Kenyon, R (on the application of) v HMP Wakefield & Anor [2012] EWHC 1259 (Admin)

Case No CO/5862/2011Neural Citation Number: [2012] EWHC 1259 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT IN LEEDS
Venue Leeds Combined Court
1 Oxford Row
Venue Leeds LS1 3BGDate Thursday, 22nd March 2012
B e f o r e:
MR JUSTICE HICKINBOTTOM
Between
THE QUEEN ON THE APPLICATION OFClaimantGLYN KENYONClaimantv
Between
THE GOVERNOR HMP WAKEFIELDDefendantTHE SECRETARY OF STATE FOR JUSTICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Matthew Stanbury (instructed by Chivers Solicitors) appeared for ClaimantMs Cathryn McGahey (instructed by Treasury Solicitor) appeared for Defendant s
J U D G M E N T
[1]In November 2001, the Claimant was convicted of attempted murder, and was sentenced to life imprisonment with a minimum term of 16 years. An appeal against that conviction was dismissed in March 2004. In the meantime, in February 2002, he was separately convicted of 50 counts of rape, sexual assault and other associated offences, all against two minor complainants. He was sentenced to life imprisonment, with a minimum term of 7 years, consecutive to the minimum term previously imposed. From the information that I have, it in unclear whether those convictions were the subject of an appeal; but, if they were, that appeal was unsuccessful. The Claimant is currently serving those sentences in HMP Wakefield.[2]On 3 February 2011, he applied to the Governor for the provision of a laptop computer, giving the following as his reasons for the request:
“I have been convicted at two trials. The combination of that and that one of the trials had large volumes of evidence means that I have large amounts to organise and I can’t do that properly without access to a laptop. Due to the above, any submissions I make are likely to be long and complicated and will take much organising to be able to produce them in a style that the court will be able to read it. This will be easier with a laptop, which would allow the amending/addition/subtraction of material.”
The trial in which he considered that he had “large volumes of evidence” was the second trial, involving the charges of unlawful sexual activity. The Claimant’s application for a laptop computer was refused on 9 February 2011, on the basis that he was not a “registered applicant” and that the prison only supplied “read-only” computers.[3]This claim, originally challenging that refusal by way of judicial review, was issued on 22 June 2011. In his Statement of Grounds and Facts (at paragraph 2.1), the Claimant indicated that he needed a laptop computer because he intended to make an application to the Court of Appeal for leave to appeal out of time and/or submissions to the Criminal Cases Review Commission in relation to the convictions in respect of which an appeal to the Court of Appeal had already been refused. Following an Acknowledgment of Service, on 3 August 2011, His Honour Judge Behrens, sitting as a judge of this court, gave permission to proceed with the claim to challenge the decision of 9 February.[4]That prompted the Governor to reconsider the matter and, on 22 August 2011, he issued another decision in the following terms:
“Having considered your application for an Access to Justice computer we are satisfied that, with due regard to the associated regulations as defined within the National Security Framework and supplemented by the Policy, you have failed to demonstrate a real need for access to IT facilities and that refusal to provide you with access to such facilities would not raise any risk of prejudicing the legal proceedings to which you refer.”
[5]Having received that further decision, the Claimant indicated to the Governor that he intended to proceed with his claim to challenge, not the original 9 February 2011 decision, but rather that new decision. That, in effect, overtook the permission to proceed to challenge the first decision. On 5 December, the Claimant made an application to amend his grounds to challenge the later decision. On 9 December, on the papers, save in respect of one ground, Langstaff J refused the application to amend, and he set down the applications for amendment and permission in relation to that single ground to be heard on 19 December 2011, when he was again the presiding judge.[6]That day, the Claimant did not renew his application in relation to any of the refused grounds; and, after hearing submissions during which the Claimant’s case was developed further, Langstaff J adjourned the applications before him to be dealt with at a rolled-up hearing to include the hearing of the substantive judicial review if the applications to amend and for permission were successful. In the order made that day, he identified not one but two new potential grounds, as follows:
“1. That the test to be applied when considering a prisoner’s application for an Access to Justice laptop should properly be one of reasonableness rather than necessity (or real need) and that the Claimant was entitled to have his application considered on that basis. 2. That the decision of 22 August 2011 was premised upon an interpretation of the policy that was too restrictive in any event, principally because the Defendant [i.e. the Governor] wrongly considered that making submissions to the Court of Appeal (Criminal Division) did not require the Claimant to have the use of a word processor regardless of the test that was applied. The application on this ground is pleaded out of time, but the Claimant will argue that the matter is sufficiently closely linked to the original ground that permission should be granted.”
