G, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 2340 (Admin)

Case No CO/3600/2005[2005] EWHC 2340 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 20 September 2005
Strand
London WC2
B E F O R E:
MR JUSTICE JACKSON
Between
THE QUEEN ON THE APPLICATION OF GClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR I WISE (instructed by Birnberg Peirce & Partners of London) appeared for CLAIMANTMR S GRODZINSKI (MISS KATE JUTTNER- solicitor - attended on 20 September) (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE JACKSON: This judgment is in six parts, namely Part 1 introduction, Part 2 The Facts, Part 3 The Present Proceedings, Part 4 Is the categorisation decision flawed?, Part 5 Is the defendant in breach of the duties owed under Article 2 of ECHR?, Part 6 Conclusion.

Part 1 Introduction

[2]In this action the claimant, a life sentence prisoner, challenges(a) his continued categorisation as Category A and(b) the lawfulness of his transfer to Belmarsh Prison and the lawfulness of the conditions in which he is held at Belmarsh Prison.[3]The defendant in these proceedings is the Secretary of State for the Home Department who, of course, acts through the Prison Service. The person who made the decision on the claimant's categorisation as Category A was the Prison Service Director of High Security ("the director").[4]It is necessary at the outset to read out the various statutory provisions, orders and instructions which are particularly pertinent to the issues in this case. Section 47 (1) of the Prisons Act 1952 provides:
"(1) The Secretary of State may make rules for the regulation and management of prisons, remand centres [young offender institutions or secure training centres] respectively and for the classification, treatment, employment, discipline and control of persons required to be detained therein."
Pursuant to Section 47 (1), the Secretary of State made the Prisons Rules 1999. Rule 7 (1) of the Prison Rules provides:
"(1) Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3."
[5]The various directions and policies which guide the Prison Service in the discharge of its functions are set out in Prison Service Orders ("PSOs") and Prison Service Instructions ("PSIs"). PSO O900 deals with Categorisation and Allocation. Paragraph 1.1.1 of PSO O900 provides:
"The security categories are as follows: Category A Prisoners whose escape would be highly dangerous to the public or the police or the security of the State, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible. Category B Prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult. Category C Prisoners who cannot be trusted in open conditions, but who do not have the resources and will to make a determined escape attempt. Category D Prisoners who can be reasonably trusted in open conditions."
Paragraph 1.2.3 of PSO O900 provides:
"Every prisoner must be placed in the lowest security category consistent with the needs of security and control. A prisoner must be assigned to the correct security category even if it is clear that it will not be possible to allocate him to a particular establishment for prisoners in that category."
[6]PSO 1010 deals with Reviews of Security Category for Category A prisoners. Paragraph 1.2 of PSO 1010 contains a revised definition of Category A. This reads as follows:
"A Category A prisoner is a prisoner whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must be to make escape impossible."
Mr Grodzinski submits, and I accept, that the definition of Category A in paragraph 1.2 of PSO 1010, in effect, supersedes the definition of Category A in paragraph 1.1.1 of PSO 0900.[7]The Prison Service Security Manual (PSO 1000) sets out further details about the categorisation and re-categorisation of prisoners. For present purposes it is not necessary to read out any provisions of the manual.[8]PSI 71/2000 deals with the arrangements to be made in respect of protected witnesses. Protected witnesses are generally criminals who give evidence for the prosecution and, as a result, require protection from other members of the criminal community. PSI 71/2000 includes the following provisions:
"1.3 Responsibility for the PWU operating standards rests with the Director of Security. There may be occasions when a departure from the Standards is necessary. Any such intended departure must be discussed with the Head of National Operations Unit in Security Group, and agreed by the Director of Security."
I intervene to say that the letters PWU are an abbreviation for Protected Witness Unit. "1.6 A Protected Witness Unit is a discrete self contained unit that holds only Protected Witnesses. The Unit operates separately from the host main prison and is directly managed and staffed by a selected group of staff. 1.7 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. The Units must adhere to these operating standards and to all other relevant PSOs, manuals and PSIs. ..... 1.11 By their very nature PWs may be very manipulative, being aware that the information they are providing to a CJ agency is valuable and important. Inevitable problems with group dynamics will occur and staff will need to be briefed and aware of these issues. It is vital therefore that PW prisoners are managed in a consistent and fair manner and that PW managers and staff do not permit manipulative behaviour to succeed. ..... 2.1 As with all other prisoners, security must be focused on preventing Protected Witnesses escaping from custody or undermining control and good order. However, PWs are vulnerable to attack from others, and many of the security tasks undertaken in a PWU must aim to prevent such attacks from occurring. ..... 4.3 To assist the consistent and good running of the PWU, a compact should exist between the prison and the prisoner. The prison will undertake to protect, as far as possible, the anonymity and safety of the PW. In turn the PW will agree to maintain a standard of behaviour appropriate to the proper running of the Unit. ..... 7.1 The responsibility for assigning prisoners Protected Witness status and for allocating prisoners to PWUs lies with the National Operations Unit in Security Group. The staff of this unit will liaise closely with Police Advisers Section. ..... 11.4 Local staff training for all those working in a Unit, must be provided to ensure staff understand the nature, role and responsibilities of PW and work on a PWU."[9]At the present time there exist only two Protected Witness Units: one is at HMP Woodhill for Category A prisoners and one is at HMP Parkhurst for Category B prisoners.[10]Having dealt with these matters by way of introduction, it is now time to turn to the facts of the present case.

