Cooper v Her Majesty's Prison Service [2005] EWHC 1715 (Admin)

Case No CO/293/2005[2005] EWHC 1715 (Admin)IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 29 th July 2005
Before
MR JUSTICE OUSELEY
Between
MICHAEL IVAN COOPERClaimantHER MAJESTY’S PRISON SERVICEDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr C Prior (instructed by Birchall Blackburn, Manchester) for ClaimantMr S Grodzinski (instructed by Treasury Solicitors, London) for Defendant
Judgment
[1]This case concerns two applications for judicial review of decisions taken by the Governor of HMP Bristol on 21st October 2004 or thereabouts. The first concerns the categorisation of the Claimant from a Category C to a Category B prisoner and the second is a decision not to allow him continuing access to his own personal computer.[2]There was also an application to amend these grounds so as to add a claim concerning what was said to be a policy or practice by the Defendant, and the governors of other prisons where the Claimant had been held, of opening or intercepting his legally privileged mail contrary to the provisions of the Prison Rules. I shall deal with that later.[3]The Claimant was not produced for this hearing as a result of an order made by Walker J after the consideration of written representations. Walker J was concerned that the production of the Claimant would lead to delays in the hearing as a result of his past experience of delay and because he concluded that there was no need for the Claimant to be present. This application was renewed before me or was renewed in the form of a new suggestion that there should be a video link to the prison. I rejected this last minute suggestion in a separate ruling.[4]The Claimant was available to give instructions at the end of a telephone which had been made available to him all day in Bristol. He used it immediately after the short adjournment to instruct both Counsel and Solicitors no longer to act for him and accordingly at that stage, Mr Prior withdrew from the Court. Mr Prior at that stage had completed most of his submissions and had yet to deal with the detail of his arguments on access to the personal computer. He had dealt with the details of the contentions about interference with mail, because that was said to relate in part to the arguments concerning the Claimant’s need for access to his own personal computer. He made no application for an adjournment for the Claimant to attend. I have however considered all the arguments raised in the Claimant’s skeleton arguments.[5]The Claimant is a prisoner who is serving a discretionary life sentence imposed on 12th September 1997 for two counts of rape. He is also serving concurrent determinate sentences for false imprisonment, threats to kill and assault occasioning actual bodily harm. These were committed on the same occasions. His tariff expired in June 2003. Categorisation[6]In December 2002 the Claimant was moved to HMP Shepton Mallet and recategorised from Category B down to Category C. However, on about 2nd August 2004, he was recategorised there as Category B because the police were seeking to question him about a further serious indecent assault which it was alleged he committed in 1992, some three to four years before he committed the two rapes. DNA evidence was said to link him to the earlier offence. Although the recategorisation form refers to the Claimant having been charged at the time of his recategorisation at Shepton Mallet, he was not in fact charged until 3 August 2004. In reality the Governor at Shepton Mallet knew of the allegation against the Claimant because the police would have had to give him 7 days notice in order to have a serving prisoner moved for questioning. The substance of the allegation would have been known to the Governor at that time. The Claimant’s trial has been reset for late August or early September 2005, having been postponed from March because the Claimant sacked his barrister on the opening day. The Shepton Mallet decision is not the subject of the judicial review.[7]From 4 August 2004 until 3 September 2004 the Claimant was held in Winchester, as the local prison for Aldershot where the police were questioning him. There, he was categorised as Category B as are all remand prisoners in the absence of exceptional circumstances. No judicial review arises in respect of that period. On 3 September 2004 he was transferred to Bristol where as a “remand” prisoner facing further charges he was initially again treated as a Category B prisoner.[8]Governor Memery, a residential governor at HMP Bristol, who is responsible for several wings of the prison including the lifer wing where the Claimant is detained, explained what happened after the Claimant’s arrival at Bristol. Although a remand prisoner would normally be treated as a Category B prisoner anyway, she explained that she had taken the view that it was necessary to consider substantively the security categorisation of the Claimant. On 6 September 2004 the Claimant sought, through a complaint form, a written explanation as to why his Category C status had been removed. Over the course of the days thereafter she had many conversations with the Claimant about his categorisation, because he raised the point with her on her daily round of his wing. He made detailed and strong verbal representations to her amongst many other matters of complaint. He was making