Nealon & Anor v Governor of HMP Wakefield & Anor [2010] EWHC 1169 (Admin)

Case Nos: CO/2326/2010,

Case No CO/3212/2010

[2010] EWHC 1169 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at:

Venue Leeds Combined Court

1 Oxford Row

Venue Leeds

Date Monday, 19 th April 2010

West Yorkshire

LS1 3BG

Before

MR JUSTICE KEITH

Between

VICTOR NEALONClaimants

PATRICK SIMMSClaimant

1) THE GOVERNOR OF HMP WAKEFIELDDefendants

2) THE SECRETARY OF STATE FOR JUSTICEDefendant

(DAR Transcript of

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Mr Stephen Field appeared for Claimants

Mr Rory Dunlop appeared for Defendants

Judgment

[1]These two cases were ordered by Langstaff J to be heard together, because they both relate to the legality of an instruction issued by the Governor of Wakefield Prison that prisoners should wear identity cards on their armbands whenever they are outside their wings. Wakefield Prison is one of the six prisons within the high security estate. Both claimants are prisoners currently serving sentences of imprisonment at Wakefield Prison. Victor Nealon was refused permission to proceed with his claim for judicial review by Judge Langan QC, and he has asked for that decision to be reconsidered at an oral hearing. Patrick Simms’s application for permission to proceed with his claim for judicial review was ordered by Langstaff J to be considered at an oral hearing.

[2]A scheme for the carrying of identity cards was first introduced by the Governor of Wakefield Prison with effect from 4 December 2006. The identity cards would show the name and prison number of the prisoner, along with his photograph and his security classification if he was a category A prisoner. It had to be produced when the prisoner was requested to show it, and the prisoner could not get into the canteen, the exercise yard, the sports field, the gymnasium or the chapel without it, nor could he access workshops or educational facilities without it, or the part of the prison where visits took place. From 14 December 2006, the prisoner’s date of birth was added to the card, and much later on his date of arrival at the prison was added as well.

[3]From 9 November 2009, prisoners were required to wear their identity cards on an armband at all times. From 10 January 2010, they only had to do so in the gymnasium and some of the workshops. But from 15 January 2010, they had to wear them on an armband at all times when outside their wings. Although Mr Nealon had a doctrinal objection even to carrying his identity card, Mr Stephen Field for both claimants has confirmed that this case is principally about the requirement on prisoners to wear their identity cards on their armbands, where the information on their identity cards is visible to other prisoners and to other prisoners’ visitors when prisoners are themselves receiving visits.

[4]The requirement on prisoners to wear identity cards on their armbands was the subject of a recent parliamentary question, which asked “whether there is any law whereby prisoners may be obliged to wear identity cards on an armband; if not, why the practice is carried out at HM Prison Wakefield; and what assessment they have made on the effect of the practice on prisoners’ rights to exercise and to attend religious services”. On 29 January 2010, the Minister gave the following written answer:

“There is no legal requirement for prisoners to wear identity cards. However, prisoners at Wakefield high-security prison and some other prisons are issued with identity cards. Prisoners at Wakefield, when leaving their residential unit, are expected to display the identity card on the outer layer of clothing using an armband. This enables staff throughout the prison to readily identify any prisoner. For security reasons, where a prisoner declines to wear his identity card he will not be permitted to leave his residential unit.”

[5]Mr Nealon began to object to his identity card about 14 months after they were introduced. He handed his in on 22 January 2008. He was told what the consequences would be in terms of him not being able to access certain parts of the prison, but he maintained his stance. His concern was that other prisoners would get to know his date of birth. His complaints about the scheme were rejected, both by the Governor and the Prisons and Probation Ombudsman. Mr Simms became concerned about his identity card only after prisoners were required to wear them on their armbands. He first complained about them on 25 January 2010. He thought that it was hypocritical for prisoners to be expected to wear them when prison officers had been issued with laminated name badges which he said some of them were not wearing.

