Edwards-Sayer, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 467 (Admin)

[2008] EWHC 467 (Admin)Case No CO/8144/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 March 2008
Before
LORD JUSTICE RICHARDSMRS JUSTICE SWIFT
Between
The Queen (on the application ofClaimantMalcolm Edwards-Sayer)ClaimantSecretary of State for the Home DepartmentDefendant
Flo Krause (instructed by Cartwright King Solicitors) for ClaimantIan Hutton (instructed by The Treasury Solicitor) for DefendantHearing Hearing date: 5 March 2008
Judgment
[1]The issue in this case is whether it is lawful for a prisoner held in custody on remand to be treated as a convicted prisoner (and thus to lose the rights and privileges of unconvicted prisoners) after he has pleaded guilty to an offence but before he has been sentenced for it.[2]The claimant was remanded in custody on 19 September 2005, charged with various offences of dishonesty. He pleaded guilty to one set of charges on 31 October 2006 and to a second set of charges on 18 December 2006. Sentencing was adjourned pending the trial of co-defendants and did not in fact take place until 29 November 2007, when the claimant was sentenced to a total of 10 years’ imprisonment. In the meantime he had been remanded in custody throughout. From the time of pleading guilty to the second set of charges, however, he was treated within the prison system as a convicted prisoner. There is no explanation of why that did not occur after he had pleaded to the first set of charges.[3]In September 2007 the claimant lodged a claim for judicial review, complaining of his treatment as a convicted prisoner while he was awaiting sentence. Permission was granted in January 2008 by Collins J, who does not appear to have known that the claimant had already been sentenced by that time. Although the outcome could no longer avail the claimant personally, we thought it appropriate to hear the case because it raises an issue of general importance.

