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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bloggs 61, R (on the application of) v Secretary of State for the Home Department [2003] EWCA Civ 686 (18 June 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/686.html Cite as: [2003] WLR 2724, [2003] 1 WLR 2724, [2003] EWCA Civ 686 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE OUSELEY
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MUMMERY
and
LORD JUSTICE KEENE
____________________
THE QUEEN On the application of Bloggs 61 |
Appellant |
|
- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Mr Robert Jay QC (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 18th March 2003
____________________
Crown Copyright ©
Lord Justice Auld :
The issues
(1) whether representations allegedly made by police officers to the appellant could and did give him a legitimate expectation as against the Prison Service that it would retain him within one of its protected witness units for the length of his prison service;
(2) whether the proposed removal of the appellant from the unit to which he had been admitted would be a breach of his right to life under Article 2 of Schedule 1 to the Human Rights Act
1998; and possibly
(3) whether, with or without such a legitimate expectation or breach of Article 2, the Prison Service's proposed removal of him from a protected witness unit to a mainstream prison regime is so unfair as to amount to an abuse of power.
The legal framework
"(1) A prisoner may be lawfully confined in any prison.
(2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison."
And Rule 45(1) of the Prison Rules 1999, made pursuant to section 47(1) of the 1952 Act, provides:
"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."
Although Mr. Richard Clayton, QC, who appears for the appellant, demurred at the proposition, it is clear that that Rule, in the use of the words "in his own interests", includes the power to segregate a prisoner who is vulnerable to attack from fellow inmates for whatever reason, including the fact or suspicion that he is a police informer.
"Protected Witness Units maintain the anonymity of, and provide secure and safe custody for Protected Witnesses, whose lives may be endangered were they to encounter other prisoners. Accommodating such prisoners in a PWU ensures that there is no contact between a PW and anyone else outside the unit, other than those with a legitimate reason, and proper authority, for access."
"5. Nor should promises be made which [a police] officer has no power to honour, e.g. treatment or location within the prison system The concern of the CPS is that nothing should be done which could be interpreted by the court as an inducement that would prejudge a trial".
" This report will form the basis on which a decision is reached by Prison Service Headquarters about an informant's eligibility to be treated as a protected witness and should include information about his criminal record, the present charges and details of the help which the police envisage that the informant will provide."
"The senior officer responsible for the decision to regard a prisoner as a resident informant or an officer of equivalent rank should periodically review the case (at least) once every 3 months) in consultation with the local Chief Crown Prosecutor to ensure that continued grant of resident informant status is justified."
"7.1 The responsibility for assigning prisoners Protected Witness status and for allocating prisoners to PWUs lies with the National Operations Units in Security Group. The staff of this unit will liaise closely with Police Advisers Section."
"7.4 NOU [the Prison Service National Operations Unit] will consider, annually, whether the threat to the prisoner has diminished sufficiently that the prisoner may safely be re-integrated in the general prison population. In making this assessment, staff in NOU will need to consider the views of staff and managers at the PWU, and of the prisoner's handler in the police "
Thus, the Prison Service is required to review annually whether the threat to a prisoner in a protected witness unit has diminished so that he may be safely returned to another specialist unit such as vulnerable prisoner unit or to mainstream prison conditions.
"1.15. the PW will look to the handler for advice, assistance and support. This handler will be a central figure in the management of the prisoner.
1.16 It is likely that the handler from the police will have had much to do with the PW when he was first arrested and charged, and will be one of the few people who know the case of the PW intimately. The handler may also have had frequent handler dealings with the PW during his lengthy de-briefing. This is more likely if the PW has spent any considerable time in police custody on production. As such, [prison] staff must be aware the PW will have learnt to rely on the handler, much as some prisoners rely on personal officers. PWs newly arrived in a PWU are likely to want to maintain close ties with their handlers."
"18. The Assistant Chief Constable or other authorised officer should advise informants that .they should expect no advantage in the conditions of detention or in their general circumstances consequent upon their giving information to the police. It is also recommended that the authorising officer will wish to consider drawing up a written contract between the police and the resident informant as a means of protecting all parties. This officer should also be responsible for ensuring that suitable arrangements are made for the protection of the resident informant, e.g. identity etc, on release from prison and for the protection of the informant's family." [my emphasis]
The Facts
"If 61 is to be relocated and recategorized, how is the process to be handled? I would wish [Mr Golds] to confirm how this is to be done, and that he is completely satisfied that relocation is feasible and safe for this man.
