brought with permission of HHJ McKenna.
The Claimant is representing himself in a number of legal proceedings, including, at the moment, applications to the European Court of Human Rights and to the Criminal Cases Review Commission, (both of which relate to the length of his sentence) and also in a civil action in the County Court. He is legally represented in another civil action in the County Court.
The essence of his complaint relates to the application in his case of the Defendant's policy regarding access to legal books and materials and access to computers or IT for the purposes of conducting litigation and related research.
No challenge is brought to the policy itself, which it is accepted was intended to comply with the requirements of Article 6 of the European Convention on Human Rights in terms of access to justice. It is convenient, however, at this stage to set out something of the legal background.
The Defendant is obliged to afford a prisoner a right of access to justice. That includes a right of access to a fair means of looking after his or her own interests as a self-representing litigant in any appeals against the first instance decisions that have gone against them, but that right is balanced against the security risks inherent in introducing computers into prisons. The types of misuse which can and have occurred include communicating with outside persons with a view to facilitating criminal activities, the making of malicious allegations by prisoners against prison staff, unauthorised disclosure of confidential documents and of course, the creation of a potential risk to internal prison security measures. Therefore, a policy had to be developed in order to resolve the tensions between the right of access to justice and those risks.
There are a number of different types of computers that are available in a prison. These include so-called "A2J computers" which are laptops that are specifically provided, in certain circumstances, for legal work; and educational computers.
The policy set out in the National Security Framework provides:
"1. Prisoners' access to IT must be balanced against security and safety considerations. In line with other prisoner communications, IT access may be restricted where this is necessary for safety reasons, to secure good order and discipline, prevent crime or escape, or protect victims. There is, for example, a potential risk that prisoners could store and share information on staff, misuse information about witnesses and victims, forge documents, generate false documents or create and edit pornography.
2. Any prisoner who requests access to IT facilities for legal work and demonstrates a real need for this (i.e. refusing the request would raise a real risk of prejudicing the legal proceedings), must be granted access to the IT provided for this purpose for the period specified. Whether such access must be in possession or not will depend on the completion of a risk assessment.
3. It must not, however, be presumed all requests for IT for legal work must be granted. The prisoner will need to show that such facilities are necessary for the preparation of their legal case. It is also likely that access will often be necessary for only the limited part of that preparation: just because a prisoner can demonstrate a real risk of prejudice without some access to IT facilities, it does not follow that all work on that case requires IT access. Factors that may lead to the provision of IT are:
If the prisoner is conducting a personal defence;
Where the prisoner is represented but has documents on disk(s) that would make it unreasonable to disallow correspondence with their representative by disk;
If the defence is complex or requires the manipulation of data that could not easily be done without the use of the IT provided;
If the prisoner has a particular disability, or there are other relevant health factors.
4. Applications that could be considered frivolous may include:
A preference on the part of the prisoner to type a letter rather than to write by hand;
Requiring IT to assist with spelling;
Instances where the prisoner lacks the competence to use the IT if it were provided."
The policy reflects by incorporation the Defendant's obligations under Article 6 of the Convention. It also reflects the case law on the subject.
The most recent helpful guidance is provided by a decision of Hickinbottom J in the case of R(Kenyon) v Governor of HMP Wakefield and Another [2012] EWHC 1259 (Admin), 22 March 2012. In that particular case, Hickinbottom J was concerned with questions of access to justice and with the policy which I have quoted. He also had to consider the earlier decision of the Court of Appeal in R (Ponting) v Governor of HMP Whitemoor and Another [2002] EWCA Civ 224.
Essentially, what was decided in Kenyon was that every case has to be looked at on its own facts, that Article 6 requires access to be reasonable and that every party who wants to represent himself must have an equal opportunity of presenting his case, but that only extends to being given a reasonable opportunity. That means an opportunity ensuring that that party concerned is not at a substantial disadvantage vis-à-vis his or her opponent. Equality of arms requires a fair balance to be struck between the parties with any limitations on the access to the tribunal being proportionate.
In the case of Kenyon, the governor of the prison concerned had concluded on the facts that the Claimant had failed to show that unless he were provided with IT facilities, his right to fair process in his criminal proceedings would be potentially compromised. The judge agreed with that decision, making it very clear that each case is fact specific.
He did also make clear in paragraph 35 of his judgment that in making an application for access to justice laptops, the burden of proof falls upon the prisoner and the evidence in support is entirely a matter in the prisoner's own hands. It is obvious from the authorities that simply saying that a prisoner requires access to a word processor in order to be able to type rather than handwrite court documents would not in and of itself be good enough. It has to be shown that the denial of the use of those facilities is something which will impede his access to justice. For example, if there is a case which is very document heavy and the opposing side has provided thousands of pages of documentation, it may well be that fairness requires that a computer which has a search facility should be made available in order to enable the prisoner representing himself to search through the documents and access information that is pertinent to the points that he wishes to put.
Now, with those observations in mind, I turn to the specific considerations in this case. At the time when this claim was first initiated, the Claimant's main ground of complaint was that the Defendant had not considered an application that he had made for access to IT facilities. The matter had dragged on for some four months by the time that HHJ McKenna granted permission and indeed, the judge observed:
"It is at least arguable on the facts of this case that the Defendant acted unlawfully in failing to facilitate access to and use of IT facilities given the passage of time since the request was first made."
Pausing there, the request was originally made on 2 April 2013 in these terms:
"I require access to a computer to type and print documents for the Criminal Cases Review Commission and Supreme Court along with the High Court. There are deadlines for submissions of grounds, so really need access as soon as possible. The Court of Appeal (CO Supreme Court) and CCRC will confirm the above. Thank you."
No action was taken in relation to that application because it was made on the wrong form. The application was returned to the Claimant with a request that he should complete an attached form and return it to the appropriate officer.
That generated a complaint by the Claimant who said that he had spoken to Officer Byrne and he had requested access to a computer to type and print critical legal documents for the Supreme Court, CCRC and High Court and that no genuine effort seemed to have been made in securing this necessity. He said that when chasing this issue up with Officer Byrne, he stated nothing could be done until 7 April and that the Claimant should not anticipate being allocated a computer. Mr Jackley said he was:
"Sick and tired of making complaints about issues that should not have arisen in the first place. Please deal with the matter in a responsible way."
The response to that complaint was as follows:
"You are not allowed to PRINT from A2J laptops. They are read or view only. Please see the policy. Yes, you can have/apply for a laptop. There is a...
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William Frederick Ian Beggs For Judicial Review Of A Decision By The Scottish Ministers Dated 12 May 2017
...did not reach the level of a compelling circumstance. Reference was made to the case of R (Jackley) v Secretary of State for Justice [2014] EWHC 407 (Admin), in which, in the context of a claim based on Article 6 ECHR, the view was expressed that mere inconvenience is not sufficient. It was......
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R Steele v Secretary of State for Justice
...Andrews J dealt with a case in which the factual scenario was similar to that in this in R (Jackley) v Secretary of State for Justice [2014] EWHC 407 Admin. She held that the Claimant in that case who was representing himself in a number or proceedings needed to explain why in particular he......