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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> DF v Chief Constable of Norfolk Police [2002] EWHC 1738 (Admin) (15 August 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1738.html Cite as: [2002] EWHC 1738 (Admin)

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IN THE HIGH COURT OF JUSTICE Claim No.CO/5146/2001
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London WC2A 2LL
		15th August 2002



Introduction

1. The Claimant is a prisoner serving a life sentence. He challenges the decision of the Prison Service to refuse to admit him to a Protected Witness Unit ("PWU"), sometimes called a Witness Protection Unit (or WPU). He contends that the Norfolk Police have failed in their duty to provide appropriate information to the Prison Service.
2. During a previous sentence the Claimant served his sentence in a PWU. After his release he committed further serious offences, leading to his current sentence.
3. The hearing was in private, following the order of Munby J. on 6 February 2002, with which all counsel agreed and which I saw no reason to change. The purpose was to protect the Claimant. All counsel agree that judgment should be handed down in open court. Although the whereabouts of the Claimant is probably known to all those about whom he has concern, it remains desirable to avoid his identification by others. I therefore with counsel's encouragement conceal details of geography, precise dates and names as far as possible.
4. I shall discuss with counsel whether orders should be made under CPR 5.4 and/or CPR 32.13, restricting access to documents in the case.
5. I informed counsel that I had sat in the Court of Appeal (Criminal Division) when that Court considered an application for leave to appeal by one of the Claimant's original co-defendants. I was later reminded, and I informed counsel, that I had sat when the Court considered that case further. The transcripts were obtained and no objection was taken to my continuing to hear the present case. I am satisfied that there was no difficulty in my doing so.
6. Before completing this judgment, I have had the advantage of reading in draft the judgment of Ouseley J. in R. (on the application of Bloggs 61) v. Secretary of State for the Home Department, delivered on 31 July 2002. That case raised somewhat different issues in relation to the removal of a prisoner from a PWU.

Prison and police procedures

7. Home Office Circular 9/1992 ("the Circular") gave guidance to chief officers of police on the handling and supervision of "resident informants", referred to in the Prison Service as "protected witnesses". Such informants were described as active participants in serious crime, who elect to identify, give evidence against and provide intelligence against fellow criminals.
8. The Annex to the Circular requires a decision to regard a person as a resident informant to be taken by an Assistant Chief Constable or the like. The police should then consult the CPS, who will consider whether an application to the Home Office for such status should be made. The status should be granted only in exceptional circumstances.
9. According to paragraph 2 of the Annex, a person who has been treated as a resident informant by the police cannot be treated as a protected witness by the Prison Service and allocated to one of the two special units until convicted. The lack of suitably secure accommodation precludes a Category A prisoner from being treated as a protected witness. There is only a small number of places available.
10. Paragraph 3 of the Annex requires the Police Adviser at the Prison Service to obtain a comprehensive report from the police officer in charge of the case. The application for protected witness status must be supported by the CPS and the report must be endorsed at least by an Assistant Chief Constable. The report forms the basis of a decision by the Prison Service about eligibility as a protected witness.
11. PWUs are governed by Prison Service Instruction 71/2000, issued on 30 November 2000. Relevant paragraphs of the Instruction read as follows:

"PURPOSE AND DEFINITION OF PROTECTED WITNESS UNITS

1.6 A Protected Witness Unit is a discrete self contained unit that holds only Protected Witnesses. The Unit operates separately from the host main prison and is directly managed and staffed by a selected group of staff.

1.7 Protected Witness Units maintain the anonymity of, and provide secure and safe custody for Protected Witnesses, whose lives may be endangered were they to encounter other prisoners. Accommodating such prisoners in a PWU, ensures that there is no contact between a PW and anyone else outside the unit, other than those with a legitimate reason, and a proper authority, for access. The Units must adhere to these operating standards and to all other relevant PSOs, manuals and PSIs.

THE NATURE OF PROTECTED WITNESS UNITS (PWUs)

1.13 Managers must ensure that standards of security and behaviour on the unit are not eroded….

2. SECURITY

2.1 …PW's are vulnerable to attack from others, and many of the security tasks undertaken on a PWU must aim to prevent such attacks occurring…."

I do not regard the sentence "whose lives may be endangered" as attempting to lay down precise criteria for admission. This is a description of PWUs.

12. The Circular and the Prison Service Instruction give no guidance on arrangements for the release of protected witnesses or on what should happen if they return to prison. I have not been referred to any Prison Service Instruction that may have preceded that issued in 2000.
13. Two other regimes within prisons are relevant. A prisoner may be placed in a segregation unit, whose primary purpose is disciplinary and whose regime is restrictive. Also available are vulnerable prisoners' units, which house prisoners who meet the criteria of Rule 45 of the Prison Rules 1999 (the regime formerly familiar as "Rule 43"). In his statement, Mr.John Golds, the Head of the Population Management Unit within the Directorate of Operations at Prison Service Headquarters, says that there are no standard criteria for entry to a vulnerable prisoners' unit, but the same procedures are applied in all high security prisons. Many such prisoners are sex offenders, but other prisoners may request to 'go on Rule 45' because they are in debt or otherwise under threat from other prisoners. However, in a PWU there are more stringent security features and steps are taken to preserve the anonymity of the prisoners. Moreover, numbers of prisoners in vulnerable prisoners' units are very much greater.
14. The average annual cost per prisoner in a prison such as that where the Claimant is now held is £36,000. The average annual cost in a PWU is £45 - 50,000.
15. The Association of Chief Police Officers provided a National Template for Tier 1 Witness Support ("The Template"), dated 1 October 2000. It states that the police may consider "supporting" a person who can provide essential evidence generally in relation to the most serious of offences, and to whose safety a substantial threat exists. Such support and "assistance" may amount to maintaining a witness's welfare/security by way of relocation to a safe area and where appropriate, a change of identity, subject to various conditions. One condition is that the witness must have made a written statement before the full assistance from the scheme can be offered. Another is that the witness (and family) are fully prepared to abide by conditions expected under the scheme and acknowledge that any breach of the conditions or advice given may remove any support. The evidence of the witness must be crucial, decisive and critical. However,

"N.B. The Police have a fundamental role to protect life. If emergency security measures are required in order to carry out a proper assessment and to take a statement then these will not preclude the assistance outlined in paragraph (d) above [i.e. the full assistance only after a written statement has been made]."

And there is reference to the positive obligation, in the light of the judgment in Osman v. United Kingdom, to which I shall return later, on the police to protect the right to life to the witness from criminal acts of a third party.

16. The Template envisages a protocol signed by the police and the witness, described as a declaration by the two parties, not a binding agreement.
17. The Template sets out options for relocation, with or without a change of identification. It continues:

"9. EXCLUSION FROM THE SCHEME

If a witness, who is the responsibility of the Witness Support Scheme compromises him or herself by:

a) Committing crime

…

d) Stepping outside the guidelines/rules laid down as part of the Scheme or contravene the terms set out in the Document of Protocol

Then the witness will be considered to have fundamentally breached the initial agreement, and consideration will be given to exclude the person from the Scheme. …

The witness will be warned, initially, as to their future behaviour and all relevant facts will be considered and a decision made as to what action will be taken. In extreme cases the witness will be removed from the Witness Support Scheme…".

18. However, the Template requires that a decision to remove a witness from the scheme will be communicated to the witness in writing, giving at least 21 days' notice, so that the witness will have an opportunity to make arrangements or to appeal against the decision. A grievance procedure is provided.
19. Appendix A to the Template provides a Witness Assessment Checklist.
20. I have not been referred to any Template or other similar document that may have preceded that issued in October 2000. The Template envisages support and assistance to witnesses not in custody. It does not in terms deal with support and assistance on release from custody. Nor does it deal with the process of recommending witnesses for entry to a PWU or their handling in prison, let alone with such entry after release and reoffending.
21. The Circular, the Prison Service Instruction and the Template thus do not wholly dovetail together.

The law

22. As the ACPO Template notes, the police have a duty to protect the right to life. So do the Prison Service. There has been argument on the test to be applied by the authorities in assessing any risk to the Claimant.
23. In Fernandez v. Government of Singapore and others [1971] 1 WLR 987, the House of Lords was considering the Fugitive Offenders Act 1967, section 4(1)(c). The question was whether the appellant "might, if returned, be … detained or restricted in his personal liberty by reason of his … political opinions". The House of Lords held that where the consequences were as grave as those, the word "might" did not require merely that the consequences were more likely than not. At page 994 Lord Diplock continued:

"A lesser degree of likelihood is, in my view sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. "A reasonable chance", "substantial grounds for thinking", "a serious possibility" - I see no significant difference between these various ways of describing the degree of likelihood of detention or restriction of the fugitive on his return …".

24. In R. v. Lord Saville of Newdigate and others, Ex parte A and others [2000] 1 WLR 1855 the Court of Appeal was considering the refusal of the Bloody Sunday Inquiry to grant anonymity to certain soldiers who were witnesses. It was accepted that the witnesses' fear of reprisals was genuine and reasonable. The Court said (at page 1867):

"37. … What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right involved …".

