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Neutral Citation No:
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Ref:
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TRE7904
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Judgment: approved by the Court for
handing down
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Delivered:
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06/07/2010
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(subject to editorial
corrections)*
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IN THE HIGH COURT OF JUSTICE IN NORTHERN
IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY
STEPHEN McAREE AND PATRICK WATSON FOR JUDICIAL REVIEW
AND
IN THE MATTER OF A DECISION OF THE
NORTHERN IRELAND
PRISON SERVICE
________
TREACY J
Introduction
[1]
The applicants are both sentenced prisoners presently detained at HMP
Magilligan in the Harm Reduction Unit (“the HRU”).
[2]
By these judicial reviews they both seek relief, including certiorari,
against the decision of the Northern Ireland Prison Service (“the respondent”)
transferring them to the HRU. Both
applications were heard on the same date. I heard McAree first. The basis of the
decision I have come to has the same effect in both cases and I accordingly do
not intend to separately rehearse the facts in Watson. For the purposes of
delivering judgment I have in the title conjoined the applications. Mr Sayers appeared for the first
applicant and Mr Hutton for the second.
Mr McGleenan appeared for the Respondent in both applications. I am
indebted to all counsel for their excellent skeleton arguments and their skilful
exposition in oral submissions.
[3]
The first applicant also raised some additional challenges relating to an
alleged breach of his right under Art9 ECHR to manifest his religion and of his
right to education under Art2 of the First Protocol ECHR and his right to
respect for personal development under Art8 in respect of alleged adverse
interference to his studies. The primary focus of the case remained the attack
on the alleged procedural unfairness of the transfer decision.
[4]
In respect of their HRU transfer the applicants sought to challenge the
decision as procedurally unfair principally by reason of the respondent’s
reliance upon and non-disclosure of the intelligence material underpinning the
impugned decision.
Transfer to the HRU
[5]
In his first affidavit sworn on 16 April 2010 the applicant deposed that
prior to the impugned transfer he was housed in normal residential accommodation
and was permitted association in the normal manner. He had achieved Enhanced
status, was in the third year of an Open University Degree and in the second
year of an A level art course and was also studying music and computers.
[6]
On Monday 22 March 2010 the applicant was advised by Governor Roxborough
that intelligence was held indicating that he was involved in anti-social
behaviour within the prison. He was then moved to the unit referred to as the
HRU in Halward House.
[7]
On Tuesday 23 March the applicant attended a case conference attended by
a number of Governors. At this conference he was told that it was believed that
he was at the very top of a drugs ring from which he was making a lot of money.
He denied these allegations and avers that he could do nothing more than say
that they were not true since nothing specific was put to him.
[8]
He was told at this conference that he was required to undertake a course
involving acknowledgement of the harm of drugs use and that it was not known how
long he would be in the HRU. He refused to do the course on the basis that he
had done nothing to justify being required to do it and he was concerned that
taking part in such a course would appear to involve an admission of guilt.
[9]
In unchallenged averments he stated that his regime status has now been
reduced from Enhanced to Standard and has been told that it is a disciplinary
offence to try to talk to prisoners outside the HRU.
[10] The
applicant deposes that he is of the Roman Catholic faith and that since his
transfer he has not been permitted to attend
Mass.
On being advised that he was not permitted to attend Easter Sunday Mass he
complained and was told that attendance at Mass was not a right and that he
could speak to a Priest instead. On Good Friday, 2 April 2010, he spoke with
Father O’Hagan who he says told the applicant that contact with a Priest – which
would occur only on the request of a prisoner – did not fulfil the Roman
Catholic obligation to attend Mass.
[11] By
letter dated 30 March 2010 the applicant’s solicitors McCann & McCann wrote to
the Governor at Magilligan Prison raising concerns about the applicant’s
education, attendance at Mass and contending that the requirements of procedural
fairness had not been observed in the decision to transfer the applicant to the
HRU.
[12] By
response dated 2 April 2010 the respondent stated as follows:
“Management at Magilligan Prison are in
receipt of confidential information from many and varied sources which lead us
to conclude that Stephen McAree is engaged in selling Class A and other illicit
drugs within prison.
This serious antisocial behaviour is
having a serious detrimental effect on prisoners throughout the Magilligan
estate, many of whom are vulnerable and unable to pay for their illicit drug
usage.
Management have a duty of care to all
prisoners, especially those who are vulnerable and susceptible to any form of
harm caused by other prisoners.
Stephen was moved to Halward House to
enable him to undergo programmes designed to reduce his risk of harming others.
He will be given every opportunity to prove his bona fides and it is our desire
that he will return to normal residential location as soon as possible.
The decision by management to move
Stephen to Halward House is reasonable, proportionate and necessary to stop him
causing harm to other prisoners and does not impinge on his human rights. He
will be given every opportunity to address this aspect of his unacceptable
behaviour.
Stephen is free to practise his religion
and has access to the Roman Catholic priest on a weekly basis. Attendance at
Mass is not a right and can be withdrawn from prisoners whose behaviour is not
compatible with good order and discipline.
Management will ensure that any
educational pursuits that Stephen is engaged in will not be compromised by him
residing in Halward House.”
[13] D/G
Glendinning has sworn three affidavits in these proceedings. In his first
affidavit he avers that he has specific responsibilities for security, prison
discipline and resettlement activities and has been involved in the transfer of
a number of prisoners from the main prison population to the HRU.