My own view is that he will have difficulty in Prison, not only because he is a 'first timer' and very naοve in the ways of Prison, but that to account for the last 18 months will be almost impossible, and will potentially place him in danger. I am aware too that creating a new file may prove difficult. If this man was 'an old lag' he might just be able to carry a move off, however having discussed it with him, I fear he is a lamb to the slaughter."
Notwithstanding this fear, he concluded his letter in somewhat more qualified terms by saying that, on the basis of his information, " [he was] not convinced that a move for this man [was] in his interests and could be extremely dangerous for him".
" You are aware that the PW Operating Standards require the Prison Service to review the status of PWs annually. I took the opportunity to review the status of 61 when we received a report that he was not to be used in any criminal proceedings.
Given the above and the current threat assessment received from the police it became clear that he no longer warranted PW status. I therefore commissioned a re-entry strategy back into the main prison system. This is now well advanced. I spoke with him on my visit and outlined the proposals and will ensure that the necessary procedures are put in place before he is moved.
I am uncertain as to your future role with ..[61], when he leaves custody he will not receive a change of identity and intends to settle with his family. I would therefore propose that any responsibility for his resettlement rest with the prison probation officer.
I am more than content to discuss this issue further and will add this to the agenda for our next meeting. Which will need to take place shortly to reflect that [Bloggs 61] is now part of the system. "
"13. This is a factor to be taken into account in deciding whether the claimant should remain in a Protected Witness Unit. But the defendant regards this factor as of little weight. It does not tip the balance in favour of keeping the claimant in a Protected Witness Unit. As I have stated , places in Protected Witness Units are very expensive and demand exceeds supply.
And, in a clear reference to Mr. Ayers' more general concerns, he said:
[15]. The defendant is satisfied that arrangements can be made for the claimant to be placed in the mainstream prison system in safety. The defendant intends to place the claimant in an establishment appropriate to his security category, taking into account his individual needs and offering him the opportunity to maintain contact with family and friends. He will be carefully prepared for his re-entry into the mainstream prison system and the Governor of the receiving prison will be briefed as to the claimant's full prison history. Following his return to the mainstream prison system the claimant's parole and all other sentence planning matters will progress normally. Disclosure of his previous location within a Protected Witness Unit will be limited to the Governor and a member of the prison's security staff. His prison record will be amended so as not to show that he has been located within a Protected Witness Unit. An appropriate cover story will be provided, to explain the time spent in the Protected Witness Unit, indicating that the claimant has progressed normally through the prison system, to a lower category prison. While the defendant will make every effort to ensure that this cover story is maintained, considerable responsibility for the maintenance of this cover will of necessity rest with the claimant. If the claim for judicial review is dismissed, the defendant will reassess the proposed arrangements, to ensure that they take account of any new information."
The claim
The first issue legitimate expectation
The submissions
"the ostensible authority is general in character, arising when the principal has placed the agent in a position which in the outside world is generally regarded as carrying authority to enter into transactions of the kind in question."
Conclusions on legitimate expectation
"34. There is an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power, Ex p. Coughlan [2001] QB 213. But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. Public law can also take into account the hierarchy of individual rights which exist under theHuman Rights Act
1998 .
35. In the Western Fish case [1981] 2 All ER 204 the Court of Appeal tried its best to reconcile . invocations of estoppel with the general principle that a public authority cannot be estopped from exercising a statutory discretion or performing a public duty. But [i]t seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet."
. " Legitimate expectation involves notions of fairness and unless the person making the representation has actual or ostensible authority to speak on behalf of a public body, there is no reason why the recipient of the representation should be allowed to hold the public body to the terms of the representation. He might subjectively have acquired the expectation, but it would not be a legitimate one, that is to say it would not be one to which he was entitled."
The Submissions
. "As a direct result of the decision of the CPS not to use the claimant's witness statement against a major criminal (i.e. the statement which led to the claimant's admission to a Protected Witness Unit), there is no current police investigation into the person who was the subject of that statement. . Police intelligence has no evidence of any current threat to Bloggs 61. The Subject is a sophisticated criminal. Police intelligence is that this individual, and his associates, will take a business-like approach to Bloggs 61: as Bloggs 61 has not caused them any damage, it would be unwise for them to court police attention by taking reprisals against him. The original police risk assessment, dated 19th June 2001, states that no representative from the Subject or his associates' organisation were present at the trial of his co-accused, and that giving evidence against his co-accused has not resulted in any increased threat to the claimant."