[7]The first ground had substantively been relied upon earlier; but the second ground was new. The application to amend was about four months after the challenged decision and was consequently out of time (CPR Rule 54.5(1)(b)), although of course the court can extend that time limit if there is good reason to do so (CPR Rule 3.1(2)(a)).[8]In terms of substance, the first ground seeks to challenge the policy in relation to the provision of laptop computers to prisoners; whilst the second ground seeks to challenge the application of the policy to the circumstances of this particular case. Because the first ground related to policy, Langstaff J directed that the Secretary of State for Justice be added as a Second Defendant. The Governor (now, the First Defendant) is responsible for the application of that policy, and is the appropriate defendant in respect of the second ground.[9]I have heard the adjourned rolled-up applications today. Formally, I have before me an application for permission to amend (to include the two grounds which I have described); an application for permission to proceed on those grounds (in the case of a second ground, out of time); and, if permission is granted, the substantive application for judicial review itself. All of those applications are merits-driven, and it is therefore to the merits of the two grounds I now turn.[10]With regard to the first ground, Mr Stanbury for the Claimant submitted that the test incorporated into the policy for allowing a prisoner access to a laptop computer was contrary to Article 6 of the European Convention of Human Rights, which guarantees a fair trial. He submitted that the common law, which requires unimpeded access to the court, would likely arrive at the same result as the application of Article 6; but he accepted that, if the Claimant failed on the Article 6 basis, then he could not succeed on the common law basis. With that concession, I am in firm agreement. In those circumstances, I need not consider common law rights further.[11]Article 6 guarantees fair process in the determination of criminal charges, and incorporates a right to effective access to a court and a real opportunity to present one’s case in that court including equality of arms with the prosecuting authority. Although Article 6 is not included in Article 15 of the Convention (as a right declared non-derogable, even in times of emergency), the wording of Article 6 gives no room for implied restrictions on the right guaranteed: the right to fair process is a core guaranteed right that cannot be made to give way to competing concerns, even where those competing concerns are of a public nature (Dyer v Watson [2002] UKPC D1, especially at [73]; and Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28). Consequently, where there has been a breach of Article 6 in the course of criminal proceedings, any conviction will be unsafe. In that sense, the right has been described as “absolute” (see, e.g., Blackstone’s Guide to The Human Rights Act 1998, 6th Edition (2011), at paragraph 7.77).[12]In respect of the first ground, Mr Stanbury submitted that the relevant policy of the Secretary of State offended Article 6 by actually or potentially robbing a prisoner of a real opportunity to present his case by restricting his access to a laptop computer in circumstances in which it can be safely assumed that the prosecuting authority will have IT facilities. The policy focuses upon “need” and “generalised risk”, while Article 6 bestows an individual right and requires a reasonable assessment of an individual’s “degree of need” for a laptop balanced against the risk posed by that individual having one. He put the difference between the policy and the requirements of Article 6 essentially as the difference between a test based on need (upon which, he submitted, the policy is founded), and a test based on reasonableness (which Article 6 requires).[13]The relevant policy is found in the National Security Framework (“the NSF”), and HMP Wakefield’s own Access to Justice Protocol, the current versions of which have been effective from June 2010. They include statements of policy which are identical, so far as material to this claim.[14]The NSF, at paragraph 1 of the section headed “Prisoner Use of IT for Legal Work” states as follows:
“1. Prisoners’ access to IT must be balanced against security and safety considerations. In line with other prisoner communications, IT access may be restricted where it is necessary for safety reasons to secure good order and discipline, prevent crime or escape or protect victims. There is for example a potential risk that prisoners could access imported material on disc or the hard drive that might endanger the security of the prison. Similarly, prisoners could store and share information on staff, misuse information about witnesses and victims, forge documents, generate false documents or create and edit pornography.”
