Neutral citation No. [2009] NIQB 60	Ref:     	MCL7568	
			
Judgment: approved by the Court for handing down	Delivered:	26/6/09	
(subject to editorial corrections)*			

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
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QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
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Wilson’s Application [2009] NIQB 60

IN THE MATTER OF AN APPLICATION BY JAMES WILSON FOR JUDICIAL REVIEW
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McLAUGHLIN J
[1]	The applicant is a prisoner at HMP Magilligan and is currently serving a sentence of four years imprisonment arising from his conviction in the Crown Court for drugs related offences; his anticipated release date is 9 November 2009.  In early 2008 he was transferred to Magilligan from HMP Maghaberry where he had attained “enhanced” status and he has retained this since.  

[2]	On 3 January 2009 the applicant was re-categorised from a category B to category C prisoner, which was a reduction in the perception of risk presented by him on a scale measured from A-D.  On 5 January he applied for admission to Foyle View, a resettlement unit which provided less restrictive accommodation for prisoners and which was reserved for those nearing the end of their sentence.  In consequence he attended an interview with a prison officer on 6 January.  On 7 January he passed a drugs test and on 8 January he was informed that his application to enter the Foyle View regime had been refused.  His solicitor then entered into correspondence with the Prison Service seeking information about the identity of the person(s) who made the decision, the date of the decision and the grounds of the refusal.  He was informed by letter of 23 January 2009 that:

“A multi-agency panel considers all applications to access Foyle View.

Your client was refused access as he is currently high risk of re-offending.  The multi-agency panel did not feel Foyle View was the most appropriate location for your client at this time.”

In the meantime a further letter of 22 January had been sent by his solicitors seeking details of the selection procedure for Foyle View, including details of the criteria applied to determine applications for admission, together with the basis for the conclusion that the applicant currently presented a high risk of re-offending.  Further details of the selection procedure were then provided and he was advised to contact the Probation Board for details of their assessment of the extent of the risk which he presented.

[3]	By letter dated 12 March 2009 the Prison Service provided a copy of the written response to his application for transfer to Foyle View which indicated (by reference to an enclosed document) that:

“As you can see from this is noted that ‘security issues remain’ …  These concerns still exist at this moment in time.  The information we hold is intelligence and as such the Prison Service will not disclose it.  However, I can tell you that this intelligence does not relate to only one specific incident or date.

As things stand your client has been deemed as not being suitable for Foyle View.”

[4]	On 8 April 2009 judicial review proceedings were commenced in respect of the decision of 8 January 2009, and, at a hearing for directions before Weatherup J it would appear promptings were given by the judge which resulted in something of a rethink on the part of the respondents.  This resulted in further particulars being given to the applicant of the circumstances leading to the refusal of his application.  In current parlance he was provided with the “gist” of the material taken into account in making the assessment.  The document is marked “restricted” and is in the following terms:

“(1)	Wilson has a history of continuing to be involved in the supply and distribution of drugs while serving prison sentences.

(2)	Current intelligence indicates that Wilson is and has been for some time, involved in arranging for drugs to be brought into Magilligan Prison.

(3)	He continues to carry out his criminal dealings both inside and outside of the prison and is in regular communication with known drug dealers outside of the prison.

(4)	It is believed that Wilson is involved with a wider network of more hardened criminals within Magilligan in smuggling drugs in and distributing them for significant gain.

(5)	This prisoner requires to be kept under constant supervision and monitoring to minimise the extent to which he is allowed to continue this practice.

(6)	It is noted that a recent visitor to Wilson was indicated on by the Passive Drugs Dog and the visit refused.”

 [5]	When this development was reported to the judge the matter was left in abeyance whilst the applicant had the opportunity to respond and for the prison authorities to take account of any such representations.  A reconsideration was made by the relevant panel and a decision, dated 29 May 2009, was issued which affirmed the original outcome.  

[6]	The applicant now seeks judicial review of the decisions of 8 January 2009 and 29 May 2009.  In reality however the second hearing has rendered the original hearing redundant, the disclosure of further information has in effect demonstrated that the first hearing was flawed, and the practical effect of developments since January has been that the court ought to consider the validity of the decision of 29 May 2009 which will be determinative.  

The applicant’s submissions

[7]	In support of the application for an order of certiorari to quash the decisions, and for a declaration that the decision of 29 May 2009 is unlawful, ultra vires and of no force or effect, Mr Donal Sayers, who appeared on behalf of the applicant, advanced inter alia the following propositions.

(i)	That the common law requirements of procedural fairness, particularly against the backdrop of recent decisions such as Secretary of State for the Home Department v AF [2009] UKHL 28, had not been met.