[6]In my view, it is not arguable that requiring prisoners to wear identity cards on their armbands when outside their wing is unlawful. It is important for prison officers to know with whom they are dealing. They are likely to know the prisoners on their wing, but not necessarily all the others. Requiring prisoners to wear identity cards on their armbands when outside their wing enables prison officers who might not know them to know who they are. There are many reasons why it might be important for a prison officer to know who a particular prisoner is. For example, prisoners have been known to collect other prisoners’ canteen items. An identity card system makes that easier to detect. And as for wearing their identity cards on their armbands, rather than simply being required to carry them, it might take a little time for a prisoner to produce his identity card, and sometimes prison officers may need to know the identity of a prisoner quickly. Sometimes a prison officer may want to know a prisoner’s name without the prisoner knowing that the prison officer wants to know who he is.

[7]I turn, then, to whether there can be any serious objection to the information about the prisoner which the identity card contains. A prisoner who has committed a particularly notorious crime might have wanted to conceal his identity, but having to wear an identity card on his armband would not be disclosing that which was secret, because the names of prisoners are on their cell doors. Similarly, it could well be useful for prison officers to know whether a particular prisoner has recently arrived in the prison and may not be familiar with the ropes, or whether the prisoner has been there for a long time and knows his way around. Having said that, in Mr Nealon’s case, the problem for him is that other prisoners would get to know his date of birth. The legal peg on which that is alleged to be unlawful is that his date of birth is personal information about him, and requiring him to wear his identity card containing his date of birth, in such a way that other prisoners can see it, is said to be an infringement of his right to respect for his private life, guaranteed by

Article 8 of the European Convention on Human Rights

[8]When I asked Mr Field what Mr Nealon’s concern really was all about, Mr Field was unable to tell me, because the only thing which Mr Nealon had said was that information about his date of birth in the hands of other prisoners could be misused. When I asked Mr Field what it could be misused for, Mr Field could only guess; but with admirable ingenuity, Mr Field suggested that if prisoners or their visitors know another prisoner’s date of birth, and if they had corrupt and unlawful access to the Police National Computer, they could find out what a prisoner’s previous convictions were for, or alternatively could link the prisoner with any written record of a prisoner’s previous convictions which was circulating in the prison unlawfully.

[9]I am sceptical about that. The suggestion seems, at first blush, to be a fanciful one. But whether Mr Field’s suggestion was a real possibility or not, the justification for including the date of birth on the identity card advanced by the Governor is that two prisoners might have the same name, and information about their date of birth serves to distinguish them. It is true that their prison number will do that, but I suspect that someone’s date of birth is easier to remember than their number, especially as a prisoner’s number consists of seven digits, even though the first one and the last two will be the same and will apply in 90 cases out of 100 to every prisoner in a particular prison.

[10]All in all, I do not believe that it can seriously be argued that requiring prisoners to wear identity cards on their armbands containing information about their date of birth when they are off their wings is anything other than a proper and proportionate way of managing prisoners in prison. Accordingly, to the extent that that requirement is a prima facie infringement of a prisoner’s right to respect for his private life (which I have to say I rather doubt, because I do not think it is sufficiently serious to engage Article 8 at all), the interference with that right is justified by the need to maintain good order and discipline in the prison.

[11]The claimants’ advisors have seized on the Minister’s words that there is no legal requirement for prisoners to wear identity cards, as if that meant that the requirement on prisoners to wear their identity cards on their armbands was unlawful. I do not think that the Minister meant any such thing. What he meant, I think, was that it was not unlawful for prisoners not to comply with the requirement, though since it was reasonable to “expect” prisoners to wear their identity cards on their armbands so that they could readily be identified throughout the prison, prisoners could not complain if the consequence of not complying with the requirement was that they were confined to their wings. If they were confined to their wings for that reason, they had only themselves to blame.

[12]Mr Field has argued that the requirement for prisoners to wear their identity cards on their armbands when outside their wings is ultra vires the Prison Act 1952. The argument is that when the scheme was first introduced, the information to be included on the identity card did not include the prisoner’s date of birth. I must be frank, I do not see how that made the requirement ultra vires the Prison Act. But even if it did, the defect was cured within ten days, when the Governor issued an instruction which added the prisoner’s date of birth to the information which the identify card was to include. Mr Field does not now argue otherwise.

