R v Secretary of State for the Home Department, ex parte Wynne
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAUGHTON,the Master of the Rolls,LORD JUSTICE McCOWAN |
| Judgment Date | 19 December 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1219-12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/1254 |
| Date | 19 December 1991 |
[1991] EWCA Civ J1219-12
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice McCowan
Lord Justice Staughton
91/1254
MR. JAMES MUNBY Q.C. (instructed by the Official Solicitor) appeared for the Applicant.
THE HON. MICHAEL BELOFF Q.C. and MR. CLIVE LEWIS (instructed by the Treasury Solicitor) appeared for the Respondent.
Mr. Wynne is serving a sentence of life imprisonment for manslaughter imposed in January 1982. That offence was committed in June 1981, a little over a year after he was released on licence from a sentence of life imprisonment for murder imposed in March 1964. At all material times Mr. Wynne has been detained as a Category A prisoner pursuant to Rule 3(1) of the Prison Rules 1964 at H.M. Prison Gartree and latterly at H.M. Prison Frankland.
Mr. Wynne had two grievances which he sought leave to ventilate by judicial review. The first was in respect of a finding by the Deputy Governor of Gartree Prison on 27th July 1989 that Mr. Wynne was guilty of "recklessly endangering another person" and of his order inscribing a "caution" on Mr. Wynne's prison record. The second was in respect of a decision by the Secretary of State on or about 22nd January 1990 to allocate Mr. Wynne Category A status and of a failure or refusal on or about 26th January 1990 to give reasons for his decision to continue this status.
On grounds which are not material to this appeal and which we have therefore not considered, Kennedy J. on 7th and 19th March granted Mr. Wynne leave to apply for judicial review of both decisions.
Mr. Wynne was initially successful in obtaining legal aid, but in October 1990 this was discharged in relation to both proceedings. We do not, of course, know why this occurred. In theory it could have been because his claims were not perceived by the Board to have any reasonable chance of success or because his means exceeded the maxima for eligibility or because he was unwilling or unable to pay an assessed contribution or because he failed to co-operate with the Board and his legal advisers. Whatever the reason, Mr. Wynne was then faced with a problem. He had obtained leave to bring the proceedings, but how was his case to be argued at the hearing unless he could attend personally?
At this point Mr. Wynne behaved very stupidly. He was given a form of request to the Governor which he should have completed asking to be taken to court to argue his case. Instead he tore it up. Had he completed it, it is likely that his request would have been granted, but that he would have been required to pay £419 towards the costs which would have been incurred in conveying him under escort to the High Court in London. Mr. Wynne says that he could not have afforded to pay such a sum, although he could have paid "the reasonable cost of getting myself to court via train or national coach network".
In the light of Mr. Wynne's conduct in refusing to complete the request form, he is deserving of no particular sympathy. However the predicament in which he found himself is by no means unique and the view was taken that there should be a test case to clarify the extent to which a prisoner has a right of personal access to the courts. With this in view the Official Solicitor, with the leave and encouragement of the court and without objection from the Home Office, acted on Mr. Wynne's behalf to the limited extent of completing the documentation necessary to institute a new application for judicial review. By this application he sought to challenge the decision that "the Applicant should be expected in accordance with Home Office policy to meet the costs of his production in court for the purposes of pursuing his applications for judicial review CO/339/90 and CO/1747/89 ("the Proceedings") and that he was required to make formal application to be produced in court.
At the hearing of this application before a divisional court consisting of Mann and Nolan L.JJ. and Judge J., the Home Secretary was represented by Mr. Pleming of counsel and the Official Solicitor instructed Mr. James Munby Q.C. to appear on behalf of Mr. Wynne who was not present. Mr. Wynne's application was dismissed. The Official Solicitor, acting on Mr. Wynne's behalf, gave notice of appeal. Upon the hearing of the appeal Mr. Wynne has again been represented by Mr. Munby. On this occasion the Home Secretary has been represented by Mr. Michael Beloff Q.C. and Mr. C. Lewis.