the point that even if convicted of this earlier offence, his sentence would run concurrently with his life sentence and so he would not serve any longer time and in any event the indecent assault charge was in his view less serious than the two rapes of which he had been convicted and so could not affect his security category. Governor Memery explained to him that the indecent assault charge would be relevant to the view taken by the Parole Board of the risk which he would present to the public and that if he were likely on that account to be detained longer, the risk of escape would also increase. She said that she discussed the categorisation of the Claimant with Governor Bell, the then Governing Governor and with his Deputy Governor, Johnson and with Principal Officer Philips. She responded on 14th September 2004 to the complaint of 6 September 2004 by saying that the Claimant had been charged and remanded on further serious offences and so his Category had been amended.[9]Two days before that, on 12 September 2004 the Claimant submitted a further detailed written complaint in relation to his Category. He repeated at some length the points which I have already set out in relation to the relative seriousness of the offence and the fact that any sentence would run concurrently with his life sentence. He also alleged that his categorisation was being manipulated by the Prison Service. He denied that new charges would lead to an escape, pointing out that he had not sought to abscond in 1997.[10]The formal process for recategorisation started on 3 October 2004 when Principal Officer Philips completed the relevant form on which such decisions are recorded. He discussed the matter first with Governor Memery. I accept the evidence that, notwithstanding the date of 3 September 2004 on the form, the form was in fact completed on 3 October 2004. I also accept that in discussing the matter with PO Philips, Governor Memery was aware of and communicated to PO Philips the representations in the complaint form of 12 September 2004. The recommendation by PO Phillips was subsequently endorsed and countersigned by the Governing Governor, Mr Bell. Governor Memery states that she had discussions with him telling him of the representations by the Claimant before he countersigned the recommendation. The precise date on which he signed the form is unknown and the form itself surprisingly has been lost. But it is the decision comprised in the recommendation of 3 October 2004 and its subsequent acceptance by Governor Bell which is the recategorisation decision under challenge in this judicial review.[11]The recommendation by PO Philips was based on the further alleged offence in 1992 and pointed to the significance of the fact that the victim was not known to the Claimant, whereas the two women whom he had raped were known to him. The Claimant continued to deny both the alleged 1992 offence and those for which he was sentenced to life imprisonment. The recommendation pointed out that the Claimant would have to be the subject of a further risk assessment if he were found guilty.[12]On 13 October 2004 Governor Memery responded in writing to the 12 September 2004 complaint. She said that she had explained to the Claimant verbally and in writing why he had been recategorised to Category B and that this was a recategorisation completed at Bristol. She said that the decision stood notwithstanding the written submissions. She also pointed out that had she felt that those representations showed any earlier decision to be wrong, she would have felt free to advise the Governor that a different decision should be made.[13]On 9 December 2004 the Claimant appealed against that rejection of 13 October 2004. The new Governing Governor, now Governor Johnson, considered and rejected the appeal. The basis of the appeal was that the Claimant had not been given the reasons and evidence for his regressive transfer and that as he was also innocent of the new charge, it could not lead to an increase in his sentence because he would in effect be out of tariff anyway. The decision rejecting the appeal said that Governor Memery had previously provided the reasons for the regressive transfer, the relevant provision of the Prison Service Instructions related to “concerns about risk or safety” and there were concerns over risk here. A further alleged offence sufficed to raise that concern. The fact that he might be out of tariff did not necessarily mean that the risk had been reduced; had the 1992 allegation come to light before he was downgraded to Category C, that downgrading would have been affected.