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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Michael, R (on the application of) v HMP Whitemoor & Anor  EWCA Civ 29 (23 January 2020)
Cite as:  HRLR 5,  EWCA Civ 29,  WLR 2524,  4 All ER 190,  WLR(D) 41,  1 WLR 2524
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE WILLIAM DAVIS
Strand, London, WC2A 2LL
B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON LORD JUSTICE HOLROYDE
THE RT HON LADY JUSTICE NICOLA DAVIES DBE
| THE QUEEN on the application of JASON MICHAEL
|- and -
|(1) THE GOVERNOR OF HMP WHITEMOOR
(2) THE DIRECTOR OF HIGH SECURITY PRISONS
- and -
THE COUNTY COURT AT OXFORD
Eric Metcalfe (instructed by the Government Legal Department) for the Respondents
The Interested Party did not attend and was not represented
Hearing dates: 30 and 31 October 2019
Crown Copyright ©
The Lord Burnett of Maldon:
Summary of Conclusions
"(1) If the Secretary of State is satisfied, in the case of -
(a) a person remanded in custody in any part of the United Kingdom in connection with an offence;
(b) a person serving a sentence of imprisonment in any part of the United Kingdom; or
(c) a person not falling within paragraph (a) or (b) above who is detained in a prison in any part of the United Kingdom,
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 is desirable in the interests of justice or for the purposes of any public inquiry, the Secretary of State may direct that person to be taken to that place."
"If it appears that the prisoner's case will suffer detriment if they do not attend, this would be a strong case for allowing the production."
"An individual's rights under Article 6 are not absolute. They can be restricted provided this does not mean that the trial is unfair - i.e. if we restrict a prisoner's access to a court, we must be able to show that we did not restrict his ability to bring or defend his case (e.g., a production request might be refused if the prisoner is legally represented).
Restrictions must be for a legitimate reason and proportionate, e.g. a refusal on security grounds must be necessary for the risk identified."
"Many stages of the proceedings (particularly preliminary) can be dealt with in writing or by telephone if there are serious security concerns. The Court can advise on those hearings which must have the prisoner in attendance, and those which can be dealt with by other means.
Make use of the video links system. This is becoming more widely available …"
"4.1 When a decision has been made that the interests of justice require production at court, the normal security considerations (e.g. risk to the public) must be taken into account.
4.2 A prisoner does not have to be produced if the risk assessment indicates that the security risk outweighs the interests of justice. To defend a challenge under Article 6, we must be able to show that the decision is reasonable in all the circumstances – (alternatives to production have been considered – see Chapter 2).
Category A prisoners
All movement of Category A prisoners outside the prison must be authorised by the Directorate of High Security Prisons.
4.3 Chapters 37 and 38 of the Security Manual (PSO 1000) give instructions on escorting and security at court, with particular reference to Category A prisoners. These instructions must be followed."
"AND UPON the Court noting that the case concerns the Claimant's liberty and that he asserts that he suffers from a disability which makes it difficult for him to participate via video link in a hearing and that therefore there are strong arguments that show that it would be in the interests of justice for him to be present in Court to present his case
AND UPON the court noting that the Claimant has provided a copy of a letter showing that the application for a production order was made to the Prison governor who indicates that the interests of security are being prioritised which is arguably a breach of the Claimant's Article 6 rights but that no final decision on the Claimant's request for a production order appears to have been reached
AND UPON the Court noting that the correct remedy for a refusal of a production order would be a claim for judicial review when a decision is reached
AND UPON the Court directing the attention of the Governor and the Claimant to the provisions of PSO 4625...
IT IS ORDERED THAT the application for a production order is dismissed ..."
He directed that the order be served on the Governor of the prison.
"You have asked for a definitive answer as to whether we will provide you to court. Careful consideration has been given to your request, however the response to this question is no, this cannot be facilitated. The Court has been contacted and they confirm the hearing will take place in chambers, not in a court room and there is no secure dock available. Furthermore, as a Category A prisoner with a High risk of harm to the public the security risk of producing you in court outweighs the interests of justice.
We note your claim that disability makes it difficult for you to participate via video link, but we are aware that you have used this facility before. In the interests of a Right to a Fair Trial we have received confirmation that video link facilities are available. If you require adjustments with the link, e.g. angle of the camera or zoom, then application can be made to the Judge, or you can speak with the staff facilitating the link, as there will be no court clerk. Should you require any further assistance during the hearing then it would be possible for an additional member of staff to be present, purely to offer additional understanding of what is being relayed. As your Offender Supervisor I would be happy to carry out this role should you require it.