[13]When properly analysed, the real issue which the claimants’ cases raise relates not so much to the legality of requiring prisoners to wear identity cards containing personal information about them on their armbands when outside their wings, but rather to the consequences to them of not doing so, which is that they cannot leave their wings, and that has an impact on many things to do with prison life. They cannot go on courses which affect their sentence planning, and in particular their release date if, like the two claimants, they are serving indeterminate sentences. It affects their ability to exercise and enjoy some of the facilities which the prison has to offer. It affects their ability to earn prison pay because they cannot go to the prison workshops. And it affects their visits, whether legal visits or visits they get from family and friends. For a while, prisoners like Mr Nealon who refused to carry their identity cards were escorted by prison officers when they left the wing, for example for visits. But eventually it was decided that it was a disproportionate use of prison resources for such prisoners to be escorted whenever they left the wing. The result was that they did not leave the wing. But none of these consequences can be said to be attributable to the requirement that when outside their wings, prisoners have to wear their identity cards on their armbands. It is attributable to their refusal to comply with that requirement, and since the requirement is one which is not unlawful, they have, as I have said, only themselves to blame if they are confined to their wings.

[14]For these reasons, Mr Nealon’s renewed application for permission to proceed with his claim for judicial review of(a) the requirement that he wears his identity card on his armband when outside his wing,

(b) the imposition of what are described as “obstacles” to his access to education and other courses,

(d) what is described as the Governor’s refusal to allow him access to his legal representatives must be refused. I also refuse Mr Simms permission to proceed with his claim for judicial review of the requirement that he wears his identity card on his armband when outside his wing, and what is described as the Governor’s refusal to allow him access to his legal representatives.

[15]That leaves two other matters. The first relates to Mr Nealon. Prisons operate a scheme which rewards good behaviour. It is called the incentives and earned privileges scheme (“IEP”). The privileges to which a prisoner is entitled depend on his status under the scheme, whether basic, standard or enhanced. At all times, Mr Nealon’s status under the scheme was standard. It was reviewed on 1 May 2009. Mr Nealon refused to attend the review, and said that he was happy for his status to remain at standard. On 21 May 2009, Mr Nealon refused to go to education. Knowing of his refusal to carry an identity card, prison officers offered to escort him, but he still refused to go. He was given an IEP warning. Three such warnings result in a review of a prisoner’s IEP status. The same thing happened on 4 June 2009. There is no evidence of anything of significance occurring between then and 18 February 2010 when Mr Nealon’s claim form was issued, and I therefore assume that at the latest review of his IEP status, it remained at standard. However, what I do know, not from anything which Mr Nealon has said, but from what Mr Rory Dunlop for the Governor and the Secretary of State for Justice has told me today, is that an IEP warning only lasts for three months, so that the two IEP warnings which Mr Nealon got lapsed well before 18 February 2010.

[16]It is said on Mr Nealon’s behalf that giving him IEP warnings amounted to disciplining him for doing that which he could lawfully do, namely, refuse to carry his identity card. I do not agree. Mr Nealon did not get his IEP warnings for not carrying his identity card. He got his warnings for refusing to go to education. After all, he was offered an escort because of his known refusal to carry it. Whether he should have been given a warning for refusing to go to education is another matter, unrelated to the issue about identity cards, but there is a direct link between attending education and a person’s IEP status. One of the factors which para 2.11 of PSO 4000 says must be taken into account when decisions are made about a prisoner’s IEP status concerns addressing a prisoner’s behaviour, which is an essential part of sentence planning, particularly for prisoners like Mr Nealon serving an indeterminate sentence. But that is not an issue which arises here, because Mr Nealon could have gone to education even without his identity card, and so for the reasons I have given, Mr Nealon’s renewed application for permission to proceed with his claim for judicial review of what is described as the Governor’s interference with his rights under the IEP scheme must be refused.

[17]Mr Simms has been given IEP warnings as well. On 22 January 2010, he was given an IEP warning for leaving the wing to attend the primary care centre without wearing his identity card on his armband. And he received another IEP warning on 25 January 2010 for not going to his place of work because he refused to wear his identity card. However, unlike Mr Nealon, there is no challenge to his rights under the IEP scheme in his grounds of judicial review, even though there is a reference to his IEP warnings in Mr Field’s skeleton argument, and I therefore say no more on the topic.