25. The Court also said (at page 1877):

"68. (5) … We agree with the tribunal that the issue is not to be determined by the onus of proof. However, in our judgment the right approach here once it is accepted that the fears of the soldiers are based on reasonable grounds should be to ask: is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk? It is here that Sir Sydney Kentridge rightly relies on Lord Diplock's opinion in … Fernandez."

…

When what is at stake is the safety of the former soldiers and their families, adopting Lord Diplock's approach, the risk is extremely significant. After all, the individual's right to life is … the most fundamental of human rights….".

26. I turn to Article 2 (Right to life) of the European Convention on Human Rights, which reads:

"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law".

27. Both the police and the Prison Service are "public authorities" for the purpose of the Human Rights Act 1998, section 6. Article 3 is not now relied on. I accept that Article 2 imposes an obligation to protect from attacks that are potentially fatal.
28. In Jordan v. UK [2001] ECHR 24746/94, the European Court of Human Rights emphasised the importance of Article 2:

"102. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see the McCann and Others v the United Kingdom [1995] ECHR 18984/91, judgment of 27 September 1995, Series A No. 324, pp 45-46, paras 146-147).

29. In Osman v. UK (1998) 29 EHRR 245 the European Court of Human Rights was concerned with the alleged failure of the State to protect the lives of individuals from a threat. The first applicant's husband had been killed in a shooting incident in which the second applicant was injured. It was alleged that the police had failed to act on information about the threat posed by the perpetrator.
30. The Court said:

"115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the LCB v United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, para. 36). It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties. 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.  In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see para. 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life … Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2 (see, mutatis mutandis, McCann and others (1996) 21 EHRR 97, para. 146). For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case." (My underlining).

31. It is submitted on behalf of both Defendants that the obligation of the authorities in the present case is that set out in the underlined passage.
32. In Ergi v. Turkey (2001) 32 EHRR 18 the European Court of Human Rights was considering a case in which the applicant's sister had been killed by cross-fire in the course of an operation by Turkish security forces against terrorists. The Court said that the responsibility of the State may be engaged

"79. … where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimising, incidental loss of civilian life".

33. The Claimant relies on Lord Saville of Newdigate and others v. Widgery Soldiers and others [2002] 1 WLR 1249, in which the Court of Appeal were considering the decision of the Bloody Sunday Inquiry to require soldier witnesses to give evidence in Londonderry, rather than at some venue in Great Britain, where the risk to them would be less. The Court's conclusion on the test to be applied by the tribunal was this:

"28. In Fernandez, after adumbrating the various phrases which he considered expressed the same degree of likelihood of risk, Lord Diplock referred to the alternative of “applying, untrammelled by semantics, principles of common sense and humanity”. We believe that there is much to commend that approach in the present case. The search for a phrase which encapsulates a threshold of risk which engages Article 2 is a search for a chimaera. The phrases advanced by Mr Clarke were all taken from decisions involving contexts quite different from the present. These decisions provide no authoritative basis for adopting the phrases as a threshold test for art 2 purposes. Of one thing we are quite clear. The degree of risk described as ‘real and immediate’ in Osman, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was ‘the real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party’ which was, or ought to have been, known to the authorities. Such a degree of risk is well above the threshold that will engage art 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context. 29. In ex parte A at p 1877 Lord Woolf said:

" … the right approach here, once it is accepted that the fears of the soldiers are based on reasonable grounds, should be to ask: is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk?"

The reference to reasonable grounds was, as we understand it, to grounds that were objectively reasonable, but Lord Woolf had earlier commented at p 1876:

"From their point of view it is what they reasonably fear which is important, not the degree of risk which the Tribunal identifies.”

30. In the present appeal, the fact that the soldier witnesses will have subjective fears if called to give evidence in Londonderry is a relevant factor when considering whether it will be fair to require them to do so. Those fears will, however, have much more significance if they are objectively justified. A critical issue is whether such fears are objectively justified, and much of the submissions that we heard were addressed to this issue. 31. We consider that the appropriate course is to consider first the nature of the subjective fears that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to balanced against the adverse consequences to the Inquiry of the move of venue, applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision. This course will, we believe, accommodate both the requirements of art 2 and the common law requirement that the procedure should be fair."

34. It does not make it easy for those who have to take decisions, or for courts reviewing those decisions, if the search for a phrase encapsulating the threshold of risk is a chimaera.
35. In Ex parte A, Osman and Widgery Soldiers the courts were considering a risk to life from third parties. It is important to note precisely what the Court of Appeal was saying in Widgery Soldiers. They were dealing with a situation in which "the risk is attendant upon some action that an authority is contemplating putting into effect itself", there the holding of the inquiry. In my view they did not intend their reference to "some action of an authority" to refer to all decisions of an authority which is dealing with an existing situation. Measures taken or not taken by the police to protect members of the community could in one sense be so described, but that is not the effect of Osman.
36. It follows in my view that recommendations by the police and resulting decisions of the Prison Service are not the kind of actions contemplated in Widgery Soldiers. They are in my view more closely analogous to decisions taken by the police in the course of their duty to protect members of the community. This conclusion is supported by the judgment of the European Court of Human Rights in Keenan v. UK [2001] ECHR 27229/95, referred to by Hooper J. in R. (on the application of Amin) v. Secretary of State for the Home Department [2001] EWHC 719 (Admin) at paragraph 89, which is cited by Mr.Godsmark QC. Both cases involved deaths in custody. However, in Amin the European Court's conclusion was accepted and a fuller quotation from the judgment in Keenan is required here:

"88. The Court recalls that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction … This involves a primary duty on the State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see the Osman v the United Kingdom judgment of 28 October 1998, Reports 1998-VIII, para 115).

89. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see the Osman judgment, cited above, para 116). In this case, the Court has had to consider to what extent this applies where the risk to a person derives from self-harm.

90. In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies (see eg Salman v Turkey [GC] No. 21986/93, ECHR 2000-VII, para 99). It may be noted that this need for scrutiny is acknowledged in the domestic law of England and Wales, where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on prison authorities in respect of those detained in their custody.

91. The Government have argued that special considerations arise where a person takes his own life, due to the principles of dignity and autonomy which should prohibit any oppressive removal of a person’s freedom of choice and action. The Court has recognised that restraints will inevitably be placed on the preventive measures by the authorities by, for example in the context of police action, the guarantees of Articles 5 and 8 of the Convention (see the Osman judgment, cited above, paras 116 and 121). The prison authorities, similarly, must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned. There are general measures and precautions which will be available to diminish the opportunities for self-harm, without infringing personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case.

The Court was plainly applying the Osman test in the context of the duty to those in prison, albeit after a death. The Court of Appeal, on appeal from Hooper J. in Amin (R. (on the application of Middleton) v. HM Coroner for West Somersetshire, R. (on the application of Amin) v. Secretary of State for the Home Department and another) [2002] EWCA Civ 390, did not refer to Keenan, but cited Osman, at paragraph 31, as setting out the law, in the context of a case of a death in prison.