(ii)	Specifically, that the panel had proceeded on the basis of “security information” which had not been revealed to the applicant at all or only in the vaguest and most general manner which rendered it impossible for him to make meaningful representations in answer. 

(iii)	That the panel has not demonstrated that it exercised a sufficient level of scrutiny of the information put before it and argued that the court should require a heightened level of scrutiny in circumstances where it is clear that relevant information has been withheld from the applicant and thus he is unable to answer prejudicial submissions based upon same.

(iv)	That in the event, as the application has proceeded, it has become further apparent that information was withheld which was perfectly capable of being revealed before the decision of 29 May.  This submission arises from the contents of the affidavit of Mr David Hamilton, Security Governor, HMP Magilligan, who gave evidence in respect of the “security information” at the panel hearing.  It was submitted that the fact that such information could be disclosed in an affidavit which would be read by the applicant revealed that it was never confidential or security sensitive in the first place.  

[8]	In the light of his submissions he suggested that the hearing could be seen to be unfair and that the process should be rerun to take account of fresh submissions which could be made by the applicant in the light of information now available to him and ought to be available after fuller disclosure.  

[9]	To understand the applicant’s submissions it is probably best to note how the disclosure process has developed.  In the first instance no information was disclosed at all and the applicant was simply informed of the decision.  When this decision was challenged a “gist” of the allegations was then provided in the form set out earlier.  When the decision of 29 May led to a further refusal, and judicial review proceedings were launched, the Security Governor then disclosed more information in his affidavit.  The applicant says that this is a classic illustration of the adage referred to by Baroness Hale in MB and AF v Secretary of State for the Home Department [2007] UKHL 46, at 72 to the effect:

“Experience elsewhere in the world has been that, if pushed, the authorities discover that more can be disclosed than they first thought possible.”

[10]	Mr Sayers emphasised further the fact that we now have a situation where information has been disclosed, which is clearly a central part of the information put before the panel which refused his application, and that his client has had no opportunity to make meaningful representations in reply.

Security Governor Hamilton’s affidavit

[11]	Mr Hamilton stated in his affidavit that he had prepared the security report on the applicant which is dated 28 April 2009.  The report was based on intelligence which had been obtained from:

(i)	Security information reports,

(ii)	The monitoring of recorded telephone calls and
(iii)	Other sources.
He averred that all prisoners are made aware of the fact that their telephone calls are recorded and can be monitored and the Prison Service operates a system whereby prisoners must identify the telephone numbers which they wish to call from their account.  The applicant’s calls have been monitored and the Security Department has identified coded dialogue during these calls which indicates the applicant has been involved in drugs activity including importation of drugs into the prison.  

[12]	He then went on to state in paragraph 4:

“The applicant is serving a four year prison sentence for drugs related crime.  His wife, Kim Wilson, has been indicated upon positively by the passive drugs dog on 13 January 2008 at HMP Maghaberry, on 15 March 2009 and 15 April 2009 at HMP Magilligan.  Each of these positive indications occurred when the applicant’s wife attended at the prison for the purpose of a visit.  On each occasion the applicant was permitted to have a ‘closed’ visit – ie. one where the prisoner and visitor are separated by a screen.”

[13]	He then went on to state that the “gist” of the information relied upon had been provided by him after careful consideration and after he had concluded that “any more expansive description of the intelligence material would potentially expose third parties to a risk of harm”.  He explained that at the panel hearing on 28 May 2009 he had available the applicant’s response to the “gist” document and commented that it appeared to consist of a series of bare denials of the assertions contained therein.  He said that at the hearing he:

“Gave the panel a more in-depth briefing on the intelligence information held by security in relation to the applicant.  I read extracts to the panel from a series of security information reports which had been submitted by officers who had monitored recorded telephone calls made by the applicant or in which the applicant or his wife Kim Wilson were referred to.  These calls were of particular interest to the Security Department because they contained what appeared to be coded references to the importation of drugs into the prison.”

[14]	Further information revealed that that hearing included “specific information relating to monitored telephone calls which were made on 31 December 2008, 23 January, 7 February, 19 February (two calls), 25 February, 28 February, 4 March and 11 April 2009.”  The calls up to and including 19 February and 28 February involved the applicant and one of these had been made using a telephone account belonging to another prisoner.

[15]	Following on his report the panel had concluded against the applicant’s request for transfer.  It should be noted that the above summary refers to monitored telephone calls and the reaction of the drug sniffing dogs but not to materials from the so called “other sources”. 

