Chester, R (on the application of) v HM Prison Wakefield

The claimant, Peter Chester, raped and murdered his 7 year old niece in 1977. He was convicted and sentenced to life imprisonment with a tariff of 12 years subsequently increased by the Secretary of State to 20 years. Nevertheless, he remains in prison. Last year on the 19^th November 2008 he was transferred to HM Prison Wakefield where he is currently held as a category B prisoner. At Wakefield he was placed on Level 1 of the Safeguarding Children procedures which restrict him from having any contact, direct or indirect, with any child. All his personal photographs were removed. At previous prisons he had been on Level 3 which enabled him to receive visits from friends and relations with children and permitted monitored contact through correspondence and telephone.

He seeks the following remedies, in particular:

The approach to an Article 8 claim by a prisoner is uncontroversial and settled. It is well summarised in paragraphs 69 and 70 of the judgment in Hirst v The United Kingdom (No2) (2005) ECHR Grand Chamber:

“69.

In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. For example, prisoners may not be ill-treated, subjected to inhuman or degrading punishment or conditions contrary to Article 3 of the Convention … they continue to enjoy the right to respect for family life.

“70.

There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.”

This approach is, Nevertheless, qualified in paragraph 71:

“71.

This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention.”

The detaining authority, therefore, is required to undertake to balance issues of risk against a prisoner’s rights under Article 8.

I propose to consider the merits of the application for judicial review in two parts.

The Decision to place the claimant on Level 1

The decision was notified to the claimant on the 19^th November 2008 on his arrival at Wakefield in a document headed ‘Child Contact Notification of Identification as being subject to Restrictions’. The claimant made a formal complaint on the 12^th December 2008 concerning his Level of restrictions and the removal of his photographs. The response by the Senior Probation Officer, Ms Odunze, and Governor Mahoney, indicated the reasons for placing him on Level 1 were due to the index offence against a child and his risk to children as a result. Those reasons were confirmed by the Deputy Governor, HMP Wakefield on the 6^th January 2009, adding “It is a balanced and appropriate approach to our committing to protecting the public.” In response to the claimant’s solicitor’s letter, Governor Tilley on the 15^th January confirmed that the Safeguarding Children procedures had not been in place when the claimant was last in HMP Wakefield and pointing out that the Level may not always be the same at another prison.

There followed an application by the claimant on the 2^nd February 2009 to the Safeguarding Children Panel seeking the return of all his photographs of family and friends including children.

Although these applications, of course, made reference to the decision to place the claimant on Level 1, it is clear that the internal complaints process in respect of that decision was concluded by the 6^th January 2009.

I have considered the documentary evidence of the decision making process in respect of the placing of the claimant on Level 1 and, in my view, there is insufficient prospect of successfully challenging that decision by way of judicial review. There were adequate reasons given for applying the Safeguarding Children policy to the claimant’s case in view of the circumstances surrounding the index offence and history preceding it, the policy being clearly designed to prevent the possibility of grooming children prior to a prisoner’s release into the community.

I consider the question of delay.

The claim form for judicial review was not issued until the 6^th May 2009 outside the 3 month limit. It is argued on behalf of the claimant that he had not exhausted the internal procedures in respect of his being placed on Level 1 until some time in March 2009. For the reasons I have given, in my judgment, the decision sought to be reviewed in this regard was plainly complete in early January. I can find no reason in this case to extend the 3 month period. For that reason in addition to the reasons I have set out above, permission to seek judicial review of the decision of the defendant to place the claimant on Level 1 of the Safeguarding Children policy is refused.

The photographs

It seems to me that the decision to remove the photographs is the part of this application for judicial review that most exercises the claimant, probably because he recognises that there was no prospect of successfully challenging the decision to put him on Level 1.