[18]The second of the two remaining issues relates to Mr Simms. On 28 January 2010, he was required to go to work. He went to the relevant gate, which Mr Field and I have assumed to be a reference to the gate out of his wing, but he was not wearing his identity card on his arrival at the gate. He was then instructed to attend work with his identity card correctly displayed. He refused to do so, and was charged with an offence of disobeying a lawful order contrary to rule 51(22) of the Prison Rules 1999. He was found guilty on 1 March 2010, and received a punishment of 14 days’ solitary confinement, and 14 days’ loss of canteen facilities.

[19]The critical question here, I think, relates to the nature of the order which Mr Simms was found guilty of disobeying. If the order which he was found guilty of disobeying was an order that he had to wear his identity card on his armband, then it is arguable that he should not have been found guilty of an offence under rule 51(22), because there was no obligation on him to comply with such an order, if what the Minister said in his written answer is anything to go by. It would, therefore, be arguable that the consequence of his non-compliance with that order should only have been that he had to return to his wing. On the other hand, if the order which he was found guilty of disobeying was an order that he attended for work, then the order which he was found guilty of disobeying would not have been an order to wear his identity card on his armband, even if it was the requirement to wear his identity card on his armband, which was the reason why he was not prepared to go to work. His punishment, in other words, would not in those circumstances have been attributable to the stance that he was taking about having to wear his identity card on his armband, even though it was that stance which caused him to refuse to go to work. His punishment would have been attributable to his refusal to go to work.

[20]The report which the prison officer made to the Governor is ambiguous on this issue. The report recorded the officer as having said to Mr Simms, “I’m giving you a direct order to attend work with your ID correctly displayed”. But the record of Mr Simms’s adjudication hearing shows that the order which he was found guilty of disobeying was the order to attend work. Admittedly, early on in the hearing, Mr Simms was asked whether he had refused to wear his identity card on his armband as instructed, to which he replied, “Yes, because it is unlawful”. But then the Governor said to him:

“By refusing to wear your ID card as instructed, you have made yourself unable to attend work. Thus, by your actions [you] refused to attend work”

. That shows that what the Governor was focusing on was Mr Simms’s refusal to attend work. And when the hearing continued, it is plain that Mr Simms was trying to justify his refusal to attend work, rather than his refusal to wear his identity card on his armband. The record shows the following exchange between him and the Governor:

“Pris -- I have enemies in this prison and am liable to be attacked that is why I have not been willing to attend workshop Gov -- Then why as you say did you present yourself ready to attend work Pris -- I knew I wouldn’t be going because I wouldn’t wear my ID card in the armband Gov -- Therefore you engineered this incident so that staff would not allow you to leave the wing therefore you would not go to work? Pris -- Sort of …”

It follows, therefore, that the order which Mr Simms was found guilty of not complying with was not the order that he had to wear his identity card on his armband, which was an order which he was under no obligation to comply with, but an order to go to work, which is not alleged to be an order which he was not under an obligation to comply with. Gov -- Then why as you say did you present yourself ready to attend work Pris -- Sort of …”

Gov -- Then why as you say did you present yourself ready to attend work

[21]Mr Simms spent his 14 days’ solitary confinement in the segregation unit on F Wing. The Inspectorate of Prisons recently recommended that F Wing should be designated as unfit for purpose, and taken out of use as soon as feasible. Its report describes the cells in the segregation unit as in poor condition, and said that some of them were very cold. There is no evidence whether Mr Simms was held in one of the cells which the Inspectorate had said was very cold, or what the effect on him of being in the segregation unit had been. But he seeks judicial review of his confinement on F Wing on the basis that his right not to be subjected to inhuman or degrading punishment, guaranteed by

Article 3 of the Convention

, has been infringed, and that by being segregated, his right to respect for his private life had been infringed as well.

