R v Deputy Governor of Parkhurst Prison and Others, ex parte Hague ; Weldon v Home Office
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TAYLOR,LORD JUSTICE NICHOLLS,THE VICE-CHANCELLOR |
| Judgment Date | 25 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0525-3 |
| Docket Number | 90/0483 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 1990 |
[1990] EWCA Civ J0525-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
The Vice-Chancellor
Lord Justice Nicholls
Lord Justice Taylor (Not Present)
90/0483
MR STEPHEN SEDLEY Q.C. and MR TIM OWEN, instructed by Messrs S.M. Birnberg, appeared for the Appellant (Plaintiff).
MR JOHN LAWS and MR DAVID PANNICK, instructed by The Treasury Solicitor, appeared for the Respondents (Defendants).
This case raises important questions concerning prison management and in particular the rules and practice for segregating prisoners and transferring them between prisons.
It will be necessary to refer to a number of statutory provisions, Rules and Prison Department Circulars, but it is convenient to start by setting out those which are at the heart of this case.
The Prison Rules 1964, as amended, are made pursuant to Section 47 of the Prison Act 1954. Rule 43 provides as follows:
"(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly.
(2) A prisoner shall not be removed under this rule for a period of more than 24 hours without the authority of a member of the board of visitors, or of the Secretary of State. An authority given under this paragraph shall be for a period not exceeding one month, but may be renewed from month to month.
(3) The governor may arrange at his discretion for such a prisoner as aforesaid to resume association with other prisoners, and shall do so if in any case the medical officer so advises on medical grounds."
Circular Instruction 10/1974 as amended, from the Prison Department of the Home Office to all prison establishments, provides as follows so far as is relevant:
"DISPERSAL POLICY—PROVISION OF CELLS IN LOCAL PRISONS
1. One of the decisions arising out of the review of dispersal policy is that a small number of secure cells in local prisons should be set aside for the use of governors of dispersal prisons to accommodate troublemakers temporarily and at short notice for a cooling off period.
2. The arrangement will be that each dispersal prison will have available two such cells, one in each of two different local prisons…
CRITERIA FOR USE OF LOCAL CELLS
3. The purpose of this facility offered to dispersal governors is to provide a brief "cooling off" period for a troublemaker who needs to be removed from normal location because of an imminently explosive situation caused by either his actual or impending disruptive behaviour, and for whom placement in the segregation unit is inappropriate or impracticable, either because the prisoner would still be able to exercise a disruptive influence from the segregation unit (because of inadequate insulation between the segregation unit and the main prison), or because the extent to which the prisoner provides a focal point for prisoner unrest would mean that the mere act of placement in the segregation unit could have a provocative and explosive effect on the rest of the establishment.
AUTHORITY FOR TRANSFER AND LENGTH OF STAY
4. Transfer will be at the discretion of the dispersal governor concerned; but will be for a period of not more than 28 days, C.I. 53/75. The normal presumption will be that the prisoner will thereafter (or before if the situation permits) return to his parent prison.…
TRANSFER ARRANGEMENTS
5. Before transferring a prisoner under these arrangements, the dispersal governor should telephone the governor of the local prison to confirm that there are no exceptional problems that make it impossible for the. prisoner to be accommodated and that his transfer would not bring him into contact with any prisoners from whom he should be kept apart. If there are cases of difficulty which cannot be resolved locally the advice of the Regional Director should be sought.
6. Although dispersal governors will be regarded as having an automatic lien on these designated cells, the cells need not necessarily be kept empty when not being used by the dispersal prison in question.…
7. The dispersal governor should ensure that the F1150 containing a full record of the behaviour which led to the transfer accompanies the prisoner to the local prison…In any event, the F1150, with a full report, should be sent within 24 hours: for obvious reasons it is essential that the governor of the local prison should have full background information about those difficult individuals that they will be having to accommodate, even though only for a very short time.