Part 2 The Facts

[11]In 1993 the claimant was arrested and charged with offences of robbery. In due course the claimant agreed to plead guilty and to assist the prosecution. The claimant made a lengthy statement to the police implicating six men ("A, B, C, D, E and F"). In March 1995 the trial of those men was due to begin. B pleaded guilty; C and F failed to appear; A, D and E all pleaded not guilty. They were convicted, in large part due to the claimant's evidence, and they received lengthy prison sentences. In March 1995 the claimant pleaded guilty to two offences of robbery and one offence of attempted robbery. In due course he was sentenced to three-and-a-half years' imprisonment. The length of that term of imprisonment was substantially less than those offences would normally merit. The reduced length of sentence was attributable not only to the plea of guilty but also to the claimant's co-operation with the police and the prosecuting authority.[12]The claimant served his sentence at the Witness Protection Unit of HMP Woodhill. While the claimant was serving his sentence F was apprehended and stood trial. The claimant declined to give evidence against F. F was acquitted.[13]Following the claimant's release from prison, it appears that he was attacked on two occasions. Those attacks appear to have been motivated by the claimant's earlier co-operation with the prosecution. During the period when the claimant was at liberty he committed further, very serious, criminal offences. In June 1998 the claimant pleaded guilty to burglary, aggravated burglary and wounding with intent. The claimant received a mandatory life sentence with a tariff of eight years (later reduced to seven-and-a-half years) as well as various concurrent sentences. The claimant duly began to serve his sentence. Steps were taken to segregate the claimant from other prisoners for his own protection. However he was not placed in a witness protection unit.[14]While in prison it appears that the claimant came under pressure to assist A in his appeal against conviction. The claimant initially succumbed to that pressure, and he made a statement retracting his evidence against A. The claimant subsequently withdrew that retraction. In the meantime the claimant became increasingly concerned about the refusal of the Prison Service to treat him as a protected witness. The claimant commenced proceedings in this court to challenge that refusal. Those proceedings were heard by Mr Justice Crane in August 2002. On 15 August Mr Justice Crane gave judgment quashing the Secretary of State's decision not to treat the claimant as a protected witness. Thereafter the judgment of Mr Justice Crane was considered by all parties. The claimant's solicitors made further representations to the Prison Service.[15]In March 2003 the Prison Service decided to classify the claimant as a protected witness. The claimant was then placed in the Protected Witness Unit at HMP Woodhill. In the meantime the X Constabulary were considering the degree of risk the claimant would face on release from prison. By May 2004 the X Constabulary informed the claimant's solicitors that upon release from prison the claimant would be accepted on to the X Constabulary Witness Support Scheme. This would involve both relocation and a new identity for the claimant.[16]During 2004 it appears that tensions built up in the Protected Witness Unit at HMP Woodhill. On 10 November 2004 four table legs were found in the cell of a prisoner. Intelligence indicated that these were intended to be used against the claimant by other inmates who were allegedly fed up with the claimant's intimidatory tactics (see the undated security report prepared in early 2005). On 7 January 2005 an incident occurred at the Protected Witness Unit of Woodhill. This was a "passive sit-down protest and refusal to lock away". It appears from the evidence that the claimant did not directly take part in this incident, but he orchestrated events.[17]Following this incident the Prison Service decided that the claimant should no longer be accommodated in the Protected Witness Unit at Woodhill. There does not exist a designated Protected Witness Unit in any prison other than Woodhill. In those circumstances, on 11 January the claimant was transferred to HMP Manchester and accommodated in the normal segregation conditions. On 14 January the claimant was transferred back to Woodhill and held in the segregation wing. On 25 January 2005 the claimant was transferred to HMP Belmarsh, and that is where the claimant has remained. Since Belmarsh Prison does not have a designated witness protection unit, special arrangements have been made for the claimant's accommodation there. The claimant is housed in a self- contained unit on the lower east wing of the health care centre. The staff at Belmarsh Prison cannot reproduce precisely all the conditions of a Protected Witness Unit. Nevertheless, the claimant is held in conditions where no other prisoner can gain access to him. In addition, strenuous efforts are being made to preserve the claimant's anonymity.[18]A protocol for the management of the claimant was drawn up on 2 February 2005. This includes the following passages:
"1.1 The following procedures will apply to the management of [the] prisoner whilst at HMP Belmarsh. The conditions of a Protected Witness Unit cannot be reproduced at HMP Belmarsh; however, all efforts have been made to ensure that the safety of [the] prisoner and his family are maintained. 1.2 Prisoner is a Category A prisoner and therefore all procedures applied to Category A prisoners will be applied to him. ..... 3.4 Prisoner will be accommodated in the East Wing Lower Healthcare whilst at HMP Belmarsh. 3.5 Prisoner will be kept separate to all other prisoners. He will shower, have meals, and use the telephone in the East Wing Lower Healthcare. 3.6 Prisoner will be afforded a regime that is compatible with maintaining his anonymity whilst at HMP Belmarsh, see sections listed below. ..... 5.3 The allocation of staff for the supervision of prisoner will be the responsibility of the Central Resource Unit Manager on a daily basis. This will include the provision of appropriate staffing levels to provide continuous 24-hour supervision. 5.4 Staff detailed to carry out the supervision are to have successfully completed probation, and where possible should have experience in working with difficult prisoners. 5.5 Staff detailed for the supervision will be briefed by the nominated Manager (either Governor Forde or Governor Bourke) or in their absence the Orderly Officer/Duty Governor. 5.6 The briefing will include the content of this protocol and any other relevant instructions."
[19]The claimant's transfer to HMP Belmarsh coincided with the period when reports were being prepared for a review of the claimant's categorisation. The claimant had been categorised as a Category A prisoner ever since he was sentenced in 1998. The reports which were prepared on the claimant in late 2004 and early 2005 included a report by the Governor of Woodhill Prison, a security report, a report by the medical officer and a psychological report. The final decision on categorisation fell to be made by the Director of High Security.[20]On 12 May 2005 Prison Service staff submitted a summary of the relevant material to the director. On the same day the director decided that the claimant should remain "Category A (Standard Escape Risk)". The reasons for that decision were set out in a letter to the claimant dated 24 May 2005. That letter reads as follows:
"Your case has been reviewed by the Director of High Security on 12 May 2005 and his decision is that you are to remain Category A (Standard Escape Risk). This decision has been reached following careful consideration of all relevant factors, including the circumstances of the present offences, length of sentence, previous convictions and reports prepared by Woodhill prison staff attached to the Protected Witness Unit. These reports have been disclosed subject to the exemptions covered by the Data Protection Act 1998. In reviewing your case the Director also considered representations submitted on your behalf by your solicitors Birnberg Peirce & Partners in their letter dated 30 March 2005 and the independent psychologist report dated 31 March 2005 prepared by Professor Robbins. Also attached is a copy of the submissions submitted to the Director which summarised the information considered and a copy of a report which reviewed the psychology report prepared for your security category review. The Director noted that due to concerns about your behaviour you were transferred out of the PWU at Woodhill to Belmarsh. The Director noted that the description of your custodial behaviour as outlined in the Governor's report was influenced by the recent security information and events which led to your transfer out of Woodhill. The Director noted that the security information was in stark contrast to other reports which were written prior to the events covered in your reports. The Director also noted your solicitor's submission that the true picture was that you had behaved well in the PWU at Woodhill over the last year as evidenced by your personal officer's and wing manager's report. The Director noted that you admitted your guilt for the present offences and that you had completed a number of courses including the Enhanced Thinking Skills programme and an Anger Management Course. However, the Director noted that you had not undertaken any offence specific work which required you to discuss your offences in detail. The Director noted that reports had recommended