Smith, R (on the application of) v Secretary of State for Home Department & Ors

A prisoner who provides information about serious crime may require protection even if he will not give evidence. Where a prisoner enters or re-enters custody before the protected-witness process is complete, the Secretary of State must assess the risk and decide how it should be managed before, or immediately upon, the prisoner’s return. The governing system must ensure that the responsible Prison Service body receives information early enough to make that decision. A Protected Witness Unit remains available where it is the safest place, regardless of whether the prisoner has given evidence. In a case engaging Article 2, the court may require interim placement in a Protected Witness Unit where that is the only reasonable course pending proper enquiries.

The claimant was a long-term prisoner who had been removed from prison into police custody and had provided information about serious crime. He was returned to prison and was believed to be at risk from other prisoners, but the procedure for according protected-witness status was not completed after the Crown Prosecution Service decided that he would not be called as a witness.

He sought declarations concerning the adequacy of Home Office Circular 9/1992 and its Annex, the relevance of his not giving evidence, and the location required for his safety. The Secretary of State maintained that other prison regimes could provide adequate protection and that the court should defer further decision pending enquiries.

The issues were whether the Annex covered the risk arising on return to prison, whether a prisoner who did not give evidence could be placed in a Protected Witness Unit, and whether the claimant’s continued placement outside such a unit was lawful.

1. Applicable duty and review. The Secretary of State owed prisoners who had provided information a common-law duty to address the risk from other prisoners. Decisions also had to be compatible with Articles 2 and 3 of the Convention. Because Article 2 was engaged, review operated within narrower limits than ordinary Wednesbury unreasonableness.
2. Scope of the Circular and Annex. The Annex dealt with according protected-witness status and avoiding later allegations of inducement. It did not cover a prisoner who entered or re-entered prison before that process was complete. In such a case, an assessment of risk and a decision on how to manage it had to be made before the prisoner’s return, or sufficiently promptly thereafter.
3. Required decision-making system. The Prison Service needed a system ensuring that the precisely identified responsible body was informed at the earliest opportunity and kept informed as the situation developed. The court did not prescribe the administrative structure, but the claimant’s information had not reached the appropriate officials in time and no adequate decision had been made on his return.
4. Evidence and placement. Giving evidence was not a condition of placement in a Protected Witness Unit. The absence of harm to date did not establish that the risk had been properly addressed. The claimant’s long-term location decision was flawed because important police and Crown Prosecution Service material had not been obtained or considered.
5. Relief. Having regard to the history of the decision-making, the high assessed risk and Article 2, placement in a Protected Witness Unit pending completion of the necessary enquiries was the only reasonable course. Declarations were also appropriate to confirm that a prisoner need not have given, or be intending to give, evidence before being placed in such a unit.