37. However, the situation in prison is not identical to that in the community. The court pointed to the vulnerable position of prisoners. I return to the judgment in Osman to identify other differences. First, the requirement that the authorities knew or ought to have known of the risk will usually be satisfied much more readily in relation to a prisoner, particularly one who has assisted the authorities, than in relation to a member of the community in general. Secondly, the authorities are in position to take measures to avoid any risk to an extent much greater than are the police in relation to a member of the community. Thirdly, the authorities are likely to be less inhibited by restraints imposed on the scope of their actions by the need to respect the human rights of others, since providing a protective regime is unlikely to affect the rights of others.
38. In the light of these differences, it is necessary to decide whether in this context the risk must be "real and immediate". It must in my judgment be real. However, the word "immediate" should not be understood, in the context of decisions on admission to a protective regime, to mean that the threat will necessarily materialise in the very near future. That would be appropriate if a particular threat required urgent measures. However, the kind of risk to be assessed in this context is of harm to the prisoner as and when those wishing him harm find an opportunity. This case concerns a decision whether the risk is sufficient to justify entry to an available protective regime. That implies an assessment of the risk of harm within a period until the decision is reviewed. In my view the question to be asked is whether there is a real risk to the life of the prisoner if he is not admitted to a PWU, rather than some alternative regime, for whatever period is being considered. However, immediacy requires that the risk must be present and continuing. A real risk is one that is not simply a fear felt by the prisoner, but is disclosed by all the information available. The Prison Service Instruction (at paragraph 7.4) provides for annual reviews and for re-integration of the prisoner into the general prison population where appropriate. That paragraph has not been relied on in the present case.
39. Although PWUs are designed to accommodate prisoners who have qualified, the law would permit the placing of a prisoner in a vulnerable prisoners' unit, or, at least for limited periods, in a segregation unit, if that degree of protection was sufficient to remove any real and continuing risk. The placing of a prisoner in a segregation unit for longer periods may raise issues other than that of protection that do not rise for decision on this occasion.
40. I turn to the issue whether the conduct of the prisoner can affect the duty to take measures to protect him. It is not an issue that has been considered in previous cases. For reasons that will appear, it is no longer crucial in the present case, since the Defendants now disclaim any reliance on the behaviour of the Claimant to justify the final decision taken. However, submissions have been made and I address them.
41. Can the authorities rely on a lack of co-operation by the prisoner to justify not taking measures to protect him? And if the prisoner has by committing further offences placed himself under the very risk from which he seeks protection, can that justify not taking such measures? Mr.Starmer QC submitted that once the risk is established, any behaviour by the prisoner is not relevant. Counsel on behalf of both Defendants submitted that the behaviour of the prisoner may be a factor, but found it difficult to spell out precisely what part such a factor should play. Mr.Godsmark QC found himself submitting that reoffending is relevant but not material.
42. It is at least clear to me that if the prisoner fails to co-operate in the regime to which he is admitted, that can be a factor in deciding whether the regime should continue. If in Osman those said to be at risk had failed to co-operate with reasonable measures proposed by the police for their protection, that failure would be relevant in deciding what the police should do. Similarly, if those at risk provoked a threat, that would be relevant.
43. It is also clear that a failure by a prisoner to take precautions may be evidence that the risk is not as great as he claims. The committing of further offences, realising that further imprisonment is likely, may also provide such evidence, although it may merely provide evidence of fecklessness and foolishness of the individual in relation to his own safety.
44. More difficult is the question whether the fact of repeated offending, resulting in imprisonment, can by itself ever justify a decision not to admit to a protective regime even if a real and continuing risk is demonstrated. I am inclined to think that in view of the absolute nature of Article 2 that it cannot, but it is unnecessary to express a final view on this occasion. I am satisfied that the Defendants are correct in not relying on such a justification on the facts of this case.
45. Mr.Starmer QC did not pursue the line of argument set out in his skeleton, which relied on the requirement that there should be an effective investigation into a death (see Jordan v. UK [2001] ECHR 24746/94). All counsel accepted the proposition that a decision-maker has an obligation to equip himself with the information necessary to take an informed decision.
46. I accept that a heightened level of review is required in assessing the legality of decisions which impinge on Convention rights: R. Secretary of State for the Home Department, Ex parte Daly [2001] 1 All ER 433 (House of Lords).
47. As I have commented, the criteria laid down by the police and the Prison Service for entry to a PWU do not specifically address the present situation. This omission has caused difficulty to those responsible for taking the necessary decisions in this case. Moreover, it is now common ground that the final decisions taken must be tested by reference to the law as developed in the light of Article 2, not simply by reference to the correct application of the criteria laid down.
48. It would be advantageous if the Circular, the Prison Service Instruction and the Template were reviewed in the light of the omissions identified.

The history

49. The nature of the Claimant's complaints will emerge from the relevant history.
50. Counsel ultimately agreed not to apply to cross-examine witnesses, since such issues of credibility as remain are not crucial to a decision.
51. In 1993 the Claimant was arrested for armed robberies. He later decided to implicate six men in armed robberies and made a lengthy witness statement. Some time later he gave evidence against three of them, A, B, and C. D pleaded guilty. A was regarded as the ringleader. They received lengthy prison sentences. The Claimant received a comparatively short sentence. E and G had absconded. G was later arrested. In the event the Claimant refused to give evidence against G. E has now died.
52. From the time the Claimant agreed to assist the police, the police accepted that he required protection. Before the trial the police received reliable intelligence that his life was in danger and that attempts would be made to cause the Claimant and his girl friend very serious harm, in order to prevent him giving evidence. The threat was regarded as real and substantial. Death threats were received by the Claimant's girl friend and son. The Claimant states that police officers told him that a contract for £25,000 had been put on his life by A.
53. Prior to the trial, the Claimant and his girl friend were relocated away from his home town in two different places, although the Claimant against strong police advice paid visits to his home town. E had also feared that he would be killed because it was believed that he had given information to the police. The police reported the Claimant as being both frightened and demanding. During the trial the Claimant reported a threat to him by a young friend of the co-defendants. That threat was not taken particularly seriously, but the overall threat was taken very seriously and an armed escort was provided for the Claimant.
54. At the time of the trial in 1995 DS Arthurton, who was one of the inquiry officers most involved with the Claimant, reported:

"There is little doubt that because of what he has done against these other criminals, that his life will be in 'real danger' when he enters the prison system. In fact, because of the calibre of the criminals, his life will always be at risk.

"… In basic terms, he has kept his word and the Senior Case Lawyer from CPS and myself both agree that everything should be done to assist him in the prison system. I believe we are all aware that criminals should be encouraged to take this course of action and for our part, it must be seen that they are given every possible support."

55. In these circumstances the Norfolk Police requested the Prison Department that the Claimant be granted protected witness status. The police officers visited what was then the only PWU to explore the logistics. DS Arthurton visited SO10 at Scotland Yard (now the Criminal Justice Protection Unit) to make inquiries about the relocation of the Claimant at the end of his likely sentence, although he anticipated difficulty from the insistence of the Claimant and his girl friend that they would not leave their home town. The CPS supported the application for the Claimant to be given Resident Informant Status (that is, as a protected witness), saying (in a letter):

"… the police have received reliable intelligence that his life was in danger, and as such have provided him with safe accommodation.

The level of threat against [F] is outlined in Detective Sergeant Arthurton's report, and there can be little doubt that such a threat is real and substantial. Clearly [F] will be vulnerable and easily identified in the normal prison system unless adequate measures are taken to protect him.

"Provided that this case meet your criteria for allocation to Resident Informant Status, in all the circumstances I would support the application…".

The usual "text" was provided for the sentencing judge, setting out the assistance given by the Claimant.

56. When the Claimant was sentenced, he was admitted to a PWU.
57. Later that year the Claimant's girl friend was attacked in the street. She reported to DS Arthurton that death threats had been made to her. DS Arthurton was concerned and pressed for steps to improve security for her and the child, on the basis that the Claimant was a protected witness for whom the Norfolk Police were responsible. He expressed the view that the threat to the Claimant would always be there.
58. When G was arrested the Claimant refused to give evidence against him on the ground that his girl friend was not being given sufficient protection. No evidence was offered against G. The Claimant was sentenced to an additional term of imprisonment for contempt of court for his refusal to testify.
59. The Claimant contends that there was then a complete breakdown of trust between him and the Norfolk Police and that they "they dropped him" as punishment for not giving evidence against G. DS Arthurton contends that after being sentenced the Claimant became a compulsive complainer, his attitude towards his "handlers" changed and his handling became extremely difficult and testing. He said in a later letter (3 February 2000):

"It was from this date [the date of the contempt sentence] that direct contact with [F] was severed although a contact was maintained with Prison Officers managing the Special Unit".

