Stephenson, R (on the application of) v Secretary of State for Justice [2010] EWHC 3134 (Admin)

Case No CO/9136/2009[2010] EWHC 3134 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice
Strand
London WC2A 2LL
FRIDAY, 19TH NOVEMBER 2010
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF STEPHENSONClaimantv
Between
THE SECRETARY OF STATE FOR JUSTICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr J Bunting (Instructed By Michael Purdon) Appeared for ClaimantMr T Buley (Instructed By Treasury Solicitors) Appeared for Defendant
J U D G M E N TDate 2010-11-19
[1]MR JUSTICE MITTING: On 20 November 2006 the claimant was convicted of a number of offences, including robbery, and sentenced to indefinite imprisonment for public protection with a minimum term of 2 years 10 months. The minimum term expired on 30 December 2007. The Parole Board accordingly set out to consider whether his release should be ordered.[2]On 4 November 2008 it wrote to him explaining that an oral hearing on his eligibility for release would take place in May 2009. The same letter requested that his prison dossier should be provided to the Board by 30 January 2009 and requested that a copy of it should be given to the claimant by 26 December 2008 to permit him to make representations upon it.[3]On 27 January 2009 a copy of the dossier was provided at no charge to the claimant's solicitor. On the same day a copy of the dossier was made available to the claimant for him to read. He made written representations upon it and returned the dossier on 1 February 2009.[4]An addendum was added to the reports in the dossier on 14 April 2009. The claimant again was given access to the dossier. He made no further representations about it.[5]On 9 June and 13 July 2009 he requested the provision of a copy of the dossier for him to retain. Those requests were refused. They were refused in purported application of Prison Service Order 6010 ("the PSO") but on 2 July 2009 it was stated that he could have a copy of the documents in the dossier, provided that he paid a fee of 10p per sheet.[6]On 30 September 2009 the claimant made a further request for access to the dossier. It was provided to him overnight and he returned it the following day without making further representations upon it. On 11 October 2009 he again requested a permanent copy of the dossier, and that request was refused.[7]In due course the Parole Board decided on 23 February 2010 that the claimant should be transferred to open conditions. It did so in terms which indicated that it accepted that he was ready for transfer to open conditions; that he had achieved all aspects of his sentence plan and had been adjudication free; that there were positive reports from those who reported on his position and that he was in a position of high trust. The outcome as far as the claimant was as favourable as it could have been. He is due to have a further review when, no doubt, the possibility of his conditional release will be considered by the Board in the light of his performance in open conditions.[8]Reviewing those facts, the reasonable and impartial observer might wonder what the claimant had to complain about. He challenges the decision of the prison authorities to refuse to supply him with a copy of the dossier for him to keep in his cell and to do thereafter what he wished with it.[9]He brings his claim under two heads: first, he submits that as a matter of fairness under Articles 5 and 6 of the European Convention on Human Rights and in the light of common law obligations developed over the years in case law he was entitled to have a copy of the dossier so as to be able to make comments upon it, to give instructions to his solicitors about it and to deploy it in the Parole Board hearings. Secondly, he submits that he was in any event entitled to a copy of the dossier under sections 7 and 8 of the Data Protection Act 1998.[10]I deal with the first claim first. Mr Bunting, who has argued the claimant's case today, submits that at common law he is entitled not merely to see the dossier but to have a copy of it. He rests himself upon observations of Lord Phillips in the very different case of AF v the Secretary of State for the Home Department [2009] 3 Weekly Law Reports 74 at paragraph 64:
"the best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents."
