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

A promise by one public authority cannot create a legitimate expectation binding another authority unless the first had actual or ostensible authority to speak for it. Private law estoppel principles do not override the public duties and interests governing legitimate expectation.

Whether a risk to life engages article 2 depends on all the circumstances, including the nature and degree of the threat and the available protective measures. A court must scrutinise such a decision with particular intensity while giving appropriate weight to the specialist competence of the responsible authorities.

A serving prisoner appealed from Ouseley J's dismissal of his judicial review challenge to the Prison Service's decision to remove him from a protected witness unit and return him to mainstream prison conditions. Police officers were assumed to have assured him that protected witness status would continue throughout his sentence.

The appeal raised whether those assurances created a substantive or procedural legitimate expectation binding the Prison Service, whether removal would breach the right to life under article 2 of Schedule 1 to the Human Rights Act 1998, and whether the decision was otherwise unfair or an abuse of power.

Appeal dismissed unanimously. Auld LJ delivered the leading judgment. Mummery and Keene LJJ agreed.

1. The police had neither actual nor ostensible authority to bind the Prison Service concerning the appellant's location or the duration of his protected witness status. The governing arrangements expressly reserved those matters to the Prison Service and required annual review. Even if private law ostensible authority could have been shown, it would not have created an enforceable public law expectation that the Prison Service would abandon its continuing responsibilities. Public law legitimate expectation must account for statutory duties and the public interest, consistently with R (Reprotech Ltd) v East Sussex County Council and South Bucks District Council v Flanagan.

2. The decision-making process was procedurally fair. The Prison Service considered the police assessments, the probation officer's concerns, the alleged assurances, the demand and cost of protected accommodation, and the proposed safeguards in mainstream conditions. Giving a factor less weight than the prisoner sought did not make the process unfair.

3. Article 2 may require reasonable preventive measures where authorities know or ought to know of a risk to an identified person's life. No universal verbal formula fixes the threshold. The inquiry is one of common sense and humanity, directed to the nature and degree of the risk, whether it is present during the relevant period, the available protective measures and their adequacy.

4. A potential interference with the right to life requires the most anxious judicial scrutiny. The review is more intensive than conventional Wednesbury review and especially exacting because article 2 protects a fundamental, unqualified right. On the law as it then stood, however, the court did not substitute its own merits assessment. It gave appropriate weight to the specialist competence of the police and Prison Service.

5. The Prison Service was entitled to conclude that removal would not breach article 2. The contemplated prosecution had not proceeded, the assessed risk had reduced, and tailored safeguards would accompany transfer to mainstream conditions. Keene LJ left open whether the court should itself make the primary article 2 judgment, but concluded that the outcome would be the same because substantial weight was due to the professional assessments.

6. An unauthorised police assurance may be a relevant consideration where a prisoner reasonably acts on it to his detriment. On the evidence, however, the Prison Service neither knew nor ought to have known that such assurances had been given, and it had no legal duty to establish a system for checking police compliance. The decision was therefore neither unfair nor an abuse of power.

1. Court of Appeal (Civil Division): The prisoner's appeal was dismissed unanimously: [2003] EWCA Civ 686.
2. High Court, Queen's Bench Division, Administrative Court: Ouseley J dismissed the application for judicial review on 31 July 2002. No citation is stated.