60. No steps were taken to provide the Claimant with a new identity, prior to his release in the spring of 1997. Detective Superintendent Grant says that there was nothing to indicate that the Claimant had changed his mind about returning to his home town. However, neither he nor DS Arthurton can recall why no evaluation was carried out prior to the Claimant's release. There is no evidence to contradict the Claimant's evidence that he expressed to the Governor fears about his release. He says that he was told that the police had tried to have the Claimant removed from the PWU, although there is no evidence to support that.
61. It is clear that although the police had earlier given some thought to a plan for release, nothing further was done after the severance of direct contact. A probation officer responsible for the Claimant's supervision on licence contacted the Norfolk Police. At the request of the Probation Service, the Norfolk Police provided a total of £500 towards the Claimant's immediate accommodation needs and the Claimant was housed at a little distance from his home town. He complains that he was told that he would be in breach of his licence conditions if he moved away. It is now accepted by the police that a reassessment should have taken place. However, it is unclear whether the Claimant would in fact have agreed to move away. In any event nothing now turns directly on any failures on the part of either Defendant at that time.
62. In 1998 the Claimant was the subject of two attacks in his home area, which he reported to the police, although no further action resulted. In the first, the Claimant was stabbed in the knee and head by four men in balaclavas; the name of E was mentioned by them. In the second the Claimant was hit on the head with a bottle. On each occasion he received hospital treatment.
63. The Claimant committed further serious offences. He and another man committed a burglary in which five shotguns were stolen. He and another man committed an offence of aggravated burglary, in which they burgled a house armed with sawn-off shotguns. The owner was disturbed and was shot in the back, resulting in a charge of wounding with intent. The Claimant also committed two robberies at a building society, in at least one of which he carried a sawn-off shotgun. To all these offences he pleaded guilty. In June 1998 he received a mandatory life sentence. The tariff period is 7½ years.
64. The Claimant has not been placed in a PWU. He spent some time in a vulnerable prisoners' unit, then about a year in a segregation unit, at the first prison. He understood that he was placed there because the Governor accepted that he would not be safe in a normal location. Mr.Golds saw the Claimant at that prison in March 1999 and the Claimant expressed his unwillingness to be in a vulnerable prisoners' unit. The Claimant was told that the alternative was segregation. Mr.Golds denies that the Claimant was ever told, as he contends, during his first sentence that he would be a protected witness for life. However, no reliance is now placed on behalf of the Claimant, or indeed on behalf of the Defendants, on any argument based on legitimate expectation, or its absence.
65. In about May or June 1999 he was transferred to a second prison. He was initially placed in the segregation unit. However, he then applied, he says because prison officers persuaded him to do so, to be placed on a Vulnerable Persons Unit under Rule 45. The Claimant regards having to mix with convicted sex offenders in such a unit as uncongenial; that is not a relevant consideration.
66. In addition to locating the Claimant in either a segregation unit or a vulnerable prisoners' unit, the Prison Service monitored the whereabouts in prisons of his former co-defendants.
67. Before the Claimant left the first prison an episode began in which the Claimant first indicated to advisers of A that he was retracting the evidence that he had given against A, but later retracted his retraction. In June 1999 he was visited by Mr.Blarick, a private investigator instructed by Austin Allen & Co., who were acting for A. The Claimant in his statement to this court states that his mother told him that she and the Claimant's barrister had been approached at Northampton Crown Court by Mr.Blarick, who said that the Claimant had been wrongfully convicted and that he could help. He telephoned Mr.Blarick, who came to see him.
68. The Claimant agreed to instruct Austin, Allen & Co. He states that Mr.Blarick encouraged him to make a statement and said that the Claimant would receive a lot of money. He states that because Mr.Blarick mentioned the address of the Claimant's girl friend, he believed that his family would be at risk. He states that Mr.Blarick said that it would be a shame if he did not help A. So he signed a statement retracting his previous evidence. The effect of his evidence is that Mr.Blarick was sometimes expressly and sometimes by implication putting pressure on him to assist A and that he saw Mr.Blarick as passing on threats from A.
69. In March 2000 the Claimant indicated that he was not after all prepared to assist A.
70. Mr.Blarick prepared a detailed draft affidavit for the purpose of A's appeal. The effect of his evidence was that he acted entirely properly in agreeing to see the Claimant, in taking his retraction statement and in subsequently seeing the Claimant on further occasions. Although the conflict in the evidence is not of central importance, I have carefully considered what the Claimant says. I see no reason to give credence to the Claimant's version of events where it contradicts that of Mr.Blarick. Many of what the Claimant says he interpreted as threats are on closer analysis capable of being perfectly innocent remarks by Mr.Blarick, although the Claimant's fear of A would explain why he sometimes placed a sinister interpretation on what was said. It must be borne in mind that since the Claimant had told those advising A that A was an innocent man, A's advisers were understandably concerned to pursue an appeal on behalf of A. However, there are three main reasons for not giving credence to the Claimant's version. First, his account of how the initial contact was made makes no sense. Secondly, the Claimant has repeatedly demonstrated his dishonesty in the past and undoubtedly has lied at least at one stage over A's involvement. Thirdly, and by way of contrast, Mr.Blarick was acting throughout on behalf of solicitors, and reporting to them, and he set out his account of events in a full draft affidavit for the Court of Appeal.
71. In fact A's appeal to the Court of Appeal was not finally disposed of until July 2001, because A's advisers wished to rely on the first retraction by the Claimant. They and the Court remained uncertain what, if any evidence, the Claimant would, if called, give in that Court. The Claimant was visited by the police and CPS in that connection.
72. However, there is no reason to doubt that the Claimant was and is in fear of A. It may well be that the retraction of his evidence was an exercise by the Claimant to try to remove the threat from A.
73. Mr.Starmer QC points out that the ultimate refusal by the Claimant to assist A's appeal after all could provide an additional motive for A to harm the Claimant.
74. In May 2000 the Claimant instructed his present solicitors. They made inquiries of the Norfolk Police, the Criminal Justice Protection Unit of the Metropolitan Police and of Declan Moore, the Director of Security at the Prison Service. Their file note dated 25 May 2000 records the Director as saying that for someone to enter a PWU an application would be needed from the local police and CPS; after that "it's perfunctory and the prison service will accept them". The Prison Service does not accept that in fact consideration would be perfunctory. In a letter, presumably faxed, dated 2 August Mr.Moore said:

"The process for applying for entry into a Protected Witness [sic] involves an Agency dealing with the potential witness, and the Crown Prosecution Service, each sending supportive requesting letters to the Prison Service, who then consider and administer the process. The Prison Service does take the decision, following consultation with the interested parties".

75. By faxed letter dated 2 August 2000 the Claimant's solicitors wrote to Declan Moore, requesting a review of the categorisation of the Claimant within the Prison Service vice and his accommodation in a PWU. Mr.Moore's response on the same day stated that the Claimant's categorisation and location within the prison was a matter for the Governor, not for headquarters consideration. Since the solicitors were specifically raising the matter of the PWU that was an inadequate response, but the solicitors did write to the Governor on 6 September.
76. The Head of Security at the prison replied on 14 September 2000:

"… I have now received the clarification as to where responsibility for protective witness status for your client lies.

I note from the enquiries made that your client is no longer in contact with the officers who were involved in the case in question.

From the advice given by the Police Adviser to the Prison Service, any claim in respect of your client's Protective Witness status is that of the Police Force who deal with the case at that time.

To that end the Chief Constable of Norfolk should be contacted.

The fact is that the Police initiate entry into the Protective Witness System and any subsequent events resulting from such action.

Currently your client remains in segregation under Prison Rule 45, Good Order an Discipline as a consequence of his behaviour on normal prison location."

77. The response of the CPS to inquiry by the solicitors was that they acted virtually as "a post bag" between the police and the prison authorities.
78. Early in 2001 the Claimant was transferred to his present prison, where he has continued on Rule 45. It is a high security prison. The Claimant remains classified as Category A. It is pointed out on behalf of the Secretary of State that these factors in themselves provide close monitoring of the Claimant.
79. There was correspondence between the solicitors and the Norfolk Police and their solicitors. Then on 22 March 2001 the Claimant's solicitors wrote to the Police solicitors, saying:

"In view of the fact that entry to Protected Witness Status is initiated by the recommendation of the relevant police force, we request that you make the following recommendations to the Crown Prosecution Service and the National Operations Unit of the Prison Service Head Quarters that:

1. [F] re-enters the Protected Witness Unit of the Prison Service; and

2. [F] is granted a new identity when he is released from prison.

Should you decide not to make these recommendations, would you please provide us with your reasons."

The present case is not concerned with the granting of a new identity later.

80. The solicitors wrote in similar terms to Mr.Golds, requesting a "decision" in the same terms as the recommendation requested of the police.
81. Mr.Golds in his reply dated 19 April 2001 said:

"Your client was again arrested in June 1998 and charged with a number of serious offences. You will be aware at the time he was provisionally held as a category A because of the serious nature of the offences and the high risk of him re-offending if he was unlawfully at large. The conclusion of the last category A review is that [F] is regarded as highly dangerous and is correctly categorised.

I have reviewed the original decision not to locate [F] in a PWU. I am content that given his further serious re-offending and the need to ensure he is held in accommodation that reflects his security category it is not appropriate or necessary to move him to a PWU.

The Prison Service is aware of the location of those that [F] gave evidence against and his movements will be monitored to ensure that they do not come into contact".

82. However, on 25 April the Norfolk Police agreed to have a risk assessment carried out, with the Claimant being visited by officers who had had no previous involvement with him. What further action was necessary and appropriate would be considered. On 11 June the solicitors told Mr.Golds that they intended to issue judicial review proceedings, but would await the conclusion of the police risk assessment. Mr.Golds replied, saying that the Claimant's categorisation would be reviewed annually and that the risk assessment would inform that process. On 12 June DS Walker and another officer interviewed the Claimant in the presence of his solicitor for the purpose of the risk assessment. The interview was thorough.
83. DS Walker's report to Detective Superintendent Sturgess, setting out his risk assessment, is dated 20 August 2001. He indicated that he had some further inquiries to make and he submitted further information on 10 September. The report and its various enclosures cover 300 pages in the court bundle. DS Walker used the Witness Assessment Checklist in the ACPO Template; although the checklist was not designed precisely for this situation, it provided a useful tool.
84. In the Witness Assessment Report DS Walker fully reviewed the history. He stated:

"… It would appear that he was offered the opportunity to be relocated upon release. This was rejected by [F] and it would appear that he has insisted on returning to the … area upon release".

That was not correct.

85. DS Walker stated that the historic level of threat had been considered to be high prior to and just after the court case. As to the current level of threat he said:

"There appears to be no specific current intelligence concerning threats to [F] other than the indications given by himself or his mother and brother.

[F] cites a number of issues: The previous character and connection of his co-defendants, particularly [A].

In relation to [A], [F] states he has money and connections to people who could do him serious harm or even killed. [F] states he was told there was a contract on his head.

[F] states that he has had contact within the last couple of years from a Private Investigator working on behalf of [A] who referred to the contract and said that he could make it go away. [F] also stated that he had been receiving abuse and intimidation from prisoners at the various prisons where he had been held during his latest term of imprisonment. …".

[F] also feels that his decision to retract his evidence and then withdraw his retraction will have increased the risk of retaliation from [A] especially when combined with the facts that he put him away … and has refused to assist his appeal".

