Nealon, R (On the Application Of) v Secretary of State for the Home Department [2006] EWHC 247 (Admin)

Case No CO/4546/05[2006] EWHC 247 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 10 February 2006
Strand
London WC2
B E F O R E:
MR JUSTICE BURTON
Between
THE QUEEN ON THE APPLICATION OF VICTOR NEALON(CLAIMANT)SECRETARY OF STATE FOR THE HOME DEPARTMENT(DEFENDANT)
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)
THE CLAIMANT APPEARED IN PERSON for in personMR VIKRAM SACHDEVA (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE BURTON: This has been the renewal of an application by Mr Nealon for permission to apply for judicial review against the decision of the Secretary of State through the prison officers to impose, as he describes it, an IBC, which is an inappropriate behaviour compact, without giving him, first, the opportunity of a hearing. The single judge, Henriques J, refused the application on the papers and this has now been restored before me by way of a video link hearing. Mr Nealon has acted for himself and has done so with brevity and force.[2]The first problem that he has is the question of time. The complaint he makes is that he was placed on an IBC, that is that the inappropriate behaviour compact was commenced, on the basis that he was expected to sign it but did not -- and I shall describe its impact in a moment -- on 25 May 2004. As it happens, the IBC expired on 8 July 2004 without its terms having been breached in the meanwhile. The ordinary three-month time limit for complaint against an alleged unlawful decision is three months, which plainly expired on or about 25 August 2004. Mr Nealon did not commence these proceedings until 9 June 2005. He says that he did that because, instead of pursuing judicial review proceedings, he was complaining to the Prisons Ombudsman, which he did on 18 October 2004. It is to be noted that that date itself was more than three months after the date of the matter complained of.[3]The Ombudsman refused to uphold the complaint on 17 March 2005. Mr Nealon brought these proceedings on 4 July 2005, which was in fact more than three months after the decision by the Ombudsman, even if the decision of the Ombudsman revived any three-month time limit. In fact, of course, it is quite plain that the Ombudsman's decision is not what was being challenged by the claimant. Even if it could have any relevance, the most it could do would be to justify the claimant having waited until 17 March to issue his proceedings, and he would be obliged to issue them promptly thereafter and certainly would not have another three-month period in which to do so. The claimant says that he had some legal advice in this regard, and he read to the court a copy of a letter which was sent by his then solicitors, who were hoping to obtain legal aid in order to be instructed by him for the purpose of these proceedings, which they wrote to the Administrative Court on 18 May 2005, telling the Administrative Court that there might be or could be a claim. But nothing that the solicitor did or said could assist him, given that, by that time, his time had already expired, and indeed he should already have brought this claim well before 18 May. Certainly, even if he had the three months from 17 March, which he had not in terms said that the solicitors advised him he had, he allowed the matter to go longer than three months after 17 March in any event.[4]I am entirely satisfied that there is no satisfactory explanation for the delay in this case, and consequently permission would be refused on that ground alone. However, particularly in the light of the courteous way in which the claimant has put his claim, and in the light of the fact that I have heard argument from both sides on the point, I do not rest my decision only on that basis, and I turn in the alternative to the merits.[5]The IBC is, I am told, a local invention or institution which is intended to assist both the Police Authority and prisoners. It creates effectively a contractual relationship between the prisoner and the authority, and might well assist in a fair disposal of matters and give the prisoner additional assistance in "staying on the rails", if there has been a risk that he or she might "come off the rails". The result is that there can be and are conditions included in an IBC, which are individualised to the particular problem. In the case of this claimant, the IBC in question reads as follows:
"In addition to the general standards of conduct expected under your Wing Compact you are required: [i] Not to approach either female members of staff or visitors, unless invited to do so ... [ii] Not to write ... offensive or threatening material. [iii] To actively engage in any proposed behavioural assessment or identified group work to address anti-social behaviour."
It further stated:
"Your recent conduct will result in you being closely monitored and subject to more frequent cell searches. Your compliance with this compact will be subject to a monthly review."
[6]It stated then in paragraph 5 as follows:
"Failure to comply with the terms of this Compact may result in: [i] Your IEP [Incentive Earnings and Privilege Level] being reviewed; [ii] an adjudication being proceeded with or; [iii] segregation under Good Order and Discipline."