Background to HRU and Transfer Procedure
[14] From
his first affidavit it appears that the applicant was one of eight prisoners who
were transferred from the general accommodation at Magilligan to the HRU in late
March 2010 with the applicant being transferred on 22 March. He explains in his
first affidavit the background to the HRU in the following terms:
3. The HRU is a new initiative
introduced at HMP Magilligan in an effort to address the very serious problems
which arise both within the prison and outside with respect to anti-social
behaviour and supply of illicit drugs. Notwithstanding elaborate security and
detection measures the use and abuse of illegal and prescription drugs continues
to present a serious challenge to the management of HMP Magilligan.
4. In addition to the problems which
arise from the consumption of such drugs, the importation of such materials into
the prison also generates instances of bullying and extortion both inside and
outside the prison. Examples of such conduct include prisoners being compelled
to import drugs into the prison upon return from home leave, family members
being threatened for failure to make payments outside the prison in order to
settle drug “debts” in the prison, as well as instances of serious assault and
self-harm. It has come to the attention of senior staff at HMP Magilligan that
such instances of anti-social behaviour are not random in nature but are part of
a loosely structured but organised system of drug importation.
5. Efforts to address this problem are
ongoing within the prison. The HRU is part of this initiative. It was
established to allow prison staff to move prisoners who were considered to be
engaging in anti-social behaviour to a specialist unit where they could address
this anti-social behaviour before being returned to the general population.
Halward House is a newly built accommodation block. It is regarded as the best
accommodation in the Prison in that prisoners have in-cell sanitation. The
general environment is light, airy and regarded as a safe environment for
prisoners and staff. It currently houses eight inmates. All have access to a
cross-trainer and sit-up apparatus and the use of a large exercise year for at
least one hour per day.
6. Prison Service have established a
procedure for transferring a prisoner to the HRU. The prisoner is brought to an
interview room in his residential block. The interview will be conducted in the
presence of the residential manager and the prisoner will be informed by a
Governor that he is to be transferred pursuant to Rule 9(4) of the Prison Rules
with immediate effect. The Governor will then read a statement to the Applicant
advising him of the reasons for his removal. I beg leave to a copy of the
Procedure document Governor Roxborough used on 22nd March 2010 when
he interviewed the Applicant prior to his removal to the HRU.”
[15] The
Procedure document referred to by D/G Glendinning at para 6 is in the following
terms:
“PROCEDURES FOR THE GOVERNOR PLACING A
PRISONER ON HALWARD 2
1.
The prisoner will be brought to an interview room in his
residential block. In the presence of the residential manager, the prisoner will
be informed by the Residential Governor, Duty Governor or other appropriate
governor that the prisoner is to be transferred under Prison Rule 9(4) to
Halward 2 with immediate effect.
2.
The governor will outline the reasons for the prisoner’s removal
to Halward 2 by making the following statement directly to the prisoner:
‘Management at Magilligan Prison are in receipt of information which leads us to
believe that you are engaging in antisocial behaviour which is causing harm to
other people.
You are now being transferred under Prison Rule 9(4) to reside in Halward House.
On your arrival in Halward House, you will be interviewed by the residential
manager who will explain what will be expected of you whilst you reside in
Halward.
A
multidisciplinary case conference will be convened as soon as possible to
consider the most appropriate way of enabling you to stop engaging in further
antisocial behaviour. You will be invited to attend the case conference to
contribute to the proceedings and allow your views to be heard.”
[16] At para
7 of his affidavit the D/G referred to the anti-social case conference which was
convened on the following day, 23 March 2010 at which the applicant attended. He
chaired the meeting which was also attended by a prison psychologist, a
representative from the Probation Board, Governor Roxborough, Governor McGrady
and Senior Officer Barr. There were no members of the Independent Monitoring
Board (“the IMB”) at that conference.
[17] The D/G
exhibited a copy of the record of this case conference which records the case
conference membership and then has a box entitled “Details of anti-social
behaviour” and within that box in manuscript D/G Glendinning has written
“Engaged in Drug Dealing”. In the next and final box which is entitled “Agreed
Interventions Plan” D/G Glendinning has written “Stephen refused to accept any
responsibility, completely denied any involvement in drug dealing and refuses to
engage in any programmes.”
[18]
Referring to the case conference of 23 March the D/G stated at para 8:
“At the case conference I advised the
Applicant that the reason for his removal to the HRU was the belief, based on
information from a number of sources, that he was involved in anti-social
behaviour and, specifically, that he was involved in dealing in illicit drugs
within the prison. I invited the Applicant to respond to this information. He
refused to accept any responsibility for anti-social behaviour, he denied any
involvement in drug dealing. I asked if he would be prepared to engage in any
educational programmes to address anti-social behaviour which would facilitate
his return to normal residential accommodation. He refused to engage in any such
programmes.”
[19] At this
juncture I interpose to observe that I granted leave in this case on 27 April
2010 and fixed the date for hearing of the judicial review for 22 June 2010.
Whether in response to the grant of leave or not the respondent conducted a
further case conference. The case conference of 7 May was chaired by D/G
Glendinning. Two members of the Independent Monitoring Board (“IMB”) were
present. Mr McNicholl, Psychologist attended as did Prison Officer Stewart,
Senior Officer Magee from the Offender Management Unit and Trevor Barr, the
Senior Officer in Halward House.
[20] The
minute of that meeting is exhibited to his affidavit and after noting those who
were present states as follows:
“Governor:
The purpose of today’s case conference
is to review the circumstances as to why you are being housed in the Harm
Reduction Unit in Halward House.
I will now give you the gist of the
information which leads management at Magilligan to believe that your are
engaged in anti-social behaviour which is causing harm to other people. After I
give you this information I will invite you to make representations to me as to
why I should review the decision to house you in the Harm Reduction Unit. I will
keep an open mind and consider what you have to say.
