Bloggs 61, R (on the application of) v Secretary of State for the Home Department

The Court of Appeal dismissed the appeal against Ouseley J's dismissal of the claimant's judicial review. Key legal principles applied were (i) the public law concept of legitimate expectation cannot be grounded in representations by the police where the police lacked actual or ostensible authority to bind the Prison Service; (ii) decisions about prisoner accommodation rest on statutory powers (Prison Act 1952 s.12 and the Prison Rules 1999, Rule 45(1)) and the Prison Service must review protected witness status annually (Prison Service Instruction 71/2000); and (iii) Article 2 of the Human Rights Act 1998 (Article 2 of Schedule 1) requires a fact-specific assessment of any real and continuing risk to life, and the court must give proper weight to the professional judgments of Police and Prison Service while subjecting Article 2 interferences to anxious scrutiny.

The court concluded that (a) the police had no authority to promise lifelong placement in a protected witness unit and there was no basis to treat those alleged assurances as giving rise to a legitimate expectation against the Prison Service, (b) the Secretary of State's decision to remove the claimant from the protected witness unit did not breach Article 2 on the facts and assessments before the Prison Service, and (c) there was no procedural unfairness or abuse of power sufficient to invalidate the decision.

Background and factual context.

• The claimant (anonymised as Bloggs 61) pleaded guilty to conspiracy to import cannabis, cooperated with the police and was admitted to a protected witness unit in July 2001 following police and Crown Prosecution Service recommendations. The protected witness system provides a high level of segregation and anonymity.
• Subsequently the Crown Prosecution Service decided not to rely on the claimant as a witness against the main target, police assessments of risk were revisited and the head of Prison Service Population Management (Mr Golds) decided in late 2001/early 2002 that the claimant should be moved back to mainstream prison conditions. Judicial review proceedings were issued challenging that decision.

Nature of the claim and relief sought.

• At first instance the claimant sought a mandatory order to keep him in the protected witness unit for the duration of his sentence and an interim order preventing removal; the interim relief was initially granted. On appeal the claimant sought a more limited remedy: quashing of the Prison Service decision and reconsideration, and/or declarations as to the procedure required.

Issues before the Court of Appeal.

1. Whether representations allegedly made by police officers gave rise to a legitimate expectation that the Prison Service would retain the claimant in a protected witness unit for the remainder of his sentence;
2. Whether removal would breach the claimant's right to life under Article 2 of Schedule 1 to the Human Rights Act 1998;
3. Whether the proposed removal was so unfair as to amount to an abuse of power (procedural unfairness) independently of legitimate expectation or Article 2.

Court's reasoning and conclusions.

• Legitimate expectation: The court accepted that private law concepts such as ostensible authority and estoppel are relevant only analogously in public law. The police had neither actual nor ostensible authority to bind the Prison Service and the Prison Service itself was required by its rules and instructions to review protected witness status annually. Even assuming the claimant relied on police representations, those representations could not create a "legitimate" expectation enforceable against the Prison Service. The court relied on authorities (including Reprotech and South Bucks) to caution against importing private estoppel into public law in a way that would bind exercise of statutory public powers.
• Article 2: The court analysed the applicable Strasbourg and domestic authorities (Osman, Saville, Crane J in ex p DF) and applied a facts-driven approach. It acknowledged the high importance of the right to life and the need for anxious scrutiny but recognised the special competence of the Police and Prison Service. Given the changed circumstances (the CPS decided not to rely on the claimant as a witness and police risk assessments were revised from "high" to "medium"), the proposed protective measures within mainstream conditions and the considered decision-making by Mr Golds, the court held Article 2 was not engaged so as to invalidate the decision.
• Procedural unfairness/abuse of power: The court found no evidence that the Prison Service knew that police handlers were making binding promises or that it should have been expected to police such alleged misrepresentations; the decision-making process was not procedurally flawed.

Outcome. The Court of Appeal dismissed the appeal.

Appeal dismissed. The court held that police officers had no authority to bind the Prison Service so their alleged assurances did not give rise to a legitimate expectation enforceable against the Prison Service; the Prison Service lawfully exercised its powers under the Prison Act 1952 and relevant rules and instructions and its decision to remove the claimant from a protected witness unit did not breach Article 2 on the facts and assessments available to it; there was no procedural unfairness or abuse of power sufficient to quash the decision.

Appeal from the High Court, Queen's Bench Division (Administrative Court), Ouseley J (order of 31 July 2002 dismissing judicial review). The present judgment of the Court of Appeal ([2003] EWCA Civ 686) dismisses the appeal.