The offer of a video link with additional assistance complies with PSO 4625 as this facility will allow you the ability to argue your case."
i) The Notice of Allocation to the Small Claims Track (Hearing) dated 17 May 2017. The Deputy District Judge ordered that the hearing be listed "in a court room with both a secure dock and video-link facilities".
ii) The Notice of Hearing for 21 September 2017.
iii) Mr Michael's application of 5 June (452/17) to the litigation department of the prison in which he referred to the hearing date and said he required transport. He also said that there would be a secure dock, that he was a litigant in person and that he was happy to discuss the issue. He made no reference to any medical problems.
iv) The litigation department's reply of 6 June noted that the decision rested with the security department, that production must be authorised by the Directorate of High Security Prisons and that the security department would need to liaise directly with the court to arrange either a video-link or production. The response advised that Mr Michael get in touch with the security department and provide them with the allocation order.
v) Mr Michael's further application (460/17) on 8 June 2017, marked for the attention of the security department. He referred to the hearing listed for 21 September, repeated that he was a litigant in person and that there would be a secure dock. He said that he wished to discuss the matter and was aware of another Category A prisoner having been produced at Oxford County Court to a secure dock in 2015. He made no reference to medical problems. He added:"I am aware that I am a Category A prisoner, but I do not (and have never) required any police escort. I have previously had the secure dock made ready for a hearing at Oxford, but my presence was not necessary that time."
vi) In response to that application, a senior manager wrote a note informing Mr Michael that "the court will need to contact us regarding your court case, until we know what the court wishes to do we are unable to make a decision".
vii) The application to the County Court seeking an order for production. Mr Michael asked for the application for the production order to be served on the governor of the prison via the Government Legal Department. The respondent has not suggested that the application was not served, although there is a lack of clarity about where it ended up and who saw it. Ms Cox had the recorder's order but did not have the application or supporting material. In support of the application the appellant filed a witness statement, in which he said:"In December 2016 I provided evidence of a Pervasive Development Disorder and/or Aspergers/ASD to the Court to highlight certain issues that I encounter that places me at a disadvantage when having intercourse, which is compounded by the video-link."His arguments in support of the order he sought from the court included that as a litigant in person with a pervasive development disorder he would be at a disadvantage if he were not physically present when the other side were being represented. He relied upon article 6 ECHR. He referred to a large number of external medical visits he had made whilst a Category A prisoner, emphasising that no additional police (as opposed to prison) escort had been required. He referred to the problems he considered he had faced at the hearing by video-link in December 2016. Mr Michael also attached to his witness statement a two-page "conclusions and recommendations" section of a report by Dr Carly Wilson, a chartered consulting psychologist, which refers to his difficulty with social interaction and social communication and his worry about how he is being perceived. Its conclusion was that his difficulty in understanding the thoughts and feelings of others could cause conflict. The extract did not confirm the claimed medical problems nor that as a result of them engagement via video link was more or less likely to be effective for Mr Michael.
viii) Mr Michael's further request of 22 August to the governor of the prison that he be produced at the hearing of his claim. He enclosed a copy of the County Court order and said that he would be happy for any representative of the litigation department to visit him so that he could provide further information. He warned that he might start legal proceedings if no suitable response was received within seven days. He also submitted a formal complaint (WRI/17/2112), to which he attached a copy of the County Court order and a copy of his letter to the "governing governor". He reiterated his wish to be produced at court in 21 September and complained that he had not received a final response to his applications.
ix) Another application for production the following day (627/17), 23 August, to the litigation department. The reply of 24 August quoted from the earlier letter of 6 June, noted that it would be for the governor to decide and stated that it was highly unlikely that production for a civil court hearing would be authorised for a Category A prisoner. It continued by repeating that it was not for the litigation department to decide.
x) On 29 August 2017 Mr Michael submitted a formal complaint to the governor (2148) in which he complained that "No one wishes to give a definitive answer and that is what is legally required". He asked for a definitive answer. On 1 September a governor wrote on it that the request would be referred to the Offender Management Unit in the Ministry of Justice and a decision would be made in due course.
"I have checked the [computer] records and there is no note of the claimant informing the prison that he had difficulties with video links. I am also not personally aware of the claimant having objected previously to using the video-link facilities in other cases nor am I aware of his having experienced any difficult in using these facilities."
The context of this observation is Mr Michael's reliance on medical difficulties. Prison staff do not have access to a prisoner's medical records and whatever information may have been provided to the County Court in 2016, it was not known to Ms Cox. Mr Michael agrees that he had not previously objected to using a video-link; indeed, he positively distinguishes his request in connection with this hearing from that of his general approach as demonstrating the importance of the issue to him.
The Judgment Below
"affect his capacity to engage in the process of the civil court trial although the psychologists' reports do not address that issue specifically. The psychologists do not consider whether Mr Michael would be more or less able to engage in the process were he to participate by [video link]. The behavioural issues which are said to render a [video-link] hearing unfair may make it difficult for Mr Michael to deal with situations which can arise in the setting of a court hearing. There is no evidence before me that those difficulties would be exacerbated if the hearing were to be via [video-link]. There is no evidence in relation to Mr Michael's personality and psychological make-up which would have led the reasonable decision-maker to the conclusion that personal attendance at court was necessary."