86. I have already commented on the Claimant's credibility and it is to be noted that the allegation that the private investigator, that is, Mr.Blarick, referred to the contract does not appear in the Claimant's statement to this Court.
87. DS Walker reviewed what the Claimant was saying to him in the interview, but indicated that there was little other information indicating particular threats or risk to the Claimant during his prison sentence. No assaults on the Claimant had in fact taken place. He noted reports that the Claimant had been bullying and threatening other inmates and also winding up other inmates, potentially putting himself at risk. Those who might present a threat to the Claimant were considered individually. In relation to A, it was noted that "[A] appears not to have the financial resources to carry out any threat against [F] or members of his family at this time". Answering the question "Is the threat level real or perceived?", DS Walker wrote:

"The level of threat to [F] whilst in Prison appears to be low. He is being held in a Vulnerable Person wing and has the option to be segregated should he wish. He states he feels vulnerable even whilst on the VP wing at HMP … because other Prisoners are 'not screened' before they go on to that wing at … as they apparently are at other Prisons and therefore someone could ask to be transferred onto the wing with the intention of assaulting [F]. [F] states he has taken to carrying a blade with him whilst showering but there is no indication on his Security file of threats or intimidation to him whilst in Prison during his latest term. The main threat to him whilst in Prison appears to come from [A] and this threat may change depending on the result of [A's] appeal".

88. The Claimant's former girl friend was interviewed and she perceived no current threat to her. Members of the Claimant's family were seen and expressed some anxieties, which were taken into account by DS Walker in assessing any threat to the Claimant.
89. DS Walker discussed whether the Norfolk Police still had a duty of care towards the Claimant or whether his period as a protected witness was satisfactorily concluded in 1996. He suggested that legal advice be taken about that. Answering the question whether the Norfolk Police should seek for the Claimant to be readmitted to a PWU, he said:

"I have sought advice from the Police Advisors Section at Prison HQ in London (DCI Harrison). It is not normally policy for a prisoner to go back into a Protected Witness Unit once they have breached a previous contract. Clearly the issue above as to whether [F] has 'breached a contract' would be a matter for legal advice. He was not apparently served with a Memorandum of Understanding but it is clear from DS Arthurton's report that he was told that should he be imprisoned for future offences then he would be dealt with as a normal prisoner and that his period as a protected witness would be purely for the duration of that sentence. I suggest that once guidance has been given [on whether a duty of care continued] that a written approach is made to the Police Advisors Section at HM Prison Service HQ for their views".

No written document agreed between the police and the Claimant has been found. The Defendants do not rely on what the Claimant was or may have been told about the future. DS Walker went on to suggest that if a duty of care was still owed to the Claimant, it would be appropriate to assist him in relocation away from his home town on his release. That was in the light of the potential risk of intimidation or harassment, although there was no current intelligence indicating a serious threat to the Claimant's life and re-identification would not be required.

90. DS Walker in his further memorandum to Detective Superintendent Sturgess on 10 September said that he had now examined the prison file relating to A, which did not indicate any direct threat to the Claimant, although there was a note: "Holds no grudges but feels that an injustice was done re his current sentence". The file included a letter from another co-defendant alleging that the Claimant had obtained firearms at the time of the original offences to use against A and that the Claimant's girl friend had made threats to harm A's children. A was regarded as a man who would pursue a point of principle, but there were no complaints about his behaviour in prison.
91. There is no evidence that the legal advice suggested by DS Walker was taken. Detective Superintendent Sturgess's recommendations, having read the report, were:

"Having studied the attached documentation I am satisfied that Norfolk Constabulary discharged its obligations to [F]. [F] was given protected witness status in accordance with normal procedures and this is well documented. He was briefed as to his obligations and there is nothing to suggest he failed to understand them or the consequences of not fulfilling the same. His actions upon release from prison were a very definite breach of contract meaning Norfolk Constabulary could and should [sc.note] be in anyway responsible for his safety. It ceased to be appropriate for us to recommend his treatment or location either within the prison system or without. In my view we have no further obligation to him."

He went on to conclude that no action was necessary in respect of the Claimant's family, but that the situation should continue to be monitored.

92. Detective Superintendent Sturgess wrote to the Claimant's solicitors on 19 September 2001, with a copy to Mr.Golds:

"I have considered the proposal that [F] be readmitted into the Witness Protection Unit within Her Majesty's Prison System. On the evidence presented to me I am unable to reach any conclusion other than that he should not.

[F] was, quite properly, taken into the Protected Witness unit after sentence …. During follow up contact with officers of Norfolk Constabulary he was offered a range of protection measures including change of identity and location for he and his immediate family. As you know he declined this assistance.

Upon release [F] returned to … where he returned to crime, committing and being convicted of some very serious offences. This action is of great significance when considering [F's] request.

There is no dispute that the evidence provided by [F] in 1995 was crucial to the conviction of a number of serious criminals. Neither is there any doubt that following that action Norfolk Constabulary took all reasonable steps to provide the correct level of protection to [F] and his family.

The responsibility for the safety of a person in this position does not rest with the Police and authorities alone. [F] equally had to take responsibility for his and his family's safety. He chose not to take that responsibility.

Norfolk Police made it quite clear to [F] that protection and protected status was dependant on him not re-offending. If he did he would lose his status as a protected witness. I am aware of nothing that leads me to believe [F] did not fully understand that condition and the consequences of ignoring it.

Having considered the above together with all the information available to me. I am not prepared to request [F] be given protected witness status. I will, however, ensure that [F's] concerns are passed on to the relevant prison authority."

93. No part of DS Walker's risk assessment was sent at that time to the solicitors or to Mr.Golds. On 3 October the Claimant's solicitors wrote to Mr.Golds. They correctly pointed out that it was a factual error to assert that the Claimant had been offered a change of location and identity. They noted that Detective Superintendent Sturgess was relying on the fact that the Claimant reoffended. They suggested that the Claimant could be reclassified (from Category A) to enable him to enter a PWU. They reminded Mr.Golds of Article 2.
94. Mr.Golds wrote to the Claimant's solicitors on 1 November 2001:

"The letter to you from the Norfolk Constabulary is quite clear in that it will not support [F's] application to be reconsidered as a Protected Witness. As stated, he compromised his position following release from his last sentence and when quickly reoffended and took no responsibility for his or his family's safety.

I agree with Superintendent Sturgess that we cannot dispute that [F] was potentially at risk after he gave evidence against others involved in his previous offence, but this does not justify or warrant a return to Protected Witness Status.

As I said in my letter of 19 April, your client was arrested in June 1998 and charged with a number of serious offences. He was held as a provisional Category A because of the serious nature of his offences, and the high risk of him reoffending if he was unlawfully at large. The Category A Committee has concluded that his risk has not sufficiently diminished to warrant a change in his categorisation and he remains Category A.

I have therefore concluded that [F] does not meet the criteria we expect of a Protected Witness and he will therefore remain in his current location. Notwithstanding this, I will ensure that those involved in the oversight of Category A prisoners are aware of the two remaining prisoners who are in custody who [F] originally gave evidence against so that their movements can be monitored".

The original challenge

95. Judicial review proceedings were issued on 17 November 2001. Munby J. gave permission on 6 February 2002.
96. It is now common ground that there are valid criticisms of the decision-making process which resulted in Mr.Golds' decision of 1 November 2001. Detective Superintendent Sturgess relied in part on the alleged failure by the Claimant to co-operate with protection measures offered on his release. That was factually incorrect. And his letter makes it clear that the re-offending, after such failure to co-operate, made it inappropriate to recommend protected witness status. It is now conceded that re-offending is not necessarily a barrier to such status. Mr.Golds, for his part, regarded Category A status as a bar, which it is not. And he too relied both on the failure to co-operate and the re-offending as a barrier. The risk assessment, whatever its merits, appears not to have played a significant part in Detective Superintendent Sturgess's decision, as communicated, and since it was not at that time supplied to Mr.Golds, it cannot have played a part in his thinking.
97. The real question is now whether subsequent developments have removed any flaws from the decision-making process.

Events since November 2001

98. On 28 February 2002 it was conceded (as it had been in the Acknowledgement of Service) on behalf of the Secretary of State that the Claimant's security category was not a relevant consideration. The Secretary of State agreed to reconsider whether the Claimant was suitable for admission to a PWU. Shortly after that it was indicated that the review of the decision should be completed in two to three weeks.
99. By letter dated 27 March Miss Nichola Thatcher, Deputy Force Solicitor to the Norfolk Police, wrote to the Treasury Solicitor ("the Thatcher letter"). She said that DS Walker had on his own initiative raised two matters which might have a material bearing. First, he had not pursued the Claimant's assertion that prisoners who might want to do him harm found it easier to get on to the vulnerable persons' wing at his current prison than at other prisons, because of less rigorous screening. Secondly,

"it may [italics original] be the case that an irrelevant or inaccurate consideration was taken into account, namely the assertion that [A] did not appear to have the financial resources to carry out any threat against [F] (or his family) at the time of the risk assessment. As I am sure will be appreciated, the financial capacity to carry out a threat is distinct from the will (or desire) to achieve it. Further enquiries are being made of the officer who made the background checks.

