R Jason Michael v The Governor of HMP Whitemoor
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon |
| Judgment Date | 23 January 2020 |
| Neutral Citation | [2020] EWCA Civ 29 |
| Date | 23 January 2020 |
| Docket Number | Case No: C1/2018/2473 & C1/2018/1596 |
| Court | Court of Appeal (Civil Division) |
and
[2020] EWCA Civ 29
THE RT HON The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON LORD JUSTICE Holroyde
and
THE RT HON LADY JUSTICE Nicola Davies DBE
Case No: C1/2018/2473 & C1/2018/1596
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE WILLIAM DAVIS
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Rule (instructed by Coninghams Solicitors) for the Appellant
Eric Metcalfe (instructed by the Government Legal Department) for the Respondents
The Interested Party did not attend and was not represented
Hearing dates: 30 and 31 October 2019
Approved Judgment
This is the judgment of the court to which we have all contributed.
The issue in this appeal is whether the decision of the prison authorities of 8 September 2017 to refuse to transport the appellant to the hearing of his civil claim in Oxford County Court, but instead facilitate his attendance by video link, was lawful. The appellant is a Category A prisoner who was sentenced in November 2009 to imprisonment for life with a minimum term of 18 1/2 years. He was convicted with his son of murder, and on two counts of causing grievous bodily harm with intent, all by stabbing. He has since received a concurrent sentence for assaulting a prisoner at HMP Woodhill. At the time of the challenged decision he was serving his sentence at HMP Whitemoor. He is now located elsewhere. William Davis J dismissed the claim for judicial review: [2018] EWHC 2324 (Admin).
The claim was advanced on two broad grounds, although the second had two distinct components. First, that the failure to produce Jason Michael for the hearing of his claim in the County Court violated his right to a fair trial guaranteed at common law and by article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [“ECHR”]. Secondly, (a) that the decision failed to have regard to all the material factors in Mr Michael's case, and indeed proceeded on a fundamental misunderstanding of central fact, and (b) the decision-maker applied an unlawful presumption (fettering of discretion) against producing a Category A prisoner in a civil court. Permission to apply for judicial review was granted on those grounds by Morris J. Shortly before the hearing of the claim for judicial review Mr Michael's representatives sought to introduce a third ground by amendment, namely that the decision refusing to produce him at court was unlawfully taken by an official in the prison when the governing statute required it to be taken by “the Secretary of State”. In context, that meant an official within the relevant section of the Ministry of Justice. The argument was advanced in reliance upon the decision of the Supreme Court in R (Bourgass) v. Secretary of State for Justice [2016] AC 384. William Davis J refused permission to advance that ground (“the Bourgass point”). His refusal to permit the amendment is also the subject of appeal before us.
Summary of Conclusions
We are satisfied that the decision did not violate Mr Michael's rights to a fair trial and that the decision maker did not unlawfully fetter her discretion in refusing his request to be produced physically at the hearing of his claim. Moreover, we consider that the case management decision made by the judge to refuse leave to argue the Bourgass point cannot be impugned on appeal. It is clear, however, that the decision was taken on the basis of a fundamental misunderstanding of an important fact, namely that the hearing would take place in a court with a secure dock. We are unpersuaded that the decision would necessarily have been the same had the decision maker not made an error in assuming that the hearing would be in an ordinary court or the chambers of a judge. On that limited basis we have concluded that the decision is unsustainable and must be quashed. It will be retaken in the light of up-to-date information, including the location and practical arrangements for any hearing, the risks associated with Mr Michael's physical presence and the logistics, including cost, of arranging his attendance.
Legal Background
Prisoners retain the right of access to the courts: R (Daly) v Secretary of State for the Home Department [2002] AC 532 per Lord Bingham of Cornhill at [5], but they have no unqualified right to attend court hearings in the same way as those at liberty. The statutory provision governing the production of prisoners in courts and inquiry hearings is found in paragraph 3(1) of schedule 1 to the Crime (Sentences) Act 1997 [“the 1997 Act”]. It provides:
“(1) If the Secretary of State is satisfied, in the case of —
(a) a person remanded in custody in any part of the United Kingdom in connection with an offence;
(b) a person serving a sentence of imprisonment in any part of the United Kingdom; or
(c) a person not falling within paragraph (a) or (b) above who is detained in a prison in any part of the United Kingdom,
that the attendance of that person at any place in that or any other part of the United Kingdom or in any of the Channel Islands is desirable in the interests of justice or for the purposes of any public inquiry, the Secretary of State may direct that person to be taken to that place.”
This provision invests the decision maker with a discretionary power to produce a prisoner in a court having concluded that it is desirable in the interests of justice to do so. Matters that may fall for consideration at the discretionary stage include questions of security, expense, diversion of resources and the scope for abuse if the facility is too readily granted: see R v. Home Secretary ex parte Wynne [1993] 1 WLR 115 per Lord Goff of Chieveley at 122H to 123E considering section 29 of the Criminal Justice Act 1961 (materially the same as the current provision). By virtue of section 6 of the Human Rights Act 1998 the discretion falls to be exercised compatibly with a prisoner's article 6 rights.
The exercise of the power to produce a prisoner at court is governed by Prison Service Order 4625 (2002) “Production in Civil Proceedings”. The Order is directed to officers considering requests for production and was designed to take account of article 6 ECHR. The introduction identifies the primary consideration as whether “it is in the interests of justice that [the prisoner] should attend” but that when the interests of justice test is satisfied “the normal security considerations (e.g. risk to the public) must be taken into account.”
Chapter Two summarises factors that arise under article 6 in civil proceedings and the need for the prison to decide whether, for the proceedings as a whole to be fair the prisoner must attend personally at the stage in question. It notes:
“If it appears that the prisoner's case will suffer detriment if they do not attend, this would be a strong case for allowing the production.”
But continues:
“An individual's rights under Article 6 are not absolute. They can be restricted provided this does not mean that the trial is unfair — i.e. if we restrict a prisoner's access to a court, we must be able to show that we did not restrict his ability to bring or defend his case (e.g., a production request might be refused if the prisoner is legally represented).
Restrictions must be for a legitimate reason and proportionate, e.g. a refusal on security grounds must be necessary for the risk identified.”
The chapter continues by noting that a refusal to produce is unlikely to infringe article 6 where a prisoner is represented and does not have to give evidence but that when a prisoner is representing himself, personal attendance is likely to be necessary. It notes that article 6 is only engaged when a case is arguable and concludes with a section entitled “Alternatives to production at court”:
“Many stages of the proceedings (particularly preliminary) can be dealt with in writing or by telephone if there are serious security concerns. The Court can advise on those hearings which must have the prisoner in attendance, and those which can be dealt with by other means.
Make use of the video links system. This is becoming more widely available …”
Chapter Three deals with the interests of justice. It notes that the nature of the case may determine how important it is that the prisoner attends and identifies certain categories where “it will usually be desirable to produce the prisoner”, including family and domestic cases and divorce. It advises care before refusing to produce when the Prison Service itself is a party to the proceedings, reiterates points about representation, and distinguishes between different stages in proceedings and the nature of the role of the prisoner in question (claimant, defendant or witness).
Chapter Four is concerned with “security and escorting”:
“4.1 When a decision has been made that the interests of justice require production at court, the normal security considerations (e.g. risk to the public) must be taken into account.
Security
4.2 A prisoner does not have to be produced if the risk assessment indicates that the security risk outweighs the interests of justice. To defend a challenge under Article 6, we must be able to show that the decision is reasonable in all the circumstances – (alternatives to production have been considered – see Chapter 2).
Category A prisoners
All movement of Category A prisoners outside the prison must be authorised by the Directorate of High Security Prisons.
4.3 Chapters 37 and 38 of the Security Manual (PSO 1000) give instructions on escorting and security...
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