Michael, R (on the application of) v HMP Whitemoor & Anor

A prisoner has no unqualified right to attend a civil hearing physically. The court must determine whether participation by video link permits the prisoner to present the case effectively, understand and respond to the opposing case, and avoid a substantial disadvantage. Security, expense and logistics may justify video participation.

A decision whether to produce a prisoner involves two stages. The decision-maker first considers whether physical attendance is desirable in the interests of justice. If it is, production may still be refused because of security, expense or other material considerations. A refusal founded on a material mistake of fact is unlawful unless the same decision would undoubtedly be reached without the error.

A Category A prisoner asked to attend physically the trial of his civil data-protection claim against his former solicitors. The prison authorities refused and offered a video link. Their decision proceeded on the mistaken understanding that the hearing would occur in chambers without a secure dock, although the allocation order required a courtroom with a secure dock.

William Davis J dismissed the judicial review claim in [2018] EWHC 2324 (Admin). He also refused a late amendment alleging that the decision had not been taken by an authorised official. The prisoner appealed on fair-trial, fettering, mistake-of-fact and case-management grounds.

The central questions were whether video participation would secure a fair trial, whether the statutory discretion had been fettered, whether the factual mistake invalidated the refusal, and whether the late delegation ground should have been admitted.

1. Appeal allowed and decision quashed. Participation by video link would not violate the appellant’s common-law or article 6 fair-trial rights. The refusal was nevertheless unlawful because the absence of a secure dock was a material consideration and the decision-maker had misunderstood the court arrangements.

2. Paragraph 3(1) of Schedule 1 to the Crime (Sentences) Act 1997 contemplates two stages. The decision-maker must first ask whether the interests of justice call for the prisoner’s physical presence. If they do, production may still be refused after considering security, expense, resources and other material factors. The discretion must be exercised compatibly with article 6 by virtue of section 6 of the Human Rights Act 1998.

3. Article 6 does not confer an absolute right to attend a civil hearing in person. The question is whether the prisoner can present the case effectively and participate without substantial disadvantage. Video participation is compatible with fairness where it serves a legitimate aim and the arrangements allow the prisoner to see, hear, be seen and be heard without technical impediment. The nature of the claim, the importance of personal testimony, representation, security and practical arrangements are relevant.

4. The proposed trial concerned a narrow documentary dispute. The appellant’s credibility was unlikely to be in issue, and the evidence did not establish that his psychological difficulties would be aggravated by video participation. A judge could ensure that he presented evidence and argument, questioned the opposing witness and was not disadvantaged. The fair-trial and fettering grounds therefore failed.

5. The secure-dock error concerned a central material fact. Production to a secure dock presents materially different risks from production to an ordinary courtroom or chambers. The error had significant weight in the refusal. Subsequent correspondence could not establish that the same decision would undoubtedly be made on current facts. A fresh decision was required using up-to-date information about the hearing, risk, logistics and cost.

6. The judge’s refusal to permit the late delegation ground was within the generous ambit of reasonable case-management decisions. The point required evidence and fuller argument. The appeal against that refusal was dismissed, and the court left the delegation issue open.

1. Court of Appeal (Civil Division): The appeal was allowed on the material-mistake-of-fact ground. The prison authority’s decision was quashed for fresh determination. The fair-trial and fettering grounds, and the challenge to the case-management ruling, failed: [2020] EWCA Civ 29.
2. High Court, Administrative Court: William Davis J dismissed the judicial review claim and refused permission to introduce the late delegation ground: [2018] EWHC 2324 (Admin).