Please listen carefully to what I am
about to tell you. All of the following information is stated in written
intelligence reports received from various sources, internally and externally,
since November 2009.
1.
Along with another prisoner, you are regarded as being a major
drug dealer within the prison.
2.
You displayed threatening behaviour towards an
officer by saying that you would
‘beat the head off somebody’.
3.
You threatened a prisoner going on home leave to coerce him into
bringing back Heroin from his home leave.
4.
You are selling Heroin to other prisoners in Magilligan Prison.
5.
Prisoners owe you money for drug debts and these debts are paid
via various means outside the prison.
6.
Since your move to the Harm Reduction Unit, along with other
prisoners, tension among prisoners on the wing you left has reduced
significantly.
7.
You were identified as one of three prisoners who carried out an
assault on another prisoner.
8.
You used threatening language to a
member of staff during a search.
9.
You were identified as a ring leader in inciting other prisoners
to intimidate staff on the wing.
I now invite you to make representations
to me as to why I should review my decision to house you in the Harm Reduction
Unit and I will consider what you have said and
respond in due course.
McAree’s Responses:
·
It’s all nonsense – if it
was true why was I not charged for threats against staff/prisoners.
·
You refused to give me
information when I asked 6 weeks ago – today is just for the Court hearing
that’s coming up.
·
How can I rebut these
allegations – I have no chance.
·
I at the mercy of your
discretion [sic].
·
When I have spoken to
staff about this they are shocked.
·
I have never been part of
selling drugs in this prison.
·
I don’t bully or threaten.
·
There’s only been one
incident that I have been involved in with an officer here and that was over a
personal dislike.
·
I don’t want to be here –
I want to do my education.
·
I am quiet on the wing and
staff reports are impeccable.
·
The allegation regarding
drugs is a lie.
The Governor asked Prisoner McAree if he
used drugs, to which he replied, “Yes, occasionally, but I do not sell drugs,
nor have I been selling drugs.”
The Governor concluded by reminding
Prisoner McAree that he is not being housed in the Harm Reduction Unit as a
punishment but for his own good and as a means of helping him reduce his risk of
causing harm to others.”
[I have substituted numbers for bullet points in respect of the gist for ease of
reference and added emphasis].
[21] The
applicant has asserted at para 6 of his second affidavit that the record of the
second case conference is neither accurate nor complete. He says he made a note
of his responses to the nine points read to him by the D/G. He then sets out the
responses he avers he made and attributes certain specific comments to D/G
Glendinning in response to the applicant’s representations. D/G Glendinning in
his second affidavit states that he
has no recollection of the applicant writing anything down during the meeting
and that the applicant has attributed several specific comments to him in which he asserts he did not make.
Beyond that he does not appear to take issue with the substantive content of the
applicant’s account.
[22] At this
point I observe that on 22 March 2010 the applicant had been advised that he was
involved in anti-social behaviour and that was why he was being moved to the
HRU. On 23 March at the case conference he was told that it was believed he was
at the very top of a drugs ring. In the letter of 2 April 2010 to his solicitors
he was told that the management at the prison were in receipt of confidential
information “from many and varied sources which lead us to conclude that [the
applicant] is engaged in selling Class A and other illicit drugs within the
prison.” However, by the time of the second case conference the nature of the
allegations which were being relied upon had been expanded in the manner set out
in the “gist”.
Non-Disclosure of the Intelligence
Material
[23] In his
first affidavit the D/G deals with the non-disclosure of the intelligence
material to the applicant and he avers as follows:
“12. Although there is a substantial
body of intelligence material which indicates that the applicant has been
involved in the use and supply of illicit drugs within the prison, this material
could not be shared with the applicant because of the risk that the sources of
that material could be identified or that the manner in which it was obtained
could lead to the identification of a source. I carefully considered in
consultation with the Security Governor at Prison Service Headquarters and the
Security Manager in Magilligan, the extent of the information which could be
shared with the applicant and provided him with the gist of that information on
7 May 2010. At the conclusion of the case conference I advised the applicant
that he was not being held in the HRU for any punitive purpose but rather as a
means to help him avoid any further anti-social behaviour and the attendant risk
of causing harm to others.”
[24] At para
14 of his first affidavit D/G Glendinning stated:
“In the present case I had regard to the
amount of information that could be provided to the applicant without placing
any source or method of intelligence gathering at risk. I discussed this issue
with the case conferences on 4 April and 7 May 2010.
[I am not sure what the reference to the
case conference on 4 April refers to].
In light of those discussions I
attempted to provide the applicant with as much information as I could to allow
him to make meaningful representations in response.”
Scrutiny of the Intelligence Material
[25] In
response to issues which were raised by the Court in the course of the hearing
on 22 June D/G Glendinning swore a third affidavit commenting specifically on
the scrutiny afforded to the intelligence materials which were relied upon in
relation to the prisoners including the applicant who were transferred to the
HRU in March/April 2010. He avers as follows:
“3. It may be of assistance if I
describe in broad terms the mechanism for collating intelligence within the
Northern Ireland Prison Service. Intelligence materials are recorded by prison
staff on documents called Security Information Reports (SIR’s). These reports
are the originating unsanitised document and may relate to any relevant events
such as an observation of a particular prisoner, a report of a conversation, a
report of a monitored telephoned call, a report of a complaint from a prisoner
or relative or any security related matter. The sources of the information are
diverse and can be from both inside and outside the prison.