This problem last surfaced in the case of Becker v. Home Office [1972] 2 Q.B. 407. After Mrs. Becker had started an action as trustee she was sentenced to a term of imprisonment for obtaining credit as a bankrupt. Whilst in prison she applied to be allowed out in the custody of a prison officer to conduct the action. Permission was granted provided that she agreed to pay all the costs of her visits to court. In the event she made nine such visits and the cost, which amounted to the astonishingly small sum of £8.17, was deducted from moneys held by the prison governor on her behalf. After she was discharged from prison she claimed the return of the £8.17.
It was common ground in that case, as in this, that the Home Secretary and prison governors are under a duty to keep prisoners in what may be described as "an appropriate place of confinement", i.e. a prison, remand centre or the like, and can only hold them in some other place or permit them to leave that place of confinement, if so authorised by law. It was also common ground in that case, as in this, that the only relevant authority justifying this departure from the primary duty is to be found in section 29 of the Criminal Justice Act 1961 which is in the following terms:—
"(1) If the responsible Minister is satisfied, in the case of a person detained in any part of the United Kingdom in a prison, youth custody centre, remand centre, detention centre, young offenders centre, young offenders institution or place of safety, 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 or the Isle of Man is desirable in the interests of justice or for the purposes of any public inquiry, the responsible Minister may direct that person to be taken to that place."
It is important to note what was and was not in issue in that appeal. It was not in issue whether Mrs. Becker needed to apply to the governor of the prison for permission to attend the hearings of her action. She had applied. It was not in issue whether Mrs. Becker ought to have been allowed to attend those hearings. She had been given permission to attend and had attended. It was not in issue whether the charges made were reasonable. Mrs. Becker had agreed to pay them and did not challenge their reasonableness. The only issue was whether the terms of sections 51 and 53 of the Prison Act 1962 and, by analogy, rules 20 and 21 of the Prison Rules 1964 precluded the making of such a charge. As Lord Denning M.R. put it at p. 417 of the report:
"I cannot accept Mrs. Becker's argument. Sections 51 and 53(2) of the Prison Act 1952 are regulatory directions only. They say how the prison is to be run and who is to pay the expenses. They do not give any colour of right to a prisoner to have anything provided for him free of charge. If the Secretary of State is prepared to allow special privileges, such as books or clothing or food—on condition that the prisoner pays for them himself—he is entitled to do so. The condition is valid. It is in his discretion. Likewise, if the Secretary of State is prepared to let a prisoner out of prison so as to go to court and conduct his own case—on condition that he pays for his own transport and maintenance and that of his escort—he is entitled to do so. The condition is valid. This again is in his discretion. I cannot agree with the judge that there is no power in the Secretary of State to impose conditions such as those which I have mentioned. It seems to me it is fairly incidental to the powers which are conferred by Parliament, as within the principles laid down in Attorney-General v. Great Eastern Railway Co. (1880) 5 App. Cas. 473, 478."
This court is bound by the ratio decidendi of that decision, namely that a prison governor has a discretion to make some charge payable by a prisoner if, at the prisoner's request, he gives a directive under section 29 of the Criminal Justice Act 1961. It is not, however, bound by all the expressions of opinion contained in the judgments and, in particular, by the view expressed by Edmund Davies L.J. at p. 422 that:
"That the prisoner in such circumstances is seeking an indulgence is beyond doubt. It is equally manifest that the Home Secretary is under no duty, whatever be the circumstances, to grant it. Even though he is satisfied that the interests of justice make it desirable that the prisoner should be allowed to leave for the purpose indicated, section 29(1) makes it clear that it is nevertheless for him to decide whether or not to permit it. Security risks or litigation of an incessant or frivolous kind are only two among many considerations which might lead him to decide against granting the indulgence sought. So also could the public expense involved, which might be wholly disproportionate to the purpose which it is alleged would be served by allowing the prisoner to leave under escort. But, seeking to balance the interests of justice in the particular case against the duty of...
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