Cooper v Secretary of State for the Home Department

LORD JUSTICE SEDLEY: Mr Cooper comes before the court (I am happy to say, in person, because he was released from prison on licence on 31st January) in order to seek permission to appeal against two decisions given in a single judgment of Mitchell J on 1st February 2002. The first decision was a refusal of permission to Mr Cooper to seek judicial review of the refusal of the Governor of HMP Risley to let Mr Cooper remove his T-shirt in the exercise yard in sunny weather, in distinction, Mr Cooper asserts, from the treatment of prisoners in other prisons and also other prisoners within Risley.

The second decision was to dismiss the application, which Turner J had given Mr Cooper permission to bring, for judicial review of failure of the Home Secretary through the Governor of Risley to make any provision for electronic access to legal materials which were legitimately required by Mr Cooper in aid of his right of access to the courts.

One only has to describe the two issues to see that the second is manifestly more serious than the first. The first, I have to say, is a non-starter in legal terms. It is a matter of organisation and discipline. While it may raise a very justifiable grievance on Mr Cooper's part - I express no view on that - it involves no legal rights. The way to pursue it is through the channels, such as they are, that deal with maladministration in the prison system. Mitchell J was right to refuse permission to seek judicial review of the T-shirt issue and his decision is, in my judgment, beyond challenge.

The second claim is altogether more troubling. It troubled Turner J enough to prompt him to let the case go to a full hearing. Mitchell J at the hearing accepted that there were various pieces of litigation which Mr Cooper wanted at least to explore and, if he could get them on their feet, to pursue. That is every citizen's right. It is axiomatic, as the Home Office accept, that such rights are not to be cut down except to the extent that a lawful sentence of imprisonment unavoidably constricts them.

Paragraph 7 of Standing Order 16 recognises the consequent requirement in these terms:

Mr Cooper says that the availability of legal text to a prisoner is modest in the extreme, and that access to law reports is effectively non-existent. He points out that the existence of the Web makes it possible very cheaply and efficiently to access a proper range of legal materials. The evidence of the Home Office, principally that of Mr Clifford, which has been helpfully but before the court is, Mr Cooper would say, entirely negative in its attitude.

Miss Stern, for the Home Secretary, would say it is not negative in its attitude, but that it is negative in its conclusions because Mr Clifford's conclusions, speaking for the Prison Service, are that the various known forms of control (and Mr Cooper accepts that there has to be rigorous control of prisoners' access to the web) are none of them sufficient, or sufficiently feasible in economic terms, to make it possible to give prisoners controlled access even to a limited and specified handful of cheap or free websites from which legal materials can be obtained.

Mr Cooper is sceptical of this reasoning. I am not in a position to form a view as to whether he is right or wrong in that, but one thing that can I think be said for certain is that the technology of controlled access to the internet is changing and, on the whole, improving and being refined almost from week to week. It seems to me inconceivable that it will continue for very long to be impracticable to identify a handful of freely available sources of legal materials and give prisoners who have a genuine need for it electronic access to them to enable them to pursue what everybody accepts is their fundamental right to access to the courts.

That is a right to which this country signed up by treaty many years ago. It is a right which since 1998 has been carried by statute into the domestic law of this country, and it has been the right which historically marked the first impact of the European Court of Human Rights on our domestic law and administration through the Golder case, of which Mr Cooper has reminded me today. Mr Clifford's evidence in an early paragraph says:

Mitchell J too recognised this. He went on to say that if and when Mr Cooper came to court, if he could show that he had been unfairly handicapped in his preparations the court would then decide whether Mr Cooper's Article 6 rights had been infringed.

Mr Cooper tells me today, and I have no reason to doubt him, that this would be much too late, because one of the problems caused by not having access to an adequate guide to procedure is that you may never get into court. He tells me that he was "hammered", as he puts it, on procedure in attempting to litigate precisely because he could not gain access to the Civil Procedure Rules. So I am willing to accept that that aspect of Mitchell J's reasoning might well be open to contest.