4. The SIRs are then passed to the
Security Department (in this case at HMP Magilligan) who then transfer the
contents of the SIRs onto a computer database. The information is then analysed
and evaluated by a trained officer, where necessary the information is brought
to the attention of the Security Manager and the Governor.
5. All intelligence reports are graded
using the 5X5X5 system which assesses the reliability of the source and the
accuracy of the information. This system of grading is used by all UK prisons,
police, and other law enforcement agencies providing for a common and consistent
level of assessment. [The deponent does not set out the grade of the
intelligence relied on].
6. In the case of each of the prisoner’s
transfer to the HRU I was provided with the SIRs from the database for the
period from November 2009 onwards. This was the case with both Prisoner McAree
and Prisoner Watson. On examining the SIRs from the database I was able to see
the narrative content of the information passed into the system from prison
officers and the analysis of that information by the security department.
7. In the case of Prisoners McAree and
Watson I can confirm that I saw the SIRs prior to their transfer to the HRU. At
that time I had not discussed the extent of the material which I could disclose
to prisoners with the Head of Security Information Branch at Prison Service
Headquarters, Governor Pat Gray. Accordingly, I afforded the prisoners a bare
outline of the material. I was particularly concerned about the content of some
of the SIRs, not necessarily relating to either McAree or Watson, which related
to detailed information from outside the prison. In particular I was concerned
to learn of arrangements for the payment of drug debts, owed to prisoners who
were selling drugs in the prisoners, by family or friends depositing money into
external accounts.
8. I had therefore carefully examined
the SIRs for each of the prisoners prior to the first case conference. In the
period prior to the second case conference I discussed the intelligence material
with Governor Gray. I was not specifically exploring the authenticity of the
intelligence material with Governor Gray because we had both seen the SIRs and
could make a ready evaluation of the source and content of the material. Rather
I was seeking his approval for the extent of the material that could be
disclosed to the prisoners. I am not a Security Governor and there are aspects
of intelligence to which I am not fully privy. For that reason I deferred to
Governor Gray on the issue of extent of disclosure. He authorised me to make
disclosure in precisely the terms recorded in the minutes of the case
conferences. Governor Gray and I were not involved in the scrutiny of the
authenticity of the intelligence materials because this was an issue on which I
had already reached a considered view based on the SIRs from the database.
9. When I attended at the case
conferences on 7 May 2010 I held a file for each of the prisoners under review.
The file contained the SIRs from the database for each prisoner from November
2009 onwards. I did not make copies of those SIRs and I did not provide copies
to the members of the IMB in attendance, nor did they seek copies. It would not
be the case that originating intelligence documents are copied or further
disseminated for reasons of the serious risks involved in identifying sources,
methodology or techniques involved in reporting the information. I also had a
note of the gist of the information cleared by the Security Governor at
Headquarters which I read to the prisoner.
10. I am aware that an issue has arisen
as to whether I subjected the intelligence materials to ‘anxious scrutiny’. That
is not a phrase I would routinely use however, I can say that I carefully
considered the original source reports and the related security commentary in
relation to both McAree and Watson. I was satisfied that the reports were true
and reliable. In the case of McAree there were a number of different sources of
information indicating involvement in the illicit trade in drugs within the
prison. In the case of Mr Watson there were fewer sources but I was still
satisfied that the documents indicated a significant degree of involvement by
him also.
11. I did not distribute the SIRs to the
other members of the case conference nor did I provide them to the two IMB
members who were there in a monitoring role. If the IMB members had raised any
query about the intelligence material I had them in my possession at the case
conference and would, in the absence of the prisoner, have permitted them to
examine the SIRs. I am aware that the IMB members are familiar with these types
of intelligence reports from the discharge of their function with respect to
Rule 32 restrictions of association.
12. I am advised that the Court has
enquired as to whether any greater detail can be afforded with respect to some
aspects of the gist which were clear for dissemination at the hearing on 7 May
2010. In the case of Mr McAree the applicant was told that there was
intelligence that:
(i) he had displayed threatening
behaviour towards an officer;
(ii) he was one of three prisoners who
had carried out an assault on another prisoner;
(iii) he had used threatening language
to a member of staff during a search.
13. I have reviewed the wording of the
‘gist’ I gave at the case conference on 7 May 2010 and I do not believe I can
elaborate further.”
[26] The
applicant in his submissions contrasted the contents of para 12 of his first
affidavit set out above and paras 8 and 9 of the third affidavit. Whereas in
para 12 of his first affidavit he says he carefully considered in consultation
with the Security Governor and Security Manager the
extent of the information which could
be shared with the applicant paras 8 and 9 (the applicant submits) indicate that
the issue of the extent of the information which could be shared was delegated
to the Security Governor in the manner set out in those paragraphs.
The Role of the IMB
[27] At para
9 of his first affidavit D/G Glendinning referred to the membership of the case
conference on 7 May 2010 and the fact that there were two members of the IMB
present. The respondent’s skeleton argument at para 18 emphasised that the
applicant had been provided with information in a context where the material was
“subject to oversight by the Independent Monitoring Board at a meeting chaired
by a Senior Governor”. And again at para 9 of the same skeleton argument the
respondent pointed out, in reference to the case conference on 7 May 2009, that the meeting was attended by two
members of the IMB. The respondent
thus sought to pray in aid as a countervailing safeguard to the lack of
disclosure to the applicant the fact that there were two members of the IMB
present at the case conference on 7 May
and that the undisclosed material was subject to oversight by them. In fact
this material was not subject to such oversight by the IMB.