To the extent that the factors influenced the risk assessment, it may be the case when enquiries are complete that the level of risk to [F] whilst in prison would have to be pitched somewhere higher than DS Walker's "low" assessment. That is not to say that the objective risk to [F] would be regarded as sufficiently real or that the Norfolk Constabulary would necessarily recommend that [F] be admitted to the protected witness unit. Assuming for the sake of argument that the first factor was factually made out and the second factor was perhaps wrongly taken into account or was inaccurate, it would, in all probability, have led to a more extensive dialogue with the governor … particularly with regard to the suggestion of less rigorous screening".

100. Louise Morgan of the Treasury Solicitor's office referred the letter to Mr.Golds, saying in a partially redacted letter dated 4 April, that she was not sure that these points had too much impact on the new decision, as "we are getting an updated assessment of risk anyway, and consulting police advisers". On 26 April Detective Superintendent Ryan, the Deputy Police Adviser to the Prison Service, sent a fax to the Norfolk Police requesting a meeting with Louise Morgan, saying that :

"A key question was "the need for a current, reliable risk assessment to the potential threat in the known individual. Could you provide this on the day please? …"

101. On 29 April the Claimant's solicitors were told by Louise Morgan that the Secretary of State would not be in a position to reconsider his decision until he met Norfolk officers "and discussed the revised risk assessment" of the Claimant. On 30 April Louise Morgan informed Mr.Golds that the first priority must be to get an up to date risk assessment from the Norfolk Police, but that this did not necessarily require a meeting.

"All I think we need from the police is a note of any changes in their assessment of the risk posed to [F] since the last risk assessment, which was in September last year. I think a phone call, confirmed in writing, would suffice for this. …"

That request was passed to the Norfolk Police, asking for a response "by the end of this week".

102. On 8 May DS Walker responded to Mr.Golds, expressing surprise that a new decision had not been taken. He referred to the Thatcher letter and continued:

"As I indicated last Wednesday it would have been too short notice to prepare a further risk assessment, by the end of that week, particularly given the need for the information requested about access to the vulnerable persons unit as well as a visit to HMP … to examine [F's] Security file. However, as per your request, I am able to provide an update regarding the individuals believed to be the main threats from the initial risk assessment.

All the individuals mentioned are now out of Prison. I have found no specific intelligence regarding a threat to [F]. However I should add that my enquiries have revealed that some of the individuals concerned would potentially have the ability or contacts to harm [F] is [sc. if] they have a desire to do so. I cannot say whether they have the necessary ability to infiltrate the Prison system.

We would be grateful if you could advise, as a matter or urgency, whether [F's] assertion is, or might, be true and whether there are any recent threats to his safety". (My underlining)

103. On 8 May also DS Walker spoke to Detective Superintendent Ryan. DS Walker told him that there was no specific threat to the Claimant and that there were no indications that any planning was taking place that presented a threat to the Claimant.
104. The full risk assessment by DS Walker had been disclosed to the Secretary of State during these proceedings.
105. On 14 May Mr.Golds wrote to the Claimant's solicitors:

"I have undertaken formally to review your request to place [F] in a Protected Witness Unit.

You will be aware that before a prisoner can be located within a Protected Witness Unit it is necessary for the individual concerned to have his case assessed by an Assistant Chief Constable within a sponsoring Police Force, and for this then to be endorsed by the Crown Prosecution Service and finally forwarded to Prison Service headquarters for consideration.

The most recent assessment received from the Norfolk Police indicate that the threat to your client has diminished since he was first initially accepted into the PW system. They have no current intelligence that he is at risk from those he gave evidence against. I have further confirmed that all those he gave evidence against have now been released from custody and there is no indication that they are planning to locate [F]. … Prison have also carried out a security assessment last year and despite concerns raised by [F] found, no evidence or intelligence to suggest he was under threat at … . This has not changed."

Mr.Golds described the prison regime on the vulnerable prisoners unit, saying that access to educational and other facilities, and visits, were kept separate from those of other prisoners. He continued:

"In previous correspondence I suggested that [F's] security category may have precluded him from being held in a Protected Witness Unit. This is not now the case, the Protected Witness Unit at … has reopened and this would not therefore preclude a Category A prisoner being held there.

However despite the availability of … the evidence I have seen does not support [F's] return to the Protected Witness system. He will therefore remain at … where his location will be kept under close review".

106. By agreement the hearing scheduled for 23 - 24 May was vacated and it is clear that Mr.Golds had been trying to ensure that a new decision was reached before that hearing. The Claim Form has been amended to reflect the Claimant's challenge to the new decision.
107. Mr.Golds in his statement to the Court says that the Secretary of State does not now rely on the Claimant's reoffending. He accepts that this would not preclude the Claimant's re-entry to a PWU if the threat to him warranted such a step. At least one prisoner has been re-admitted in such circumstances. All visitors to the Claimant are vetted because of his security category. As to the fears expressed by the Claimant about getting on to the vulnerable prisoners' unit, Mr.Golds states that it would be very difficult to manipulate the system, which involves assessment of the risk to any prisoner who requests such protection. He says that the Claimant was specifically targeted for intelligence in June 2001 and has been continuously monitored since. There is no evidence or intelligence that he is or has ever been at risk within that prison. He says that all current intelligence from outside sources and from sources within the prison suggests that any threat to the Claimant, if it exists at all, is low. He is satisfied that it can and should be managed without readmitting the Claimant to a PWU.
108. In a further statement Mr.Golds states that the criteria for admission to PWUs are applied rigorously because there is a limited number of places, but cost was not a factor, save to the extent that the higher cost and limited places require such rigorous application of the criteria. He refers in terms to the Osman test, saying:

"… I stress that no prisoner is denied a place in a protected witness unit if placing him in mainstream prison conditions would pose a real and immediate threat to his life".

109. At the hearing I was provided with a further statement from the Claimant's solicitor and a letter from the Principal Officer, Security at the prison dated 12 July 2002. It refers to the Claimant's fear of a threat from a named individual other than his co-defendants. He was offered and he declined a move to a segregation unit while the threat was investigated. Other steps were taken. A further statement from Mr.Golds dated 22 July records his view that no further measures are necessary. I am not asked to express any view on that further decision.
110. A further statement of the Claimant's solicitor also refers to statistics on assaults within prisons and deaths in custody. This evidence was not strongly relied on by Mr.Starmer QC and it does not appear to me to assist. No evidence was produced about the prevalence of attacks on those who have assisted the authorities.

