Darius James Pearce v Minister for Home Affairs
| Jurisdiction | Jersey |
| Court | Court of Appeal |
| Judge | Bailhache JA |
| Judgment Date | 23 November 2022 |
| Neutral Citation | [2022] JCA 257 |
and
[2022] JCA 257
Sir Wyn Williams, President;
Sir William Bailhache; and
Mr Richard McMahon, Bailiff of Guernsey
COURT OF APPEAL
Appeal against decision of the Royal Court.
Proceeds of Crime (Jersey) Law 1999.
Rule 64 of the Prison (Jersey) Rules 2007.
European Convention on Human Rights.
Human Rights (Jersey) Law 2000.
Representation of Pearce [2022] JRC 135.
Court of Appeal (Jersey) Law 1961.
Pearce v AG [2022] JCA 017.
Royal Court Rules 2004.
Human Rights Act 1998.
Court of Appeal (Civil) (Judicial Review) Rules 2000.
Court of Appeal (Judicial Review) Rules 2000.
Ploski v Poland (Application no. 26761/95).
Mouisel v France (application no. 67263/01).
The Appellant in person.
Crown Advocate S. A. Meiklejohn for the Respondents.
Advocate L. A. Ingham, Amicus Curiae.
This is the judgment of the Court.
The Appellant is incarcerated at HMP La Moye (the “Prison”). On 17 December 2020, he was found guilty of three counts of money laundering contrary to Article 30 of the Proceeds of Crime (Jersey) Law 1999. On 5 July 2021, he was sentenced to a total term of 7 years and 6 months imprisonment. He is due for release on 15 December 2025, and he will not be eligible for conditional early release until late in 2024. On 26 January 2022, this Court, differently constituted, dismissed the appeal against conviction and declined to grant leave to appeal the sentence. The Appellant has applied to the Judicial Committee of the Privy Council for permission to appeal the Court of Appeal's order and that application remains outstanding. For present purposes, as indeed he accepted in the court below, the Appellant is to be treated as a convicted serving prisoner.
The Appellant's father unfortunately died on 4 March 2022. The funeral was scheduled for 30 March and the Appellant applied for a temporary release on licence to attend the funeral, or failing that, a permission to attend escorted but unrestrained, that is to say without handcuffs or other restraint. There was some delay in dealing with that application but on 18 March 2022 the Minister for Home Affairs wrote to the Appellant denying his application for temporary release under Rule 64 of the Prison (Jersey) Rules 2007 (the “ Prison Rules”). On 21 March 2022, the Appellant filed a Representation with the Judicial Greffier seeking the Court's intervention on the matter of temporary release on licence or unrestrained escort to enable him to attend his father's funeral. The Representation was called on 25 March 2022 and, given the urgency of the matter, was considered immediately. In terms of evidence, the Court had the benefit of an affidavit sworn by the Second Respondent on 24 March with exhibits. The most relevant of these was the Prisoner Escort Log, which contains the risk assessment on the Appellant, made as we understand it on 21 March.
Having referred to the funeral date and Rules 64 and 79 of the Prison Rules, the Appellant claimed that he had been advised on 17 March that he would not be granted a temporary licence, but he would be allowed to attend the funeral escorted by two officers but not restrained in handcuffs, subject to a security department review. It was asserted that on 18 March the Second Respondent had advised the Appellant that the security department had decided that the Appellant was too high a risk to be permitted to attend the funeral unless in handcuffs. It was said that the reason given was that the policy was that prisoners with more than two years left to serve were not allowed to leave the prison unless escorted and restrained in handcuffs. It was said that the Senior Unit Manager in charge of security had no authority to compose and implement any other policy without supervision, as this was the exclusive responsibility of the First and/or Second Respondent. No evidence having been supplied in any formal sense by the Appellant, the Court below seemingly relied on his Representation as containing the facts which the Appellant wished to assert.