Mr Stanbury rightly accepts, as he said “largely as a matter of common sense”, that the introduction of computers and other IT facilities into a prison (and, particularly, a high security establishment such as HMP Wakefield) does pose substantial risks, including those identified in the passage which I have quoted; e.g. access to and circulation of smuggled material, information about staff or others and pornography (including evidence from trials) might be facilitated, or false documents generated or confidential material disclosed (evidenced in Robert Waterman’s Statement 17 January 2012, paragraphs 6 and 7: Mr Waterman is responsible for Access to Justice policy within the Security Policy Unit of the National Operational Services Directorate of the National Offender Management Service, an agency within the Ministry of Justice). The risk is a general one, in the sense that it does not relate solely to the individual prisoner’s actions and intentions - because there a risk that, even if a laptop is given to one prisoner, it might be abused by or at the behest of others. The NFS policy document continues:
“2. Any prisoner who requests access to IT facilities for legal work and demonstrates a real need for this (i.e. refusing the request would raise a real risk of prejudice in the legal proceedings) must be granted access to the IT provided for this purpose for the period specified. Whether such access must be in possession or not, will depend on the completion of a risk assessment. 3. It must not however be presumed all requests for IT for legal work must be granted. The prisoner will need to show that such facilities are necessary for the preparation of their legal case. It is also likely that access will often be necessary for only the limited part of that preparation. Just because a prisoner can demonstrate a real risk of prejudice without some access to IT facilities it does not follow all work on that case requires IT access. Factors that may lead to the provision of IT are: • if the prisoner is conducting a personal defence • where the prisoner is represented but has documents on discs that would make it unreasonable to disallow correspondence with their representative by disc • if the defence complex or requires the manipulation of data, that could not easily be done without the use of IT provided. • if the prisoner has a particular disability or there are other relevant health factors. 4. Applications that could be considered frivolous may include: • a preference on the part of the prisoner to type a letter rather than to write by hand • requiring IT to assist with spelling • instances where the prisoner lacks the competence to use the IT if it were provided.”
[15]In my judgment, the first ground lacks merit, for the following reasons.[16]For reasons to which I shall come shortly, the concepts of “reasonableness” and “proportionality” do have a part to play in the application of Article 6. However, with respect to Mr Stanbury’s submissions and despite the obiter dicta of Clarke LJ (as he then was) in R (Ponting) v Governor of HMP Whitemoor [2002] EWCA Civ 224 at [76] upon which Mr Stanbury relied, I do not consider it is particularly helpful to characterise the test required by Article 6 in this context as one of “reasonableness” as opposed to “need” or, using Clarke LJ’s term, “necessity”. As Mr Stanbury himself said, the question is “simply whether [the policy] is compatible with Article 6” (skeleton argument, paragraph 9). Neither “reasonableness” nor “need” can be considered in a vacuum, but only in full context: “reasonableness” in the context of particular identified criteria, and “need” in the context of a particular purpose or requirement. What matters, often crucially, is that context.[17]Before access to a computer for legal work is allowed, the policy requires a prisoner to “demonstrate a real need for this”, but the purpose or requirement to which the need is aimed is identified clearly and precisely, in paragraph 2 of the NFG policy document quoted above:
“a real need” is defined in terms of circumstances in which “refusing the request would raise a real risk of prejudice in the legal proceedings”, i.e. it is defined in the very terms of Article 6. A prisoner therefore “needs”