Legislative and administrative framework

[4]Section 47(1) of the Prison Act 1952 empowers the Secretary of State to “make rules for the regulation and management of prisons …, and for the classification, treatment, employment, discipline and control of persons required to be detained therein”.[5]The Prison Rules 1999 (“the Rules”) were made in the exercise of that power. Rule 2(1) contains definitions, including this:
“‘convicted prisoner’ means, subject to the provisions of rule 7(3), a prisoner who has been convicted or found guilty of an offence or committed or attached for contempt of court or for failing to do or abstain from doing anything required to be done or left undone, and the expression ‘unconvicted prisoner’ shall be construed accordingly.”
[6]Rule 3 provides that “[t]he purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life”.[7]Rule 7 is headed “Classification of prisoners” and 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. (2) Unconvicted prisoners:(a) shall be kept out of contact with convicted prisoners as far as the governor considers it can reasonably be done, unless and to the extent that they have consented to share residential accommodation or participate in any activity with convicted prisoners; and(b) shall in no circumstances be required to share a cell with a convicted prisoner. (3) Prisoners committed or attached for contempt of court, or for failing to do or abstain from doing anything required to be done or left undone: (a) shall be treated as a separate class for the purposes of this rule; (b) notwithstanding anything in this rule, may be permitted to associate with any other class of prisoners if they are willing to do so; and(c) shall have the same privileges as an unconvicted prisoner under rules 20(5), 23(1) and 35(1). (4) Nothing in this rule shall require a prisoner to be deprived unduly of the society of other persons.” (a) shall be kept out of contact with convicted prisoners as far as the governor considers it can reasonably be done, unless and to the extent that they have consented to share residential accommodation or participate in any activity with convicted prisoners; and (b) shall in no circumstances be required to share a cell with a convicted prisoner. (a) shall be treated as a separate class for the purposes of this rule; (b) notwithstanding anything in this rule, may be permitted to associate with any other class of prisoners if they are willing to do so; and (c) shall have the same privileges as an unconvicted prisoner under rules 20(5), 23(1) and 35(1).[8]Rule 8 provides that “[t]here shall be established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoners there”.[9]A Prison Service Order entitled “Unconvicted, Unsentenced and Civil Prisoners” (“PSO 4600”) contains detailed instructions for the purpose of ensuring that staff involved in the management and throughcare of such prisoners are aware of their special rights and privileges and any specific needs.[10]Annex A to PSO 4600 contains relevant definitions. Para 1 states that without prejudice to the effect of the definition as it appears in the Rules, the Prison Service treats persons as unconvicted prisoners for administrative purposes where they are remanded, committed or detained in custody under various statutory provisions, including those relating to remand or committal for trial, during any adjournment before conviction, and during an adjournment after conviction if sentence has been postponed solelyfor the purpose of s.6(2) of the Immigration Act 1971 (which concerns notices of liability to deportation).[11]Para 2 of the same annex sets out the definition of an “unsentenced prisoner” for Prison Service purposes. The first two groups within that definition are persons remanded in custody for medical examination under s.30 of the Magistrates’ Courts Act 1980 and persons remanded in custody where sentence has been postponed solely for the purpose of s.6(2) of the Immigration Act 1971. There is a note that in those two circumstances the prisoner is treated as an unconvicted prisoner. Other groups falling within the definition of unsentenced prisoner include persons found guilty and remanded in custody to await sentence. In relation to such groups, however, there is a note that in those circumstances the prisoner is treated as a convicted prisoner.[12]Chapter 1 of PSO 4600 deals with unconvicted prisoners, stating in its opening paragraphs (with original emphasis): “1.1 Unconvicted prisoners have not been tried and are presumed to be innocent, the Prison Service’s sole function is to hold them in readiness for their next appearance at court. Their imprisonment should not deprive them of any of their normal rights and freedoms as citizens, except where this is an inevitable consequence of imprisonment, of the court’s reason for ordering their detention and to ensure the good order of the prison. Instructions or practices that limit their activities must provide only for the minimum restriction necessary in the interests of security, efficient administration, good order and discipline and for the welfare and safety of all prisoners. 1.2 Mandatory requirement: Subject to these considerations, they must be treated accordingly and, in particular, will be allowed all reasonable facilities to:• seek release on bail• preserve their accommodation and employment• prepare for trial• maintain contact with relatives and friends• pursue legitimate business and social interests• obtain help with personal problems They should receive healthcare appropriate to their needs, and opportunities for education, religious observance, exercise and recreation and, where possible, for training and work. As a result of this special status, unconvicted prisoners are entitled to a number of special rights and privileges which are listed in Annex B. Further details can be found in the relevant Prison Rules and instructions which are highlighted in the Annex.”• seek release on bail• preserve their accommodation and employment• prepare for trial• maintain contact with relatives and friends• pursue legitimate business and social interests• obtain help with personal problems[13]Chapter 2 concerns unsentenced prisoners and states, under the heading “The effects of conviction”:
“2.1 A prisoner loses his or her special privileges at the point of conviction (except as stated below). From that point they have been convicted of an offence and are treated accordingly. An unsentenced prisoner can also be remanded from the court for sentencing, without previously having served time on remand. 2.2 Unsentenced prisoners can be divided into two groups, those who are treated the same as unconvicted prisoners, and therefore receive the same special rights and privileges, and those who are treated as convicted, and therefore do not. The specific Acts and sections are described in detail in Annex A ….”

The claimant’s case

[14]The claimant’s case is that, on the true construction of the definition of “convicted prisoner” (and therefore of “unconvicted prisoner”) in rule 2(1) of the Rules, he remained an unconvicted prisoner after he had entered his pleas of guilty and was on remand awaiting sentence: he became a convicted prisoner only when he was sentenced. It is said that PSO 4600 is ultra vires the Rules and is unlawful in so far as it treats an “unsentenced prisoner” in the claimant’s position as a convicted prisoner.[15]I doubt whether the question is one of vires, but I would accept that if the instructions or guidance contained in PSOs are in conflict with the Rules, they are to that extent unlawful, and that it will therefore have been unlawful to treat the claimant as a convicted prisoner in accordance with PSO 4600 if on the true construction of rule 2(1) he was an unconvicted prisoner. Conversely, if on the true construction of rule 2(1) the claimant was a convicted prisoner, I see no ground for impugning the relevant content of PSO 4600 or the way in which it was applied to him.[16]There was a suggestion in Ms Krause’s skeleton argument that the Rules themselves are unlawful if and in so far as they entitle a person to be treated as a convicted prisoner when he has pleaded guilty but has not been sentenced. That suggestion was not developed in oral submissions and in my view is unsustainable. Nothing in the Prison Act 1952 or in the general principles of public law would make it unlawful to include such a person within the definition of “convicted prisoner” for the purposes of the Rules. That view is supported by the points examined in the discussion below, but I think it unnecessary to give further separate consideration to the lawfulness of the Rules themselves.[17]It follows that the issue resolves itself into one of construction of the definition of “convicted prisoner” in rule 2(1) of the Rules.[18]The issue is one of very real practical importance, since persons treated as unconvicted prisoners enjoy considerable rights and privileges which are lost upon a change of status to convicted prisoners. That is clear enough from the passages cited above, and it is unnecessary to give fuller details of the differences between the regimes applicable to unconvicted prisoners and convicted prisoners respectively.