Conclusions on the Article 2 issue
"115. the first sentence of Article 2(1) enjoins the State to take appropriate steps to safeguard the lives of those within its jurisdiction. Article 2 may imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.
"116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible burden or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. . it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case. " [my emphasis]
"We consider that the appropriate course is to consider first the nature of the subjective fears that that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to be balanced against the adverse consequences to the inquiry of the move of venue, applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision. This course will, we believe, accommodate both the requirements of article 2 and the common law requirement that the procedure should be fair."
" First, the requirement that the authorities knew or ought to have known of the risk will usually be satisfied much more readily in relation to a prisoner, particularly one who has assisted the authorities, than in relation to a member of the community in general. Secondly, the authorities are in position to take measures to avoid any risk to an extent much greater than are the police in relation to a member of the community. Thirdly, the authorities are likely to be less inhibited by restraints imposed on the scope of their actions by the need to respect the human rights of others, since providing a protective regime is unlikely to affect the rights of others."
"38 the word 'immediate' should not be understood, in the context of decisions on admission to a protective regime, to mean that the threat will necessarily materialise in the very near future. That would be appropriate if a particular threat required urgent measures. However, the kind of risk to be assessed in this context is of harm to the prisoner as and when those wishing him harm find an opportunity. This case concerns a decision whether the risk is sufficient to justify entry to an available protective regime. That implies an assessment of the risk of harm within a period until the decision is reviewed. In my view the question to be asked is whether there is a real risk to the life of the prisoner if he is not admitted to a PWU, rather than some alternative regime, for whatever period is being considered. However, immediacy requires that the risk must be present and continuing. A real risk is one that is not simply a fear felt by the prisoner, but is disclosed by all the information available. "
"121. . the question to be asked before entry to a PWU is whether there is a real and immediate risk to the life of the Claimant if he is not admitted to a PWU, rather than some alternative regime, for whatever period is being considered. Since a year is the normal period between reviews, that is the relevant period. Immediacy must be considered in that context. Where a prisoner has previously been properly admitted to a PWU, it is in my judgment incumbent on the Prison Service to satisfy itself that the risk is no longer such as to require admission. . "
"In R v. Governor of Pentonville Prison, Ex p. Fernandez [1971] 1 WLR 987, after adumbrating the various phrases which he considered expressed the same degree of likelihood of risk, Lord Diplock referred, at p. 994, to the alternative of 'applying, untrammelled by semantics, principles of common sense and common humanity'. We believe that there is much to commend that approach in the present case. The search for a phrase which encapsulates a threshold of risk which engages article 2 is a search for a chimera. Of one thing we are quite clear. The degree of risk described as 'real and immediate' in Osman ., as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was 'a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party' which was, or ought to have been, known to the authorities: p. 305, para. 116. Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate one in the present context."
" the Court's task is not to substitute its own view for that of the [decision makers], but to review their decision with an intensity appropriate to all the circumstances of the case."
The third issue ? -Unfairness amounting to an abuse of power
"I add, from the claimant's point of view, the decision of Mr. Golds is undoubtedly seen as a betrayal and on the assumption that the claimant is right about what was said to him, it can readily be seen to be unfair from his perspective. But that and any impact which that might have on the operation of the Bloggs system, including the disclosure of the identity of its inmates or the effectiveness of informants is not a matter for me. It is a matter for the police and Prison Service together. No challenge to Mr. Golds' decision has been raised on that basis. I am only concerned insofar as those feelings of the claimant have any effect upon the risk to which he is subject. I do not consider that the obligations of common sense and humanity, which are directly relevant to the assessment of the degree of risk and the protective measures required, can mean that the PWU should contain someone when that protection is not warranted. I say that even though it is impossible to avoid a strong sense that, on the factual assumptions which I make, the claimant has a justified sense of grievance which it would at least be desirable to assuage. But from a legal point of view such assuaging has to be set in a principled legal framework which here I cannot find."
Lord Justice Mummery:
Lord Justice Keene: