R (Ponting) v Governor of HMP Whitemoor and Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Lord Justice SCHIEMANN,Lady Justice Arden,Lord Justice Clarke |
Judgment Date | 22 February 2002 |
Neutral Citation | [2002] EWCA Civ 224 |
Docket Number | Case No: C/01/0830 |
Court | Court of Appeal (Civil Division) |
Date | 22 February 2002 |
[2002] EWCA Civ 224
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR. JUSTICE NEWMAN)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Clarke and
Lady Justice Arden
Case No: C/01/0830
Colin ROSS-MUNRO Q.C. and Arthur BLAKE (instructed by Messrs. Hickman & Rose for the Appellant)
Rabinder SINGH and Sam GRODZINKSI (instructed by Treasury Solicitor for the Respondent)
This appeal, by leave of Sedley L.J., against a decision of Newman J potentially raises some points of general importance in relation to a convicted prisoner's rights of access to justice.
Mr Ponting is a convicted prisoner. He has a degree of dyslexia and an intelligence quotient in the region of 77/80. His condition affects his grammar and spelling and the speed at which he can work. He wishes to sue a number of persons. He has four cases on-going at the moment. We have very little detail as to what any of them involve. We understand that he has a claim against the Wiltshire County Council in relation to abuse he allegedly suffered as a child in a Council run institution; a claim against the Home Office for injuries which he received whilst in prison; an application to the Criminal Cases Review Commission in relation to his sentence; and a civil claim against Broadmoor Hospital for lack of treatment whilst in custody. In two of these cases he has instructed solicitors to act on his behalf; in two he is acting on his own. He wished to use his own computer and printer in order to prepare his case, communicate with his solicitors and print the relevant documents but the prison authorities denied him that use. He accepts for present purposes that they were entitled so to do.
The prison authorities gave him access to another computer, word processing package and printer. He accepts for present purposes the suitability of that computer, word processing package and printer. What he objects to is some of the conditions which regulate his use of the computer and printer. He is only allowed to use them if he signs the terms of what is described as a compact between him and the authorities. The precise terms of the compact in issue I shall set out later in this judgement. At this stage it is enough to indicate that those terms restrict the use of the computer to the prisoner's cell, limit the times during which the computer can be in the prisoner's possession, prescribe conditions in which it and all discs are to be stored and make various provisions for the supervision of that use and for the inspection of materials.
We understand that Mr Ponting is no longer at HMP Frankland. However, we also understand that his present prison operates an identical scheme and both sides have asked us to ignore the fact that he has moved. We are content to do so.
The Prison Service's Problem
Why then do the prison service wish to hedge about the use of the computer by all these conditions? The evidence comes before us in a not wholly satisfactory form in a number of different documents. The background is that the prison rules which were in force 20 years ago made no provision for the use of computers by prisoners. Since then there have been two broad developments. First, the population at large uses computers to an increasing extent, computers having become cheaper and more user friendly. Second, there have been various legal changes – in particular the enactment of the Human Rights Act 1998 – which have led the prison service to place a greater degree of emphasis in running a prison on prisoners' human rights. However, the basic problems posed to the authorities charged with running prisons remain.
The following quotations from the evidence before us illustrate the position of the respondents.
A prison service instruction 1 with an implementation date of 1 2. 2001 contains the following:
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 access imported material on disc or the hard drive that might endanger the security of the prison. Similarly, prisoners could store and share information on staff, mis-use information about witnesses and victims, forge documents, generate false documents and create and edit pornography.
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 periods specified. Whether such access must in possession or not will depend on the completion of a risk assessment
It must not, however, be presumed that all requests for IT to assist with 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.
For the duration that IT is provided, staff must be appointed to ensure that computers are used only for the purpose issued, that only licensed copies of soft-ware are being used and that other files on the computer and storage drives do not contain inappropriate or illegal material. They must regularly wipe the hard drive to prevent the build-up of information on hidden files.
All discs must be virus-checked before use, including those sent to prisoners by their legal representative. Establishments must ensure that those sold at the prison shop are virus-free…
When the IT is no longer required by the prisoner for whom it was obtained it must be returned to EDS for storage ….
A Witness statement by Barney Clifford 2 contains the following
3. There is a difference between prisoner's access to IT, and allowing in possession IT. The former includes IT access in education departments for example ….. In brief, to obtain in possession IT, prisoners need to make application to the Governor, who will make a decision based upon policy procedures and risk…. Where in possession IT is provided prisoners will usually only be allowed to use it outside normal regime requirements.
13. The potential to commit further crime, harass victims, compromise prison security, plan escapes or undermine good order and discipline are all possible consequences of giving prisoner access to IT. Examples of what is possible include:- pirated or corrupt soft-ware, corrupting hard-ware and soft-ware or introducing viruses, saving, hiding or encrypting files that contain unsuitable or illegal material or images, forging official documents, facilitating paedophile rings, establishing data bases on staff, prisoners, or using other information that may threaten prison security.
14. [He gives examples including discs being found containing information on bomb making, drug manufacturing.]
16. … more prisoners have levels of IT knowledge and sophistication with which many establishment staff cannot compete. IT fraud, and the use of technology to commit crime is growing. It is a legitimate aim for the prison service to ensure that prisoners do not have the opportunity to continue their criminal activity, or undermine prison security through IT, during their time in custody. Detecting illegal activity, or preventing IT misuse requires enhanced security procedures, and more IT literate staff than are currently employed by the prison services. In order to address this, there are serious resource implications because staff will need to acquire specialist expertise and IT security knowledge if they are to be able to search hard-drives and discs for evidence of misuse.
17. In terms of security specific measures are needed to prevent potential threats to security, including careful control of floppy discs, virus checking discs, and searching IT for contraband. However, there have been examples of prisoners receiving unauthorised floppy discs, which can jeopardise security and integrity of IT systems as a result.
18. In considering each application made, Governors need to take into account matters relating to the particular prisoner, security intelligence, and issues relating to the establishment's regime. If a prisoner is given in possession IT, the potential for that prisoner to be bullied or intimidated may grow. Such threats could come from others who share the same cell or wing.
The witness statement of Allan Chapman 3 from the Directorate of High Security Prisons contains the following
4. HMP Frankland is a maximum security prison … [it] holds some of the most dangerous and serious serial sex offenders currently in custody.
8. Given the type of regime, the nature of the prison population and the security classification of Frankland, the policy it operates is not generally to allow computers in possession because of the overwhelming security concerns they engender. These include:
(i) there are particular concerns that computers could facilitate the establishment of paedophile rings in prisons, by enabling the covert exchange and distribution of information, and the building up of data bases of paedophile material.
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