that you should be assessed for suitability for the Controlling Anger and learning to Manage it Programme (CALM) and the Cognitive Self-Change Programme (CSCP). However the Director acknowledged that your protected witness status (PWU) had limited the availability of accredited offending programmes that you could complete to address your offending behaviour. The issue before the Director was whether or not your recent behaviour as outlined in the Governor's report and the recent security reports were relevant to the risk factors identified in relation to the likelihood of your future re-offending. The Director noted that given the particular circumstances of your case, your custodial behaviour was an important consideration in determining your security category and that the absence of negative behaviours and the presence of positive behaviours in the course of your day-to-day behaviours and interactions would allow you to demonstrate a reduction in risk. The Director noted your solicitors' assertion that your psychology report supported by a comprehensive structured risk assessment concluded that you had made an observable change in the secondary risk factors and that you were in the preparatory stage of change in the primary risk factors. The Director noted that the Violence Risk Scale (VRS) report provided a clear and comprehensive analysis of your relevant static and dynamic risks. The Director noted your static risk factors and identified you as having a high risk of future violence. The Director also noted that the report had identified a number of relevant dynamic risk factors and, for each of these, commented on your state of change. The Director noted that an important note point here is that behavioural change is not evident until the preparation stage, but at this stage, while behaviour improvements are evident, they do not tend to be consistent over time, or situations and lapses are quite frequent, and that this was highly relevant to the present assessment. The Director noted that the report indicated a fragile rather than a committed and constant shift in reduction from your level of static risk. The Director noted that the security report prepared for your review would appear to indicate some of the lapses to be expected in the preparation and contemplation stages particularly in criminal attitudes and possibly violence cycle. But the report of your personal officer and wing manager indicated the positive movement as described in your psychology report. The Director noted that whilst you had worked to understand the risk factors relevant to your likelihood of engaging in future violent re-offending and had taken steps to address a number of these issues, you continued to clearly exhibit a criminal lifestyle and a preparedness to use violence. The Director accepted that you had made some progress, however, in the interest of public protection the progress you had made had to be viewed against the serious nature of the present offences which involved the stabbing of an off-duty police officer and the shooting of one of your victims in the lower back and buttocks. The Director also noted your previous convictions included offences of assault occasioning actual bodily harm, theft, robbery and assault with intent to resist arrest. The Director noted that the present offences involved extreme violence with the use of firearms and concluded that the progress you had made would need to be sustained over a longer period of time before consideration could be given to a downgrading of your security category. The Director also noted that you had not as yet directly addressed outstanding areas of concern, in particular your use of violence. The Director also accepted that the Governor of Woodhill was correct in his opinion in concluding that recent behavioural information put forward by the security department was a relevant consideration in determining your security category. In reaching this conclusion the Director was mindful that he was required not only to look at the risk of re-offending on escape but the nature of harm that would result. In your particular case the Director concluded that notwithstanding the progress you had made, having balanced the evidence of risk reduction against the very serious nature of the present offences, there remained a significant (albeit reduced) risk of you re-offending in a similar way if unlawfully at large, and that you must therefore at present continue to be regarded as potentially highly dangerous to the public."
[21]The claimant was aggrieved by the conditions in which he was held in Belmarsh. The claimant was also aggrieved by the decision to continue his categorisation as Category A. In order to challenge the decisions of the Prison Service in this regard, the claimant commenced the present proceedings.

