Smith, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE MAURICE KAY: "John Smith" is a pseudonym. The claimant is the same person who successfully brought an application for judicial review against the Secretary of State resulting in a judgment of Jack J on 7 March 2003 [2003] EWHC 406 Admin. There is now before the court a second application which focuses on events since that judgment. In the circumstances, I shall follow the example of Jack J and, in order to preserve the anonymity of the claimant, I shall refer to the facts with a degree of imprecision.

The claimant is serving a sentence of life imprisonment. He is still well within his tariff period. During part of 2002 he was serving his sentence in prison A. For some weeks he was transferred to police custody, during which time he provided information about a serious offence. This was to the effect that X had confessed to that offence, the confession having been imparted to the claimant in the prison in the presence of Y. The claimant was then returned to prison A. Soon afterwards, he requested a transfer to a Protective Witness Unit (PWU). He was then transferred to prison B where he was soon moved to the hospital wing following his expression of concern for his safety. The material which he had supplied to the police was considered by the Crown Prosecution Service. The decision was taken not to use the claimant as a witness in any prosecution of X. In fact no such prosecution has commenced. The decision of the Crown Prosecution Service was relayed to the police and, through them, to the Prison Service. Between the time when the claimant provided the information to the police and the judgment of Jack J the police carried out a number of risk assessments in relation to the claimant. Notwithstanding the decision that he would not be used as a witness, these assessments all concluded that, as a result of the information he had provided, the claimant was at high risk to his health and safety and that, should the risk materialise, the impact would be serious. Nevertheless, he was not placed in a PWU. Shortly before the hearing before Jack J the claimant was moved to prison C where he was eventually placed in the segregation unit. Consideration was being given to the possibility of a further move to prison D, but with no finality as to the exact placement within that institution. This was essentially the state of affairs at the time of the hearing before Jack J. His order, which bears the date 21 March 2003 but reflects what had been said in court on the date of judgment, 7 March 2003, is in the form of two declarations in the following terms:

I now take up the history following the judgment of Jack J. On 10 March 2003 the claimant was transferred to a PWU at prison D. On 18 March, the police carried out a further risk assessment. This put the probability of a risk occurring at "medium" and the impact if the risk were to occur as "serious". The factor which led to the probability being reduced from high to medium was that X had been arrested for unrelated serious offences and is currently being held in conditions of high security at a prison elsewhere. Moreover, there was no material suggesting that X is aware that the claimant provided information implicating him in the previous offence with which he does not stand charged. On 21 March a new decision was made on behalf of the Secretary of State on the basis of all the information then before him. That included the material which had arisen in the course of the previous judicial review proceedings, a case conference which had taken place on 13 March attended by, amongst others, Mr Declan Moore (Head of National Operations Unit), the detective inspector who had been responsible for the various risk assessments provided by the police, and Clare Lewis (Operations Manager for High Security Prisons). The actual decision maker on 21 March was Mr Declan Moore. He also had before him the latest risk assessment provided by the police dated 18 March and a risk assessment provided from within the Prison Service on 21 March by Mr Barney Clifford. Mr Clifford assessed the risk to the claimant as being "low to medium" and the potential impact as "moderate". He recommended allocation in a Vulnerable Prisoner Unit (VPU) and, on that basis, suggested that the likelihood of success in avoiding the risk would be high. Mr Moore then decided to place the claimant in a VPU and on 24 March he was transferred to the VPU at prison E. About a week later the claimant commenced this second application for judicial review. On 8 April it came before me as an oral application for permission but, as a result of a curious turn of events to which I shall refer later, it had to be adjourned until 14 April. On 14 April I granted permission to apply. The matter came back before me for a substantive hearing on 11 June.

At the hearing on 11 June the primary submission on behalf of the claimant was that Mr Moore's decision of 21 March was vitiated by reliance on the risk assessment of Mr Clifford because that risk assessment was irrational or perverse. The claimant also sought to rely on articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms. However, it seems to me that that reliance itself depended on establishing the irrationality or perversity of Mr Clifford's assessment. The attack on Mr Clifford's assessment makes the point that it was at variance with the five previous risk assessments carried out by the police, including the one that had been carried out only three days earlier. Whilst that had downgraded the probability of the risk materialising from high to medium by reason of the present incarceration and supervision of X, it maintained the view that, if X were to become aware of the claimant's information to the police, the risk would return to high. Moreover, the police assessment referred to the claimant's psychological vulnerability which is reflected by his medical history. It opined that if the claimant feels at risk there is a high risk to his mental health. The police assessment put the actual risk at medium but that was based expressly on the then placement in a WPU. It stated that if he were to be moved it would be for the Prison Service to make an assessment based on available information. The claimant "has the potential to cause himself serious harm if he feels vulnerable or threatened" and, therefore, the impact from the psychological risk occurring was assessed as serious.

I now turn to the assessment carried out by Mr Clifford on 21 March, which is the crucial document in this case. In his assessment, Mr Clifford observed that the claimant does not fit the usual criteria of a protected witness in that he is not to be used as a witness in any future trial. He accepted that there was still a need to assess the risk to the claimant on account of his having provided information. He stated that he had taken into account the police risk assessments, prison intelligence reports and incidents set out in witness statements in the previous judicial review. He then said of the claimant:

Mr Clifford's assessment is strikingly different from the police assessments including the one that predated it by only three days. It undoubtedly played a major part in Mr Declan Moore's decision which is now under challenge. The question therefore becomes whether Mr Clifford's assessment was irrational or otherwise flawed.