[14]I turn to the statutory provisions. Section 12 Prison Act 1952 empowers the Secretary of State to direct where prisoners are to be held and to move them from prison to prison. Section 47 permits him to make Rules for the categorisation of prisoners. The Prison Rules 1999, s.i. 728 Rule 7 requires prisoners to be categorised according to directions given by the Secretary of State having regard to age, record, temperament, the maintenance of good order and furthering their training and treatment. Prison Service Instruction 08/2004 Rule 7 requires a lifer to be held in the lowest security category suitable for the stage reached in his sentence unless there is clear evidence of a risk of escape or of a risk to the public. Rules 23-25 of Instructions provide under the heading “Regressive moves in closed conditions” as follows:- “23. Decisions about the regressive moves of lifers in closed conditions are made by the Operational Senior Managers in the event of: . poor behaviour . failure to comply with the regime . concerns of about risk or security . non-suitability for the current allocation (for example, not complying with the sentence planning process or failing to progressively reduce risk) as recorded on LSP3B and 3E reports. RCI must be used in the case for regressing a lifer to a higher security category.24. The prisoner must be provided with the evidence and reasons for the regressive transfer. Information can only be withheld on security grounds or to protect the safety of a third party. The prisoner must be given the opportunity to make representations against the decision through the usual complaints process.25. If a regression move is for urgent operational reasons and no prior disclosure of this was possible, the prisoner must be allowed the opportunity to make representations as soon as possible after the move. The fact that a decision to change the category of a lifer has not been made does not prevent the prisoner being moved.” . poor behaviour . failure to comply with the regime . concerns of about risk or security . non-suitability for the current allocation (for example, not complying with the sentence planning process or failing to progressively reduce risk) as recorded on LSP3B and 3E reports. RCI must be used in the case for regressing a lifer to a higher security category.[15]In general therefore the requirements for categorisation involve a consideration of the likelihood that a prisoner will seek to escape and of the level of risk which they would pose to the public were they to do so. There is an expectation that the level of risk will reduce as a prisoner passes through the system and approaches the release date or parole date because the risk of escape and offending will diminish. But this will not always be so. There are simple procedural requirements.[16]The procedural requirements for such a recategorisation were considered in R (Hirst) v SSHD [2001]EWCA Civ 378, which also concerned the recategorisation of a post-tariff discretionary lifer. Lord Woolf CJ said at paragraph 26:
“…It seems to me basic that a decision which is as important as the present decision to Mr Hirst should not be taken without giving him the opportunity to make representations and to have the matter properly considered as a consequence of his so doing. I think that there is some substance, but would not overvalue it, in the problem referred to by Lord Justice Simon Brown which arise in reconsidering a decision. However, regardless of that difficulty, it seems to me that a decision of this nature as a matter of fairness should not be taken until Mr Hirst had been fully involved. He should have been given a reasonable period to make representations before the decision was taken. He should have been given that opportunity after he had been told the grounds upon which it was appropriate to recategorise him. If in the meantime it was necessary to move him to more secure conditions, that could be done…”
[17]The reference to the problem considered by Simon Brown LJ was a reference to the problem of a SSHD who had reached a conclusion on whether to refer a case to the Court of Appeal then seeking to reach a fair conclusion on the same issue again when further evidence had emerged; R v SSHD ex parte Hickey No2 [1995]1WLR 734 at p744.[18]The Claimant contended that the decision to recategorise him was irrational because there was no increase in the risk that he would abscond or in the risk which he would pose were he to do so. He denied his involvement in the new alleged offence just as he did in respect of the two rapes, yet he had already progressed to Category C. His sentence could not be increased because he was already serving a life sentence, so any sentence on conviction would be served concurrently anyway, so neither the temptation to abscond nor the risk were he do so had been increased by the laying of the new charge.[19]It was also procedurally unfair because the recategorisation of the 6 September 2004 had taken place before he had been provided with the written reasons for it and the opportunity to make representations. This had not occurred until 3 October 2004 after the decision had already been taken. Indeed, the final decision was not communicated to him until December 2004. He had always been seeking the reason for the recategorisation. The Claimant had used the complaints procedure but that was to deal with decisions which had already been taken rather than to influence those which were still under consideration, which was his entitlement as a matter of procedural fairness.[20]There was a suggestion, it appeared at one point from Mr Prior, that the Claimant was alleging that the recategorisation had not been for the reasons which were given but had been undertaken to prevent him having access to his computer. However, Mr Prior clarified quickly enough that he was not alleging bad faith or ulterior motive and accepted that the reasons given for the recategorisation were the actual reasons for the decision. It was their rationality and procedural fairness which were challenged.