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

A court may intervene in an ongoing criminal trial to protect the defendant’s right to a fair trial, but only in the most exceptional circumstances. Primary responsibility for ensuring fairness rests with the trial judge. Where suitable applications can be made to that judge to address illness, fatigue, late arrival or difficulty consulting lawyers, judicial review is generally inappropriate. The Secretary of State retains a wide discretion under the Prison Act 1952 to locate prisoners. A secure placement does not breach Article 6 merely because travelling conditions impose greater burdens on the defendant than on prosecution witnesses, provided effective participation can be protected by measures in the criminal proceedings.

The claimant, who was awaiting trial on a terrorism-related charge, sought judicial review of the decision to hold her at HMP Bronzefield and of the resulting transport arrangements to the Central Criminal Court. She relied on severe nausea, vomiting, exhaustion and impaired concentration, arguing that the arrangements interfered with her rights under Article 6 of the ECHR and her common law right to a fair trial.

The criminal trial was ongoing. The trial judge had been informed of the difficulties and had granted assistance when requested, but no application for an adjournment, stay, video evidence or other substantive relief had been refused. The central issues were whether the Secretary of State’s placement decision was unlawful and whether this court should intervene before the criminal trial judge had been asked to address the alleged unfairness.

1. Application dismissed. The claimant’s application for relief concerning her placement at HMP Bronzefield and the fairness of her criminal trial was dismissed. Her publicly funded costs were directed to detailed assessment.
2. Article 6 protects practical and effective rights. Effective participation includes being present, hearing and following proceedings, consulting lawyers and giving evidence without excessive tiredness. Equality of arms requires a reasonable opportunity to present one’s case without substantial disadvantage. Those principles did not, however, require identical travelling conditions for the defendant and prosecution witnesses.
3. This court had jurisdiction, in an appropriate case, to intervene in an ongoing criminal trial. Such intervention was appropriate only in the most exceptional circumstances because primary responsibility for the fairness and conduct of the trial lay with the experienced trial judge. There was no evidence that the judge was unwilling or unable to grant appropriate breaks, consultation time, adjournments or other relief.
4. R v Secretary of State ex parte Q was correctly decided for present purposes. It established that prison allocation could be unlawful if it infringed the prisoner’s common law right to a fair trial, but its approach was fact-sensitive and required caution where adequate remedies existed before the trial judge. The present case differed because the alleged impairment concerned health and participation, the trial judge could address those matters, and significant security issues arose.
5. The Secretary of State had a wide discretion under section 12 of the Prison Act 1952. Given the claimant’s accepted restricted-status classification and the security evidence, placement at HMP Bronzefield was lawful and did not itself violate Article 6. Judicial review was a remedy of last resort, and the claimant should first make suitable applications to the criminal trial judge.

First-instance judicial review in the Administrative Court. The criminal trial was ongoing, and no appeal from the trial judge or refusal of assistance was before this court.