R Syed v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Lewis |
| Judgment Date | 07 April 2017 |
| Neutral Citation | [2017] EWHC 727 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6460/2016 |
| Date | 07 April 2017 |
[2017] EWHC 727 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lewis
Case No: CO/6460/2016
Daniel Squires Q.C. (instructed by Birnberg Peirce and Partners) for the Claimant
Andrew Sharland (instructed by Government Legal Department) for the Defendant
Hearing dates: 21 st and 22 nd March 2017
Approved Judgment
INTRODUCTION
This is a claim by Nadir Syed for judicial review of a decision of 22 September 2016 to transfer the Claimant to the Central Managing Challenging Behaviour Strategy Unit ("the Unit") at HMP Woodhill. The Claimant contends that his transfer to the Unit involves removing him from association with other prisoners within the meaning of rule 45 of the Prison Rules 1999 ("the Rules") so that, consequently, the criteria and procedures prescribed by that rule need to be satisfied. The Defendant contends that the restrictions or limits on the ability of the Claimant to associate with other prisoners in the Unit do not amount to a removal from association within the meaning of the Rules.
The Claimant also contends, and the Defendant accepts, that the decision is unlawful for procedural reasons as explained below. The Claimant also contends that the decision is additionally unlawful as no adequate reasons have been provided for the decision. The Defendant contends that that ground of challenge is academic and, in any event, the reasons are adequate.
Finally, the Claimant contends that the restrictions on his ability to associate with other prisoners amounts to an interference with the right to respect for his private life within the meaning of Article 8(1) of the European Convention on Human Rights ("the ECHR") which is not justified under Article 8(2) of the ECHR. The Defendant contends that the decision does not amount to such an interference but concedes that, if it does, it cannot be justified under Article 8(2) as it was not done in accordance with law due to the procedural flaws in the decision-making process. The Defendant also contends, however, that the placement at the Unit would otherwise be justified as a necessary and proportionate means of pursuing a legitimate aim.
THE FACTS
The Conviction
On 9 December 2015, the Claimant was convicted by a jury of an offence of doing an act preparatory to committing an act of terrorism contrary to section 5 of the Terrorism Act 2005. In brief, as is clear from the sentencing remarks of the trial judge, Saunders J., the act involved the purchase of a knife with the intention of killing and beheading an individual. In his sentencing remarks, the trial judge said this:
"2. The preparatory act was the purchase of a large, very sharp, high quality kitchen knife. I am satisfied that the act of terrorism that the [Claimant] intended to commit was to attack a person in the street and decapitate him or her. That intention guided the choice of knife. It needed to be large and extremely sharp to cut off someone's head. There was no particular victim identified but I am satisfied that the attack was going to take place at a time close to Armistice Day, such as a poppy seller…
"3…. I am satisfied that, at the time he purchased the knife, [the Claimant] intended to use it to kill someone and that was going to happen shortly after the purchase.
…..
"7. I am satisfied that the [Claimant's] inability to go to Syria to fight was a factor in his decision to carry out an attack in this country.
"8. Much of the evidence in this case came from messages sent between a group of extreme Muslims which were set out for the jury in a timeline. The contents of the timeline were sickening. There were many pictures of severed heads being held up by IS fighters; pictures of hostages about to be decapitated by members of IS; pictures of the dead body of Fusilier Rigby and his killers celebrating what he had done. The comments from the contributors including [the Claimant] glorified these events….
"11. I am satisfied that like the killers of Fusilier Rigby, [the Claimant] followed the precept of an eye for an eye and a tooth. That phrase appears regularly in the timeline and I am satisfied that [the Claimant] considered his beliefs not only entitled him but required him to go and kill someone on the streets of this country in revenge for events in Syria. He believed that IS were entitled to carry out the atrocities that they did to establish the caliphate and he supported their aims.