[28] Indeed
the Chair of the IMB, Brian Collins, has averred that they perceived their role
as one of “passive monitoring of the procedure”. At para 4 of his affidavit he
refers to the specific statutory role of the IMB prescribed in detail in the
amendments to Rule 32
of the Prison and Young Offender Centre Rules (NI) 1995. He points out that in
the context of Rule 32 monitoring “the IMB can call for the scrutiny of
materials where such materials are relied upon by the prison authorities to
justify the restriction of association of a particular prisoner.” And in
contradistinction to the role described in the Rule 32 context he stated (at
para 6) that the IMB were in attendance in a monitoring role, didn’t attend to
take part in any deliberations or to assist in the making of any determination
and that he did not considerate it “appropriate” for the IMB to go beyond such a
monitoring function save in those cases where they were empowered by statute to
perform a specific role as in the case with Rule 32 segregation.
The Parties Submissions
[29] The
applicant submitted that he was not afforded a sufficient measure of procedural
protection to satisfy the requirements of fairness because of the non-disclosure to the applicant
of the intelligence material and the respondent’s reliance upon it in making the
impugned decision. They also contended that the evidence provided no indication
that the representations made by the applicant in response to the purported
“gist” were in fact considered.
[30] The
respondent emphasised the context of the decision under challenge being one of
internal prison management, that he had been provided with a sufficient “gist”
of the information as could be provided , that he had been provided with that
information in circumstances where the material was subject to oversight by the
IMB and was given an opportunity to make representations which he did make.
Context
[31] The
respondent is undoubtedly correct that the context of the present application is
that the Court is concerned with an important aspect of prison administration
and management concerning a decision to move a prisoner who is suspected of
serious drug related criminality to another part of the prison estate for the
reasons so effectively set out in D/G Glendinning’s first affidavit above.
[32] Rule
9(4) of the Prison and Young Offender Centre Rules 1995 provides that:
“Prisoners may be located in such part
of the prison as the Governor may determine by reference to their classification
and any other factors which he may decide to take into account; and may
subsequently be transferred to other locations in the prison either in groups or
as individuals.”
[33] I agree
with the respondent that this power which was being exercised in this case
confers on the prison governor a broad empowering discretion as to the placement
of prisoners upon their committal and thereafter until their release. Rule 9(4) underpins and must inform any assessment of procedural
fairness in the exercise of that discretion. It is common case that the concept
of fairness is context sensitive and involves a degree of elasticity. The
present case concerned the requirements of procedural fairness applicable not to
a trial or other adversarial process but to a decision concerning prison
management.
[34] The
respondent’s description of the specialist unit in which the applicant is housed
is set out at para 5 of D/G Glendinning’s first affidavit (see para 14 above).
Being placed in this unit nonetheless has consequences for the prisoners
concerned in terms both of the restrictions on association with other prisoners
beyond those in the unit (now numbering eight) and the immediate reduction from
Enhanced to Standard regime. Moreover the removal is not time limited and is not
necessarily subject to periodic review.
Applicable Legal Principles
[35] The
presumptive requirement of sufficient disclosure to enable meaningful and
focussed representations is well known. A useful summary of the principles is
contained at para 7-057 and para 7-058 of
de Smith’s Judicial Review.
Para 7.059 of
de Smith recognises that to the
general requirement of sufficient disclosure there are exceptions including
where disclosure would be injurious to the public interest or where disclosure
is sought of sensitive intelligence information.
[36]
Situations arguably analogous to the present case have been considered in
Re John Thompson’s Application [2007] NIQB 8 and
Re Hart’s Application [2009] NIQB 57
and in
Re Wilson’s Application [2009] NIQB
60. All three cases concerned
issues of prison management: in
Hart, a decision to impose
restriction of association,
and in
Thompson and
Wilson, decisions relating to the placement of a prisoner within the
prison estate.
[37] It is
difficult for an applicant to respond in any detailed or meaningful way to
allegations that he has been involved in drugs when the information that is
relied upon cannot be disclosed to the person affected. Of course it is that
handicap which gives rise to considerations of whether countervailing safeguards
are available and whether fairness requires their deployment. In answering that
question the Court must be careful not to over judicialise administrative
procedures connected with prison management. Accordingly, Art6 cases such as
AF [2009] UKHL 28 and other cases engaging adversarial rights are not of
much assistance in this context. Even in Rule 32 cases disclosure may not be
possible but the decisive role of such undisclosed material does not of itself render the decision unfair. In Rule
32 cases the statutory supervisory role of the IMB may itself be attenuated if
the material cannot be disclosed to the IMB. The genuine inability to disclose
material on public interest grounds does not necessarily impair the fairness of
the decision in a prison management context.
[38] In
Re John Thompson’s Application [2007] NIQB 8, Weatherup J considered
fairness in the context of de-selection from the Foyleview Resettlement Unit at
HM Prison Magilligan:
“Fairness in this context would involve
in the first place that there must be information which is judged to be reliable
upon which it might be determined that there are grounds for removal and
de-selection of the prisoner.
Secondly the information must be available to be assessed by the governor making
the decision that the prisoner should be removed and de-selected. Thirdly the gist of the concern
should be disclosed to the prisoner.
Fourthly the details of the information and the sources of the
information should be protected to the extent that that is considered necessary
in the interests of the complainants.
Fifthly the independent scrutiny by the governor should include anxious
scrutiny of the information available and the risks to informants” [23].
[39] And in
a Rule 32 case Weatherup J at paras
18 – 20 of
Hart said:
“In circumstances where sufficient
information cannot be disclosed a countervailing requirement of procedural
fairness concerns the scrutiny of the intelligence material relied on in the
making of the decision. Where
sufficient information cannot be disclosed to a prisoner the right to know and
to respond to the adverse case is diminished.