[7]In the event, two matters of relevance occurred:(1) the IBC was not breached by the claimant, and after one monthly review it expired on 8 July 2004 on further review; and(2) the claimant refused to sign the contract in question.[8]The IBC was imposed as a result of complaints that had been made against the claimant by a female prison officer of inappropriate behaviour towards her. That occurred on the basis of evidence, both of her and of other prison officers, over a period from March 2004 through to May 2004. The particular concern in that regard was that the claimant's conviction, for which he was serving a sentence imposed on 12 March 1997, was for attempted rape.[9]The claimant did not accept then, and it appears still does not accept now, the facts underlying the complaint that was made against him; not that he denies all of the facts, but rather he puts forward a different explanation, or one which he would seek to have considered. It was in that regard that he says he would have wished to have had a hearing. In those circumstances, no doubt, it was that he did not sign the IBC.[10]Clearly, in most cases the IBC will be signed, and if it is, then that clears away the decks; but equally it means that in future the facts which led to the IBC will only with difficulty be capable of being denied. In this case the claimant did not sign the IBC, which means that he remains free for the future to challenge the facts upon which the IBC was based, as it seems he would wish to do.[11]His case is that, before such an IBC can be imposed, there ought to be a hearing at which the facts upon which the IBC are based and which are said to lead to its need can at that stage be assessed and resolved by an appropriate authority, after hearing both sides' case. In essence, he is implicitly asserting that Article 6 of the Human Rights Convention applies so that he ought to have the right to a hearing. It is that about which he complains.[12]He puts forward three arguments to support that proposition by reference to two cases, and with which Mr Sachdeva, for the defendant, has joined issue. The first is Engel and Others v Netherlands 1 EHRR 647, and the other, Ezeh and Connors v United Kingdom [2004] 23 EHRR 1.[13]Firstly, he submits that the facts which underlay the imposition of the IBC on this occasion, namely of inappropriate conduct towards a female prison officer, might amount to matters which in a criminal court could be said to be criminal harassment. I do not begin to judge whether that is so, nor, of course, was this a criminal finding, but the claimant alleges so by analogy. Secondly, he submits that the imposition of the IBC puts him at risk of being in breach of it and thus renders him at risk of some further penalties, such as is set out in paragraph 5 of the IBC, which I have quoted. Thirdly, he submits that, when it comes to his application to the Parole Board in due course, the existence of the IBC is going to be at risk of rendering it less likely that he will be released, and therefore it has an impact on his liberty -- at least potentially. For all those reasons, he submits that this falls within the definition of the kind of matter governed by Article 6, which is referred to, in particular, in Engel at paragraph 82 of the judgment of the court.[14]I do not accept his submissions and prefer those of Mr Sachdeva. First, albeit that the facts might be similar to those which could be considered in a criminal court in other circumstances, this did not amount to the imposition of a criminal penalty or to the finding of an offence in law. It led to the unsigned imposition of a contract which, in the event, was complied with.[15]Secondly, the fact that he might be at risk if he breached that IBC might only mean that, before there could be a finding of breach, with the imposition of a penalty, that aspect might lead to arguments as to the applicability at that stage of Article 6; but the earlier stage before any sanction could follow, in my judgment, does not. It appears to me that Mr Nealon, in his diligent research into the cases to which I have referred, may have misunderstood the reference in paragraph 82 to these words:
"... supervision by the court ... would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring."
That is a reference to the risk of the penalty which is incurred by a person facing a charge which could lead to the imposition of that penalty. It does not relate to a situation in which, by virtue of a set of facts, the person is at greater risk in future that if he did something else he might then incur a penalty.[16]Thirdly, in my judgment, the fact particularly of an unsigned IBC does not make the claimant's position any worse than it would be simply by virtue of unadjudicated complaints. That is all there ever were in this case, namely complaints by a lady prison officer, which he did not accept. If and when it comes to the Parole Board application, there will be no difference, in my judgment, where the prison authority draws attention to an unsigned IBC, which was of course satisfactorily proceeded with as it turns out until its revocation in July 2004, than there would be in relation to unproved allegations on his record by a lady prison officer. He would be just as free, and indeed just as required, to meet those allegations and deny them in the one case as in the other. His position is, in my judgment, no worse than it would have been without the IBC.[17]All that has happened is that, during the period of the IBC, there have been additional controls and supervision of him, which there might just as well have been without an IBC; and the sensible introduction of the IBC, usually leading, as I understand it, to a signature by a prisoner, seems a much more sensible way of going about things than leaving allegations up in the air and additional supervision unexplained and unconsented to.[18]In those circumstances, I am entirely satisfied that, even were this claim in time, there are no grounds for challenge to the imposition of the IBC in May 2004. For all those reasons, this application must be dismissed.