R v Secretary of State for the Home Department, ex parte Quinn
| Jurisdiction | England & Wales |
| Judgment Date | 05 March 1999 |
| Date | 05 March 1999 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference: Administrative Court; CO/0680/99
: Richards J
Appearances: P Kaufmann (instructed by Thanki Novy Taube) for Q; J Turner QC (instructed by the Treasury Solicitor) for the Respondent
: Whether the failure to transfer a prisoner to a different prison during a trial was unlawful
: Q had several previous convictions and was considered dangerous and in need of Category A (high secure) conditions. In April 1992, he escaped from HMP Frankland and was at large for 123 days. He alleged that officers assisted him (including one who took payment); both criminal charges and an internal disciplinary inquiry relating to the escape were dropped, though he was convicted of charges relating to resisting recapture with a firearm and sentenced to an additional 8 years' imprisonment. In May 1994, in the trial of a prisoner, M, charged with attempting to escape during a transfer from HMP Full Sutton to HMP Whitemoor, who alleged that he had been assisted by an officer, Q gave evidence that he had escaped with similar assistance, though he refused to name the officer involved. M was acquitted and the trial judge apparently ordered a trial into the alleged corruption. Officers from HMP Full Sutton heard Q's allegations.
In January 1997, there was an incident at HMP Full Sutton following which Q and others were charged with prison mutiny. The trial was at the time of the application in progress at Newcastle Crown Court. Q's defence was that he has been "fitted up" by prison officers, who were fabricating an account against him, in part because he had brought the Prison Service into disrepute by escaping from HMP Frankland without being prosecuted and had publicly alleged that he was assisted in his escape by prison officers. Prosecution witnesses had already been cross-examined on that basis, and Q was due to give evidence the next week, during which he would be required to give a full account of his escape and, to avoid his defence being undermined, to name the officer who was paid for his assistance. That officer still worked at HMP Frankland, where Q had been moved on 26 January 1999 for the purposes of the trial. He wished to be moved to another prison, stating that he feared reprisals if he remained at HMP Frankland; he alleged that there had been a number of incidents of harassment there, which were being investigated. The Home Secretary refused to move him, and Q brought judicial review proceedings, relying inter alia on his right to a fair trial. He submitted that the test to be applied, given the fundamental right in issue, was whether there was a real danger that he might feel unable to put his defence fully and freely.
1. This is an application for judicial review of the refusal of the Secretary of State to relocate the applicant from HMP Frankland, where he is currently held, to another prison for the duration of the criminal trial now in progress at Newcastle Crown Court, in which the applicant is charged with an offence of prison mutiny. The applicant's case is that if he remains at HMP Frankland he will be unable to put his defence fully and freely and will accordingly be denied a fair trial. His defence involves naming a prison officer who, it is said, assisted his escape from HMP Frankland on a previous occasion in 1992. That prison officer still works at HMP Frankland and the applicant fears that if he names him the officer will, either alone or with the help of others, cause serious harm to the applicant. The applicant has therefore sought to be relocated and contends that the refusal to relocate him is unlawful.
2. The matter has come before this court at some speed, since the applicant's evidence in the trial is due to begin next week. The application for leave was lodged on 18 February 1999. Leave to move was granted by Ognall J on 23 February, when it was ordered that the substantive hearing be fixed for 3 March. There have been substantial factual developments since leave was granted. Both counsel are to be commended for adapting to the changed circumstances and providing clear and full written and oral submissions.
3. In view of the relationship between the present application and the trial, reporting restrictions were imposed unders. 11 of the Contempt of Court Act 1981 at the time when leave was granted. Those restrictions remain in place for the time being.