To restore the balance of procedural fairness it is necessary to provide
for a system of scrutiny of the information that cannot be released to the
prisoner. Thus
Henry’s Application [2004] NIQB 11
provided for the requirements of procedural fairness in such circumstances, in
that case under the former rule 32 scheme involving the Board of Visitors. First of all there must be anxious
scrutiny of the information by those charged with making the decisions to
restrict association, whether as Governors in the prison or at Prison Service
headquarters. In addition those with a supervisory role, who are now represented
by members of the IMB, must have access to the information and be able to
subject it to such scrutiny as they consider necessary.
... If a decision maker is to take
account of intelligence information that will not be disclosed to a prisoner
then the decision maker must become familiar with and scrutinise the
intelligence information and nor merely rely on a general report that there is
intelligence of drugs or bullying or threats, as the case may be.”
Where disclosure is subject to constraint by reason of other interests the
decision maker is required to make a
judgment as to the extent to which the provision of information should be
limited in order to protect the rights of others. And this is an area in which
the decision maker must be accorded a discretionary area of judgment [see
Hart at para 12].
Fairness analysis
[40]
Regarding the crucial case conference on 7 May
the applicant does not appear to have been given any or sufficient
advance warning. At that conference the prison governor read from a written summary and outlined the nine matters upon which the
respondent relied. It would have been much preferable if the applicant had been
notified a reasonable time in advance that this conference was being called and
informed of its purpose and provided with a copy of the document which was going
to be read to him. In principle, the material which can be disclosed should be
disclosed to the prisoner in advance of the conference/hearing at which he is
going to be given the opportunity to make representations. This will enable the
prisoner to consider the material in advance and if need be to take legal advice
in respect of the contents. Disclosure in this manner will also avoid the
possibility of a multi-disciplinary conference having to be postponed to give
the prisoner adequate time to study the materials and take such advice as he
requires. Not only was it not provided in advance it was not even provided to him at
the conference itself – it was simply read to him. I do not consider that this
was, in the circumstances, a satisfactory method of proceeding. It may create
difficulties for prisoners in assimilating the information. Insufficient notice
of the hearing and of the “gist” may further impair the opportunity to make
meaningful representations. Proceeding in this manner, if not justified, can
also generate a perception of
unfairness. There has been no explanation as to why no advance notice was given
to the applicant of the conference or of its purpose or why he wasn’t provided
with a copy of the ‘gist’ either at all or before the conference itself. This is
exacerbated by the fact that the material upon which the respondent originally
indicated they were relying was considerably expanded upon in the ‘gist’.
[41] The
Court is invited by the respondent to rely on the 7 May conference as a bona
fide discharge of the in context requirements of fairness. Plainly on the
respondent’s case this meeting was an important scheduled multi-disciplinary
event with, unlike the first conference, two members of the IMB present who, the
respondent had contended, echoing Weatherup J’s comments in
Hart at para 18, had an oversight role in relation to the withheld
material. To secure the attendance of the prison officers, psychologists and IMB
members at this conference would have required a not insignificant degree of
organisation and pre-planning and prior notice. The conference appears to have
been convened for a purpose which
was not foreshadowed in the procedures document. Despite the importance that the
respondent invests in this conference it is remarkable that no notice was given
to the applicant that such a conference was to be convened or the purpose of
such a conference.
[42] In
respect of the “gist” the D/G
averred that no further information
could be supplied to the applicant or indeed to the Court. I have reservations
about this. Merely by way of example paras 2 and 8 of the “gist” refer to
allegations that he displayed threatening behaviour towards an officer and that he used threatening language to
a member of staff. It is not immediately obvious why it would not have been
possible for further details of those matters to be disclosed since they involve
allegations of indiscipline towards prison staff.
[43] The
undisclosed intelligence material was scrutinised by the respondent in terms of
its authenticity and although not
referred to in the first affidavit, in his third affidavit D/G Glendinning
indicated his satisfaction that the information relied upon was
true and
reliable. It is also clear that he
was not relying on some general report.
The grading of the intelligence has not been disclosed. The material
relied upon came from “many and varied sources” leading the prison authorities
to conclude that the applicant was engaged in selling Class A and other illicit
drugs within the prison.
[44] The IMB
was not present at the first conference but it was at the second. The respondent
in its written argument relied on the IMB’s presence at the second case
conference
and its oversight role echoing
the kind of procedural safeguard the court had in mind in
Hart. As a result of the affidavit evidence now furnished it has been
established that they did not subject the material to oversight It has not been
explained why this was so. The 7 May conference was subsequent to the grant of
leave. Whether this inspired the change in composition of the membership of the
conference is a matter of conjecture. Their involvement and the respondents
original attribution of an oversight role made it structurally closer to a Rule
32 case. Whatever the reason for their involvement their presence and their
alleged oversight role in respect of the withheld material was deployed by the respondent to resist
the judicial review. Since the IMB was present and assuming that their presence
was not intended as a mere fig leaf upon which reliance could be placed (as it
was) to defend the judicial review, oversight by the IMB could have provided a
simple, expedient and valuable safeguard. The erroneous attribution of and
reliance upon an oversight role that the IMB did not discharge and which they
thought inappropriate is unsatisfactory. It may at least demonstrate a
recognition of the need for such a countervailing safeguard to be available in
non disclosure HRU removals as in Rule 32 removals.