[22]I do not think it arguable that the state and heat of the cell he was in, even assuming that the one he was in was very cold, amounted to ill-treatment of the severity required if it was to fall within Article 3. And although I acknowledge that removing a prisoner from association with other inmates can constitute an interference with a prisoner’s private life, it is not, I think, arguable that Mr Simms’s segregation, having regard to its length and the fact that he was being confined for an offence for which he had been found guilty, amounted to an interference with his private life which was not justified, on the basis of the need to maintain good order and discipline within the prison. For these reasons, I refuse Mr Simms’s application for permission to proceed with his claim for judicial review of his finding of guilt on the charge of disobeying a lawful order, and his confinement in the segregation unit on F Wing. MR JUSTICE KEITH: Yes? MR DUNLOP: I am very grateful, my Lord. I stand up only because I would like your permission to rely on your oral decision today in further cases, should that be appropriate. The reason I ask for your permission is that it is my understanding that from the Practice Direction given by the Court of Appeal on this, the sort of practice has developed that before anyone can rely on a permission decision or judgment, they should get the approval of the judge who gave that decision. It seems to me that your Lordship has heard quite lengthy argument for a permission hearing, and has given a detailed and comprehensive judgment, for which we are very grateful; and there is a possibility that this may be relevant again, particularly if the solicitors pursue some of the other cases which are referred to in the witness statements. So for those reasons, I would ask for your permission to rely on your judgment today. MR JUSTICE KEITH: Mr Field?23. My Lord does lay down some fairly clear definitions, parameters, boundaries and so on that could well be of assistance. MR JUSTICE KEITH: I am sorry, are you applying, therefore, for a transcript of the judgment, but opposing Mr Dunlop’s application for my approval for the judgment to be cited in future cases? MR FIELD: My Lord, I have not had a chance to research the point as to the procedure in these circumstances. It may be that I perhaps I have no locus, I do not know whether it is a matter for me or it is a matter purely for my Lord, having given the ruling. Would my Lord accede to application to rise just for a few minutes, so that I can look at certainly I text I have, to see what the standard procedure is, please? MR JUSTICE KEITH: Certainly. Are there any other applications that either of you wish to make. MR FIELD: There is only one, that is on behalf of the two claimants, that there be a detailed assessment of each claimant’s publicly funded costs. MR JUSTICE KEITH: A detailed assessment or a summary assessment? MR FIELD: I believe it is detailed, is the standard words, I will check whether there is a distinction that needs trouble the court. MR JUSTICE KEITH: This is a case in which I would prefer summarily to assess costs, but if the standard order is detailed assessment of their costs, then I shall make it. But could you check whether that is the standard order? MR FIELD: I will, my Lord, yes. MR JUSTICE KEITH: Let me know when you are ready for me to return to court. MR FIELD: Yes, my Lord. (Short adjournment) MR DUNLOP: My Lord, sorry to keep you further on this rather discrete issue. I think what I will have to do is I will have to explain to you the fruits of our legal research, and then make short submissions about what I am asking. The authorities that we have managed to uncover on this issue start with a decision of the Court of Appeal called Clark v Lincolnshire and Humberside, and the last three paragraphs of Lord Woolf’s judgment in that deal with a submission made by one of the counsel in that case, which was that a decision on an application for permission to appeal to the Court of Appeal should be binding on a first instance judge thereafter. It was Mr Vineall who made that submission. And then Lord Woolf says there is force in -- MR JUSTICE KEITH: This is an application made to the trial judge or made to the Court of Appeal? MR DUNLOP: As I understand it, he is saying that the original judge should have been following the judgment of the Court of Appeal in permission decisions. MR JUSTICE KEITH: Yes, judgments of the Court of Appeal, yes. MR DUNLOP: Yes, so obviously a Court of Appeal judgment is not going to be binding on a another Court of Appeal judge -- MR JUSTICE KEITH: No, no, what is binding is the judgment on an application to the Court of Appeal, not an application to the trial judge.

24. MR DUNLOP: Yes. And so what Lord Woolf says is:

“41. There is force in Mr Vineall's submission. However if he were correct in his submissions, this would have very damaging consequences for the development of the law of this country. His submission ignores the reality of what happens on an application for permission. If there is an oral hearing on an application for permission, the hearing is normally intended to last no more than 20 minutes. A judge may deal with 7 or 8 applications in the one day. In each he will give judgments of differing lengths 42. Until recently it would be unusual for any judgment on an application for permission to be reported. However, as a result of the development of specialists reports, even in relation to applications for permission, judgments are now commonly reported. However, the fact that they are reported does not alter the consideration which the judge can give to the terms in which his judgment is couched. Further more the judge is not usually referred to reports of other cases, or if he is referred to reports, he will have them drawn to his attention in a much more summary manner than would be the case on the hearing of an appeal. 43. Even if Mr Vineall had been right, when he submitted there is no decision which directly deals with the status of judgments of this court on applications for permission to appeal, it is well established that the court does not regard them as binding authorities. This is confirmed by the case of Anthonypillai Francis Robinson v. Secretary of State for the Home Department Immigration Appeal Tribunal [1997] Imm AR 568 at p. 580 where there is reference to the judgment of Simon Brown LJ in R. v. Kensington and Chelsea LBC ex parte Kihara 29 HLR 147. The court does not therefore have to follow the decisions given on applications for permission to appeal. They are at best only of persuasive weight. The court does not encourage reference to judgments given on applications for permission. However, if a court is prepared to be referred to such judgments, it should be clearly understood that they are not binding.”