[21]The reasons are clear. They can be seen in the RC1 form completed on 3 October 2004 by P O Philips. Essentially, the further offence was committed 5 years before the rape convictions, some 3 or 4 years before those offences themselves. This meant that the span of offending behaviour, if he were guilty, was longer than had previously been realised. Of greater importance, was the fact that the victim of the 1992 offence was unknown to him, unlike the rape victims. He would be the subject of a further risk assessment were he to be found guilty.[22]The suggestion that this conclusion was irrational is wholly untenable. Whilst I accept that any sentence would run concurrently with the life sentence currently being served, the notion that it could not affect the length of time in prison is absurd. The offence would be bound to be considered by the Parole Board and it could readily lead the Board to appraise the risk which the Claimant would pose on release rather differently from the way in which it otherwise would. Section 18(6)(c) Crime (Sentences) Act 1997 requires the Parole Board to be satisfied that it is “no longer necessary for the protection of the public that the prisoner should be confined”. The different nature of the offending circumstances if proved, could readily extend the period of imprisonment and hence the incentive to escape and the risk to life and limb were he to do so. The new allegation was of a violent, indecent assault on a stranger in a secluded place. The significance of this was that because the two rapes had been on people known to him, it meant that the range of people, who could now be at risk were he to escape, was much larger than had been thought. I do not understand the suggestion that the risk is unchanged because the Claimant has always denied the two rapes and now denies the indecent assault charge.[23]It was also suggested that the Claimant had an impeccable record of behaviour in prison for whatever relevance that may have. He does not. The “Security Information Reports”, which contain entries by prison and probation officers of concern about a prisoner’s behaviour, record quite recent incidents of sexually inappropriate remarks to female staff and of highly manipulative or confrontational and aggressive behaviour.[24]The contention that the decision was procedurally unfair is also not made out. As I have said the decision under challenge is the confirmation of the recommendation of 3 October 2004 at Bristol by Governor Bell. This was taken around 21 October 2004 but it may have been a little earlier. The challenge is not to any decision made at Shepton Mallet nor at Winchester. The decision in issue at Bristol was a substantive decision and not merely a decision that the Claimant should be in Category B because that is what remand prisoners are normally categorised as and the Claimant was a remand prisoner. Any earlier categorisation at Bristol would reflect simply the fact that the Claimant was a remand prisoner and that is not the basis of any complaint, nor could it be. He would be out of time in relation to any decisions around 3 September 2004 anyway.[25]I have already set out the chronology of events leading up to the decision. That chronology shows that the Claimant had plenty of opportunity to make and did make oral representations to Governor Memery on her daily wing rounds as governor of the wing where the Claimant was kept. He made to her the sort of points which he has made in these proceedings as to the justification for the recategorisation. He said that he would not receive an increased sentence and that the assault was less serious than the two rapes. He was also aware from what Governor Memery said to him that those points did not really address the issues of concern, which were the increased incentive to escape because of the way in which matters were likely to be viewed by the Parole Board and because of what the different circumstances of the alleged 1992 offence showed were the risks to a wider range of people were he to escape.[26]He also used the written complaints procedures as contemplated by the PSI to raise the issue, and although his complaints were addressed to decisions which he thought had been taken, his complaints showed what he had to say about the recategorisation decision which had yet to be taken. Governor Memery’s response to the complaint of 6 September 2004, on 14 September 2004 would also have given him a picture of the essential points with which he had to grapple. His detailed complaint of 12 September 2004 contained all that he could say. These matters were repeated to P O Philips who made the recommendation on the form RC1 on 3 October 2004. They were known to the Governing Governor, then Mr Bell, because Governor Memery told both of them about what he had to say. Governor Bell accepted the recommendation and confirmed the recategorisation. I see no reason to doubt Governor Memery when she says that she formed her own view, as did Governor Bell, about the recategorisation and did not simply rely on or continue what had been decided at Shepton Mallet or Winchester.