[11]Mr Butting submits that by that passage Lord Phillips can be taken to enunciate or approve the proposition that where the evidence is documentary the claimant should be provided with a copy of the documents at no cost. That is not what Lord Phillips said. He said that where the evidence is documentary he should "have access to the documents". On the facts which I have recited, that obligation was fulfilled. The claimant was allowed access to the documents in the sense he was allowed to have them in his cell and to read them on every occasion on which he requested access. He has made no complaint that the access that he was allowed was insufficient to permit him to make whatever representations he wished about the dossier. He makes no complaint that any matter relevant to his Parole Board hearing was not disclosed to him.[12]His claim that he was denied a fair procedure because he was not afforded access to the dossier is, therefore, simply untenable. In the light of that conclusion it is not necessary for me to consider the lawfulness of the PSO dealing with the granting of access to a dossier to the prisoner. Its lawfulness is in any event not challenged in these proceedings. I have no ground for thinking that the rules then contained in PSO 4700 at paragraph 5.8.1 and now contained in identical terms in PSO 6010 are in any way open to criticism.[13]I turn, therefore, to the second basis upon which the claim is put: the claim under the Data Protection Act 1998. Section 7 provides, relevantly, that:
"Subject to the following provisions of this section and to section 8, an individual is entitled... (c) to have communicated to him in an intelligible form: (1) the information constituting any personal data of which that individual is the data subject... (2) a data controller is not obliged to supply any information under (1) unless he has received - (a) a request in writing, and (b) except in prescribed cases, such fee not exceeding the prescribed maximum as he may require. 8(2) the obligation imposed by section 7(1)(c)(i) must be complied with by supplying the data subject with a copy of the information in permanent form unless - (a) a supply of such a copy is not possible or would involve disproportionate effort, or. (b) the data subject agrees otherwise... "
Neither of those provisos applies. Accordingly, providing that it was plain that a request was made under section 7, the prison authorities were obliged to comply with the request to communicate to the claimant in an intelligible form the information in the dossier. Furthermore, section 8(2) obliged the prison authorities to supply "a copy of the information in permanent form."[14]Mr Buley for the Secretary of State in his skeleton argument and initially in his oral submissions submitted that that obligation had been fulfilled by providing a copy of the dossier to the claimant to read in his cell and then requiring him to give it back because, he submitted, the dossier was in permanent form and by affording him access to it he had been supplied with a copy of the information in permanent form. When I pointed out to Mr Buley that the logic of his argument would mean that if a data controller had information about a data subject on a sheet of paper he would fulfil the obligation by holding up the sheet of paper for the subject to read and then removing it. He accepted that that would not fulfil the statutory requirement.[15]He did go on to submit that because the Data Protection Act was enacted to give effect to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 it should be construed in a manner consistent with the Directive. I accept that is so, and I accept that, as Lord Phillips observed in Campbell v NGM Limited [2003] 2 Weekly Law Reports 80 at page 105H, the Act must be construed purposively. The Act goes further than the Directive in requiring a copy of the information to be provided in permanent form.[16]However purposively one construes the statute, one cannot get away from the obligation; it is an obligation to supply a copy of the information in permanent form. In the case of documentary information, that permanent form is likely to be a document or a copy of a document. The phrase "permanent form" does not in my judgment apply only to the form in which the information exists, it imports an obligation to provide a copy of the information in a form which the recipient can keep. Accordingly, a request made under section 7 for a copy of the dossier by a prisoner obliges the prison authorities to supply a copy of the dossier, subject to all relevant provisos, for the prisoner to keep.[17]That obligation, however, is subject to two qualifications: first of all, under section 7(2) the prison authorities are entitled to require the payment of a fee. Mr Bunting submits that to require of a prisoner whose prison earnings may only be £11 a week a fee which may amount to as much as £20 or £25 -- the cost of copying the dossier -- is disproportionate. I disagree. In a case such as this where, without cost, a copy of the dossier has been provided to the prisoner's legal representatives and the prisoner has been allowed access to the dossier on every occasion on which he has requested it for such time as permits him to read it and make representations about it, it is not unreasonable to require him to pay the economic cost of copying the documents in the dossier. Secondly, and probably of more fundamental importance, nothing in the Data Protection Act purports to or does control the right of the prison authorities to take into their possession any property of the prisoner. Accordingly and for good reason the prison authorities would, having supplied a copy of the dossier to the prisoner, be perfectly entitled to take it back from him and keep it safe. No doubt, upon release the prison authorities would be obliged to let him take it away - again, subject to considerations which it is not necessary for me to consider today. Strictly that is the nature of the obligation.[18]As it happens on the facts of this case, although a mistake was made in demanding a fee for the purpose of the PSO, the mistake saved the prison authorities from unlawfully refusing to provide a copy of the dossier to the prisoner, because the claimant has always declined to pay the fee.[19]For those reasons this claim is dismissed.[20]MR BULEY: My Lord, simply for the avoidance of doubt I don't have what might be called the usual application. I do just have a short comment for the transcript. I never know whether to trouble judges with things which are often trivial.[21]MR JUSTICE MITTING: It is always helpful to point out errors in extemporary judgments, which are in practice unavoidable.[22]MR BULEY: Your Lordship referred to the prison rules, and in doing so then indicated that your Lordship referred to the PSO.[23]MR JUSTICE MITTING: I meant the PSO. The PSO, which is short for?[24]MR BULEY: It is public policy it -- does it not have a short form? Whether it is issued under provisions, it is --[25]MR BUNTING: It is a Prison Service Order, my Lord.[26]MR BULEY: That is all it is, thank you.[27]MR JUSTICE MITTING: I am very grateful for that correction. I will make the appropriate correction, if anybody wants me to correct a transcript, I will gladly do that.[28]MR BUNTING: Simply to ask for a detailed assessment as to the claimant's publicly funded costs.[29]MR JUSTICE MITTING: I so order. I am afraid that this case illustrates why the Secretary of State has decided in the interests of economy to curtail legal aid for prison cases. Thank you.