Kenyon, R (on the application of) v HMP Wakefield & Anor

Article 6 does not give every unrepresented prisoner an automatic right to a computer for legal work. Access to a court and equality of arms are important strands of the overarching right to a fair hearing, but they may be regulated and limited where the proceedings as a whole remain fair. A prisoner seeking IT facilities must show a real, individual need, meaning that refusal would create a real risk of prejudice in actual or realistically anticipated proceedings. The assessment is fact-specific and may involve reasonableness and proportionality, taking account of security, cost and the facilities actually required. A policy framed in those terms is compatible with Article 6.

The claimant, serving life sentences at HMP Wakefield, sought a laptop to organise material and prepare possible applications concerning his criminal convictions. The Governor first refused the request and later reconsidered it under the prison’s Access to Justice policy, concluding that the claimant had not demonstrated a real need or a risk of prejudice to legal proceedings.

The claimant applied to amend his judicial review grounds, obtain permission and proceed out of time. He argued that the policy should apply a test of reasonableness rather than necessity, and that its application unlawfully denied him a fair opportunity to pursue possible criminal appeals.

1. Outcome. The applications to amend, for permission to proceed and for permission out of time were refused. Both proposed grounds were unarguable and lacked merit.
2. Article 6 and the policy. Article 6 guarantees fair process, effective access to a court and a reasonable opportunity to present one’s case. The overarching right is fundamental, but particular strands, including access to a court and equality of arms, may be regulated and limited provided that the proceedings as a whole remain fair. The relevant question is compatibility with Article 6 in context, rather than whether the policy is labelled as one of reasonableness, need or necessity.
3. The policy’s requirement that a prisoner demonstrate a real need was defined by the risk that refusal would prejudice the relevant proceedings. It therefore adopted the substance of the Article 6 requirement. The policy was not incompatible merely because it refused IT where no fair-trial risk was shown.
4. Application to the claimant. Article 6 must first be engaged by actual or realistically anticipated proceedings and a material impediment to access to a court. The claimant had no ongoing criminal proceedings, any further appeal appeared speculative, and he identified neither arguable grounds nor a demonstrated need for a computer. The burden rested on him because the relevant information was particularly within his knowledge.
5. Even if Article 6 were engaged, the assessment required a fact-specific balance between the claimant’s needs and the substantial security, misuse, cost and resource risks of providing IT facilities in prison. The claimant had not shown that his proposed applications could not be made fairly without a word processor. The Governor was therefore entitled to refuse the request. A changed position could justify a fresh application on its merits.

First-instance judicial review proceedings. The judgment itself records earlier permission and amendment decisions by judges of the Administrative Court, but the substantive applications before Hickinbottom J were refused.