David Penman For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Turnbull |
| Neutral Citation | [2015] CSOH 106 |
| Year | 2015 |
| Published date | 11 August 2015 |
| Date | 11 August 2015 |
| Court | Court of Session |
| Docket Number | P335/15 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 106
P335/15
OPINION OF LORD TURNBULL
In the petition of
DAVID PENMAN
Petitioner;
for
Judicial Review
Petitioner: McLean; Balfour & Manson LLP
Respondent: Byrne; Scottish Government Legal Directorate
11 August 2015
Introduction
[1] The petitioner is a serving prisoner who has brought the present action in order to seek reduction of a disciplinary decision made by the prison authorities concerning his conduct.
The petitioner’s history
[2] In 2000 the petitioner was convicted of two separate offences of rape and attempted rape, each involving different victims. He was sentenced to an extended sentence of 18 years’ imprisonment, with a custodial element of 10 years and an extension period of 8 years. In 2006 he was released on non-parole licence and remained at liberty until May 2008[1] when he was recalled to prison having breached his licence conditions. His sentence expiry date is 6 October 2017. He is liable to be detained in prison until that date, unless the Parole Board for Scotland (“the Parole Board”) directs his release prior to then. As a recalled extended sentence prisoner he is entitled to have his case considered by a Tribunal of the Parole Board at regular intervals. His case was last considered by such a Tribunal on 21 April 2015.
The circumstances of the disciplinary proceedings
[3] On 5 November 2013 the petitioner was in the hobbies shed making pens. On the way back to his hall he was found by Prison Officer Ralston to be in possession of 12 of these pens. He was served the following day with a notice of charge of breach of discipline under rule 112 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011 No. 331) (“the Rules”). The charge was that he had in his possession articles which he was not authorised to have in that part of the prison. The day after service of the charge the petitioner was brought before a disciplinary hearing presided over by an adjudicator acting in place of the prison governor. Despite his pleading not guilty to the charge of breach of discipline the adjudicator found the petitioner guilty of the charge and imposed a punishment, comprising three days forfeiture of recreation, television and earnings privileges. The petitioner appealed the adjudicator’s decision to the Internal Complaints Committee, as permitted under rule 118 of the Rules but this appeal was dismissed at a hearing of the committee on 14 November 2013. The petitioner then presented a complaint to the Scottish Public Services Ombudsman. Intimation of the rejection of that complaint was sent to the petitioner on 19 February 2014.
The petitioner’s case
[4] The complaint made by the petitioner was that the disciplinary hearing dealing with his case was conducted in a way which was contrary to the Rules and unfair to him.
[5] At the hearing the petitioner’s response to the charge was, as noted by the adjudicator, that he had always previously been allowed to take items such as pens from the hobbies shed along the route to his hall. Accordingly, whilst accepting being in possession of these items, the petitioner’s explanation was that he had not appreciated that taking them along that route would constitute a breach of discipline. The importance of the adjudicator giving proper consideration to this contention could be seen from the terms of the Disciplinary Hearings Guide 2012 prepared by the Scottish Prison Service for the assistance of adjudicators. That guide provides, at paragraph 7.81, that before a charge such as brought against the petitioner can be established it will be necessary to show that the prisoner was aware of a restriction on places where items might be taken within the prison. It also notes that a genuine belief of an absence of restriction would be a defence. The paragraph provides that where a prisoner states that he held such a belief the reasonableness of that belief is a matter for the adjudicator. The petitioner therefore had a valid defence to the charge, namely that he reasonably believed he was entitled to be in possession of the pens on the route back to the hall. He contended that he had not been given an opportunity to present this defence and to have it considered properly in light of the unfair manner in which the disciplinary hearing was conducted.
The agreed circumstances of the disciplinary hearing
[6] Much of what took place was agreed between the parties in the pleadings. The record of the conduct of the hearing as prepared by the adjudicator was produced. That record noted that the petitioner was prepared to accept written evidence presented to the hearing, without requiring Prison Officer Ralston, or any other witness, to appear.
[7] The adjudicator had before her a report from Prison Officer Ralston which set out an account of the petitioner’s possession of the pens. That account did not address the question of the petitioner’s knowledge of the restriction. Accordingly, and as noted on the record, the hearing was adjourned for Prison Officer Ralston’s presence. The adjudicator spoke to the officer privately and in a separate room. Having done so she reconvened the hearing and found the petitioner guilty. The adjudicator noted in the record that having discussed the incident with Prison Officer Ralston she had been informed that the petitioner had been told that morning by Prison Officer Ralston that he was not permitted to take pens back to the hall and that they should go to his property. The reason for the finding of guilt, as noted in the record of the hearing, was as follows: “Mr Penman was informed that he was not allowed to take the pens back to the hall.”