Part 3 The Present Proceedings

[22]On a date in June 2005, which is not apparent from the bundle, the claimant issued proceedings for judicial review in order to challenge - "(1) the on-going decision of the defendant to locate the defendant in conditions at HMP Belmarsh which are in breach of his rights under Articles 3, 6 and 8 of the European Convention, and (2) the decision of the defendant to continue to categorise the claimant as category A." The relief which the claimant sought was the following:
"(a) A declaration that the defendant's decisions are unlawful as a violation of the claimant's Article 3, 6 and 8 rights, an order compelling the defendant to return the claimant to a PWU with full facilities, an order compelling the defendant to reconsider the issue of the claimant's categorisation with regard to his course work and rehabilitation needs."
[23]During the short life of this litigation the nature of the claimant's claim and the grounds upon which it is based have changed progressively and completely. The challenges based upon Articles 3, 6 and 8 of the European Convention on Human Rights have been abandoned. A challenge based on Article 2 of the European Convention on Human Rights has been added by way of amendment. The claimant no longer seeks an order that he be transferred to a witness protection unit. Instead the claimant seeks a declaration in the following terms, as formulated by counsel during oral argument yesterday:
"A declaration that the current conditions in which the claimant is kept at Belmarsh are not consistent with his status as a protected witness and they compromise his security to the extent that the Prison Service have breached their Article 2 obligations to him."
Furthermore, the grounds upon which the categorisation is challenged have evolved considerably since their original formulation.[24]The claimant's case in its final form, as presented in oral argument yesterday, may be summarised as follows:(1) the categorisation decision is flawed because (a) the Director applied the wrong threshold test, and/or (b) the Director fettered his discretion and failed to take into account a relevant factor;(2) the defendant has breached the claimant's rights under Article 2 because (a) the decision to remove him from Woodhill Witness Protection Unit was not proportionate, and (b) the conditions in which the claimant was held at Belmarsh give rise to an unacceptable risk to his life. The above formulation represents my own attempt to summarise the essence of Mr Ian Wise's oral arguments yesterday on behalf of the claimant.[25]Mr Sam Grodzinski, on behalf of the defendant, submits that the claimant's case in its final form is untenable and must be dismissed.[26]The arguments of both counsel were excellent and of considerable assistance. The oral arguments lasted for the whole of yesterday.[27]I shall now give my decision on the issues following the order of counsel's submissions.

Part 4 Is the categorisation decision flawed?

[28]The first ground upon which the claimant challenges the director's decision of 12 May 2005 is that the director applied the wrong threshold test. It will be recalled that the final sentence of the director's decision reads as follows:
"In your particular case the Director concluded that notwithstanding the progress you have made, having balanced the evidence of risk reduction against the very serious nature of the present offences, there remained a significant (albeit reduced) risk of you re-offending in a similar way if unlawfully at large, and that you must therefore at present continue to be regarded as potentially highly dangerous to the public."
[29]Mr Wise points out that the definition of Category A, as set out in paragraph 1.2 of PSO 1010, is "a prisoner whose escape would be highly dangerous to the public ..... ". Mr Wise submits that the director applied too wide a test. He asked himself whether the claimant should be regarded as "potentially highly dangerous" rather than "highly dangerous".[30]In my judgment, this argument is ingenious but unsound. When read in context, the word "potentially" means "if the claimant were to escape". On 12 May 2005 the claimant was not actually dangerous to the public in any way. He was safely confined within the walls of Belmarsh. The Director was therefore considering whether, in the event of escape, the claimant would pose a high degree of danger to the public. That scenario was hypothetical. The director conveyed his meaning succinctly by using the word "potentially". I therefore come to the conclusion that the Director was applying precisely the test which is set out in paragraph 1.2 of PSO 1010. The first ground of challenge therefore fails.[31]I turn to the second ground of challenge. The argument here is that the claimant was a prisoner who was most unlikely to escape. This was because he would lose the new identity and relocation which the police had promised to provide upon release. Founding himself on Pate v Secretary of State for the Home Department [2002] EWHC 1018 (Admin), Mr Wise submits that the lack of propensity to escape on the part of a particular prisoner is a relevant consideration. The director made no mention of this point in his decision. Accordingly, he must have failed to take it into account. Accordingly, the director fettered his discretion and/or he failed to take into account a material consideration. Therefore his decision is flawed.[32]In my view, the facts and reasoning in Pate are far removed from the present case. Mr Pate, a sex offender, was aged 60. He suffered from poor health in several respects. In particular, he had such serious injuries to one leg that amputation was a possibility. All in all, it is difficult to see how Mr Pate could possibly have escaped regardless of whether he was held in a Category A or Category B prison. Nevertheless the Prison Service, as a matter of policy, disregarded this consideration. Mr Justice Turner held that that approach was flawed. At paragraph 39 of his judgment, Mr Justice Turner said:
"In the absence of justification, I hold that such part of the policy which does not differentiate between the escape potential of individual prisoners is illegal and must be quashed."
It was this decision of Mr Justice Turner which caused the Secretary of State to amend the definition of Category A as set out in paragraph 1.2 of PSO 1010. At the same time, paragraph 1.3 of PSO 1010 was introduced. This paragraph reads as follows:
"The High Court judgment in the case of ex parte Pate required that in deciding whether Category A is necessary, consideration may also need to be given to whether the stated aim of making escape impossible can be achieved for a particular prisoner in lower conditions of security, and that the prisoner is categorised accordingly in exceptional circumstances. However this will only arise in exceptional circumstances since escape potential will not normally affect the categorisation as it is rarely possible to foresee all the circumstances in which escape may occur."
Paragraph 1.3 seems to me to be a perfectly proper response to the decision in Pate. The facts of Pate were exceptional. Pate does not open the gateway to a general consideration of escape potential in all cases.[33]Let me return to the facts of the present case. The claimant is a highly dangerous criminal, who has continued his career of violent crime despite the fact that some in the criminal fraternity regard him as a "grass". The claimant faces the possibility of remaining in prison for many years after the expiry of his tariff period. In my judgment, it is fanciful to suggest that the claimant is a man who falls into the category of low escape potential. The circumstances of this case are very different from Pate. The director's decision cannot be faulted because he failed to consider escape potential. The director faithfully followed paragraph 1.3 of PSO 1010. That policy, in my judgment, is lawful.[34]In the result therefore the claimant's various challenges to the categorisation decision fail. The answer to the question posed in Part 4 of this judgment is no.