The article 6 grounds
"In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
"However, in respect of non-criminal matters there is no absolute right to be present at one's trial, except in respect of a limited category of cases, such as those where personal character and manner of life of the person concerned is directly relevant to the subject matter of the case (see for, for example, X v Sweden, No. 434/58, p. 370, 1959 and Muyldermans v Belgium,  ECHR 42, 23 October 1991 para 64, Series A no. 214-A). It is incumbent on the applicant to show that his presence is necessary (see X v Switzerland no. 7370/76, 1977).
"Although the participation of the defendant in his trial by video conference is not, as such, contrary to the Convention, it is incumbent on the Court to ensure that recourse to the measure in any given case serves a legitimate aim and that the arrangements for the submission of evidence are compatible with the requirements of due process as laid down in Article 6 of the Convention."
"at a substantial disadvantage as compared with the other parties to the proceedings, and that [he] had an opportunity to exercise the rights and entitlement inherent in the concept of a fair trial, as enshrined in Article 6."
"84. Bearing in mind that there could be practical difficulties in ensuring the applicant's own presence at the civil hearing …. the Court reiterates that Article 6 of the Convention does not guarantee the right to be heard in person at a civil court, but rather a more general right to present one's case effectively before the court and to enjoy equality of arms with the opposing side. Article 6.1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights. … For instance, as a way of securing the applicant's participation in the proceedings, the national authorities could have held a session by way of video link or in the detention facility. … However, these options were not considered."
i) The Convention does not guarantee the right of personal attendance before a civil court. The question is whether the applicant, a party to the civil proceedings, has been given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent, ;
ii) In cases where the applicant is in custody, the Court has accepted that, in view of the obvious difficulties involved in transporting prisoners from one location to another, representation of the detained applicant by a lawyer would not be in breach of the principle of equality of arms provided that the claim was not based on the applicant's personal experience, ;
iii) The personal participation of the litigant was held to be necessary from the standpoint of article 6 in cases where the character and way of life of the person concerned was directly relevant to the subject matter of the case or where the decision involved the person's conduct or experience, ;
iv) If the claim is based largely on the detainee's personal experience, his oral submissions to the court would be "an important part of [his or her] presentation of the case and virtually the only way to ensure adversarial proceedings" (see Margaretic v Croatia (App. No. 16115/13,  ECHR 576) at , 5 June 2014). Only by testifying in person could the detainee substantiate his claims and answer the judge's questions, if any. In these circumstances, obvious solutions would be to conduct the proceedings at the place where the claimant is being detained, or to use a video link, ;
v) As regards the use of a video link or video-conferencing equipment, this form of participation in proceedings is aimed, among other things, at reducing the delays incurred in transferring detainees and thus simplifying and accelerating the proceedings: Kabwe and Marcello Viola. Resorting to such facilities is not, as such, incompatible with the notion of a fair and public hearing, but the detainee must be able to follow the proceedings, to see the persons present and hear what is being said. He must be seen and heard by the other parties, the judge and witnesses, without technical impediment: Sakhnovskiy v. Russia [GC] (App. No. 21272/03,  ECHR 1673) at , 2 November 2010, and Marcello Viola, ;
vi) Organising a court hearing outside the courtroom is, by contrast, a time-consuming exercise. In addition, holding it in a place such as a detention facility, to which the general public in principle has no access, is attended by the risk of undermining its public character. In such cases, the State is under an obligation to take compensatory measures to ensure that the public and the media are duly informed about the place of the hearing and are granted effective access (see Starokadomskiy v Russia (No. 2) (App. No. 27455/060,  ECHR 266) at -, 13 March 2014, and Riepan v Austria (App. No. 35115/97,  ECHR 575) at , .
Unlawful Fettering of Discretion
The False Factual Premise
"The relevant question is … whether the Tribunal would, if its members had properly directed themselves by reference to the relevant factors, undoubtedly have arrived at the same decision as they did. Lewis in Judicial Remedies in Public Law (2004), paras. 11-026 to 11-029 reviews the relevant authorities and points to 'the danger that the court might substitute its own view of the merits of the case for that of the decision-maker'; with the support of Feldman in English Public Law (2004) para. 18.67 (cf also Fordham's Judicial Review Handbook, 4th Ed., para.4.4) Lewis concludes that:
'For these reasons, the courts should not refuse relief unless the same decision would undoubtedly be reached irrespective of the error, and there is a clear countervailing public interest in not quashing the decision'.
Among the authorities illustrating this principle are R v. Inner London Coroner, ex p Dallaglio  4 AER 129, 155e (where Simon Brown LJ was 'not prepared to say that a fresh coroner would be bound to' reach the same decision), Simplex GE (Holdings) Ltd. v. Secretary of State for the Environment  3 PLR 25, 42 (where Purchas LJ said: 'It is not necessary for [the claimant] to show that the minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the minister necessarily would still have made the same decision') and Raji v. General Medical Council  1 WLR 1052 (PC), para. 17 (where the Privy Council said that 'the possibility cannot entirely be excluded that Dr Raji was disadvantaged by the flawed procedure'); cf also R (Amin) v. Secretary of State for the Home Department  1 AC 653, paras. 39 per Lord Bingham of Cornhill and 52, per Lord Steyn.
The Bourgass Point