[27]It is true that the answer to the 12 September 2004 complaint came after the recommendation of 3 October 2004. It is also true that no witness statement expressly says that the Claimant was told that there was a formal process of substantive recategorisation being undertaken. It seems unlikely that in the course of those conversations that Governor Memery would not have made the point that categorisation was being considered. But in any event, the Claimant said what he had to say about his categorisation and it was taken into account in the decision. I see no reason to doubt Governor Memery when she says that she would have reached a different conclusion on the complaint and on categorisation if she had felt it was justified. I add that this is not the sort of high profile case which caused Simon Brown LJ to express the concern which he did in Hickey and which Lord Woolf was less concerned about in Hirst.[28]Additionally, the Claimant had and took the opportunity of appealing against the rejection of the complaint on 13 October 2004. This appeal of 9 December 2004 was rejected by the new Governing Governor, Mr Johnson for the reasons which he gave and which are reflected in the response given in these proceedings. There is no reason to suppose that he would have been in any difficulty in departing from the decisions of his predecessors or from the recommendations of any of the more junior officers if he had thought the previous decisions or recommendations were wrong.[29]It is my judgment that the essential features of fairness as set out in Hirst are met. The Claimant knew that recategorisation was being considered at Bristol, even if only because he asked on three occasions that his categorisation be considered. The Claimant was able to, and did, make full oral and written comments about what his categorisation should be and why he should remain as Category C and those were taken into account before the recommendation and decision were made. The complaint of 12 September 2004 was considered relevant to the decision even though it was not answered until after the recommendation was made. The final decision was considered at the level above the recommending Officer and the wing Governor but it took into account all the material available to them. Finally, there was an appeal, which although not formally against the categorisation decision, was an appeal against a rejection of a complaint which raised all the same issues. That appeal was considered by the Governing Governor who had no reason not to consider it independently. Access to the computer[30]The second part of the claim relates to the refusal by the Governor of HMP Bristol to allow the Claimant to have the use of his personal computer. This decision was made in September 2004, maintained on several occasions and finally confirmed in a letter dated 21 October 2004 from the Briefing Casework Unit of the Prison Service.[31]When the Claimant was at Shepton Mallet, he, in common with the other prisoners there, was allowed access to his own personal computer in his cell. This was a policy normally followed at Shepton Mallet, but Shepton Mallet was wholly exceptional among prisons in that respect. Indeed, it was a policy which was already giving rise to serious concerns there and it was not a policy applied anywhere else. Shepton Mallet is a small prison containing exclusively Category C prisoners serving life sentences who, as such, would have significant incentives not to misuse that facility. HMP Bristol operates according to the normal prison policy under which access by a prisoner to his own computer and in his own cell would have been wholly exceptional. HMP Bristol is a local prison but it also contains first and second stage lifers. This more mixed population leads to a position very different from that in Shepton Mallet.[32]Prison Service Instruction 5/2002 governs prisoners’ access to a computer. The computers to which they are allowed access are Prison Service computers supplied and maintained by EDS, the Prison Service IT contractors. Paragraph 11 of PSI 5/2002 states that a prisoner will only be granted in-cell access to IT facilities, and that will be only to standard issue IT facilities, if he demonstrates a real need for this for the purposes of his legal work. Relevant factors will include whether a prisoner is represented by solicitors, whether the legal case requires the manipulation of data requiring IT facilities or where there is a significant relevant disability. Where a prisoner has previously been granted access to his own computer, that is to be replaced by a standard Prison Service issue computer, if he can demonstrate the relevant need for a computer at all.[33]The reasons for this policy are clear. Governor Memery’s statement identifies the problems of allowing a prisoner access to his own computer as including, for example the saving, hiding or encrypting of files which may contain escape plans or other illegal documents or images, forging official documents, creating databases of staff names and addresses, unauthorised access to other computer systems, gaining access to the Internet, accessing unlawful material or communicating illicitly by email. The IT contractors and the Prison Service lack the time and resources to check the hardrive and software of a prisoner’s own computer for material which may affect good order and security. Hence, the standard PCs provided to prisoners are limited to the requirements of a particular prisoner, principally word processing facilities, which means that prison staff do not have to check each computer for inappropriate material. Prisoners can also seek access to computers for purposes unconnected with legal proceedings such as educational purposes. The decisions on requests by prisoners to have access to their own computers are very much a matter for the discretion of the prison governor, as paragraph 34.25 of the Prison Security Manual (PSO 1000) makes clear. There are security requirements before any such request is granted. One of the requirements is that there is a suitably qualified member of staff available who can ensure that the computer does not have any undesirable material stored on it and it cannot contain a modem for accessing the Internet.