[45] There
is no indication in the minute of the meeting of 7 May that the respondent,
having received the applicant’s representations, considered them and took them
into account. The D/G had indicated that a decision would be given in due
course. No decision was in fact issued by the Governor other than the decision
that is implied by the continuation of the applicant’s transfer to the HRU. No
decision was provided to the applicant at the meeting on 7 May and as Mr Collins
has pointed out in his affidavit at para 10, the Governor had indicated that he
would consider what had been said and would provide a decision to the applicant.
That did not occur. No explanation has been advanced for the failure to do that
which the Governor said he would do.
[46] In
light of the above analysis and the accumulation of concerns I am satisfied that
the hearing of 7 May 2009 must be considered procedurally inadequate and unfair
to the applicant. When the parties have had the opportunity to study the detail
of the judgment I will discuss with Counsel the precise Order required in the
circumstances.
Attendance at Mass
[47] So far
as the discrete issue of attendance at Mass is concerned the Deputy Governor
averred at para 14(b) that he did not accept the applicant’s contention that the
restriction on attending Mass was made without justification. He states that the
applicant was expressly told that his transfer to the HRU was as a result of
their belief that he was involved in drug dealing within the prison. And he then
states:
“The movement and transfer of drugs
between prisoners occurs most frequently at times and places where prisoners
congregate in large groups. For that reason prisoners transferred to the HRU are
restricted in accessing situations where prisoners gather
en masse. Regrettably, it has been
the experience of Senior Management within HMP Magilligan that attendance at
Mass is one of the instances used to transfer contraband materials between
prisoners. For that reason the prisoners in HRU are not permitted to attend Mass
within the prison population”.
[48] He then
deposes to the efforts that had been made to facilitate the applicant’s
manifestation of his religious beliefs pointing out that prior to the grant of
leave the prison service attempted to reach an agreement with their Prison
Chaplain, Father O’Hagan, whereby he would say an additional Mass on Sunday for
the small cohort of prisoners in the HRU. He then continues:
“Father O’Hagan initially agreed to do
so but because of practical difficulties which arose with his own duties as a
Diocesan Priest he was unable to attend. I had secured an arrangement with
Father O’Hagan wherein he would attend at the HRU at 9.00am on Sunday mornings
in order to celebrate Mass with the prisoners therein before going on to
celebrate a further Mass with the main prison population at 9.30. This
arrangement was subject to Father O’Hagan’s other duties as he is not an
employee of Northern Ireland Prison Service and he cannot be compelled to make
adjustments to the existing provision. I have been advised that on Sunday 23 May
2010 when Father O’Hagan arrived to conduct Mass at Halward House he was
confronted by three prisoners who subjected him to hostile abuse about his
alleged co-operation with the prison authorities and about arranging alternative
Mass. Two prison officers witnessed this scene ...
(e) Father O’Hagan has also offered to
conduct pastoral visits with any of the prisoners held in the HRU who so
request.” [He then provides details of the extent to which the applicant
availed of pastoral visits].
[49] D/G
Glendinning swore a second affidavit dealing with this issue:
“On 23 May 2010 the Roman Catholic
Chaplain attended at Halward House to conduct a religious service for the
inmates in the HRU at approximately 0900 hrs. He was approached by a number of
inmates, including the applicant, and subjected to behaviour which he described
as hostile. As a result of this incident Father O’Hagan has rescinded his offer
to provide Mass in Halward House for the HRU inmates. This is a decision taken
by the Chaplain in light of the conduct of the applicant and others. Neither I
nor the Northern Ireland Prison Service can compel the Chaplain to conduct an
additional religious service for these prisoners.”
[50] He then
refers to a signed statement by Father O’Hagan detailing the background to these
events. He also exhibited a report on the incident from Officer Thom who was
present at the scene on the morning of 23 May. In Father O’Hagan’s statement he
says he has been a Chaplain at the prison since 1996 and that he has never
before “had to endure such an intimidating barrage of abuse. The offer of Mass
on a Sunday morning in the HRU is hereby rescinded.”
[51] D/G
Glendinning also received a report on this incident from Officer Thom who was
present at the scene on the morning of 23 May 2010.
Article 9
[52] The
applicant contended that his removal to the HRU constituted an unlawful
interference with his Art 9 right to manifest his religion as a Catholic. He
contended that the restriction on attending the celebration of Mass by the
Prison Chaplain constituted an interference with his Art 9 rights.
[53] The
right to manifest religious belief is not an absolute right. Art 9(2) provides:
“Freedom to manifest ones religion or
beliefs shall be subject only to such limitations as are prescribed by law and
are necessary in the democratic society in the interests of public safety, for
the protection of public order, health or morals or for the protection of the
rights and freedoms of other.”
[54] Rule 56
of the Prison and Young Offender Centre Rules (NI) 1995 provides:
“All prisoners shall be allowed to
practice their religion to the extent compatible with good order and
discipline.”
This Rule is entirely compatible with the Convention and no submission to the
contrary has been made by the applicant.
[55] In my
view the respondent made sufficient efforts to ensure that the qualified right
to manifest religious belief was not unduly circumscribed by the transfer of
those prisoners to the HRU. Provided the Court is satisfied that any
interference with the manifestation of beliefs is “prescribed by law” and is
“necessary in a democratic society” in pursuance of the legitimate aims set out
in Art 9(2) then there is no breach of the Convention. On the facts of this case
the applicant has been relocated for a legitimate purpose relating to the
maintenance of good order and discipline in the prison and significant efforts
have been made to facilitate him and others in the HRU in attending at the
celebration of Mass.