Discussion

[19]It is not in doubt that a person can be “convicted” on his own plea of guilty: a conviction is not limited to a finding of guilt after trial. A simple example is s.9(3) of the Magistrates’ Courts Act 1980, which provides that “if the accused pleads guilty, the court may convict him without hearing evidence”. Another example is the well established jurisdiction of the Court of Appeal to entertain an appeal against conviction under s.1(1) of the Criminal Appeal Act 1968 notwithstanding that the appellant pleaded guilty in the court below.[20]The claimant does not seek to challenge that basic principle. His case relates to the time when a plea of guilty counts as a conviction for the purposes of the Prison Rules. It is said that it only ranks as a conviction at the time of sentence. The argument draws prima facie support from R v Cole [1965] 2 QB 388, which was at the heart of the written submissions made on the claimant’s behalf. In Cole the appellant was charged with counts of conspiracy, armed robbery and receiving. The counts of armed robbery and receiving were in the alternative. He pleaded not guilty to conspiracy and armed robbery but guilty to receiving, and then argued that, having pleaded to the alternative count of receiving, he could not be found guilty on the armed robbery count. Not surprisingly, the Court of Appeal rejected the argument. The judgment of the court was given by Lord Parker CJ. Having considered the discretion of the trial

judge to accept or refuse a plea of guilty in such circumstances, Lord Parker stated at 394E-G:

“It is, however, unnecessary to go into the matter further because it is quite clear that whilst no doubt a confession of guilt is the highest conviction, nowhere is it stated either in Hale or Hawkins when the conviction occurred. It is clear that it does not occur at the time of the recording because otherwise it would be impossible for a judge to allow a plea to be changed, as is perfectly possible up to sentence, and indeed in one of the cases a verdict of a jury itself was set aside before sentence. In the judgment of the court it only ranks as a conviction when the defendant is sentenced. This view is, to say the least, in accordance with common sense; it would surprise everyone if on the facts of this case this appellant could prevent his being prosecuted for this very serious charge of armed robbery merely by pleading guilty to receiving some of the notes.”
[21]Although what is said in that passage appears to be expressed in terms of general principle, Mr Hutton for the Secretary of State drew the court’s attention to later authority which casts a very different light on the position. In S v Recorder of Manchester [1971] 1 AC 481 the House of Lords aligned the law on a change of plea in the magistrates’ court with that in the Crown Court as set out in Cole, holding that a court of summary jurisdiction which has accepted a plea of guilty to the offence charged is not in law debarred from permitting the substitution of a plea of not guilty at any time before passing sentence. But in so doing the House made clear that “conviction” can be used in two different senses, referring either to the final disposal of a case by way of sentencing or simply to a finding of guilt or acceptance of a plea of guilty. Which of those two meanings it has in any given case depends on the context.[22]Lord Reid expressed the point as follows (at p.489):
“Much of the difficulty has arisen from the fact that ‘conviction’ is commonly used with two different meanings. It often is used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt. It is proper to say that a plea cannot be changed after ‘conviction’ in the former sense. But it does not at all follow that a plea cannot be changed after ‘conviction’ in the latter sense. It is perfectly true that ‘conviction’ is used in this latter sense in the Magistrates’ Courts Act 1952 and a number of other statutes. But I cannot infer from that any intention of the legislature to alter as regards summary jurisdiction the old rules that a plea can be changed at any time before final disposal of the case.”
[23]Similar observations were made by Lord MacDermott, referring in particular to the use of the word “convicted” in what he described as its “wider” sense when it includes not only the finding of guilt but the subsequent adjudication as to punishment (p.498). Likewise Lord Morris of Borth-y-Gest stated that “[t]he word ‘conviction’ may sometimes be used to denote merely a finding of guilt and sometimes to denote such a finding followed by an appropriate order” (p.502). Lord Guest agreed with Lord Reid (p.504). Lord Upjohn stated (at p.506):
“The primarymeaning of the word ‘conviction’ denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence. Until there is such a judicial determination the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. This has been the law from the earliest times … and it is equally applicable in a court of summary jurisdiction …. But the word ‘conviction’ is also used in a secondarysense, that is, to express a verdict of guilty or acceptance of a plea of guilty before the adjudication which is only completed by sentence. Not only is the word used frequently in this sense in many judgments, but also in many places in statutes dealing with these matters ….”
[24]Mr Hutton referred us to cases where, in particular statutory contexts, “conviction” has been found to have the narrow meaning: see R v Robinson [1993] 1 WLR 168 (date of conviction for the purposes of sentencing of a young person) and R v Shergill [1999] 1 WLR 1944 (date of conviction for the purposes of the confiscation order provisions under the Criminal Justice Act 1988). I found such cases unhelpful. In my view they do not add to, or cast further light on the application of, the principles stated in S v Recorder of Manchester.[25]Ms Krause submitted, in effect, that there is a presumption in favour of the “wide” (or “primary”) meaning which is displaced only if the statutory context provides for the “narrow” (or “secondary”) meaning. I do not accept that there is any such presumption. It is simply a matter of determining which meaning applies in the particular context.[26]In my judgment, the definition of “convicted prisoner” in the Rules refers to a conviction in the narrow or secondary sense, i.e. a verdict of guilty or acceptance of a plea of guilty.[27]One compelling reason for that view is that that the definition refers to a prisoner “who has been convicted or found guilty of an offence” (emphasis added). The words emphasised place the focus on the actual finding of guilt rather than on the final disposal of the case. They echo the terminology used in the passages I have quoted from S v Recorder of Manchester about the narrow or secondary meaning. In the light of those words the narrow meaning seems to me to be the natural reading here.[28]Neither counsel was able to explain what situations might be covered in practice by “found guilty” which were not covered in any event by “convicted”. One situation in which such language would be appropriate relates to children and young persons, in that s.59(1) of the Children and Young Persons Act 1933 provides that “[t]he words ‘conviction’ and ‘sentence’ shall cease to be used in relation to children and young persons dealt with summarily and any reference in any enactment to a person convicted, a conviction or a sentence shall, in the case of a child or young person, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order made upon such a finding, as the case may be.” It is difficult to see how this could have any direct application to persons held in an adult prison, but it exemplifies the use of “convicted” and “found guilty” together, each plainly having in substance the same, narrow meaning, distinct from the sentence passed or order made upon a conviction or finding of guilt.[29]I also consider it inherently more likely that the dividing line drawn in the Rules is at the point where a person’s guilt has been ascertained, whether by verdict of the jury or court or by a plea of guilty, rather than at the point when sentencing has taken place. This accords with the statement in para 1.1 of PSO 4600 that unconvicted prisoners “have not been tried and are presumed to be innocent”: a plea of guilty is sufficient to bring the presumption of innocence to an end and to justify the move from unconvicted to convicted status, with the loss of the rights and privileges associated with unconvicted status. The PSO is not itself, of course, a direct aid to the interpretation of the Rules, but it is reasonable to suppose that the same philosophy underlies the Rules.