IT facilities in this context if, without them, there would be a real risk of prejudice in the relevant proceedings; and, if he can show a need in that sense, under the policy he must be allowed those facilities. Therefore, far from being contrary to Article 6, the policy ensures so far as possible that Article 6 is not breached. As I have already indicated, in his evidence, Mr Waterman sets out reasons why the policy restricts prisoners’ access to computers, to cases in which, to deny them, would be a breach of Article 6: but, simply because the policy as a policy does not allow access to any IT facilities in circumstances in which the right to a fair trial is not at risk of being breached cannot of course make it incompatible with Article 6.[18]In support of his submissions, Mr Stanbury relied upon Ponting, and particularly the judgment of Clarke LJ at [74]-[76]. In Ponting, the claimant had learning difficulties and dyslexia, and the governor of the relevant prison accepted that he required IT facilities in order to conduct his criminal proceedings properly. The case concerned the particular conditions under which those IT facilities were made available.[19]I do not find every aspect of the reasoning in Ponting, which comprises three separate judgments from the constitution of the court (Schiemann LJ, Clarke LJ and Arden LJ), to be easy. Each judgment relies upon different reasoning; and, no doubt with a view to giving assistance in later cases, the judgments appear in places to stray beyond the limited determinative issues of the case, into comment which is clearly obiter.[20]However, I reject the submission of Mr Stanbury that Ponting substantively supports his contentions. It is not the case, in my view, that as a matter of law any defendant or appellant acting in person in a criminal case requires a computer simply because the prosecuting authority will have such access and therefore the defendant or appellant must have access to ensure equality of arms. That view appears to have been shared by Ouseley J, in R (Cooper) v HMP Prison Service [2005] EWHC 1715 (Admin) at [42]. I agree with him that Ponting offers no encouragement for the argument that prisoners ought to be allowed access to computers for legal work on a general basis. The judgments make clear that each case is fact specific (see, e.g., Clarke LJ at [75]:
“All will no doubt depend upon the circumstances”). They each, in different formulations, also draw the distinction between the overarching right to a fair trial, guaranteed by Article 6 and, in that sense, “absolute”; and the various strands of the right (sometimes referred to as “implied rights”) which may be the subject of limitations or qualifications by the state and, in that sense, not “absolute”
. Indeed, in respect of those qualifications, Ponting makes clear that the state may have a significant margin of discretion (perhaps most clearly identified by Arden LJ at [112], but see also, e.g., Clarke LJ at [70])).[21]Hence, whilst the right to a fair trial implies (or, as I would rather say, incorporates as a strand) a right of access to an appropriate court or tribunal, that specific right by its nature must be regulated by the state and limited in that sense (see Golder v United Kingdom [1979] 1 EHRR 524). Article 6 requires access to be reasonable.[22]Similarly, the right to a fair hearing requires that any party to proceedings must have an equal opportunity of presenting his or her case; but that, again, only extends to a reasonable opportunity, i.e. an opportunity ensuring that the party is not at a substantial disadvantage vis-à-vis his or her opponent. “Equality of arms” requires a “fair balance” to be struck between the parties, with any limitations on the access to the tribunal being proportionate (see the judgment of Arden LJ in Ponting at [105]; and Human Rights Law and Practice, Lester, Pannick and Herberg, 3rd Edition (2009), at paragraph 4.6.31 and the cases referred to therein).[23]None of this assists the Claimant in relation to the first ground. Whilst I accept that the application of the test set out in the policy may be challenging in the circumstances of a particular case, in respect of the first ground, for the reasons I have given, the policy is drafted in terms of Article 6 and is, quite clearly, compliant with it. I consider that the first ground is unarguable.[24]That leads me to the second ground. It is submitted by Mr Stanbury that in applying that policy in this case the Governor erred in law, principally because he could not lawfully conclude that submissions to the Court of Appeal (Criminal Division) could properly be made by the Claimant without the use of a word possessor. In the circumstances of this case, to deny the Claimant a word possessor would be to deny him a fair hearing or fair process in his criminal proceedings in Article 6 terms.[25]This ground is, as I have indicated, late. It was not made within three months of the Governor’s decision, as required by CPR Rule 54.5(1). However, I shall put the issue of delay to one side for the moment; because merit is always an important criterion in considering whether an extension of time should be allowed, and it is always open to the Claimant in any event to make a fresh request, so it would be helpful to deal with the merits of this ground here.