Factual and Procedural Background
The Appellant is a prisoner serving a life sentence who challenges the decision of the Prison Service to refuse him admission to a Protected Witness Unit ("PWU"). The Appellant contends that the local police force failed in their duty to provide appropriate information to the Prison Service. During a previous sentence, the Appellant served time in a PWU. After release, he committed further serious offences leading to the current life sentence. The hearing was conducted in private to protect the Appellant’s identity, with judgment handed down in open court but with identifying details concealed.
The Appellant had previously assisted the police by giving evidence against serious criminals, resulting in convictions. At that time, the police assessed that his life was at real and substantial risk, providing him with protection including relocation and admission to a PWU. However, following his refusal to give evidence against a further individual and subsequent reoffending, the police ceased direct contact and did not arrange further protection such as a new identity or relocation. Since returning to prison, the Appellant has not been readmitted to a PWU but has been held in vulnerable prisoners' units and segregation units.
The Appellant’s solicitors requested reconsideration of his status and admission to a PWU, but the Prison Service declined, citing factors including the Appellant’s reoffending and security categorisation. A risk assessment was conducted by police officers unfamiliar with the Appellant, which concluded that the current threat level was low. The Appellant initiated judicial review proceedings challenging the refusal. It was accepted that the prior decisions had procedural flaws, including reliance on incorrect assumptions about the Appellant’s behaviour and status. The court found that a new decision was required based on an updated and properly informed risk assessment.
Legal Issues Presented
- Whether the Prison Service lawfully refused to admit the Appellant to a Protected Witness Unit given the risk to his life.
- The extent of the police and Prison Service's positive obligations under Article 2 of the European Convention on Human Rights to protect the Appellant’s right to life.
- Whether the Appellant’s reoffending or failure to cooperate could justify refusal of protective measures.
- The appropriate test or threshold of risk that must be met to justify admission to a PWU.
- The procedural adequacy of the decision-making process, including the adequacy of the risk assessment and the role of police information.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Osman v. United Kingdom (1998) 29 EHRR 245 |
Positive obligation under Article 2 to take preventive operational measures to protect individuals from real and immediate risk to life from third parties. |
The court applied Osman to establish that authorities must do all reasonably expected to avoid real and immediate risks to life, with the risk being real and continuing but not necessarily imminent in the immediate future. |
| Fernandez v. Government of Singapore [1971] 1 WLR 987 |
Interpretation of "might" in assessing risk as requiring a lesser degree of likelihood than "more likely than not". |
Referenced in relation to the degree of risk required to engage Article 2 protections, but the court found this test not entirely suitable for the current context. |
| R. v. Lord Saville of Newdigate, Ex parte A and others [2000] 1 WLR 1855 |
Balancing fundamental rights against countervailing considerations, emphasizing the need for compelling justification to interfere with the right to life. |
Used to illustrate that the right to life imposes stringent constraints on decision-makers and that subjective fears must be objectively justified. |
| Jordan v. United Kingdom [2001] ECHR 24746/94 |
Article 2 as a fundamental right requiring strict interpretation of when deprivation of life is justified and the positive obligations it imposes. |
Supported the principle that authorities must take reasonable measures to protect life, including operational preventive steps. |
| Ergi v. Turkey (2001) 32 EHRR 18 |
State responsibility for failing to take all feasible precautions to avoid incidental loss of life during security operations. |
Referenced to support the scope of positive obligations under Article 2. |
| Keenan v. United Kingdom [2001] ECHR 27229/95 |
Positive obligation to safeguard lives of prisoners, with recognition of operational and resource constraints. |
Applied to highlight the duty of prison authorities to protect vulnerable prisoners, including those at risk of self-harm or harm by others. |
| R. Secretary of State for the Home Department, Ex parte Daly [2001] 1 All ER 433 |
Requirement for heightened review in decisions affecting Convention rights. |
Supported the court’s approach to scrutinize the decision-making process rigorously given the Article 2 implications. |
| McCann and Others v. United Kingdom [1995] ECHR 18984/91 |
Interpretation of Article 2 requiring practical and effective protection of the right to life. |
Referenced to underpin the interpretation of positive obligations under Article 2. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the legal framework governing protected witnesses, police and prison procedures, and the positive obligations under Article 2 of the European Convention on Human Rights. It recognized that while PWUs provide enhanced protection for prisoners at risk, the criteria and procedures governing admission are not fully comprehensive or integrated.
The court emphasized the fundamental nature of the right to life and the positive duty on public authorities to take reasonable operational measures to protect individuals from real and immediate risks to life, referencing Osman and related case law. It clarified that the risk must be real and continuing, but "immediate" does not mean imminent in the short term; rather, it relates to the risk during the period until the next review.
The court considered whether the Appellant’s reoffending or lack of cooperation could justify refusal of protective measures and concluded that, although such factors may be relevant to managing ongoing protection, they cannot override the absolute duty under Article 2 if a real and continuing risk to life exists.
The court found procedural flaws in the decision-making process, including reliance on incorrect factual assumptions and failure to fully incorporate updated risk assessments. It held that the final decision must be based primarily on the current risk to life, assessed rigorously and with due regard to Article 2 obligations.
The court noted that the existing risk assessment was thorough and conscientious but required updating to address certain outstanding issues, including the potential ability and desire of former co-defendants to harm the Appellant and concerns about prison wing screening. The court stressed the importance of a properly informed and updated risk assessment to underpin any future decision.
Finally, the court acknowledged the complexity and lack of precise guidance in this area, suggesting that the relevant police and prison guidelines might benefit from review and clarification to better address such cases.
Holding and Implications
The court quashed the decision of 14 May 2001 refusing the Appellant's admission to a Protected Witness Unit.
The court ordered that a new decision be made based on an updated and properly informed risk assessment, considering the judgment and the legal principles under Article 2. The updated risk assessment should be carried out by the officer who conducted the original assessment, focusing on the current risk to the Appellant’s life and the relevant circumstances in prison.
The direct effect is that the Prison Service must reconsider the Appellant’s eligibility for admission to a PWU with due regard to the positive obligations under the right to life. No broader precedent was established beyond clarifying the application of Article 2 obligations in this context and the procedural requirements for decision-making.