R v Secretary of State for the Home Department, ex parte Wynne
| Jurisdiction | UK Non-devolved |
| Judge | Lord Templeman,Lord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Mustill,Lord Slynn of Hadley |
| Judgment Date | 21 January 1993 |
| Judgment citation (vLex) | [1993] UKHL J0121-1 |
| Date | 21 January 1993 |
| Court | House of Lords |
[1993] UKHL J0121-1
Lord Templeman
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Mustill
Lord Slynn of Hadley
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Goff of Chieveley.
I agree with it and, for the reasons given by my noble and learned friend, I would dismiss the appeal.
My Lords,
The appellant, Edward Thomas Wynne, is a prisoner in Frankland Prison, Durham, where he is a Category "A" inmate. He is currently serving his second life sentence. He was sentenced to life imprisonment for murder in 1964, and was released in 1980. In 1982 he was sentenced to life imprisonment for manslaughter, the offence having been committed a little over a year after his release from prison in 1980.
The appellant has brought two sets of proceedings for judicial review. In the first, dated 25 October 1989, he has complained of a decision by the Deputy Governor of Gartree Prison (where the appellant was then imprisoned) whereby he found that the appellant was guilty of recklessly endangering another person, and ordered that a caution be entered on his prison record. In the second, dated 19 February 1990, he has complained that the Secretary of State decided on 22 January 1990 to allocate Category "A" status to him, and failed or refused to give reasons for his decision. In March 1990, Kennedy J. granted leave to apply for judicial review in respect of both complaints. The appellant was granted legal aid in respect of these proceedings, but in October 1990 the legal aid certificates were discharged, and as a consequence his solicitors ceased to act for him.
In the result the appellant has found himself in the position where he has launched proceedings for judicial review for which he has been granted leave to apply, but he has no lawyers acting for him who can appear on his behalf. Furthermore he himself, being in prison, cannot appear in person unless he is produced in court for that purpose. The prison authorities at Frankland Prison made it clear to him that, if he wished to be produced in court to represent himself on the date fixed for the hearing of his applications (20 June 1991), he would have to complete the relevant request/complaint form and undertake to pay the costs of his production. On receipt of a letter informing him of the position, the appellant tore it up, and made no request. He then wrote to the Crown Office, informing the office of his attitude, which appears to have been that he must be produced either free of charge to himself, or at a charge related to an ability to pay only the cost of his own journey by public transport.
It appears that there has been an increase in the number of applications for judicial review by persons serving prison sentences. Where leave is given to apply, or an application for leave is renewed after an initial refusal, there is then a hearing; and a problem arises in those cases where the applicant, like the present appellant, is not represented by counsel. The court has no power to compel his attendance, which under the relevant statutory provision (section 29(1) of the Criminal Justice Act 1961) is a matter for the discretion of the Home Secretary. The manner in which this power should be exercised has been the subject of a booklet, issued by the Home Office, called the Productions Manual. Under the guidelines set out in this booklet, which deal with a wide range of circumstances, it is stated that it is generally not the Prison Service's function to bear the costs arising from the production of an inmate to a court for the purpose of civil proceedings. It follows that, in such cases, if a prisoner is unable or unwilling to pay the costs of his production, he will not be produced to conduct his proceedings in person.
The problem which arises in such circumstances surfaced recently in R. v. Norwich Magistrates' Court, ex parte Roberts on 14 June 1991. On that occasion the Divisional Court, having heard that the present appellant's applications for judicial review were due to be heard the following week, proposed that his applications should be treated as a test case; this was agreed to by counsel representing the Home Office. The Official Solicitor was invited to intervene as amicus curiae. He accepted the invitation, but later agreed to act on behalf of the appellant; and an application was made on 12 July 1991 for judicial review of the Home Secretary's decision that the appellant should be expected in accordance with Home Office policy to meet the costs of his production in court, for the purpose of pursuing his two applications for judicial review, and that the appellant was required to make formal application to be produced in court. The relief sought was a declaration that the decision was unlawful, an order of certiorari to quash the decision, and an order of mandamus requiring the Secretary of State to produce the appellant at the hearing of his applications for judicial review.
A Divisional Court (Mann and Nolan L.JJ. and Judge J.) held that the court had no power to order the production of a prisoner so that he might argue his own case, and that a prisoner can appear to argue his own case only if the Secretary of State exercises his power under section 29(1) of the Act of 1962 to make a production order. The court further held, having regard in particular to the decision of the Court of Appeal in Becker v. Home Office [1972] 2 Q.B. 407 (by which it was bound), that a requirement to pay travel costs, escort costs, or both, as a condition of a production order may be a lawful requirement, and the Secretary of State was entitled to have a practice whereby he normally requires such payment to be made. Accordingly the court dismissed the application. The appellant then appealed to the Court of Appeal, which dismissed the appeal. The appellant now appeals to your Lordships' House by leave of the Court of Appeal.
I turn first to the decision of the Court of Appeal. The ground upon which the appeal was dismissed was very simple. It was expressed by Lord Donaldson of Lymington M.R. as follows (see [1992] 1 Q.B. 406 at p. 424B):
"I would dismiss this appeal because in my judgment the applicant was rightly required to make formal application for his production in court, he did not do so and in those circumstances it is inappropriate to grant any form of relief in respect of a hypothetical decision which would only have been reached, if at all, had the applicant made such an application."
This is plainly right. There was, in the circumstances, no relevant decision of the Home Secretary, which was the assumed basis of the appellant's application for judicial review. That there was no such decision was also recognised by Staughton L.J. at p. 429E and by McCowan L.J. at p. 432E. Even so, all members of the Court of Appeal considered, in their judgments, the substantive argument on the appeal, and on this there was a division of opinion between Staughton and McCowan L.JJ. on the one hand, and the Master of the Rolls on the other. As a result of this division of opinion, leave was given to the appellant to appeal to your Lordships' House.
I feel driven to say that, in those circumstances, the Court of Appeal should not have given leave of appeal. It was inevitable from the outset that this House would have to dismiss the appeal, for there was no basis upon which the Court of Appeal's decision could be disturbed. In truth, the Court of Appeal were giving leave to appeal because of a difference of opinion among the members of the court expressed in what were in law no more than prolonged obiter dicta. At the outset of the argument before the Appellate Committee, it was drawn to the attention of counsel for the appellant, Mr Munby Q.C., that the substantive argument on the appeal raised what was in truth a hypothetical question; and this was not disputed. Nevertheless, the arguments having been prepared at considerable public expense, in litigation which was intended as a test case, counsel were allowed to develop their arguments before the Appellate Committee. Now however this House has to decide how to dispose of the matter.
It is well established that this House does not decide hypothetical questions. If the House were to do so, any conclusion, and the accompanying reasons, could in their turn constitute no more than obiter dicta, expressed without the assistance of a concrete factual situation, and would not constitute a binding precedent for the future. Furthermore, if in the present case the appellant had made a formal application for production which had been pursued to the stage of decision, it is not at all clear that other factors might not then have emerged. In particular, if it had then transpired that (as may be the case) the appellant lacked the means to pay the expenses required of him, and if an indication had then been made by the court that the appellant was required to attend the hearing of his applications to enable...
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