[26]On 22 August 2011, the Governor concluded that, in the circumstances of the case, the Claimant had failed to show that, unless he were provided with IT facilities, his right to fair process in his criminal proceedings would be potentially compromised. In my judgment, he was not only entitled in law to come to that conclusion but, on the evidence before him, it was all but inevitable.[27]In coming to that view, I have taken into account particularly the following.[28]As I have indicated in dealing with the first ground, it is open to the state to limit the rights to access to the courts and equality of arms, as strands of the overarching Article 6 right to fair process: the state is not bound to offer all litigants resources to enable them to have identical resources to those of an opponent, even when that opponent is the state itself. There will be many occasions where two parties to litigation will not have identical resources, but the fairness of the proceedings viewed as a whole will not be compromised. In assessing whether the limitations do compromise that overarching right, Article 6 may require a balancing exercise involving reasonableness and proportionality to be performed.[29]However, before that balancing exercise is required, Article 6 has to be engaged. There have to be proceedings, actual or potential but not merely speculative, involving the relevant citizen; and the state has to impose or threaten to impose a material impediment in Article 6 terms to that citizen’s access to a court in respect of that action.[30]In this case, whilst I accept that a prisoner may be able to show that he requires IT facilities to enable him to commence as well as progress criminal proceedings (including an appeal), not only does the Claimant currently not have any ongoing criminal proceedings but, as matters currently stand, it is very unlikely indeed that there will be any further such proceedings.[31]As I have already described, the Claimant was convicted on two occasions. In respect of the first (the attempted murder), the Claimant’s appeal against conviction was refused in 2004. In respect of the second, there is some strong evidence that there may also have been an unsuccessful appeal in relation to the convictions of the multiple rapes and sexual assaults (notably references to those charges in the Criminal Cases Review Commission material), although that evidence may not be conclusive. However, even if there has been no appeal to date, any appeal now would be very much out of time. Any further appeal is, at this stage, no more than merely speculative. I might add that, given that the bulk of the evidence which the Claimant indicates he wishes to consider electronically relates to those sexual offences, it would be understandable if the Governor were particularly cautious before allowing the Claimant access to a computer on which to store and manipulate such material: for obvious reasons, such evidence would be open to abuse in a prison setting, if not by the claimant, by other prisoners.[32]There is evidence that the Criminal Cases Review Commission, on the basis of new material provided to them by the Claimant, has refused to refer the convictions for both the attempted murder and the sex offences to the Court of Appeal, and the Claimant has unsuccessfully sought to challenge that refusal in relation to the sex offences in this court recently (Case No CO/120/2011). In that case, on the limited material that I have, it seems that permission was refused on the papers on 30 January 2011 and, on 5 March 2012, Beatson J refused the renewed application, declaring the claim to be totally without merit and imposing an extended civil restraint order (“CRO”) on the Claimant restraining him from commencing any further proceedings in the High Court relating to or touching upon the criminal proceedings that resulted in his convictions in 2002 - those are the sex convictions - or to any challenge to those convictions. That order appears to be a culmination of four orders in which the Claimant was found to have made meritless claims in relation to those convictions.[33]Whilst the CRO does not cover the claim before me, which was of course issued before that order was made, and the exact circumstances in relation to the sex convictions and appeals is not entirely clear, the orders which have been made are a firm indication that in practice the Claimant has at best a very thin prospect indeed of mounting an appeal against any of the convictions and particularly in respect of the 2002 rape and sexual assault convictions.[34]The Claimant does not aid his cause by his failure to indicate any possible grounds for either an appeal or for obtaining permission to appeal so far as of time. Although, as Mr Stanbury submitted, he is not bound to disclose his hand, if he is making an application for an access to justice laptop, the burden of proof falls upon him and the relevant evidence is entirely in his own hands. In the circumstances of this case, the Claimant’s failure to identify any possible grounds of appeal, or why he sensibly requires a computer to pursue them, meant that a request for a computer was particularly difficult.