In his submissions Mr Kovats referred to the sixty page witness statement which the claimant had made to the police last year. His account of the cell confession and his relationship with X and Y at the time was such that, if the three men had not been in the same prison at the same time, the account cannot be true. It is not necessary or desirable for me to go into details in this judgment. Suffice it to say that in my judgment there is no room for an explanation based on honest mistake.

In my judgment it was not irrational for Mr Clifford to conclude that the claimant's accounts of the cell confession was untrue and that, therefore, the risk that X would have an interest in the claimant or would have any reason to know that the claimant had been providing false information about him was low. The detective inspector who had carried out the police risk assessments apparently knew throughout that prison records showed that the claimant, X and Y had not been in the same prison at the same time. The detective inspector was disposed to the view that this was simply a mistake on the part of the claimant rather than a manipulative untruth. That is his view. In my judgment, Mr Clifford was certainly entitled to take the contrary view. Indeed, as I have indicated, I do not find that honest mistake is a possible explanation.

Once Mr Clifford had reached this permissible conclusion, I do not consider that it can be said that his risk assessment was irrational or otherwise flawed. If that be the case, it cannot be said to have vitiated Mr Moore's decision which is now under challenge. After all, it was for the Prison Service to make the important decision. Whilst it is necessary in such circumstances for them to consider the risk assessments carried out by the police, it is not for the police to determine the decision (see R on the application of Bloggs 61 v Secretary of State for Home Department [2003] EWCA 686). Indeed no one is suggesting in the present case that the police had or sought such a role.

For all these reasons, this application for judicial review must fail. However I ought not to leave it without referring to two other matters. The first is the hearing before me on 8 April. On that occasion I expected to hear an oral application for permission. Mr Bromley-Martin QC expected to advance one and Mr Kovats expected to respond to it. Matters immediately ground to a halt when Mr Kovats was handed a recent document signed by the claimant indicating his apparent preparedness to move to an open wing. If that were his position, then it made little sense to be applying for judicial review of a refusal to accommodate him in a PWU. The matter was adjourned for investigation. I have received a quantity of evidence about it. The sequence of events was somewhat bizarre. I have decided to attach little importance to it in reaching this decision. The facts are disputed and I am not disposed to try to resolve them. The second matter relates to events since the hearing on 11 June. A judgment in this case would have been given some weeks ago but for the fact that, on instructions, the claimant's solicitor wrote to the Treasury Solicitor and to me enclosing some material which appeared to cast doubt on the proposition that the claimant, X and Y had not been in the same prison at the same time. It was material suggesting inaccuracies in prison records. I arranged for the matter to be relisted to hear further submissions. On the occasion of its relisting I heard no submissions because inquiries were still progressing. Earlier this week I received confirmation from the claimant's solicitor that the points which he had previously sought to make about prison records were no longer to be pursued. Accordingly, I have decided the case on the material and submissions that were before me on 11 June. I have not drawn any inferences from the non-pursuit of the post hearing points. Plainly it was appropriate for the claimant's solicitor to pursue the matter to the extent that he did.

MR KOVATS: My Lord, on the basis of that judgment, the Secretary of State would not press for any continuation of anonymity or reporting restrictions beyond what is in the judgment.

MR JUSTICE MAURICE KAY: The question is: are we satisfied that there is no serious risk of identification of the claimant from the terms in which I have expressed myself?

MR KOVATS: The Secretary of State is so satisfied.

MR JUSTICE MAURICE KAY: Yes.

MISS DOBBIN: My Lord, you will excuse me, I have not appeared in this matter before and I do not have any in-depth knowledge of the facts. I have looked throughout the course of the judgment to see if there was anything that would have identified the claimant. The only matter that stands out is his being moved to a high security prison. That is the only distinguishing feature in what you have said thus far that I can --

MR JUSTICE MAURICE KAY: I think the reference to "high security" was a reference to X, was it not, rather than the claimant?

MISS DOBBIN: I apologise, my Lord.

MR JUSTICE MAURICE KAY: Yes. I think I shall simply lift the section 11 order, or section 4 order, or whatever section order it was that I made a quarter of an hour ago.

MR KOVATS: My Lord, the Secretary of State applies for his costs in this matter. While we appreciate that the claimant is a serving prisoner, we would also seek perhaps on a future occasion -- not to be determined today -- to seek to set off the costs of these proceedings against the costs that we had to pay in John Smith (No 1).

MR JUSTICE MAURICE KAY: I see.

MR KOVATS: That is the reason we apply for our costs.

MR JUSTICE MAURICE KAY: Can you resist that?

MISS DOBBIN: He is a serving prisoner, which has been said. Obviously counsel who appeared in the matter below were legally aided and funded from public funds. It seems highly unlikely that he would ever be in a position to pay the costs.

MR JUSTICE MAURICE KAY: I do not think Mr Kovats anticipates the claimant writing out a cheque. He anticipates an adjustment against the costs in the other case.

It seems to me on that basis that it is an appropriate order. I make the order on the usual terms against publicly funded claimants and direct that, upon assessment, the Secretary of State may set off costs against him in John Smith (No 1) by reference to the order that I have just made.

MISS DOBBIN: My Lord, may I apply in respect of the claim that costs be assessed from legal aid?

MR JUSTICE MAURICE KAY: You want your community legal services funding assessment?

MISS DOBBIN: Please.

MR JUSTICE MAURICE KAY: Yes, certainly.

MISS DOBBIN: Also may I request an expedited judgment as well in respect of the matter?

MR JUSTICE MAURICE KAY: You would like the judgment to be expedited? I make the order, but the great difficulty is that it will not have been transcribed before the end of today and you will not see me for dust anywhere in this jurisdiction for four weeks after that. So it will be September by the time I get the opportunity to look at it. But the answer is yes, I will make the order but there will be some delay.