[34]The main contention of the Claimant was not that the policy itself was improper nor that it had been improperly applied to the Claimant. Rather it was that the decision had ignored considerations peculiar to the Claimant which ought to have been taken into account for the purposes of making an exception to the policy. In particular, first, the computer held encrypted material which he needed in order to establish his alibi defence for the fresh charge; in particular he needed to transmit a letter to the Secret Intelligence Service which would only be considered if it arrived in encrypted form. He was apparently alleging that at the time of the alleged offence, he was abroad on its business. He also needed to transmit material which was subject to the Official Secrets Act. If the Claimant were unable to have that access, there would be an inequality of arms which would impinge upon the fairness of all his actions including the trial of the forthcoming criminal charge. Second, the Claimant had a number of complex legal cases under way for the purposes of which he needed access to the mass of information stored on his own computer. His legal proceedings include: criminal appeals against conviction and sentence, applications for judicial review in respect of escorted absence, various misfeasance claims against the Prison Service and the Hampshire Constabulary, a negligence claim against previous solicitors, and Parole Board hearings. He had previously been successful in compelling the SSHD to allow him to have it for the purposes of accessing encrypted material which he needed for his appeal against sentence.[35]Third, and this relates to the proposed amendment to the grounds of challenge, there had been interference by the Prison authorities with his legally privileged mail, and there was no certainty that, after it had been returned following use, they would not obtain or interfere with the information which might be input to the EDS computer.[36]The Claimant in fact has been offered the use of a standard issue Prison Service computer but that has not satisfied him because he says that that would not meet the needs which I have referred to and other concerns which he has. Indeed, he has turned down that offer. Governor Memery also offered the Claimant the opportunity to have his personal computer retrieved from storage and sent to his solicitors who would be able to use it and to access the material stored on it. The Briefing and Casework Unit repeated that offer on 21 October 2004. This too was originally rejected because the Claimant contended that his Solicitors could not use it in the way in which he thought necessary without breaching the Official Secrets Act. Further, in order to meet a new claim raised in the Claim Form that the material was so voluminous that he could not give instructions to his solicitors as to how to access the stored material, Governor Watts, in the absence of Governor Memery, offered to allow the claimant to have his personal computer with him in consultations with his solicitors, in part for the purpose of enabling him to give them those instructions. One such consultation has been held.[37]I deal first with the alleged need to correspond with SIS. There is no agreement that there is any relationship between SIS and the Claimant. However, Governor Memery, aware that the assertion is that the request for alibi assistance can only be sent to one computer and in an encrypted form, was prepared to retrieve the computer from storage and for his solicitors to send the necessary letter. Although she regarded the request as implausible, she also wrote to the SIS to see if it would be interested in receiving any communication from the Claimant but she received no reply. Governor Dymond-White, now the Governing Governor at HMP Bristol, also states in her Witness Statement, that she would be prepared to allow the Claimant to produce the encrypted letter during a legal consultation but out of sight of his solicitors. It would not be normal to allow prisoners to correspond with SIS, and even less so for them to send an encrypted letter. But she is prepared to make an exception in this case, provided the letter was indeed being sent to the SIS.[38]There has also been produced by the Claimant a letter dated 25 April 2005 purportedly from SIS which acknowledges a communication from the Claimant about his alibi, claimed to arise from a period when he says that he was working for SIS. It says that it holds no data on him to which he is entitled to have access but that that does not mean that it does not have other information on him. It is the policy of the Government neither to confirm nor deny publicly the existence of information or sources of information relating to SIS. It continues:
“Having said that this department remains aware of the prosecution being brought against you and is conscious of its disclosure obligations.”
