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

A Category A prisoner must be assessed by reference to whether escape would be highly dangerous to the public, with the hypothetical nature of that assessment permitting reference to potential danger after escape. Individual escape potential is relevant only in exceptional circumstances, and the policy directing that it will not normally affect categorisation is lawful. Article 2 requires reasonable preventive measures where the authorities knew or ought to have known of a real and immediate risk to life. The duty does not require ideal security arrangements or impose a disproportionate burden. A protected witness may lawfully be removed from a designated unit where that is necessary for safety and good order, provided alternative arrangements reasonably protect life.

The claimant was serving a life sentence and had protected-witness status. After difficulties arose within the Category A Protected Witness Unit at HMP Woodhill, he was transferred to HMP Belmarsh, where special arrangements were made to keep him separate from other prisoners and preserve his anonymity.

He challenged the decision to retain him in Category A and alleged that his removal from Woodhill and the conditions at Belmarsh breached Article 2 of the European Convention on Human Rights. The categorisation challenge concerned the applicable threshold and whether the Director had failed to consider the claimant’s low propensity to escape. The Article 2 issues were whether removal from Woodhill was disproportionate and whether the Belmarsh arrangements exposed him to an unacceptable risk to life.

1. Categorisation. The Director applied the correct Category A test under paragraph 1.2 of PSO 1010. The word potentially referred to the danger that would arise if the claimant escaped; it did not enlarge the threshold beyond whether escape would be highly dangerous to the public.
2. The decision in Pate v Secretary of State for the Home Department [2002] EWHC 1018 (Admin) concerned exceptional facts and did not establish a general obligation to assess escape potential in every case. Paragraph 1.3 of PSO 1010 was a lawful response to that decision. The claimant’s circumstances were materially different, and the Director was entitled to conclude that the exceptional qualification did not apply.
3. Article 2. The court followed the guidance in Osman v UK [1998] 29 EHRR 245 and R (Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686; [2003] 1 WLR 2724. The relevant question was whether the authorities knew or ought to have known of a real and immediate risk to life and failed to take measures within their powers which could reasonably have been expected to avoid it.
4. Removal from Woodhill was not disproportionate. The evidence showed serious disruption, intimidation and risks to the claimant and other prisoners within the unit. Belmarsh could not reproduce every feature of a designated unit, but the claimant was kept inaccessible to other prisoners and the security arrangements protected him. Sightings during escorts, inadequate replication of specialist staffing and possible disclosure of his identity did not establish an Article 2 breach. There was no separate or freestanding Article 2 claim for the claimant’s partner and child.
5. The claim was dismissed. Leave to appeal was refused, and detailed assessment of the claimant’s publicly funded costs was ordered.