The factual background
4. The applicant is a man with a record of criminal convictions dating back to 1975. For present purposes it is not necessary to go back further than 1991, when the applicant was convicted of robbery and connected offences and was sentenced to 6 years' imprisonment. In February 1992 he was moved to HMP Frankland. In April 1992 he escaped from that prison by hiding in a prison laundry van which was then driven out of the prison. The applicant's case is that he escaped with the assistance of prison officers, in particular an officer to whom a payment of £3,000 was made through an associate of the applicant outside prison. That officer arranged for the applicant to be given a job in the prison laundry, which was achieved despite the fact that the applicant had been at the prison for only a very short time and was a Category A prisoner. Two days after commencing work in the laundry the applicant was placed inside a laundry bag which was then loaded onto a prison van. The applicant remained in the bag while the van was driven through several security checks. He was released some miles away from the prison and made good his escape. The applicant was recaptured in August 1992, having been at large for 123 days. In the course of his recapture he discharged a firearm. He was charged with escaping from custody and with firearms offences. He says that he indicated to the authorities that it was his intention, as regards the escape charge, to name the prison officers involved in the escape. The fact is that the charge was subsequently dropped, as was an internal disciplinary charge relating to the escape. The applicant was, however, sentenced in June 1993 to an additional 8 years' imprisonment for resisting arrest with a firearm.
5. In May 1994 the applicant gave evidence at the trial of one Charles McGhee, who was charged with attempting to escape from a prison van en route from HMP Sutton to HMP Whitmoor and who, it appears, alleged that he had been assisted by prison officers. The applicant gave evidence to the effect that he had escaped from HMP Frankland with similar assistance from a prison officer. Whether that evidence was truly material to the issues in McGhee's trial does not matter. The important point is that the evidence was given and that in giving it the applicant refused to name the prison officer involved and was cross-examined about that refusal. According to the applicant, he felt that his evidence was undermined by his refusal to name the officer, though it may be noted that McGhee was acquitted and it is said that the trial judge ordered an investigation into corrupt practices by prison officers. Another point to note is that prison officers from HMP Full Sutton were present in court while the applicant was giving evidence.
6. It was at HMP Full Sutton that the applicant was being held in January 1997 when there occurred an incident at the prison which resulted in charges of prison mutiny against the applicant and others. It is the trial of those charges which is currently in progress at Newcastle Crown Court. In those proceedings the applicant's defence to the charge of mutiny is that he has been "fitted up" by prison officers, ie that they are fabricating an account against him. Their motivation is said to be in part that he has brought the Prison Service into disrepute, one of the reasons for this being that he managed to escape from HMP Frankland but was never prosecuted for it and has publicly alleged that he was assisted in his escape by prison officers. Prosecution witnesses have already been cross-examined on the basis that the applicant paid a prison officer to assist him in that escape. The applicant himself is due to give evidence next week. He says that in order to establish his defence he must give a full and frank account of what took place at HMP Frankland and that, to avoid his defence being undermined, it will be necessary to name the officer who was paid for his assistance.
7. As I have already indicated, the case is that the officer to be named still works at HMP Frankland. The applicant himself was moved to HMP Frankland on 26 January 1999 for the purposes of the trial. It is one of the nearest prisons to the court. The applicant fears reprisals if the officer is named and the applicant continues to be located at HMP Frankland. That concern, which I will have to consider in greater detail in due course, lies at the heart of the present application. It explains why the applicant seeks to be relocated to a different prison for the remainder of the trial and contends that the refusal to relocate him interferes with his right to a fair trial and is unlawful.
8. Continuing with the factual history, during February 1999 the applicant made a number of allegations that prison officers at HMP Frankland were harassing and intimidating him to an extent that was having a severe impact upon his ability to participate in the trial. These matters included allegations that an officer named Gardner had intimidated the applicant and sought to provoke a violent reaction from him while on escort duty, and, most seriously that Officer Gardner had told him that if he did name the officer who assisted his escape, he would have his arms broken. There were also allegations of abuse and intimidation by other staff and a catalogue of complaints about aspects of the prison regime, including interference with his sleep, lack of food, inadequate exercise, non-payment of prison wages and so forth. The applicant's allegations were communicated to the...
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