[8] The petitioner therefore contended that the adjudicator had taken account of evidence other than that presented at the hearing, that this evidence was crucial to the case against him, that he had no opportunity to consider this evidence in advance of it being presented and that he had been denied an opportunity to cross-examine Prison Officer Ralston on the information provided by him to the adjudicator, all of which was in breach of the terms of the Rules. Relying on what had been said in University of Ceylon v E.F.W. Fernando [1960] 1 WLR 223 he submitted that an administrative body is required to follow an express provision of a rule applicable to it.
The impact of the finding of guilt
[9] The punishment imposed on the petitioner had, of course, been served long before the raising of the present action. The petitioner contended that the present action was necessary in light of other consequences which flowed from the finding of breach of discipline. Having been recalled in 2008 the petitioner was hoping to progress to open conditions and to demonstrate to the Parole Board that the risk which he posed could be managed safely in the community. He asserted that in July 2013 a meeting of the prison Risk Management Team had viewed his application for progression favourably, but that the subsequent disciplinary proceedings had delayed that progress. He also asserted that the finding of guilt might be included within his prison dossier provided to the Parole Board and that this finding might weigh against him in the Parole Board’s consideration of the extent to which he would continue to pose a risk to the community and therefore to the Parole Board’s assessment of whether or not he ought to be released.
The respondents’ position
[10] The respondents contended that the conduct of the disciplinary hearing had not been contrary to the relevant parts of the Rules and policies. All that took place was that the adjudicator had “clarified” certain material already contained within Prison Officer Ralston’s report. Alternatively, they contended that the procedure engaged in had not resulted in any substantial unfairness to the petitioner. They also contended that in any event the present petition was barred by mora, taciturnity and acquiescence and that the public interest in good administration warranted the petition being refused.
[11] The respondents also contended that the present petition had no practical purpose. They pointed out that the prison Risk Management Team had considered the petitioner’s case at meetings dated 31 July 2013, 5 February 2014 and 26 February 2014. An assessment of the risk posed by the petitioner was prepared for each of these meetings and his supervision level remained assessed as low throughout. They also pointed out that at a meeting of 28 January 2015 the Risk Management Team recommended that the petitioner should progress to less secure conditions and made no mention of the 2013 disciplinary proceedings. They pointed out that the Parole Board considered the petitioner’s case on 21 April 2015 and adjourned their consideration for a period of three months to obtain further information. Other developments had since impacted on the petitioner’s anticipated progression. In February 2015 the petitioner was detained and interviewed by police officers, following upon which he was cautioned and charged with 3 charges of rape, 23 charges of indecent assault and a charge of breach of the peace. These charges related to matters which predated the offences for which the petitioner was serving his prison sentence. As a consequence of this development the prison Risk Management Team reconsidered the petitioner’s position in April 2015 and reversed their decision to progress him to the open estate, indicating that a new management plan would be required.
Discussion
The preliminary plea of mora, taciturnity and acquiescence
[12] In advancing this preliminary plea the respondents argued that there had been an overall delay of a year and a half between the decision of the disciplinary hearing and the raising of the present petition. They argued that even looking to the period following upon the decision of the Scottish Public Services Ombudsman nothing was done for 6 months until...
To continue reading
Request your trial
-
Reclaiming Motion By Terri Mccue For Judicial Review Against A Decision Of Glasgow City Council
...no practical purpose, the court should refuse to offer a discretionary remedy: JCM, petitioner [2011] CSOH 174 at [18]; Penman, petitioner 2015 SLT 597, at [29]-[32]. Nature of the remedy [28] The scope of the matters which the SPSO could investigate was broad, and when a decision was the p......
-
McCue v Glasgow City Council
...891; 2015 SCLR 186 McKenzie v Scottish Ministers 2004 SLT 1236 O'Neill v Scottish Ministers [2020] CSOH 28; 2020 GWD 10-148 Penman, Petr [2015] CSOH 106; 2015 SLT 597 R v Lambeth London Borough Council, ex p Crookes (1997) 29 HLR 28; [1996] COD 398 R (on the application of Hardy) v Sandwell......
-
Petition By Neil Robertson For Judicial Review
...the petitioner already had available, at his own hand, the very remedy which he sought to obtain from the court. In Penman, Petitioner 2015 SLT 597, Lord Turnbull held that it would be wrong to reduce a disciplinary decision of prison authorities, where the punishment imposed had long since......