CONDITIONS
9. Prisoners transferred under these arrangements will always be made subject to the provisions of Prison Rule 43, and the necessary authority for their continued segregation for the remainder of the 28 day period, will be obtained by the dispersal prison governor from the Regional Director (who will act on behalf of the Secretary of State).
10. While in a local prison, men from dispersal prisons will be treated in the same way as any other prisoner on Rule 43 of the same security category in that prison. In particular they will do the same work, and receive pay on the same basis as their fellows, and enjoy no greater privileges than any other Rule 43 'subversive' prisoner. Prisoners transferred under these arrangements will bring with them none of the additional possessions normally allowed to long term prisoners."
FACTS
The appellant, Christopher Hague, was sentenced on 23rd May 1985 to a term of 15 years imprisonment for a number of offences including robbery, using a firearm with intent to resist arrest, and escape from custody. He was assessed as a category A prisoner having regard to his offences and his record. After periods in several prisons, he was transferred to Parkhurst on 3rd October 1986.
In 1987 two prisoners escaped from Gartree Prison by helicopter. In consequence various precautionary measures were taken in prisons generally. At Parkhurst, anti-helicopter wires were erected over the exercise yard. In addition, evening exercise for category A prisoners was made unpredictable. On occasion, it would be cancelled at short notice. This was resented and the appellant amongst others protested.
On 6th July 1988 the appellant was found to be in the exercise yard despite a notice on his wing indicating "No CAT A exercise". He had done the same on a previous occasion. On 7th July the appellant was seen by Assistant Governor Rees. The appellant was aggressive, unco-operative and uncompromising; he made it clear that he would continue with his actions. Mr Rees said that if he persisted, one option would be to remove him to another prison.
On 8th July, Deputy Governor Wood was in charge of the prison. On the recommendation of Mr Rees, he decided to transfer the appellant to Wormwood Scrubs pursuant to the provisions of C.I. 10/1974. In accordance with paragraph 9 of that circular the decision was to transfer the appellant subject to Rule 43 and to apply to the Regional Director to continue segregation beyond the 24 hour period which could be imposed by Mr Wood.
Prison Officer Cooper was sent by Mr Wood to tell the appellant what was to happen and the reasons. The appellant had barricaded himself in his cell. The door had to be opened by means of a jack. The appellant then walked out voluntarily, was handcuffed and taken to a prison van for transfer. Mr Cooper believes he carried out his instructions to tell the appellant the reasons for his transfer, but because of the circumstances cannot be absolutely sure.
The Divisional Court resolved some disputed issues of fact and before us Mr Sedley has not sought to challenge those findings. Indeed, in the absence of any cross-examination of the deponents he accepts that he must proceed on the basis of the Respondents' affidavits where there is conflict.
The findings of the Divisional Court and the Respondents' evidence are to the following effect. Mr Wood telephoned the regional office and obtained oral authorisation from the Deputy Regional Director for the appellant's transfer and for the continuation of his segregation for not more than 28 days pursuant to C.I. 10/1974. That authorisation was put in writing by an entry in the register.
On arrival at Wormwood Scrubs, the appellant was placed in the segregation unit under Rule 43. On 11th July he was seen by Mrs Burnaby, a member of the Board of Visitors. The Divisional Court found that she told the appellant the reasons for his segregation. She signed the form authorising his segregation for up to 28 days, although this was unnecessary since it had already been authorised by the Deputy Regional Director.
On 14th July the appellant asked and was allowed to see another member of the Board of Visitors, Mr Baines, who advised him to press on with the application for judicial review he said he intended to make.
Subsequently the appellant made applications to the full Board of Visitors to see him and to give reasons for his segregation at Wormwood Scrubs. He also petitioned the Secretary of State.
On 4th August the appellant was transferred from Wormwood Scrubs to Gartree Prison where he was placed on normal location. He had spent 28 days in segregation at Wormwood Scrubs and it is that regime which is the basis of all his complaints.
The appellant sought judicial review of the decisions made on 8th July 1989...
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