[56] I have
already referred to the incident that occurred on 23 May 2010 when Father
O’Hagan attended the HRU to celebrate Mass with the applicant. And I have sent
out above the statement of the Priest and the Prison Officer who was a witness
to the incident which developed. As Mr McGleenan observed in his skeleton
argument, the statement of the priest indicated that the applicant was less
concerned with upholding the first precept of the Catholic Church than the
pleadings in the case might indicate.
[57] The
decision of the Chaplain to withdraw his offer to provide Mass for the applicant
is attributable directly to the applicant’s inappropriate conduct and that of
the inmates who accompanied him on 23 May.
[58] I
therefore agree with the respondent’s submissions that any restriction on the
applicant’s right to manifest his religion is in accordance with Rule 56 of the
Prison Rules and can be justified by reference to Art 9(2). Furthermore, the
extent of the restrictions placed upon the applicant is his own fault given that
the efforts made to ensure that he could attend Mass were frustrated by his own
actions. Accordingly I dismiss the challenge based on Art 9.
[59] The
applicants claim of adverse interference with his studies in alleged breach of
his Convention rights was only faintly advanced during submissions and no
substantive relief has been claimed in the Order 53 statement. The applicant has
not established any breach.
Conclusion
[60]
Accordingly I dismiss the first applicants convention based claims. In the case
of both applicants their challenge to the procedural fairness of the hearing on
the 7th May is upheld.
(1) Where it is
necessary for the maintenance of good order or discipline, or in his own
interests that the association permitted to a prisoner should be restricted,
either generally or for particular purposes, the governor may arrange for the
restriction of his association.
(2) A prisoner's association under this rule may not be restricted under this
rule for a period of more than 48 hours without the agreement of the Secretary
of State.
(2A) The governor shall inform a member of the [independent monitoring board]-
(a) that he has arranged for the restriction of the association of the prisoner,
and
(b) of the date, time and location of the first review of the restriction of the
prisoner's association.
(2B) The governor shall inform a member of the [independent monitoring board] of
the matters in paragraph (2A) as soon as practicable and in any event no later
than 24 hours after the prisoner's association is restricted.
(2C) The governor shall keep a written record of all contact and attempted
contact with members of the [independent monitoring board] under this rule.
(2D) Unless it is not reasonably practicable, a member of the [independent
monitoring board] shall be present at all reviews of the restriction of the
association of the prisoner.
(2E) The governor shall as soon as reasonably practicable inform a member of the
[independent monitoring board]:
(a) of any changes to the date, time or location of the first review of the
restriction of the association of the prisoner,
(b) the date, time and location of any subsequent reviews of the restriction of
association of the prisoner, and
(c) any changes to the date, time or location of any subsequent reviews.
(2F) The [independent monitoring board] shall satisfy itself that:
(a) the procedure in this rule for arranging and reviewing the restriction of
the association of the prisoner has been followed, and
(b) the decision of the governor to restrict the association of the prisoner is
reasonable in all the circumstances of the case.
(2G) In order to satisfy itself of the matters in paragraph (2F) the
[independent monitoring board] shall be entitled to inspect the evidence on
which the governor's decision was based, unless such evidence falls within
paragraph (2H).
(2H) Evidence falls within this paragraph if:
(a) it should not be inspected by the [independent monitoring board] for the
purpose of safeguarding national security;
(b) its inspection by the [independent monitoring board] would, or would be
likely to prejudice the administration of justice;
(c) its inspection by the [independent monitoring board] would, or would be
likely to endanger the physical or mental health of any individual; or
(d) its inspection by the [independent monitoring board] would, or would be
likely to endanger the safety of any individual.
(2I) If the [independent monitoring board] is not satisfied of any of the
matters set out in paragraph (2F) it shall draw this to the attention of the
governor, in writing, who must, review the procedure for arranging and reviewing
the restriction of the association of the prisoner, review his decision to
restrict the association of the prisoner and take such other steps as are
reasonable in all the circumstances of the case.
(2J) The governor must take the steps in paragraph (2I) promptly and in any
event within seven days and the [independent monitoring board] shall not refer a
matter to the Secretary of State under paragraph (2K) until the governor has
taken the steps in paragraph (2I) or the end of the seven days whichever is
earlier.
(2K) If after drawing a matter to the attention of the governor under paragraph
(2I) the [independent monitoring board] is still not satisfied of any of the
matters set out in paragraph (2F) it shall draw this to the attention of the
Secretary of State in writing.
(2L) If a matter is referred to the Secretary of State under paragraph (2K) he
must consider the matter and take such steps as are reasonable in all the
circumstances of the case.
(3) An extension of the period of restriction under paragraph (2) shall be for a
period not exceeding one month, but may be renewed for further periods each not
exceeding one month.
(4) The governor may arrange at his discretion for such a prisoner as aforesaid
to resume full or increased association with other prisoners and shall do so if
in any case the medical officer so advises on medical grounds.
(5) Rule 55(1) shall not apply to a prisoner who is subject to restriction of
association under this rule but such a prisoner shall be entitled to one hour of
exercise each day which shall be taken in the open air, weather permitting.
“7.057
- If prejudicial allegations are to be made against a person, he must normally …
be given particulars of them before the hearing so that he can prepare his
answers. The level of detail
required must be such as to enable the making of “meaningful and focused
representations”. In order to protect his interests, the person must also be
enabled to controvert, correct or comment on other evidence or information that
may be relevant to the decision and influential material on which the
decision-maker intends to rely; including, in certain cases, disclosure of
representations or information provided by third parties”.
7.058 - If relevant
evidential material is not disclosed at all to a party who is potentially
prejudiced by this, there is prima facie
unfairness, irrespective of whether the material in question arose before,
during or after the hearing”.
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