Conclusion

111. There is no doubt that during his original sentence there was a serious risk to the life of the Claimant. He fully qualified for admission to a PWU. In addition there is evidence that he was the target of violence during his period at liberty in his home area. However, although police officers expressed the view in 1995 that the Claimant would always be at risk, it does not necessarily follow that a real risk continues. Risks may diminish with time. The Defendants point out that no attack on the Claimant has in fact occurred during his present sentence.
112. Mr.Golds' letter of 14 May is not wholly satisfactory. It does not say in terms whether the alleged failure to co-operate on release or, more importantly, the Claimant's reoffending has been taken into account. He refers to the necessity for an assessment by the police and endorsement by the CPS, without spelling out whether the lack of any recommendation is a bar to entry to a PWU.
113. However, despite these flaws the letter makes it sufficiently clear that the risk to the Claimant has been the crucial factor. I see no reason to doubt what Mr.Golds adds in his statement, as I have summarised it above. Reoffending is no longer relied on by the Prison Service as a reason for refusing the admission of the Claimant to a PWU. All the indications are that the decision is also no longer affected by the alleged failure by the Claimant to co-operate on his release. The security categorisation is no longer relied on. In my judgment there is no reason to doubt that the final decision has been taken in the light of the perceived risk to the Claimant.
114. It is unnecessary to decide whether the police were under any obligation to provide a new risk assessment when the Claimant returned to prison. In fact they agreed to carry out such an assessment. It is accepted that since they realised that the assessment would be relied on by the Prison Service, they were under an obligation to carry out that risk assessment competently. I do not wholly accept the submission of Mr.Godsmark QC that the role of the police is only to garner information outside the prison. DS Walker quite properly examined the security file in the prison. Any risk assessment must have regard to the regimes available in prison, although I accept that the Prison Service can be expected in acting on a risk assessment to have regard to their greater knowledge of such regimes and conditions in prisons generally.
115. Although Detective Superintendent Sturgess relied on the Claimant's lack of co-operation and re-offending in his letter of 19 September 2001, it is quite clear from DS Walker's risk assessment that he was uncertain about the relevance of those matters. I am satisfied that in reaching his conclusions DS Walker was addressing himself to the risk to the Claimant. Leaving aside the two factors mentioned in the Thatcher letter, the risk assessment was carried out thoroughly and conscientiously. Indeed it was DS Walker himself who raised the two factors in the Thatcher letter. I am also satisfied that DS Walker reached his conclusions, and provided the new information recently, independently of officers who had originally dealt with the Claimant.
116. I do not accept that the two factors mentioned in the Thatcher letter required the carrying out of a completely new risk assessment. What was required was that those factors should be addressed. Although some of the wording in the correspondence is not wholly clear, I interpret the correspondence as showing that the updating of the existing risk assessment was what the Secretary of State intended should happen.
117. As to the first factor, whether there was a threat from A, the suggested deficiency was the lack of any assessment of A's will or desire to harm the Claimant. That has not been addressed directly. DS Walker's inquiries in fact revealed that some of the individuals concerned would potentially have the ability or contacts to harm the Claimant if they have a desire to do so, although he cannot say whether they have the necessary ability to infiltrate the Prison system. This is significant new information. He was, however, able to tell Detective Superintendent Ryan that there was no specific threat to the Claimant and that there were no indications that any planning was taking place that presented a threat to the Claimant.
118. As to screening for entry to the vulnerable prisoners' unit, DS Walker has not been asked to carry out inquiries. However, Mr.Golds has access to the required information and was entitled to conclude that the fears expressed by the Claimant are not realistic.
119. The background against which the present decision was made is important. There was an assessment of real danger to the Claimant in 1995, a danger that was at that time expected to last indefinitely. There is evidence of attacks upon him during his time at liberty, after a failure by the police to consider relocation. Mr.Golds' decision of November 2001 is accepted to have been flawed, although the risk assessment (the contents of which he was then in fact ignorant) pointed to a low risk.
120. It would have been preferable if DS Walker had been asked in terms how he placed the risk, in the light of the further inquiries and of the information about the screening in prison. It would have been preferable if the conversation between DS Walker and Detective Superintendent Ryan had been more fully confirmed in writing. I accept that the information about the screening in prison would not have led DS Walker to assess the risk as higher. However, the new information about the potential "ability and contacts" of "individuals", not only A, to harm the Claimant has not been fully incorporated into a revised risk assessment. On the face of it, this new information is hardly reassuring. The implication is that the individuals were former co-defendants, but it is unclear which of the co-defendants are referred to. No conclusion was reached on whether they currently have a desire to harm the Claimant. Nor was DS Walker able to say whether the individuals have the necessary ability to infiltrate the prison system. I do not know, and presumably nor does Mr.Golds, whether DS Walker would still describe the risk as low. Such updating of the risk assessment as occurred took place somewhat hastily. Finally, Mr.Golds makes it clear that he was looking for a risk that was not only real but immediate. I have made it clear that immediacy must not be interpreted as meaning that the threat will necessarily materialise in the very near future.
121. As I have said, the question to be asked before entry to a PWU is whether there is a real and immediate risk to the life of the Claimant if he is not admitted to a PWU, rather than some alternative regime, for whatever period is being considered. Since a year is the normal period between reviews, that is the relevant period. Immediacy must be considered in that context. Where a prisoner has previously been properly admitted to a PWU, it is in my judgment incumbent on the Prison Service to satisfy itself that the risk is no longer such as to require admission. In the light of the flaws set out in the previous paragraph, the latest decision cannot stand as a proper compliance with the legal duty of the Prison Service towards the Claimant, on the basis of the heightened level of review required.
122. A new decision is required, taking into account this judgment and a properly updated risk assessment. Such updating does not require that the Claimant be further interviewed, since his solicitors have brought any new concerns to the attention of the Defendants. The updating does require an assessment of the current ability (both financial and organisational), of the contacts and of the intentions of the former co-defendants in relation to harming the Claimant, in a situation in which they are outside prison and he is in a vulnerable prisoners' unit.
123. The decision of 14 May must be quashed. I shall consider with counsel the appropriate further orders to be made and I invite them to submit drafts.
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MR JUSTICE CRANE: Before I hand down the judgment, Mr Starmer, perhaps I can address you? I am grateful to all counsel for the editorial corrections and I have used most of them. One of the matters of concern was that there should not be any identification, as far as possible, of the claimant. We are in open court now, although the proceedings were in private. It was always planned that I would hand down the judgment in open court and it would be a public judgment. Are there there any matters of concern that remain? I have removed the names where counsel pointed out the names were still in.

MR STARMER: Not from my point of view.

MR JUSTICE CRANE: Any other counsel concerned?

MR STARMER: You will have seen from my corrections that I did not turn my mind, or your Lordship's, to whether there should be anonymity, for instance, of the officers involved in the case, but given that the priority was location it seemed to me that that was unnecessary because everybody knows who he was involved with. Apart from that, no.

MR JUSTICE CRANE: Very well. I have handed down the judgment that counsel already have. That can be made available. I think there is already in existence an order that the claimant be known only by the initials "DF".

MR STARMER: That is right, my Lord.

MR JUSTICE CRANE: In the course of the judgment I raised the question (I do not know quite why) of the rule numbers that I had intended: 5.4 and 32.13. The question is whether I should make orders restricting access to the documents of the case without leave of the court? Do you have any submissions about that?

MR STARMER: We do ask for those orders because in the documents the identification would be clear. It is carefully worked in the judgment, but I think certainly in the claim form and some of the other documents.

MR JUSTICE CRANE: I cannot remember but has anybody produced a suggested draft?

MR STARMER: I did. I hope you have further draft orders.

MR JUSTICE CRANE:

"Claim forms not to be released... No permission without notice under 5.4, 32.13. Witness statements not open to inspection."

Should that say: "without leave"?

MR STARMER: I think probably 32.13 is unnecessary. That is where an application is made during the course of the proceedings, although I found a case to say that if that is so a witness statement can be seen afterwards. Strictly speaking, I think the witness statement to come within CPR 5.4 anyway. So there are two different provisions. CPR 5.4 is all court documents bar the claim form. CPR 32.13 is witness statements that can be asked for during the course of proceedings. They were not.

MR JUSTICE CRANE: You will be content with paragraphs 1 and 2?

MR STARMER: Yes, 3 is really an additional. So long as the court's understanding is, as mine is, that unless it is asked for during the course of the proceedings 32.13 does not apply then paragraphs 1 and 2 is certainly enough.

MR JUSTICE CRANE: Why not in paragraph 2 insert the words: "Any document in this case including witness statements"?

MR STARMER: Yes.

MR JUSTICE CRANE: That will make that clear and then 3 would not be needed.

MR STARMER: Yes, certainly. My Lord, I only use the 39.7 in one because I could not see any other way of bringing within the scope of the order the judicial review claim form. It has the same effect, I hope.

MR JUSTICE CRANE: Shall I just see what other counsel think about that?

MR CLEMENS: I agree with that certainly under CPR 5.4. I do not want to waste time. Strictly, I suppose, under CPR 32.13 given that they were not asked for during the course of the trial, although there is the authority referred to by Mr Starmer, the Civil Procedure Amendment Rules made it clear that it is confined to the proceedings, but to be absolutely safe perhaps include them in the earlier part.

MR JUSTICE CRANE: It does not add anything but it does make--

MR CLEMENS: It does not add anything but it makes it absolutely crystal clear if there was any doubt as to whether the request would come close to proceeding.

MR JUSTICE CRANE: Mr Kovats?

MR KOVATS: The second defendant is content.

MR JUSTICE CRANE: What I will do is make orders in the form of the draft which will need to have its date added in paragraphs 1 and 2 of the admission. I would be grateful if a final copy would be prepared for me to initial. I make it clear, since the press are present, that the reasons for these orders, and for the form of the judgment which conceals, as far as possible, identities, is that the claimant, who as the judgment makes clear, has previously given evidence against other dangerous criminals and could be at risk not only from the people who he has given evidence against, but conceivably, if his identity was generally known, from other prisoners.

I say that without prejudice to the merits of the case, but for the purpose of publicity that is the reason that I make orders restricting (separate permission of the court would be given if there is good reason) the papers in the case would from (inaudible). I hope it is clear why I am making those orders. Yes?

MR STARMER: There are further suggested orders which the First Defendant has drafted, which I hope you have also, running to five suggested orders. I think they are consequent upon the judgment. Can I indicate that I certainly agree with all of them. The first of them, if my Lord has it, is the quashing of the decision. That obviously follows. Then 2 and 3 are intended to assist the defendants in terms of what it is they are to do. My learned friend, Mr Clemens, can assist further. I am certainly happy. If they want further guidance so they can get on with the job I am happy with that. My Lord, 4 is being dealt with and 5 we do ask for our costs.

MR JUSTICE CRANE: The 4 and 5 can be new paragraphs of the combined order?

MR STARMER: Certainly, yes. We can run the orders together. I will leave my learned friend to develop 2 and 3, if he needs to. Certainly from our point of view we are happy if that is the guidance they seek. As to 5, we say we set out to quash the various decisions and we succeeded in that. The first defendant is realistically recognising that costs follow from that.

MR JUSTICE CRANE: Let us come to costs last. Can I deal with the other substantive orders first? Mr Clemens?

MR CLEMENS: I am conscious that we are in open court. May I develop 2 and 3 slightly? I have already had the opportunity of discussing them very briefly with Mr Starmer and Mr Kovats. As to 2, really that is just, in my submission, a straightforward remission under 54.19 to Mr Golds because your Lordship's judgment clearly contemplates not a fresh risk assessment but an updated one. Then 3 really is an extension of that. I put it into preserve my client's position because, given the restrictions on the distribution of the judgment, it has been very difficult, or impossible obviously, to take firm instructions.