So that was said in that case about applications for permission to appeal to the Court of Appeal. Those particular paragraphs were cited in a later House of Lords case Ex parte Burkett, where Lord Woolf’s comments were cited with approval. And what seems to have happened is that the sort of rationale which applies to -- the reasoning Lord Woolf was relying on in relation to applications for permission to appeal to the Court of Appeal often applies in relation to applications for permission to apply for judicial review. In other words, the fact that they are often very short, you often do not have authorities cited, you have to deal with seven or eight in a day, and give a lot of extempore judgments. And there is also a Practice Direction which we managed to locate, but actually that does not in terms say anything about situations such as the present, where it is an application for permission to apply for judicial review. What it does say is that you should not generally cite authorities as authoritative application decisions in front of the Court of Appeal, asking permission to appeal. I am aware, from first hand experience, of a practice having developed in the Administrative Court of people going to judges who have given permission decisions, and asking them, “Can we rely on your decision?” I showed my learned friend an example of a case where I myself asked Underhill J just such a request, and he agreed, and he said that he had heard of such a practice, but he did not know what its basis was. I am aware of other counsel having done so. So that is a sort of brief summary -- MR JUSTICE KEITH: I would have thought it is a matter entirely for you to make what use of it. The first question is, should it be transcribed? And if the court decides that it should be transcribed, for whatever reason, or if you are prepared to pay for a transcript, for whatever reason, then it is transcribed, it is there. And then what use you make of it is entirely for you. MR DUNLOP: Well, I agree, my Lord, and I do not think there is anything in any of the authorities we have looked at to say to the contrary. Just to be clear, I am not suggesting that your Lordship’s judgment today should be binding -- MR JUSTICE KEITH: Of course not. MR DUNLOP: Of course not, because they will also be High Court judges. It seems to me very undesirable that my learned friend’s instructing solicitors might be able to bring a very similar case, and everyone should have to shut their eyes to what was decided by your Lordship today. It seems to me that any judge looking at it on the papers or -- MR JUSTICE KEITH: They do not have to shut their eyes. Whether there was a system for me to give approval for it to be used, the next judge would not have to shut his eyes to it. If you happen to have a transcript, you would show it to him. MR DUNLOP: Yes, well that is all we are really seeking to do, and I went to a rather formal way of asking to do it, but yes, effectively what we would like is a transcript, so that that can be relied on in future proceedings. MR JUSTICE KEITH: Well, are you not entitled to a transcript automatically, provided you pay the appropriate fee? MR DUNLOP: We are entitled to a transcript, but I wanted to make clear is, based on this practice which I have seen develop, is to ensure that we had your permission to rely on that transcript, and no one could say, “Well, this is only a permission, you have not got the permission. MR JUSTICE KEITH: I do not think you need my permission to rely on it. What use you make of it is a matter for you, and if another judge is shown it, it is for him to give such weight or lack of it as he chooses. MR DUNLOP: There we are, my Lord. MR JUSTICE KEITH: Very well. Do you wish to add anything? MR FIELD: No, my Lord. MR JUSTICE KEITH: Very well. If you are going to ask for a transcript, if you can do it administratively, do it sooner rather than later, because it will be easier for me when it is typed for me to correct it. If I have to do it many months later, then I will have forgotten about the case. It will be helpful if it comes back to me at a time when I can remember it. MR DUNLOP: I am grateful, my Lord. MR FIELD: My Lord, in relation to the other matter, much research culminated in speaking to your learned associate, and I think the correct way forward is it is a detailed assessment, and that is standard invariable order. MR JUSTICE KEITH: If that is the standard, invariable order, then you must have it. MR FIELD: I am very grateful, my Lord. MR JUSTICE KEITH: Thank you very much. ------------------