The respondent’s submissions

[16]	Dr McGleenan, who appeared for the respondents, relied heavily upon the explanation of the process contained in the affidavit of Governor Hamilton.  He argued that there had been detailed consideration given to disclosure and this had led to the “gist” of the information being given to the applicant.  He said this was sufficient to enable the applicant to understand the nature of the allegations being made against him and to respond appropriately.  He further relied upon the fact that the “expanded information” contained in the Governor’s affidavit did not improve or disimprove the applicant’s position, it was put before the court simply as an explanation of the extent to which the panel had enquired into the matter.  It was a key submission of his that whilst it is always possible to disclose more information, indeed where any editing takes place it is axiomatic that further information could be given, what was in fact disclosed was sufficient, reasonable and answered the demands for procedural fairness.  He stressed the fact that we are not dealing with a criminal trial, secret terrorist type hearings, a prison discipline matter or the like, but rather a simple request made by a prisoner for transfer to a different regime within the prison.  He stressed the fact that movements of prisoners within the prison, and indeed within the prison system, lay in the discretion of the Governor and that he must be free to move prisoners about as the demands of the Prison Service dictated.  Finally, he argued that any scrutiny by the panel of information being put before it, which was not available to the applicant, should not be assessed as though it was an inquisitorial hearing but rather should be conducted in a manner which reflected the nature of the process that was being undertaken and should be of a far lighter touch than would be experienced at a disciplinary hearing, let alone a trial.

[17]	In further support of his argument he relied upon what he called the template set out by Weatherup J in the case of Re Henry [2004] NIQB 11, a decision in respect of Rule 32 of the Prison Rules (Restriction of Association) at paragraph 24 the learned judge stated:

“Accordingly, fairness in this context would involve in the first place, that there must be information, which is judged to be reliable, upon which it can be determined that the prisoner represents a risk to good order and discipline.  Secondly, the information must be available to be assessed by those making the decision in relation to removal from association.  Thirdly, the gist of the concern should be disclosed to the prisoner.  Fourthly, the details of the information and the sources should be protected to the extent that it is considered necessary in the interests of the informants.  Fifthly, the independent scrutiny of the members of the Board of Visitors and the Secretary of State should include ongoing assessment of the information available and of the risk to informants.”

[18]	Dr McGleenan conceded that the applicant met all the basic criteria for transfer to Foyle View but his request was refused on the ground of “security” considerations as alleged by the applicant.  In this context it is important to understand that the regime in Foyle View is much more relaxed than in a normal prison and is more akin to an open prison.  There is much less supervision, scrutiny and confinement; prisoners obtain much more weekend releases; increased training and work opportunities are provided and a greater and necessary atmosphere of trust prevails.  It is designed to maximise rehabilitation prospects by easing the passage from prison to freedom.  If the Governor cannot repose sufficient trust in a prisoner based on material which has some substance and is not fanciful or incapable of withstanding scrutiny, then it is entirely proper to exclude a prisoner from that more favourable regime as the presence of such a person would require heightened vigilance and supervision which would be self-defeating and highly prejudicial to the other inmates who are above suspicion.  The regime in Foyle View is an aide to rehabilitation, it is most decidedly not a place for prisoners who merely seek to benefit, and perhaps profit, from its regime without an established desire for rehabilitation.

Conclusions

[19]	The requirements of procedural fairness have developed apace over the years and are now described in contemporary terms in De Smith’s Judicial Review (6th Edition, 2007) at paragraph 7-003 as follows:

“Procedural fairness … is no longer restricted by distinctions between ‘judicial’ and ‘administrative functions’ or between ‘rights’ and ‘privileges’.  This ‘heresy  was scotched’ in Ridge v Baldwin.  The term ‘natural justice’ has largely been replaced by a general duty to act fairly, which is a key element of procedural propriety.  On occasion, the term ‘due process’ has also been invoked.  Whichever term is used, the entitlement to fair procedures no longer depends upon the adjudicative analogy, nor whether the authority is required or empowered to decide matters analogous to a legal action between two parties.  The law has moved on; not to the state where the entitlement to procedural protection can be extracted with certainty from a computer, but to where the courts are able to insist upon some degree of participation in reaching most official decisions by those whom the decisions will affect in widely different situations, subject only to well established exceptions.  Procedural fairness is therefore not these days rationed at its source – blocked at the outset on the ground of a decision being administrative rather than judicial, or governing a privilege rather than a right.”