It seems to me that your Lordship could not order it and that it might be helpful to have just a little steer on this as to whom might conduct the updated assessment, because on the one view D1 could say 'Right we had better go to some other person or other force', but, in my submission, that is not necessary here. I think (I hope I do not tread on toes) Mr Starmer would be content that the updated assessment be carried out by DS Walker.

MR JUSTICE CRANE: I hope my judgment made clear that really I did not have any criticisms of Mr Walker. It seemed to me that he acted conscientiously. There were two lose ends which he identified himself and he produced such further information as eventually has led me to my final concern. I do not regard them as being any valid criticism of Mr Walker as a proper person to carry out the updated assessment. In effect, he said (he may have misunderstood what he was being asked) there was not time to do it and it seems to me he was perfectly capable, as far as the case goes, of doing a proper job. Mr Starmer may not submit that. I hope my judgment made that clear.

MR CLEMENS: The only reason I raise it (I do not want to waste time unnecessarily) is because there was a comment in your Lordship's judgment about, as it were, the repetition of the inaccuracy about relocation and turning down offers about that. It seemed to me that if one was focusing, as the judgment does, on the risk to the exclusion of other things, that he was ideally blessed.

MR JUSTICE CRANE: Mr Walker repeated what he was told about it. He was not responsible for that because he was not in the criminal matter when those events happened.

MR CLEMENS: That is why I call it a repetition. It does not originate with him. I think

Mr Starmer will be happy. I am sure we can shorten it.

MR STARMER: If it assists I make my position clear which is that I do not think there is any good reason for that officer not to carry out the further assessment that is necessary, having read the judgment.

MR JUSTICE CRANE: I fully agree with that. Unless Mr Kovats has anything to add on that?

MR KOVATS: On that point I have nothing to add.

MR JUSTICE CRANE: In fact I believe if he is the proper person I think he is then any updated assessment is going to be much better prepared by him than anybody else because he will be advantaged (?) by the knowledge that he has.

MR CLEMENS: It will certainly be a lot quicker. That is a material consideration. Thank you for that. Second, (and I think again this is something on which counsel are all agreed) that in the way your Lordship has framed the judgment, concentrating, as it does, on risk and the need for an updated assessment, I was not proposing to advise D1 that as part of any updated risk assessment that once it is done by the officer (we now know who will do it) it does not go to recommendation stage of Assistant Chief Constable level, nor does it go to the Crown Prosecution Service. The factors that make a weight with them really are now taken out of the picture.

What is needed is the updated assessment from Mr Golds to see it really affects Mr Kovats more than anybody else. As I understand it, he does not suggest that it needs to go through that process because it is the updated assessment which will then go to Mr Golds.

MR JUSTICE CRANE: I agree. As I think I made it clear, it seem to me that the schemes (if one can collectively call them that) did not really envisage this kind of situation precisely and I have suggested that that might receive attention. The recommendation is plainly when somebody first comes into the system. I think it was Mr Kovats who kindly referred me to something which had not, I think, been referred to in the course of the case: the provision for revising the need for somebody to go into and stay in the Protective Witness Unit. I think, if I remember rightly, that does in fact refer to consultation, or words to that effect, with the officers concerned. It does not require a new recommendation. Even if one looks back at the four corners of the scheme, as it were, updating it does not require the specific recommendations or involvement of the CPS.

MR CLEMENS: Thank you for that. Again, it is not a wasting time exercise it is just trying to make it absolutely clear as to what is expected of the parties, less we are back here in the future discussing what was contemplated by your Lordship's judgment.

MR JUSTICE CRANE: I hope it is clear. It can be written into the orders if that is needed.

MR CLEMENS: I do not think it is. It is clarified certainly, as far as my position is concerned. I do not think anybody else really has anything to--

MR STARMER: Again, if it assists, I have had the chance to discuss it with my learned friend, I agree with him. I did not argue it on the basis it had to go to the Assistant Chief Constable and I do not say that it does now. Therefore I agree with him.

MR JUSTICE CRANE: Is there anything else you want to deal with if we put aside costs for the moment?

MR CLEMENTS: No, thank you.

MR JUSTICE CRANE: Mr Kovats?

MR KOVATS: As regards point 1, as a matter of law, the decision of the second defendant rather than the decision of Mr Golds. With respect to paragraphs 2 and 3--

MR JUSTICE CRANE: The same point arises under 2, does it not?

MR KOVATS: Yes, it does. With respect to those two paragraphs, in my submission your Lordship's judgment is very clear about what needs to be done and it may be that to set out formal orders will not assist and may cloud the issue. My Lord, for that reason the second defendant would be happier if 2 and 3 were omitted, but it is not something that we want to make a great deal of issue about.

MR JUSTICE CRANE: I do not think it applies. It is not a matter of fairness but I think on balance the other two parties would be happier with paragraphs 2 and 3 there and I shall leave them there. Does that deal with everything except costs? You have made your position clear.

MR STARMER: I think so, yes.

MR JUSTICE CRANE: What do you say?

MR CLEMENTS: My Lord, you can delete in my draft at paragraph 5 the parts in square brackets. I know that Mr Kovats has a rather different position on costs and he can develop that. Ever keen to jump on bandwagons, if there is one rolling I will jump on it, but it seemed to me that that was the appropriate order. There could have been arguments about the delay in the submission of detailed grounds by D2 and how this has all arisen, perhaps rather late in the day. However, it seemed, having considered it with my instructing solicitor, that the appropriate order, if an order for costs follows the event and the claimant has his costs, would be that on a shared basis rather than making any issue based orders, or any percentage based orders.

MR JUSTICE CRANE: I think the right phraseology is "subject to detailed assessment". Let us see if there is a bandwagon for you to jump on.

MR KOVATS: The second defendant submits that there should be no order for costs other than assessment of the claimant's publicly funded costs. The second defendant submits that each party has been successful in part of its submissions and unsuccessful in other parts of its submissions in roughly equal proportions, and that a no order for costs order is the fairest reflection of the outcome.

Mr Starmer submits that he came to court, he quashed therefore he has won but, with respect to him, that is only a partial summary of this case. Not only has the decision whether to quash been in issue, the whole approach to the matter of law has been an important part of this case and even looking at the issue to quash on its own Mr Starmer succeeded on only one of the various strands of his argument.

To develop that in a bit more detail I would refer to nine matters, in particular, each one briefly, fortunately. First it was part of the relief sought by the claimant that this court should order that he be readmitted to a Protective Witness Unit. That was never abandoned. The claimant has not succeeded on that point. Secondly, it was part of the claimant's arguments that the defendants were in breach of a duty under Article 2 to carry out an investigation. That again was persisted in until halfway through Mr Starmer's submissions.

MR JUSTICE CRANE: He never pressed it.

MR KOVATS: It was certainly persisted in as far as developing skeleton arguments, and so forth, were concerned. Thirdly, it was part of the claimant's arguments on the law that the appropriate test was the lower one as formulated in the Fernandez case. Again the claimant did not succeed on that. Fourthly, with regard to the facts, one of the points that the claimant argued was that the decisions were flawed because they did not consider the points about ease of access to the Prisoner's Unit. That again is something on which the claimant did not succeed.

Fifthly, the claimant argued that even if all the points were considered the decision was an irrational one overall. That again is not the basis on which the claimant succeeded. Sixthly, the claimant relied on threats which he said were made by the private investigator. Your Lordship did not accept that argument. Seventhly, as your Lordship may recall, the claimant's solicitor adduced two late statements dealing with further matters which, in the event, were not relied on at the hearing, but nevertheless had to be responded to by the defendant.

Eighthly, as your Lordship himself remarks, that at paragraph 34 of the judgment it is not easy to identify the correct approach to Article 2 in circumstances such as this, given the guidance from the Court of Appeal in the Widgery Soldiers case. This case has, in my submission, had a public interest function in clarifying this area of the law.

Finally, if it is to be said that the second defendant's decision of November 2001 was found to be flawed, that was withdrawn at a relatively early stage and equally one could say that the claimant's argument on the legitimate expectation was initially a substantial part of it for his case. That again was withdrawn at a relatively early stage. For those reasons we submit that the fair order for costs, reflecting the more detailed approach by and under the Civil Procedure Rules, is no order for costs.

MR JUSTICE CRANE: What do you say, Mr Clemens?

MR CLEMENS: My Lord, certainly some of those points are discrete to D2. It seems to me particularly, for instance, Mr Golds having to respond very late to the late statements about the regime and the number of attacks, and that sort of thing, I cannot not bring himself in line with that. I can bring myself in line with others, albeit that if I were to argue, as it were, against myself and against Mr Kovats, but for Mr Starmer, that he can do it well enough. I would have to accept that, albeit that matters were rather late, that is where the focus of the case really was and where it was argued. I am not trying to argue against myself for obvious reasons, but I hope I adopt a realistic approach.

(Judgment on costs on Separate Transcript)