R Steele v Secretary of State for Justice

This is the hearing of the renewed application for permission to apply for judicial review by the Claimant, Michael Steele, now aged 72, who is currently in Her Majesty's Prison Frankland serving a sentence of life imprisonment imposed in 1998 for three murders. He has appeared today via a video link from the prison.

The Defendants are the Secretary of State for Justice and the Director of High Security Prisons. The Claimant wishes to challenge the decision of HMP Frankland's access to justice panel on 2 October 2013 to withdraw his access to in-cell laptop facilities and access to a printer. He advanced four grounds.

Ground one, which was not really pursued in his oral submissions, is that what he maintains was a blanket decision was taken to remove access to laptops and printing for all prisoners on F and G Wings and that that was unlawful because it was not based on consideration of their individual circumstances.

Ground two is the submission that in his individual case, the decision was unreasonable and irrational in view of the number of cases he is currently pursuing as a litigant in person. He relies inter alia on the fact that all the proceedings instituted by him were generated by computer in the sense that the documents were produced on a computer, that the data concerning these proceedings are stored and can only be accessed by a computer, and that the availability of a computer without a write/print facility is pointless in helping access to justice.

Ground three is that the factors relied on in ground two mean that the Defendants have breached the Claimant's right to a fair hearing under Article 6 of the European Convention on Human Rights. Alternatively, he submits that there has been a breach of Article 13 of the Convention because the restriction is denying him an effective remedy.

Ground four is that the decision made was contrary to natural justice because the access to justice panel has responsibility for determining appeals from its own determinations at first instance and that, in particular, Governor Young played a role at both levels.

On this last matter, the Claimant in his written submissions stated that he did not appeal to the review panel because of the overlap of membership between the panels, but he has included papers relating to another prisoner who did so appeal and whose appeal was not successful. In the Claimant's case, the prison treated a letter dated 3 October 2013 from his solicitors stating that he could not prepare his cases without his laptop as an application for an appeal against the decision. The appeal panel considered this and Governor Young maintained the decision.

The proceedings were filed on 30 October 2013. Time for the service of summary grounds was abridged in view of the pending litigation, in particular case management proceedings and the hearing of a strike out application by the Defendants in a case brought by the Claimant against News Group International in respect of an article about him in The Sun. An acknowledgment of service was filed on 20 November.

We have had before us a 10 page response by the Claimant to the acknowledgment of service together with supporting documents and a substantial skeleton argument from the Claimant dated 14 April 2014 with supporting documents, which unfortunately did not make its way to the Defendant. Ms Thelen who appeared on their behalf today was, however, able to deal with the submissions in it on the basis of what the Claimant said in his fairly extensive — for a permission application — oral submissions. Permission was refused on the papers by Jeremy Baker J.

The material legal framework consists only of the common law right of access to the court at Article 6 of the European Convention which guarantees fair process, including a right to effective access to a court and real opportunity to present a case. In the circumstances of this case, if the Claimant is not able to show an arguable breach of Article 6, I do not consider that he can gain any assistance from Article 13.

The material regulatory framework consists of the policies developed by the Prison Service about the provision of laptops in its National Security Framework and in the Prison Service Instructions. The current Instruction is PSI 10/2013. These documents provide that access to I.T must be balanced against security and safety considerations, that prisoners who request access to I.T facilities for legal work must demonstrate a real need for this in the sense that refusing a request would raise a real risk of prejudice in the legal proceedings and it does not follow that all work on such legal proceedings requires IT access.

PSI 10/2013 states that a governor must consider whether "a prisoner will genuinely be hampered without the appropriate IT" and that the purpose is not to provide equipment "simply to facilitate swifter communications or make correspondence and submissions more aesthetically pleasing. Nor is it solely to make the manipulation of material easier, although that could be a factor". The purpose of the provision of equipment is "to avoid a real risk of prejudice to the prisoner in the proceedings." The examples give are where a prisoner has a particular disability or cannot otherwise access evidence without the equipment as where the evidence is only available in digital format or is so complex or unwieldy in paper format to be impractical.

The rights of a prisoner to access to justice and to computer facilities to enable him or her to pursue litigation have been considered in a number of decisions. The main ones for present purposes are that of the Court of Appeal in R (Ponting) v Governor of HMP Whitemoor and Secretary of State for the Home Department[2002] EWCA Civ 224 and the decision of Hickinbottom J in the Administrative Court in R(Kenyon) v Governor of Her Majesty's Prison Wakefield[2012] EWHC 1269 Admin.

Additionally, earlier this year 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 needed access to I.T. Because he had not done so, in the light of the earlier authorities, she held that his challenge to the decision of the Secretary of State failed.

The leading judgment in Ponting was given by Schiemann LJ who stated at paragraph 31 that whilst …

… "circumstances can exist in which to deprive a prisoner of access to a computer can amount to an interference with his right of access to the Court and a breach of his rights under Article 6" …

… the objectives behind the policy of limiting access to computers were justified as a legitimate aim in the public interest, and were proportionate to the aim of addressing the security questions that arise where computers are available to prisoners in the form of checking for material that may affect good order, control, et cetera, and which may be used for criminal activity. See also Clarke LJ at paragraphs 60 to 62.

The further consideration given by Hickinbottom J in Kenyon clarifies the issue. The judge stated that the policy requiring a prisoner to demonstrate "a real need" for access to computer for legal work and a "real risk of prejudice in the legal proceedings" was confirmed. See paragraphs 17, 20, 23 and 28. At paragraph 37, Hickinbottom J stated, after setting out the material provisions of the National Security Framework, that where Article 6 is engaged there is a balancing exercise to be done and:

"The public interest in reducing the risks of a prisoner having a computer, which are identified… is obvious."

He stated that whether I.T facilities are required by a prisoner and, if so, what facilities, are matters that are necessarily fact specific and the contention in that case by the Claimant that it would be easier if submissions were typed was insufficient on the material provided by the Claimant in that case because there was no evidence that an application could not be made properly and fairly without IT facilities.

The factual background to the decision challenged can be summarised as follows. The Claimant has had access to a laptop computer in order to assist him with the litigation he is conducting for about a decade. He has stated he was first given access to a laptop and printer under supervision at the end of 2001 or beginning of 2002 while at HMP Whitemoor. The Defendant's written summary grounds and Ms Thelen's skeleton argument state that he was first granted a laptop at HMP Frankland in April 2011, but she accepted that he has had a laptop for a very long time.

The date on which he was first granted access to computing facilities is only relevant because the reasons that he has given recently to justify the laptop are the same as the ones that he has given since 2001 and which were accepted as sufficient until the establishment of the new laptop panel at HMP Frankland in 2013. It is clear that he certainly had access to a laptop in 2009 because there is a compact for the use of such...