[20]	A necessary corollary of this is that prejudicial allegations made against a person can only be met if a sufficient amount of the detail of the allegations is given to enable “meaningful and focused representations to be made”.  The person ought to be able to controvert, correct or comment on evidence or information that may be relevant to the decision and ought to be given a reasonably clear picture of what it is he is meant to answer.  In this case where the Security Governor has criticised the submissions made by the applicant to the panel as being “bare denials” Mr Sayers has made the telling point that if it is fair to so categorise his client’s responses then it is fair to categorise the details of the allegations against him set out in the “gist” document as being “bare assertions”.  I consider that there is much force in this argument.  I accept Mr Sayers submission that it would have been extremely difficult for his client to respond in any more detailed or meaningful way to allegations such as that he is involved in arranging drugs to be brought into the prison, carries out criminal dealings inside and outside of the prison and is in regular communication with known drug dealers.  The fact that a visitor, albeit his wife, was indicated on by the passive drugs dog may be capable of explanation but it might require further information as to the circumstances in which it occurred, and, for example, what the drugs dog has been trained to detect.  Is it sufficient, for example, to evoke a response from the dog for it to have a scent of drugs, or are drugs in substance required?  If the latter, then presumably a search would reveal the drugs, if the former, then the scent, even in the form of residues, may have been carried in as a result of some earlier contamination and may not be related to the prisoner.  Where this has happened on three occasions the inferences drawn may be different.  The information now available to the applicant explains that much of the material relied upon has been obtained from phone calls, many of them made by him, and which reveal, apparently, evidence of drugs dealing and importation into the prison.  Taken together and in context the information may prove a very serious criminal offence has been committed, and the mere risk of it happening may be sufficient to render the open and trusting regime of Foyle View inappropriate, but before so deciding the explanation, if any, from the prisoner should be considered.  Without deciding the point all authoritatively, it may be that a reasonable suspicion of such activity by a prisoner would be sufficient to justify his exclusion from or a placement in Foyle View.  The existence of such suspicion would require a response from the prison authorities which would be inimical to the open and trusting atmosphere which it seeks to promote there which could in turn prejudice the interest of persons who are co-operating fully to achieve rehabilitation.

[21]	It is difficult to see how evidence of this kind, if revealed, would present a risk to the safety, health or welfare of a source.  It may of course have implications for the integrity of the system.  It might also mean that the slang or the jargon used to describe drugs in telephone conversations has been identified by the prison authorities and they may wish to conceal such knowledge.  These are decisions that have to be made outside the realms of this courtroom.  Looking at this case as best I can I am satisfied that had the information now available to the applicant been made available in advance of the decision of 28 May, that he could have made significantly meatier submissions and they might have influenced the outcome.  I have been urged by Mr Sayers to be mindful that I should avoid the “it would make no difference” argument.  In his dissenting judgment in the Court of Appeal in the AF case Sedley LJ made the point that  in the following way: 

“One cannot be sure of anything until all the evidence has been heard and even then you may be wrong.  It may be, for these reasons, that the answer to Baroness Hale’s question – What difference might disclosure have made? – is that you can never know.”

[22]	I am satisfied the matter must be reassessed at different levels:

(i)	The Security Governor must review all of the information available to him and decide what can and ought to be disclosed.  

(ii)	The applicant must be given a proper opportunity to respond to such information and make such representations as he considers appropriate.

(iii)	When the matter comes before the panel its members should be familiar with the information which has been made available to the applicant and compare it with the information made available to it.  If they have fuller information, in the sense that significant information has been withheld, then they should be sure to scrutinise it with great care bearing in mind that they are hearing one side of the story.  It would assist clarity/transparency in this respect of the minutes of the panel meeting noted that this was done.

(iv)	The material disclosed must be sufficient, having regard to security considerations, to enable the procedure to be considered objectively to be fair.

(v)	Information need not be disclosed which is liable to reveal the identity of a source or where to do so is likely to affect the health, safety or welfare, of that person.

(vi)	Information need not be disclosed which is liable to cause significant damage to the prison security or information gathering systems.

[23]	All of this has already been summed by Weatherup J in the case of Darren Hart, Unreported, 19.06.2009 (Reference WEA7513) where he stated as follows:

“What is required in order to comply with the obligation to provide the gist of the reasons for removal?  The decision maker should provide sufficient information, subject to the requirement to protect sources and processes, to enable the applicant to understand the nature of the allegations and to respond. This exercise involves a balance of competing interests between the applicant’s right to know and to respond, and the right to protection of the person providing the information and the public interest in securing relevant information and the maintenance of good order and discipline in the prison. … Where such 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. The decision maker must be accorded a discretionary area of judgment in relation to the extent to which the release of information should be limited. …”

[24]	Ultimately some, or in certain cases all, information may have to be withheld from prisoners but the overriding consideration must be to ensure that all information is disclosed unless reasons of substance exist to justify it being withheld.  I am satisfied that the decision of 29 May 2009, must be considered procedurally inadequate and thus unfair to the applicant.  I shall discuss with counsel the precise order required in the circumstances but there will have to be a reassessment of the application.