C/01/0966
Neutral Citation Number: [2001] EWCA Civ 1157
IN THE SUPREME COURT OF JUDICATURE   
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION 
(ADMIRALTY COURT)
(MR STANLEY BURTON QC)
							Royal Courts of Justice
							Strand
							London WC2A 2LL

							Monday 16 July 2001
B e f o r e:

LORD JUSTICE TUCKEY

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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

T H E   Q U E E N
On the application of MR MANJIT SINGH SUNDER

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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
Official Shorthand Writers to the Court)

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MR H SINGH (Instructed by Messrs Mandla Bhombra & Co, Birmingham B21 9SN) appeared on behalf of the Applicant.

The Respondents did not attend and were not represented.

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J U D G M E N T
1.	LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal by Manjit Singh Sunder from a decision of Stanley Burnton J who refused the applicant permission to judicially review a decision of the prison service's Category A Review Committee made in May 2000. 
2.	In 1989 the applicant pleaded guilty at the Old Bailey to one count of murder and another of manslaughter following a religious meeting at which he and his co-accused shot and killed the leader of the meeting and another two men. He went to this meeting armed with a loaded sawn-off shotgun and 2.2 revolver. The applicant was sentenced to life imprisonment and was confirmed as a Category A prisoner. In 1990, following the annual review, he was downgraded to Category B. However, in May 1998, he was provisionally placed again in Category A with a high escape risk classification. He was given reasons for this as follows:
“Your security category was recently reviewed in the light of information received from Police sources.... 
This information indicates that you have maintained strong connections with a faction of the International Sikh Youth Federation (ISYF) an extremist organisation which supports the establishment of an independent Sikh state of Khalistan in India by violent means. The information received also indicates that you have, from within prison, been in contact with members of the leadership of a Sikh terrorist group based in Pakistan and with their supporters in the United Kingdom, and that you have played an active role in fermenting terrorist activity in India.”
3.	Representations were made to the Category A Review Committee on behalf of the applicant but their decision was maintained and last confirmed by letter of 4 May 2000. This letter referred to the history of the matter, the representations made to them and to the applicant's good conduct in prison. It continued:
“Balanced against this, however, was the very serious nature of the present offences during which you and your co-defendant discharged firearms at a public meeting leading to the death of three men, one of whom was wilfully murdered, the information from police sources that links may still exist with extremist groups who have access to firearms and explosives and a lack of sufficient evidence, through offence-related work or otherwise, to indicate that the risk of you re-offending in a similar way, if unlawfully at large, has significantly diminished.”
4.	So far as the offences themselves were concerned, the evidence before the judge was that the murdered man was alleged to have made offensive remarks about the Sikh religion and that the applicant and his co-accused had attended the meeting armed, in the applicant's case, in the way I have described. The other information referred to by the Category A Review Committee was that the applicant had been visited by a named person who was alleged to have been involved in Sikh terrorist activities in India and was associated with a faction of the ISYF. The Special Immigration Appeals Commission had found allegations of terrorism made against that man proved. 
5.	The judge rejected the applicant's challenges to the decision based on Articles 5 and 6 of the European Convention on Human Rights. The notice of appeal says he was wrong to do so. I do not have to consider these points further because Articles 5 and 6 cannot be invoked in this case because the House of Lords in the recent decision of R v Lambert [2001] UKHL 37 held that section 3 of the 1998 Act does not have retrospective effect, so it does not apply to the decision under challenge which was made before the Act came into force in October 2000. 
6.	However I find the judge's reasons for rejecting the arguments based on Articles 5 and 6 compelling and it should not be thought that they afford the applicant any real prospect of successfully challenging any more recent decision. Article 5 is not engaged because the applicant's continued detention is under the original sentence of life imprisonment. Article 6 is not engaged because an administrative decision to re-categorise a prisoner is not a determination of his civil rights or of a criminal charge. 
7.	The common law challenges to the decision were made on the grounds of procedural unfairness and irrationality. 
8.	The procedural unfairness alleged was that the committee had refused to provide the applicant with all the information upon which they based their decision. He had only been provided with the gist of that information. The judge rejected this allegation, relying on the decision of this court in R v Secretary of State for the Home Department ex p McAvoy [1998] 1 WLR 790, where, on very similar facts, this court rejected the same argument. The judge said that it was obvious that the “gist statement” in the present case was modelled on the statement in McAvoy which had been held to be sufficient in that case. I agree; the cases are indistinguishable. Before the judge, Mr Singh, for the applicant, had argued that McAvoy had been overtaken by the Human Rights Act. I make no comment about that. It underlines the fact that today the common law challenge must fail. 
9.	The irrationality challenge centred on the assertion that there was nothing to show that the applicant was connected with violent Sikh extremism or seeking an independent Sikh state. Mr Singh has shown me the trial judge's report to the Home Secretary following the sentencing of the applicant which he says demonstrates that this murder and manslaughter were not committed to further those ambitions. 
10.	The judge dealt with this point by saying:
“However, if the murder and manslaughter committed by the claimant had nothing to do with (his) Political or Religious beliefs, why did the Claimant commit them? Mr Singh's answer to my question was that the offences did have a religious basis, and were committed by the Claimant out of 'an excess of zeal'. However, it would be rational for the Committee not to distinguish excessive religious zeal, leading to murder, from other forms of violent extremism.”
11.	I entirely agree. Mr Singh made much the same submissions to me about this. But however one looks at it, if the motive for the murder was the applicant's anger at the way in which the victim had been describing the Sikh religion, the conduct in killing him can quite fairly be characterised as religious extremism. In any event, quite apart from motive these two letters may not be material. These were very serious offences and I can see nothing irrational in the decision which has been made or the reasons which have been given for it. 
Order: Application refused. Community Service Funding Order.