"12. The sentence that I will pass has to reflect the criminality of a man who was setting out to kill an innocent member of the public in furtherance of his beliefs and political aims. The sentence also has to provide protection to the community.
…
"14… I have no doubt that he is dangerous. In my judgment if he was released from prison he would go and try and carry out what he failed to achieve. He would set out to kill in furtherance of his beliefs. He is an intelligent man. He had thought out what he wanted to do and I saw no sign in the evidence he gave of any change of view on his part."
The Claimant was sentenced to life imprisonment and ordered to serve a minimum term of 15 years in custody. It is relevant to mention the circumstances of the offence and the trial judge's assessment of the Claimant's risk and dangerousness as that is relevant to the assessment and management of the risk presented by the Claimant in prison and in considering whether there is a cogent justification for the circumstances of his detention in custody.
The Initial Period in Custody
The Claimant had been remanded in custody in November 2014 at HMP Wandsworth. In December 2014, he was transferred to another prison and, on 18 May 2015, he was transferred to HMP Belmarsh. He has subsequently been transferred to other prisons and is currently in HMP Woodhill.
Information has been provided to the authorities from a number of sources since the Claimant was remanded in custody. The entirety of the information needs to be considered, bearing in mind that some of the sources of the information were not known and the quality of the information could not be assessed. In addition, the Claimant has given his account in detailed representations made by solicitors on his behalf on 15 September 2016 and in three witness statements to this court. I refer below to some of the information considered particularly relevant by the prison authorities, given the offence and the assessment of the trial judge, and the responses of the Claimant.
In July 2015 (before the Claimant was convicted), information was received indicating that the Claimant had stated that if he were sentenced he would carry out the act for which he was in prison. The Claimant contends that this information was received from an untested source and the information could not be verified. No action was taken on the allegation for five months. He submitted that that allegation had never been investigated and would not justify transfer.
Following conviction in December 2015, the prison authorities decided that the Claimant should be removed from association pursuant to rule 45 of the Rules. That removal from association, commonly referred to as segregation, was reviewed periodically in accordance with the Rules. The prison authorities received other information which caused them concern. Early in the morning on 7 July 2016, numerous prisoners were banging their cell doors with metal objects and calling out "Allahu Akbar" and making comments about beheading. One officer entered the Claimant's cell and heard the Claimant say that if the staff violated one "brother" they violated all. Throughout the morning, the Claimant and two other prisoners were heard to shout at staff that they (the staff) were oppressing Muslims, hitting their cell doors while shouting "Allahu Akbar" and making more threats of beheading. An officer reported that at 12.15 pm. on 7 January 2016 he had been attending a prisoner in a neighbouring cell when the Claimant came to the observation hatch in his cell and shouted that he would behead "us all" (which I take to be a reference to officers) and that the officer in question would be first. A record of a review of the segregation made by prison staff made the following comment on the incident:
"Rule 45 Review: Mr Syed was part of a group of prisoners who were chanting Islamic phrases last night and this morning, and who made explicit threats to behead officers on the segregation unit. He has been raised to an SO&6 PPE unlock as a result. In consequence I did not allow him to attend his GOOD review but spoke to him afterwards through his door. He denied getting involved and said that the prisoners had been provoked by segregation staff. He suggested that he had been goaded by an officer and all he said in response was "come to my cell". I asked him to complain in writing so that his allegations can be fully investigated, and explained that I would certainly feel threatened if he invited me into his cell in an aggressive tone. He tried to claim that he had "never been in any trouble" in the seg, and I challenged him on this as he has clearly shown a different side in the last 24 hours."
The Claimant, through solicitors, made representations about this allegation in September 2016. He said that the officer had been taunting another officer and that he, the Claimant, had shouted that that behaviour was out of order. He said that the officer came to the hatch of his cell and verbally abused him, making aggressive and derogatory comments to the Claimant and made provocative comments about cutting the Claimant's head off. He said that it was the officer who behaved provocatively and...
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