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            On the application of Michael v Governor of Whitemoor Prison

            The decision that a prisoner should not be permitted to attend a Court hearing in person, but rather should attend via video link, did not amount to a breach of his right to a fair trial under Article 6 ECHR. Further, the prison in making the decision that he could attend by video link, had not fettered its discretion. However, the prison had misunderstood key information when reaching the decision and on that basis the Court of Appeal held that the decision should be quashed and the issue reconsidered.

            Date: 14/02/2020

            The Appellant, a Category A prisoner convicted for murder, had issued civil proceedings against his solicitors who had represented him during his criminal trial. He applied to appear at the civil hearing in person but the prison at which he was incarcerated refused his application to attend in person and instead advised that they would make arrangements for him to attend via video link. 

            When applying to attend the hearing in person the Appellant advised the prison that he was a litigant in person, suffered from a disability which would make using the video link difficult and further said that there would be a secure dock available in Court. At the time of making its decision the prison had sight of a Court order which recorded that the hearing should be listed in a Court room with a secure dock. In making the decision not to facilitate his attendance at Court in person the prison noted that the Appellant had made use of video link facilities previously.

            The Appellant challenged the decision of the prison by way of judicial review arguing that not to allow him to attend the hearing in person breached his right to a fair trial under Article 6 ECHR. 

            Right to a fair trial

            It was acknowledged that producing the Appellant at Court would lead to logistical challenges and would also lead to additional expense. The Appellant was a Category A prisoner of standard escape risk and there were security risks to consider if allowing him to attend the hearing in person. It was found that if the Claimant attended by video link he would still be able to participate fully in the hearing and would be able to present his evidence and hear the evidence of the other side. He would be able to question the other witnesses via video link and the Judge, who would be in Court, was required to ensure that there would be a fair trial. 

            The Court of Appeal held that there was nothing to suggest that preventing the Claimant from attending in person and allowing him to attend via video link instead would breach his right to a fair trial under Article 6 of ECHR.

            Unlawful fettering of discretion

            The Court of Appeal found that the decision maker at the prison had not unlawfully fettered her discretion in refusing the request of the Appellant to attend the hearing of his claim in person. 

            The main consideration when making the decision should have been what was in the interests of justice. The Appellant's right to a fair trial had to be respected.

            The prison reached its decision on the basis of the security and logistical difficulties in producing the Appellant at Court, and given the availability of video-link participation which in most, if not all, circumstances would enable a self-represented prisoner to take part effectively in a civil trial.

            Fundamental Misunderstanding 

            At the time of the Appeal hearing it was not clear where the trial would take place or what facilities would be available at the Court. The prison had reached its decision believing that the hearing would take place in a Court with a secure dock. The Court of Appeal found that this belief was a fundamental misunderstanding of an important fact. 

            The Court of Appeal noted that the Appellant no longer resided at the same prison and his risk profile and the state of his mental health may have altered since the original decision was made. It was also still not clear where or when the hearing would take place. On that basis the Court of Appeal found that although the decision had not impacted the right to a fair trial, and the decision maker had not fettered her discretion, in light of the fact that the decision was based on a misunderstanding of key information the decision must be quashed and the issue reconsidered. 

            Comment

            Where video-link facilities are available, and security concerns and logistical issues exist, refusing to produce a prisoner to attend the hearing of a civil claim in person will not necessarily be a breach of the prisoner's right to a fair trial under Article 6 of ECHR. The decision maker must base the decision on what is in the interests of justice and should have regard to Prison Service Order 4625 (2002) "Production in Civil Proceedings". The decision maker should be satisfied that the decision not to produce the prisoner at Court in person must not impact upon his/her ability to bring or defend his case.

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