The reason, however, why I adjourned this application for permission to appeal into open court on notice to the Home Office was so that up-to-date information could be made available to indicate what mileage there was in Mr Cooper's basic complaint that a perfectly feasible mode of access to materials which he could not otherwise find was simply being withheld. But nothing has changed since the evidence to which Miss Stern has again referred me was sworn. What I have to decide today is, therefore, whether in the new situation in which Mr Cooper is at liberty, and therefore not dependent on the provision of facilities in prison, the issue remains one which it is in the public interest to allow to go to a full appeal. That involves two questions, and they are interdependent: one is how strong such an appeal would be; the other is whether it would from Mr Cooper's point of view be academic, because I hope, as he does, that he will never see the inside of a prison again.

There is certainly no legal impediment to the pursuit of an appeal which has become academic in the sense that the appellant no longer has anything directly to gain by it. In prison law the leading case of Leech reached the House of Lords following Leech's release only because their Lordships were prepared to entertain it on the question of principle; though there was also a possibility of future disadvantage to the ex-prisoner. So I do not want Mr Cooper to think that the mere fact that he has been released from prison by itself negatives the possibility of an appeal.

As to the possible strength of the case, I have looked, at Miss Stern's invitation, at the evidence of Mr Budworth which describes how prisoners can use the library system in order to obtain legal materials at one, two or three removes. It is well known that the library system in this country is impoverished. Even the libraries of the Inns of Court have trouble in affording legal textbooks at present prices, which typically run into hundreds rather than tens of pounds per volume. It is unsurprising that what is available does not amount to an impressive legal library. One sees in the printout exhibited by Mr Budworth a number of copies of Archbold in recent editions, alongside some hostages to fortune of which Mr Cooper has taken understandable forensic advantage - the Complete Family Health Encyclopedia, the Chronicle of Aviation and the Art of Walt Disney, to name a few interlopers into the list. But, importantly, there are two things that are missing on which Mr Cooper focuses as having redounded to his disadvantage. One is any copy of the Civil Procedure Rules, much less an annotated copy. The other is any source of recent case law. These, it seems to me, are of arguably of fundamental importance if anybody in prison is to be given meaningful access to the civil courts.

Mr Cooper also has had problems about access to non-legal materials. He wants articles which are available on the New Scientist website concerning developments in DNA science. This too, it seems to me, may well be legitimate if it goes to the prisoner's own direct legal interests. But he tells me that in prison he has no way of accessing the New Scientist website any more than he has of purchasing back numbers of the New Scientist.

It is not good enough to say that if you know which cases you want the library system should be able to find them for you. That is not how research works. Research starts with finding out, if you can, which are the cases you want. It seems to me that, on the evidence before this court a prisoner's research will stall at that early stage.

No court would be prepared to say that Article 6 of the Convention requires a prisoner to have, in effect, as good a library at his fingertips as a practising lawyer. At the same time, attention has clearly to be paid to the fact that there is a serviceable minimum without which the recognised right is empty.

The Home Office has evidently gone some way towards researching and investigating the possibility of making up what seems to me on the evidence to be an information gap that faces prisoners like Mr Cooper. It does not seem to me that the evidence at present amounts to a sufficient case of a breach which is demonstrably remediable and, therefore, not excusable. At the same time this is a shifting situation in which the answer may not be the same in six months' or a year's time. But, combined with the facts that Mr Cooper is now out of prison and that any pursuit of this appeal would have to be in the interests of others rather than himself and therefore be general rather than specific, the evidence seems to me to contra-indicate a grant of permission to appeal in this case. I think the issue, so far as Mr Cooper is concerned, has to rest here.

What does need to be borne in mind, and I am grateful that the Home Office is here in order to hear this, is that there are many other prisoners, some of whom may have similar needs, genuine needs, all of whom have the same recognised rights and for whom this issue may well come alive again. I hope very much, therefore, that attention will be paid in the proper quarters to the need that a prisoner who wishes to litigate should have full access to the sorts of material that I have instanced and which Mr Cooper has drawn to the court's attention, and to the fact that technology may well already have made it possible (or may do so in the near future) to control access in a safe way which gives prisoners what they need without jeopardising discipline or the interests of others.

I hope to that extent Mr Cooper's application has served a useful purpose and it is in that light that I dismiss it.