Part 5 Is the defendant in breach of the duties owed underArticle 2 of ECHR?

[35]Article 2 of the European Convention on Human Rights provides as follows:
"1 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
In Osman v UK [1998] 29 EHRR 245, the European Court of Human Rights gave the following due guidance about the duty imposed by Article 2 of the Convention:
"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 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 that 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."
[36]The English courts have considered on a number of occasions(a) the circumstances in which the State comes under a duty to protect the life of an individual, and(b) the extent of that duty. The most relevant authority for present purposes is R (Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686; [2003] 1 WLR 2724. The claimant in that case was a large scale drug dealer who had pleaded guilty and informed on his co-conspirators. The claimant challenged a decision made by the Prison Service to terminate his status as a protected witness. The claimant's claim failed on the facts. In the Court of Appeal the principal judgment was given by Lord Justice Auld, with whom Lord Justice Mummery and Lord Justice Keene agreed. In the course of his judgment, Lord Justice Auld quoted the passage from Osman, which I read out just now. At paragraph 60 Lord Justice Auld said:
"Whatever the risk to a person's life and whatever the mechanism that may give rise to it, the approach of Lord Diplock in R v Governor of Pentonville Prison, Ex p Fernandez [1971] 1 WLR 987, adopted by the court in R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249 seems to me, with respect, to be entirely logical and of general application. If a risk to life is not 'real', it is not a risk to life. If a risk to life is not 'immediate' in the sense that it is not present at the time or during the period when it is claimed that a protective duty is owed by a public body, it is not a risk that can engage article 2. It is a future risk that may, at some later date, do so. To be a candidate for engaging article 2, all that is needed is a 'risk to life'. To engage it depends, in the circumstances of each case, on the degree of risk, which necessarily includes consideration of the nature of the threat, the protective means in being or proposed to counter it and the adequacy of those means."
[37]In approaching the issues in this case, I must follow the guidance and principles stated by the European Court of Human Rights in Osman and by the Court of Appeal in Bloggs.[38]Let me turn from general principles to the facts of this case. The claimant is regarded as a "grass" by a number of people in the criminal fraternity. Because of that circumstance, Mr Grodzinski, for the defendant, does not dispute that there is a real risk to the claimant's life from persons outside Belmarsh Prison. The issue between the parties is whether or not the defendant is taking proper steps to discharge the duty which arises under Article 2. This issue sub-divides into two parts:(1) was it disproportionate to remove the claimant from the only designated Protected Witness Unit which exists for Category A prisoners?,(2) are the conditions at Belmarsh such that the defendant is failing to take proper care to protect the claimant's life?[39]Let me turn to the first of these two questions. Mr Lawson, from the Directorate of High Security Prisons, summarises the reasons for removing the claimant from the Protected Witness Unit at HMP Woodhill as follows in paragraph 9 of his witness statement:
"The claimant is unable to be located in the PWU at Woodhill, following his removal after an internal investigation into his behaviour within the PWU. The claimant has been shown to be highly manipulative in nature, and his bullying and intimidation of other prisoners and inappropriate relations with staff led to problems with the group dynamics at Woodhill. There was also intelligence that his safety within the unit at Woodhill has been compromised after he had fallen out with other protected witness prisoners, and that other prisoners on the PWU at Woodhill were going to assault him. Therefore, it is felt that there is a real risk that his safety could be threatened if he were to return to Woodhill. As part of our duty of care to the claimant, I am of the view that he is safer where he is in Belmarsh than he would be if he returned to the PWU in Woodhill. It is also a consideration that the prisoners in the PWU at Woodhill have settled down since the claimant was transferred out of the unit."
These observations of Mr Lawson are fully supported by the Prison Service's Enquiry Report dated 9 March 2005. This report reveals that the claimant had been seen threatening to kill a fellow prisoner in the PWU, that he had been gripping other prisoners around the neck and threatening to hit them in the face, that prisoners were fearful of the food the claimant had prepared and, more generally, that the claimant had caused all manner of trouble and problems while he was in the PWU at HMP Woodhill.[40]From the material available in early 2005, it seems to me that a parting of the ways between the claimant and the other residents of the PWU was inevitable. This was not a matter of punishment. It was a matter of maintaining good order and of preserving the safety not only of the claimant but also other prisoners involved. The fact that quite recently certain prisoners who are no longer in the PWU have made statements in support of the claimant does not affect the conclusion I have reached. The decision to remove the claimant from the Protected Witness Unit at Woodhill was not disproportionate.[41]Let me turn to the second of the two questions posed above. In relation to this question, it is clear from the evidence that the Prison Service is doing its best to protect the claimant at Belmarsh Prison and to insulate him from all contact with other prisoners. On the other hand, the Prison Service cannot replicate at Belmarsh the ideal conditions which exist in a designated protected witness unit. Mr Lawson put the matter like this in paragraphs 5 and 8 of his first witness statement:
"5 I accept that the policy guidance on staff selection and management as set out at Section 11 of PSI 71/2000 is not being adhered to in respect of the staffing arrangements on the claimant's unit at HMP Belmarsh. It is accepted that the unit is not staffed by a selected group of staff who are deployed for a fixed term to work solely on the unit, and that they have had no local training in working on a PWU. The unit has been staffed using the resources available to the Prison Service, and it has not been possible to adhere to the staffing arrangements in the PSI. The purpose of the staffing requirements in the PSI is to seek to reduce the potential for those persons who wish to harm the protected witness from finding out their location and being able to harm them. However, I am satisfied that the staffing of the unit is appropriate to ensure that the anonymity and safety of the claimant is maintained, and that an effective regime is in place, whereby the claimant is safely managed in a secure environment. ..... 8 I appreciate that there have been a number of breaches in security surrounding the claimant, however, I have discussed the breaches with Governor West at HMP Belmarsh and have read his witness statement and am confident that the identity of the prisoner has not been compromised. Belmarsh have reviewed their security procedures to ensure that and similar breaches do not occur again."
[42]The breaches in security referred to by Mr Lawson are also dealt with more fully both by the claimant and by Mr West in their respective witness statements. There are certain conflicts which arise from the witness statements about these matters. It is neither possible nor necessary for me to resolve those conflicts of evidence. Suffice it to say, on a number of occasions when the claimant was being escorted to or from places such as the exercise yard or the gymnasium he was able to be seen by other prisoners.[43]In my judgment, this circumstance, although regrettable, does not give rise to any breach of Article 2. I reach this conclusion for four reasons.(1) On the evidence, it seems highly unlikely that any other prisoner has recognised or identified the claimant.(2) Even if other prisoners do know who the claimant is and where he is housed, there is no way they can possibly gain access to the claimant. The security arrangements put in place prevent that. Indeed, very fairly, Mr Wise did not press hard - indeed, he hardly pressed at all - the proposition that the claimant may be at risk while in prison.(3) Even if, unfortunately, other prisoners discover that the claimant is at Belmarsh Prison, that will not increase the claimant's risk upon release. Everyone who is interested in the matter knows that the claimant is currently serving a sentence somewhere in the prison system. The fact that the claimant is presently at Belmarsh is no indication whatsoever of the time when or the prison from which the claimant will ultimately be released.(4) The conditions in which the claimant is held in Belmarsh can have no effect on the present level of risk to which the claimant's partner and child may be exposed. In the future, after the claimant's release from prison (as Mr Wise concedes), any risk to the claimant's partner and child can only be parasitic upon the risk to which the claimant is exposed. There is no separate or freestanding Article 2 claim referable to the claimant's partner and child.[44]Furthermore it seems to me that, as a consequence of these proceedings, steps have been taken at Belmarsh Prison to improve the security measures taken in respect of the claimant. In particular, Mr Grodzinski stated in oral argument yesterday afternoon that he has received clear instructions that from now on the claimant will be taken to the exercise yard at a time while all other prisoners are locked away. Thus the risk of future sightings of the claimant by other prisoners is significantly reduced.[45]Mr Wise makes the point that because of the lesser training which prison staff or nurses or others at the prison receive there is a risk that inadvertently they will reveal the identity of the claimant to other prisoners. In my view, this risk is a very low one. And, for the reasons indicated earlier, I do not consider that it is a risk which gives rise to a breach of Article 2 on the part of the prison service.[46]Let me now draw the threads together. For the reasons set out above, I have come to the conclusion that the conditions in which the claimant is held at HMP Belmarsh do not constitute or give rise to a breach of Article 2 of the European Convention on Human Rights.