Mr Grodzinski for the Defendant submitted that that showed that if there were anything relevant in any SIS files, SIS would reveal it for the benefit of the Claimant.[39]It is plain that the Prison Service has not ignored any material consideration in this respect and that its approach to access to the personal computer has been far from a rigid application of the Rules. This particular concern of the Claimant has been fully considered. The somewhat speculative point about the need for encrypted communication has largely been met. All that has not been permitted is for computer to computer encrypted communication by the Claimant. But he has not really shown any basis for the need for that. Certainly he has not shown that there is any legal flaw in the stance adopted by the Prison Service. I can see nothing either which would mean that the Claimant is being deprived of a proper opportunity to mount his defence to the 1992 assault charge or that he could properly allege any inequality of arms in that respect. I recognise that there may be certain circumstances in which access to a computer may be necessary to ensure equality of arms and it cannot be ruled out that it may require access to one’s own computer in certain circumstances, but nothing here shows this to be a case requiring unrestricted access as sought.[40]The second main point related to the mass of material on the Claimant’s computer and the complexity of the litigation to which it related. It also, he said, needed him to access the material and it would not be possible to instruct his solicitors on how to do that without the computer.[41]I regard the substance of this issue as having been dealt with by the various unusual concessions which the Prison Service has been prepared to make in this instance. The Claimant can have his personal computer in his legal consultations. He can also print off the material so that he can examine it in his cell. He can have access to a standard issue computer which will give him word processing facilities. I appreciate that that is less convenient than having one’s own computer available all the time in the cell. But the issue here is whether or not there has been a legal error by the Prison Service in its decisions. They are plainly not irrational and the relevant considerations have been taken into account. No rigid policy has been applied. I accept the submission by Mr Grodzinski to the effect that the operational decision of the Governor on access to personal computers as an exception to the normal Rule is very much a matter for his operational discretion. There is no evidence which supports the necessary contention that denial of access to the Claimant’s own computer as opposed to access to a standard issue computer is an irrational decision or one which ignores relevant factors.[42]I accept that the question of equality of arms may affect such a decision but the decision in R (Ponting) v Governor of HMP Whitemoor and the SSHD [2002] EWCA Civ 224, which recognises that access to a computer may sometimes be an aspect of equality of arms, does not do so in terms which offer any encouragement to such access on a general basis and still less to access to a private computer, which it is said has encryption software on it. I cannot see anything in the circumstances here which shows that access to the Claimant’s own computer is necessary for equality of arms and still less anything which shows that the access which has been granted is less than what is necessary for that purpose.[43]The Claimant misstates the position in relation to the earlier judicial review proceedings relating to his use of his personal computer. The application for permission in 2000 was refused on paper; the oral renewal was adjourned because there was insufficient information to support the case; the matter was resolved by an agreement approved by the judge whereby the Claimant was allowed access to his computer to retrieve material from the hard drive. The claim was then adjourned sine die by consent.[44]The third main point relates to the allegations of interference with privileged mail and what that is said to show for access to a standard issue PC by the Prison Service. I do not regard it as necessary to go into all the instances in which the Claimant says that there has been a breach of Prison Rule 39, which forbids the opening of privileged mail except in special circumstances. It is clear and cannot be denied that there have been several occasions upon which breaches have occurred. There have been admissions and apologies following complaints. There are allegations that some outgoing post has not been received by the addressee.[45]The Claimant’s evidence does not support the basic point which he seeks to make, which is that there is a deliberate policy of breaching his rights under Rule 39 and has been at the various prisons at which he has been held. At Bristol there are only four specific incidents identified over a period of ten months, although the Claimant says that at Bristol there have been seventy five pieces of mail, incoming and outgoing, which have been intercepted wrongfully. Although some of the specific instances are disputed by the Defendant, it is accepted that there have been occasions when errors occurred due to oversight in the prisoners’ mail room. Those which it is said occurred before the Claimant’s arrival at Bristol have not been investigated for the purposes of these proceedings because of the lateness with which the allegations were raised. But it is clear from the result of earlier proceedings that it happened at other prisons. Fifty or so of the three to four hundred pieces of mail received in the prison daily are marked “Rule 39”, according to Governor Dymond-White, and one or two a week are opened in error.