[30]That interpretation is also consistent with other parts of the Rules. Ms Krause contends that it does not fit with the statement in rule 3 that “[t]he purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life”, to which rule 7(1) also refers. She says that a prisoner who has pleaded guilty but has not yet been sentenced does not benefit from any regime directed towards the fulfilment of that purpose: he is held at a remand prison and cannot be the subject of any sentence planning. It seems to me, however, that rule 3 is expressed in such general terms as to be readily capable of applying to those who have pleaded guilty but have not yet been sentenced. Whether the regime is operated in practice so as to promote the stated purpose in the case of such prisoners is a different question, not bearing on the interpretation of the Rules. Nor is any further light cast on the matter by other provisions in the Rules as to the specific regime applicable to convicted prisoners, such as the provision in rule 29(2)(b) that arrangements shall be made for their participation in physical education, and in rule 31(1) that they shall be required to do useful work.[31]Mr Hutton sought to rely on the terms of the court orders addressed to the prison authorities. The most relevant order is that of 18 December 2006, following which the claimant had his status changed from unconvicted to convicted prisoner. The document was headed “Remand Order” and ordered that the claimant “be remanded in custody … and on a date and at a time to be notified be brought before the Crown Court …”. The next section of the document recorded that the claimant “was sent for trial to the Crown Court ... and has been convicted of crime”. Mr Hutton directed attention to the words “convicted of crime” and submitted that the Prison Service did no more than treat the claimant in accordance with the order of the appropriate court and that it might have been in contempt of court had it not done so. I would reject that submission. The operative order of the court was for the claimant to be remanded in custody and to be brought before the court on a date and at a time to be notified. That provided the governor with lawful authority to detain the claimant in the meantime and protected him against a claim for false imprisonment. But the description of the claimant as having been “convicted of crime” did not form part of the operative order and did not require that he be treated as a convicted prisoner within the prison system. That remained a matter to be determined in accordance with the Rules.[32]Ms Krause submitted that policy considerations ought to lead to “convicted prisoner” in rule 2(1) being given the wide meaning. She relied in part on the contention that the purpose of the training and treatment of convicted prisoners, as stated in rule 3, is inconsistent with the narrow meaning; but I have already rejected that contention. She also relied on the point that the loss of rights and privileges associated with the change of status from unconvicted to convicted prisoner may operate as a deterrent to an early plea of guilty. This was a point which Collins J raised in granting permission. He noted that if remand privileges are to be removed on a plea of guilty being entered, defendants may be reluctant to enter such pleas, which is not in the interest of criminal proceedings generally. I would accept that the loss of status as an unconvicted prisoner is liable to pull in the direction of discouraging early pleas of guilty, but it is only one of a number of factors in play. It is likely in practice to be outweighed by the credit that is given to an early plea in the sentencing process. Mr Hutton rightly observed that there is no suggestion that the claimant himself was discouraged from entering guilty pleas by the prospect of the loss of status as an unconvicted prisoner. Moreover, the disadvantages of the regime to which the claimant was subject in practice as a convicted but unsentenced prisoner were taken expressly into account by the judge in sentencing the claimant. The judge stated that he was reducing the sentence by reason of the fact that the claimant had been in custody for two years before being sentenced and had been “kept in remand conditions which have been unusually oppressive for the whole of that time, because as an unsentenced prisoner there have been no facilities which would normally be open to you as a sentenced prisoner”. That is a further way in which any disincentive otherwise arising from the change in a prisoner’s status following a plea of guilty may be counteracted.[33]I do not accept Ms Krause’s submission that to subject an unsentenced prisoner to the incidents of the prison regime applicable to a convicted prisoner amounts to punishment by the executive or to arbitrary detention. Nor do I accept that, in contrast with the position of an unconvicted prisoner as set out in para 1.2 of PSO 4600, a prisoner treated as a convicted prisoner while awaiting sentence is disadvantaged in relation to the obtaining of legal advice, for example in preparation for a Newton hearing: Rules 38 and 39 provide for all prisoners to have reasonable access to their legal advisers.[34]Overall, I am unpersuaded by Ms Krause’s argument that the balance of policy considerations favours a wide interpretation of “convicted prisoner” in rule 2(1). If anything, I consider that policy considerations favour the narrow meaning; but in any event, in circumstances where I consider the narrow meaning to be the natural construction of the provision, policy considerations do not compel a departure from that meaning.[35]Accordingly I reach the conclusion that a person who has pleaded guilty to an offence but has not yet been sentenced for that offence is a “convicted prisoner” within rule 2(1) of the Rules. PSO 4600 is lawful in treating such a person as a convicted prisoner, and the claimant was lawfully so treated following his pleas of guilty to the second set of charges in December 2006.[36]Mr Hutton’s skeleton argument raises a point on delay. Since permission was granted by Collins J, an argument on delay can only bite under s.31(6) of the Supreme Court Act 1981 as a ground for refusing relief in the exercise of the court’s discretion. It would not provide a good reason for the refusal of relief in the present case, since we are concerned with an important point of principle and the Secretary of State has not identified any reason why it might be detrimental to good administration for the court to declare the legal position. But the point does not arise on the view I have formed on the substance of the case, since the claim fails in any event.[37]For the reasons given, I would dismiss this claim.[38]I agree.