The claimant’s case as present by his counsel, Ms Krause, is that the removal of his photographs was not necessary and proportionate in a democratic society. Whilst it is accepted that the Safeguarding Children measures pursue a legitimate aim and are necessary in a democratic society, nevertheless, it is submitted, removal was wholly disproportionate in the claimant’s circumstances; there was no causal link between the measures and the possession of the photographs.

The defendant’s position is that, even at the date of the hearing of the renewed application for permission in August, the claimant had not exhausted the internal procedure for seeking the return of his photographs. Mr Thyne, counsel for the defendant, went so far as to say that, if the claimant were to identify the persons in each of the photographs and his or her date of birth, then, provided that that person was now an adult and that either the person or his or her parent were confirmed as content, then the photograph would be returned to him. This was plainly because the Safeguarding Children policy clearly identifies the overriding principle “that the welfare of the child in question is paramount and that any contact must be in the child’s best interests.” Thus, if a photograph was of a child who was now and adult, there could be no reason based on the Safeguarding Children policy to keep such a photograph from the prisoner.

I should add that the suggestion in the defendant’s summary grounds of opposition that the claimant still had the remedy of complaining to the Prison and Probation Ombudsman has rightly been abandoned. That is because such complaint could not be regarded as a remedy which had to be exhausted before seeking judicial review.

Since the hearing on the 17^th August I have been supplied with further information indicating the results of the claimant’s continued efforts to have his photographs returned and confirmation from all relevant people that they are content for photographs of those who are now adult to be returned to him. It appears that the application to the Safeguarding Children panel on the 24^th August 2009 was met with a blanket refusal dated 28^th August solely based on the fact that he was subject to Level 1 restrictions.

I can understand the defendant’s position that the claimant’s Wing application would have to be considered on its merits, in other words, that the Safeguarding Children panel would have to be satisfied in respect of each photograph of a child that the return of the photograph was in the best interests of that child, but only if that person was still a child. If there was any other reason for withholding the photograph from the prisoner, then such reason would have to be clearly stated.

In my view, so long as the claimant had not exhausted the prison’s procedures for applying to have his photographs returned, there was no prospect of an application for judicial review succeeding in respect of the withholding of them. It is not clear even now whether those procedures have been entirely exhausted. However, I could see a stage being reached where a failure to provide any reasoned basis for withholding photographs of persons who are now adult could be susceptible to judicial review, but that is not the basis for this part of the application for judicial review.

In my judgment, there is no real prospect of showing that the decision to remove the claimant’s photographs when he was placed on Level 1 restrictions was itself unlawful. In the case of a prisoner placed on Level 1 restrictions as a result of an index offence involving a child, the prison plainly has a wide discretion as to the removal of photographs in order to determine whether it is the interests of any child photographed that photographs should be withheld from that prisoner. Thereafter, the prisoner has to exhaust the prison’s procedures for seeking their return, before there can be a decision which can be the subject of judicial review.

On the basis that the decision to remove the photographs was made back in November 2008, the claim for judicial review of that decision is any event well out of time. The argument that it is somehow a continuing matter for review cannot succeed. Indeed it only serves to underline the need to exhaust the prison’s procedures and the fact that, if there were to be a final decision refusing to return the photographs to the claimant, then such would be the decision that might be open to judicial review.

I can find no reason in this case to extend the 3 month period. For that reason in addition to the reasons I have set out above, permission to seek judicial review of the decision of the defendant to remove the claimant’s photographs is refused.

I anticipate that, when some common sense is applied to the question of returning the photographs which are not of children who are still under 18 years of age, the matters can be resolved very quickly. Simply trading words in correspondence between solicitors as to what was or may have been said at the hearing on the 17^th August, I am afraid, has clouded what is a very straightforward issue. Counsel for the defendant very properly accepted that, if in respect of any photograph retained, there were no Safeguarding Children issue, in other words, if it were established that the person photographed was no longer a child, and that person or his or her family consented to its return, then there was no reason to withhold the photograph any longer. This should be resolved quickly to avoid what might well become an unanswerable claim for judicial review.