[46]The specific incidents are wholly inadequate to support the serious and general allegation which the Claimant makes. There is no sound evidence to support the larger general figure, which is not broken down into incoming and outgoing mail, for which different arrangements apply. Yet a malign Prison Service might be more interested in what he was writing than in what he received from his solicitors. There are no figures provided by the Claimant to show what proportion of his mail is alleged to have been interfered with, but I surmise from the variety of his actions, the volume of material said to be on the computer and the volume of complaints, that he is a frequent correspondent. Yet such figures would be highly material to the allegation.[47]I also accept Mr Grodzinski’s point that if the aim of the Prison Service was to examine his privileged correspondence in deliberate breach of the Rules, it would not do so by marking the envelopes as having been opened in error, thus alerting the Claimant to the breach of the Rules.[48]The Claimant makes a point in his recent claim that his computer has been accessed when it should have been in storage, and when it was not in his possession. That is denied by the Defendant. The material in support does not persuade me to accept that that has happened. It is no more than a bare assertion as to what was seen on the screen when the Claimant accessed the computer at a conference with his solicitors.[49]I also accept what Governors Memery and Dymond-White say about the way in which EDS operate the standard issue computers so as to prevent the surreptitious examination of material which has been handled on the PC. The IT section of the Prison Service runs a software deletion package to delete all the data on the hard drive; the program can be run in front of the prisoner. I therefore reject the concerns which the Claimant professes about the desire or ability of the Prison service to access the material which he has examined on the standard issue computer as a basis for concluding that there is anything unlawful about the refusal to allow him access in his cell to his own computer.[50]It is convenient to deal at this stage with the application to amend the grounds of challenge to allege in various permutations that the SSHD unlawfully intercepted privileged correspondence in breach of Rule 39 and did so for an improper purpose. I have accepted that breaches of the Rule have occurred. But that is not what the amendment is about. It is essentially about an asserted claim that the SSHD has deliberately breached the Rules. I have already said that there is no satisfactory evidence to support so serious an allegation. But I refuse leave to make the amendment for other reasons as well. Save to the extent to which I have dealt with the allegations as part of the claim that the refusal to allow the Claimant access in cell to his PC is an unlawful exercise of the Governor’s discretionary powers, the claim is a wholly new and unrelated claim. It relates to periods which are much more than three months before the claim even in its original form was brought. The claim is not essentially a claim for judicial review; rather it is a claim giving rise to considerable disputes of fact for misfeasance in public office, which should be dealt with accordingly.[51]None of the other points raised by the Claimant advance matters. It may or may not be the case that he had an exemplary record at Shepton Mallet in relation to the use there of his personal computer. The considerations are now different. He has lawfully been removed from there to Bristol and a different policy applies, one which is not said to be unlawful. That is a major factor behind the different approach: the policy at Bristol is different and he cannot be judged against the position as if he were still at Shepton Mallet. There is no blanket prohibition on the use of PCs as the availability of standard issue of PCs for certain purposes shows. But he also wishes to use his computer, as a convicted sex offender, to send encrypted material and necessarily asserts that he has encryption software on his machine. It is obvious that that requires very careful handling, if he is to be allowed access to his PC. It is plain that his case has not been handled in a blanket fashion regardless of the particular circumstances involved. The assertion that he needs his own computer for educational purposes is not sufficiently strong to create a case that the denial of access is unlawful.[52]I have dealt with the various points made by the Claimant in order show that they have been considered. But the real issue in this part of the case is whether the Claimant has shown that the application to him of the lawful policy in operation at Bristol involved an error of law. The relevant factors were considered. The Governor was entitled to conclude as a matter of operational judgment and discretion that there were no grounds for so extensive a departure from the policy as the Claimant wanted. The factors peculiar to this Claimant were plainly considered, no blanket policy was applied and specific arrangements were made for him. The effect of those arrangements precludes any argument that the Claimant lacks equality of arms in his various civil proceedings or in his trial or in the pursuit of his appeals or hearings before the Parole Board. I would add that those conclusions do not mean that any lesser access to IT facilities or to the Claimant’s own PC would involve any unlawfulness. I have simply considered what has been offered and the way in which the Claimant is actually being treated.[53]Accordingly these applications for judicial review are dismissed. If there are any consequential matters arising, I shall deal with them in writing. Written applications and any submissions from either party are to be sent to the Administrative Court by 23 August 2005. Time for any purpose is extended to that date. Any such material should also be sent to the other party who has until 30 August 2005 to submit to the Administrative Court, and to the other party, written submissions in reply. 54. MR JUSTICE OUSELEY: For the reasons given in the judgment, which has been handed down, these applications for judicial review are dismissed. The other matters are to be dealt with in writing.

Cited in 1 later judgment