Practice and Procedure


PUBLISHED June 18, 2003

The decision of the Prison Service to remove the appellant from a protected witness unit and return him to the mainstream prison system was not in breach of his legitimate expectations nor of his rights under Art.2 European Convention on Human Rights.Appeal by a serving prisoner ('B') from the judgment of Ouseley J dismissing his application for judicial review of the Prison Service decision to remove him from a protected witness ('PW') unit and return him to mainstream prison. B was arrested in June 2000 for conspiracy to supply nine tons of cannabis resin. He made full admissions of his guilt and gave detailed information about a number of persons importing large quantities of cannabis from Spain. He pleaded guilty and gave evidence against a co-accused and was sentenced to seven years' imprisonment. B made a witness statement to be used in the prosecution of a particular police target. He said he did so on the basis of promises by police officers that he would spend the rest of his prison sentence in a PW unit. On the basis of a risk assessment the police and Crown Prosecution Service recommended to the Prison Service that B should be moved into a PW unit and that was done in July 2001. There was no prosecution of the target and the police undertook a further risk assessment to consider whether B should remain in the protected unit. On the basis of that assessment the Prison Service decided that B no longer warranted PW status. B applied for judicial review of that decision and obtained an interim order preventing his removal from the PW unit pending the outcome of the proceedings. Ouseley J held that B did not have a legitimate expectation based on statements by the police that he would remain in a PW unit for the whole of his sentence, and that returning him to the mainstream prison system was not a breach of his rights under Art.2 of the European Convention on Human Rights. B appealed.HELD: (1) Under the Prison Act 1952 and the Prison Rules 1999 SI 1999/728 B's PW status was a matter for the Prison Service and not the police. Not even the Prison Service had authority to grant him PW status for the duration of his sentence. The police did not have actual or ostensible authority to make the alleged representations or the authority to implement them. (2) Even if in private law terms the Prison Service had in some way held out the police as having authority to commit it generally or in the case of B to retaining PW status for the whole of his sentence, B could not have relied on the principle of legitimate expectation to enforce that commitment. The representations would not give rise to a legitimate expectation applying public law principles (R v East Sussex County Council, ex parte Reprotech (Pebsham) Ltd (2003) 1 WLR 348). (3) There was no basis on the facts for a complaint of procedural unfairness in the way the Prison Service took the decision to return B to mainstream prison. (4) The decision to return B to mainstream prison did not breach his right to life under Art.2 of the Convention. In order to engage Art.2 there had to be a risk to life. The Prison Service was better placed than the court to assess the risk to life. The original assessment of risk had been based on the premise that he was to give evidence against the subject of his witness statement to the police. The alteration in circumstances reduced the risk. The Prison Service had considered all the issues and its decision was well within the bounds of what was reasonable given the importance of the human right in issue. (5) It was not unfair and an abuse of power for the Prison Service to resile from the alleged promises or representations made by the police to B. An unauthorised assurance given by a police officer could be a relevant consideration for the Prison Service to take into account when making its decision, particularly if a prisoner informant had acted upon the promise to his detriment. In this case the Prison Service was not aware that the police had given such assurances to B. (6) The police and Prison Service should attempt to remove or reduce the future scope for any misrepresentation by police officers to potential informants in custody of the effect of the grant of PW status.Appeal dismissed.

[2003] EWCA Civ 686