Part 6 Conclusion

[47]For the reasons set out in Parts 4 and 5 above, the claimant fails in each of his two claims. Accordingly the claimant's claim must be dismissed.[48]Before parting with this case, I wish to refer to paragraph 11 of Mr Lawson's first witness statement. According to that paragraph, there are plans to open a protected witness unit next year within the Category A prison at HMP Full Sutton. I express the hope that when the new protected witness unit is open serious consideration will be given to accommodating the claimant within it.[49]MR WISE: With regard to the transcript, there needs to be some clarity as to whether the transcript is publicly available. Your Lordship has gone to great lengths to make sure that my client is not identifiable from the contents of the judgment. It seems to us suitably anonymised as it is. This is a judgment that could be circulated. It is entirely a matter for your Lordship. You may have seen in the Pate judgment, at the first page, an order was made that there be no disclosure or reporting of information in the judgment. Do you have that?[50]MR JUSTICE JACKSON: There is no need for such an order here, is there? I have already directed - although the stenographer was not here at the time - that the case be intituled G v Secretary of State for the Home Department. I have referred to the people against whom the claimant gave evidence by letters. For your information I have attributed to them the letters A, B, C, D, E and F in the order in which those persons' true names appear in your skeleton argument. So you can marry up the letters with the skeleton argument if you wish.[51]MR WISE: I am sure there is no need to do that. It was a matter that needed some consideration. We felt that at the conclusion of delivery of judgment we would have to give it a bit of thought to ensure there was not any difficulty in the dissemination of judgment. It seems that given the care your Lordship has taken, there should not be a difficulty.[52]MR JUSTICE JACKSON: If there is anything in the judgment which, on reflection, you consider needs to be edited out or changed, to substitute a name for a letter, would you send a note to me - and copy the Treasury Solicitor in - and I will consider it and, very probably, give effect to it. I have done this in another case recently where both sides needed confidentiality. They both sent in the anonymisations they wanted and it was simply agreed.[53]MR WISE: Nothing immediately comes to mind. (Pause) My solicitor refers to the [name] Constabulary; if we could anonymise that.[54]MR JUSTICE JACKSON: Yes. Could we call the [name] Constabulary the "X Constabulary". That is a very good point.[55]MR WISE: There is nothing else that immediately comes to mind, but we will give it some thought. The next matter is that of appeal. The Pate point, if I may put it like that, is a matter of some wider significance as well as being of considerable significance to my client. You have narrowed the Pate judgment down to the very exceptional sort of circumstances that the facts of Pate reveal. We would contend that Mr Justice Turner's judgment has a rather wider application and does extend to encompass the circumstances in which my client finds himself. In those circumstances it could be fruitfully and properly explored in the Court of Appeal. I would invite your Lordship to grant leave to appeal in respect of that point.

MR JUSTICE JACKSON: Miss Juttner, what do you say about that?

[57]MISS JUTTNER: We oppose the application for leave to appeal. But if you are minded to grant leave to appeal, I would ask that we could put in written submissions within seven days.

MR JUSTICE JACKSON: On the leave to appeal point?

[59]MISS JUTTNER: Yes.[60]MR JUSTICE JACKSON: Mr Wise, I am not minded to grant leave to appeal despite your very considerable powers of persuasion. I think the prospects of success are insufficient.[61]MR WISE: The only other thing is a detailed assessment of my publicly funded costs.

MR JUSTICE JACKSON: What order should I make?

[63]MR WISE: An order that there be a detailed assessment of the claimant's costs.

MR JUSTICE JACKSON: Yes, certainly, I make that order.

[65]MR WISE: There are no other matters. ---