The Appellant claimed that, had he been imprisoned in England and Wales, he would be given category D status and would already be eligible for day release from an open prison, such status being available to all prisoners with less than three years left to serve. He contended that he was classified as an enhanced prisoner under the classification system used by the Jersey Prison Service. In the summary of his contentions, he asserted that the reasons for denying his applications, either for release on a one day licence or the more limited application to attend the funeral service accompanied by prison officers but not handcuffed, were arbitrary and contrary to the demands of natural justice for a number of reasons set out in the Representation. These included assertions that his fundamental human rights under the European Convention on Human Rights (the “Convention”), in particular his rights under Articles 3, 6, 8 and 13, had been disregarded. The prayer for relief sought an order that he would be permitted temporary release on 30 March in order to attend his father's funeral, failing which he be permitted to attend the funeral unrestrained, albeit in the company of prison officers.
In the light of what has been submitted later, we observe that there was no express claim in the Representation that the Respondents had committed the tort of misfeasance in public office, and there was no prayer for damages. As indicated, it is clear that in his Representation the Appellant made claims consistent both with judicial review and with the Human Rights (Jersey) Law 2000 (the “Human Rights Law”).
The Royal Court (the Deputy Bailiff sitting with Jurats Christensen and Averty) sat at short notice to hear the Appellant's Representation. Having heard from the Appellant, who was unrepresented, and Advocate Brown on behalf of the First Respondent, the Court refused the application with reasons reserved. The Deputy Bailiff established that the Appellant had enhanced status within the prison as a result of his exemplary conduct. The reasons for the Court's decision were contained in the judgment [2022] JRC 135 handed down on 28 April, albeit not received by the Appellant until 16 June. At paragraph 4 of that judgment, the Deputy Bailiff indicated that the Appellant did not challenge by way of judicial review the decision of the Minister to refuse his application for temporary release but noted the Appellant's statement that he might do so in subsequent proceedings. We will return to that statement later. The judgment indicates that there were two specific decisions that were challenged by the Appellant – the first, referred to at paragraph 10 of the Representation, involved the statement by the Second Respondent that the Prison Security Department had determined that the Appellant was too high a risk to be allowed to attend the funeral unless in handcuffs for the policy reason referred to earlier, namely that prisoners with more than two years left to serve were not allowed to leave the prison unless escorted and restrained in handcuffs. The second decision challenged was the decision made by or on behalf of the Second Respondent to the effect that, having regard to the risk assessment carried out on 23 March, the nature of the offence for which the Appellant was serving his sentence and the absence of a history of absconding, the Prison Service would authorise the use of a closeting/escort chain if the Appellant chose to attend the ceremony in person. That proposal was said to have been communicated to the Appellant but was unacceptable to him.
Although not in the prescribed form for applications for judicial review, the Royal Court treated the application in that way. The Court accepted that the Appellant was unrepresented, that it was an urgent matter, and in the circumstances that it was difficult for him to comply with the correct procedure. The Court then noted that:
“15. …pursuant to part 16 of the Royal Court Rules that, generally, judicial review proceedings should be made in accordance with the Rules. However, pursuant to Royal Court Rule 6/14, if a person seeks relief that should have been sought by way of application for judicial review under part 16, the person against whom such relief is sought may apply to the Court for an order striking out the claims and abuse of process and the Court shall make such an order unless, inter alia, the Court considers that in all the circumstances of the case it is just and convenient to allow the action or representation to continue ‘provided in each case that the Court is satisfied that leave would have been given to move for judicial review if an application for leave had been made’ .
16. Accordingly, it was for us to determine whether or not on the material before us an application for leave for judicial review would have been granted had this application been made in proper form.”
The Court set out a number of considerations under the Human Rights Law, referring also to the guidance on case law relevant to prisoner rights published by the Council of Europe on 31 December 2021. Following a review of that material, the Court concluded:
“29. From these authorities we draw the following conclusions. First, there is no question of a breach of Article 3. The conduct of the prison authorities in this case does not amount to torture or involve human or degrading treatment or punishment. There is no question of punishment. There is no medical advice or evidence to the effect that restraint would be inappropriate. In our view, the policy to which we have referred was designed to define the circumstances in which serving prisoners may attend funerals or...
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