[35]In that context, I should add that, in effectively a new ground of challenge floated today, Mr Stanbury suggested that the burden of proof should be upon the Governor rather than the Claimant, whatever the correct standard for the test might be. However, I do not agree. The burden is upon the Claimant; and for good reason - because, as I have said, these matters are uniquely in the knowledge of the Claimant.[36]As things stand, any application in respect of any conviction therefore currently appears very unlikely indeed and, at best, speculative. If that position changes, then of course that would be a change in circumstances, for the purposes of a further request for facilities which the Governor would have to consider on its merits, as and when made.[37]But, even if Article 6 is engaged, there is a balancing exercise to be done. The public interest in reducing the risks of a prisoner having a computer, which are identified above, is obvious. The provision of a computer at the expense of the state also has cost and resource implications, in which the public also has an interest. In respect of the Claimant’s position, even if there were grounds of appeal to be pursued, as I have already made clear, whether IT facilities are required by a prisoner (and, if so, what facilities) are matters that are necessarily fact specific. The Claimant asserts that his grounds of appeal (whatever they may be) may be “complex”; and says that he needs facilities in this case for two particular reasons. First, Mr Stanbury on his behalf submitted that the weight of relevant material requires such facilities; but that will depend in part on the potential grounds of challenge to the conviction (as yet entirely unidentified) and in part on the material available potentially to support them. Second, the Claimant believes that it will be easier for the Court of Appeal if his submissions are typed; but the court will of course consider any application on its merits, whatever its form. On the limited material provided by the Claimant, there is no evidence that an application to the Court of Appeal could not be made properly and fairly without IT facilities. If it appears at a later stage that some form of IT facilities are required by the Claimant properly to prosecute an appeal, then again that would require the Governor to reconsider.[38]However, in all of the circumstances, as things currently stand, the Governor was in my judgment entitled to conclude that, within the context of Article 6, the Claimant had failed to give any adequate reason why he required any IT facilities at all; and that the Claimant had failed to show that, to deprive him of the facilities he sought, would risk prejudicing his right to a fair trial.[39]Furthermore, there are positive downsides to the provision of a computer to a prisoner, over and above the risks I have already described. Although it may be that the printed word is easier to read than handwritten material, as Schiemann LJ said in Ponting paragraph 33:
“... the discipline imposed by use of pen and ink can restrain prolixity. Prolixity often makes it more difficult for the court to do justice by coming to the heart of a case.”
In the Claimant’s case, he has had an extended CRO imposed upon him because of his tendency to issue and pursue claims in respect of his convictions that lack any merit, and thus waste the precious resources of the court including judicial time. Access to a word possessor may both encourage him to seek to make further such applications and, on the other hand, obfuscate possible merit in any application that he may wish to make. Additionally, of course, the provision of a computer out of public funds has cost implications. As I have made clear, these other factors are of no relevance if, without IT facilities, the Claimant is unable properly to pursue a criminal appeal in the terms of Article 6; but they are further reasons why a computer should not be made available in this case, unless, in accordance with the policy the Claimant can show that failure to provide him with a computer would breach Article 6.[40]However, for the reasons I have given, the Governor was fully entitled to conclude that the refusal of IT facilities to the Claimant would not prejudice his right to a fair trial in Article 6 terms. I consider that the second ground too is unarguable, and lacks merit.[41]The applications to amend, for permission and for permission out of time are all merit-driven. I do not consider that, on the facts of this case, either ground is arguable; and consequently I shall refuse all the applications before me.[42]At the request of the Defendants, I give permission for this judgment to be cited in other proceedings.

Cited in 2 later judgments