R (Bashir) v Independant Adjudicator and Others
| Jurisdiction | England & Wales |
| Judge | HH Judge Pelling |
| Judgment Date | 25 May 2011 |
| Neutral Citation | [2011] EWHC 1108 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9371/2010,Case No: CO/9371/2010 |
| Date | 25 May 2011 |
[2011] EWHC 1108 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
ADMINISTRATIVE COURT
Civil Justice Centre
Manchester
M60 9DJ
His Honour Judge Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/9371/2010
The Queen on the application of
and
Mr Vijay Jagadesham (instructed by Burton Copeland LLP) for the Claimant
Mr John Joliffe (instructed by The Treasury Solicitor) for the Defendants
Hearing dates: 21 st April 2011
HH Judge Pelling QC:
Introduction
This is the substantive hearing of a claim for judicial review brought by the claimant, who was at all material times a prisoner at HM Prison Rye Hill where he was serving a sentence of fifteen years imprisonment. The Defendant has not played an active part in these proceedings, which have been defended by the Second Interested Party. References hereafter to "the Defendant" are references to the Second Interested Party. The Defendant is referred to hereafter as "the Adjudicator".
On 20 th January 2010, the claimant was required to provide a urine sample for testing for the use of controlled drugs in accordance with the policy in relation to mandatory drug testing contained in Prison Service Order 3601. The basis on which the test was authorised was said to be a reasonable suspicion that the Claimant had taken controlled substances. The Claimant was first directed to provide a sample at 10.05. He attempted to but failed to provide a sample at 12.00, 13.09 and 14.00. He was offered but refused water at 10.05, 11.05, 12.05 and 13.05. The claimant is a devout Muslim who was fasting prior to a Court of Appeal appearance as part of his religious preparation for that hearing. As a result, the Claimant was unable to provide a sufficiently large urine sample (the sample he provided was 10 ml whereas the minimum required was 35 ml). He was told that if he did not provide a sufficiently large sample, he would commit an offence under the Prison Rules. The claimant declined the drinks that he was offered on the basis that he was fasting. In consequence he could, and did, not produce the required sample. He was charged with failing to obey a lawful order contrary to Rule 51 (22) of the Prison Rules 1999. This led to a hearing on 17 March 2010 before the Adjudicator at which the Claimant was convicted and a penalty of 14 days additional detention was imposed. The conviction is challenged on the basis that
i) The claimant's conviction was wrong in law on the evidence available; and/or
ii) The finding of guilt was perverse; and/or
iii) The conduct of the prison officials in requiring the Claimant to provide a sample when he was fasting by breaking his fast in order to provide the required sample was contrary to Article 9 of the European Convention On Human Rights (ECHR).
Legal framework
Article 9 of the ECHR provides that:
"(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in interest of public safety, for the protection of public order, health or morals over the protection of the rights and freedoms of others."
A prisoner commits an offence against prison discipline if he commits one of the offences listed under Rule 51 of the Prison Rules 1999. Rule 51(22) provides that:
"51. A prisoner is guilty of an offence against discipline if he
…
(22) disobeys any lawful order."
The rules applicable to adjudication are contained in the Prison Discipline Manual. By paragraph 6.113 it is provided that:
" A lawful order is one which is reasonable and which a member of staff has authority to give in the execution of his/her duties.… In relation to Mandatory Drug Test procedures, the governor/director has a duty to demonstrate in advance that an order to provide a sample is lawful. The MDT process is a single and continuous one in which separate orders cannot be given."
By paragraph 6.114 it is provided that:
"Before an adjudicator can be satisfied of guilt beyond reasonable doubt the following must be established
…
The order was lawful
…"
In relation to the conduct of adjudication hearings, Chapter 7 provides at paragraph 7.1:
" The standard of proof
Before finding the charge proved, an adjudicator must be satisfied beyond reasonable doubt that the prisoner has committed the offence with which s/he is charged. Otherwise the charge must be dismissed, regardless of how the prisoner has pleaded".
and by paragraph 7.4, under the subheading "giving reasons for decisions", it is provided that:
"Since a prisoner has the right to challenge an adjudication (PS), internally, through the Prisons and Probation Ombudsman and through the courts, s/he must be given reasons for the decision in order to exercise that right effectively. Reasons must be included in the F256."
Mandatory drug testing (MDT") is the subject of Prison Service Order PSO 3601 entitled "Mandatory Drug Testing" ("MDT PSO"). Those who are to be tested are required to provide a urine sample. The MDT PSO requires that a prisoner be detained until a sample is provided and that a prisoner should be given up to 4 hours to provide the required sample. Officers conducting the procedure are given a discretion to permit a prisoner up to a further one hour to provide the sample if it has not been provided by the end of the 4 hour period. There are very detailed instructions as to how the testing process is to be conducted that it is not necessary to consider further in this judgment. In relation to Ramadan, and other religious festivals that involve "total fasting", special provisions are set out at paragraph 4.70 to 4.75 of the PSO. These provisions recognise that those who are fasting are unlikely to be able to provide a urine sample other than at the start of the day. Insofar as is material, these paragraphs provide:
"4.71 All prisoners provide details of their religion at initial registration and those Muslims observing Ramadan will inform the prison in advance of the start of the festival so that their special dietary needs can be met during the period. This will help staff conducting tests to identify those who are fasting.
…
4.74 Muslims are not forbidden to give a urine sample during Ramadan. However, there may be practical difficulties in obtaining a sample from a prisoner who is fasting. Guidance on testing Muslim prisoners during Ramadan (where it is not possible to test outside of Ramadan) is as follows:
• They should not be excluded from mandatory drug testing;
• If at all possible, tests on Muslim prisoners who are fasting during Ramadan should be scheduled first in the day as they will drink more before dawn. As the day progresses, it will be more difficult for a fasting prisoner to provide a sample;
• A Muslim prisoner who is unable to provide a sample should not be offered water, and unwillingness to drink water during confinement should not be viewed as uncooperative;
• If, as suggested above, a Muslim prisoner is scheduled to be tested first thing in the morning, but after four hours the prison appears genuinely unable to provide a sample, confinement for an extra hour is pointless. The prisoner should be warned he/she will be required to provide a sample at a future date and then released from confinement. Confinement later in the day's unlikely to serve any useful purpose, as the prisoner will not be provide a sample of fasting; and
• Prisoners must not be manoeuvred into a position whereby it appears they are refusing to obey lawful order. However, any prisoner who is blatantly uncooperative despite warnings–except not drinking water–maybe charged with disobeying a lawful order.
4.75 These rules ought also to be considered in relation to other religious festivals, which involve total fasting."
The Evidence before The Independent Adjudicator
It was accepted at the hearing before the Adjudicator that the Claimant attended the prison's mandatory drug testing suite as required; that he tried to provide a sample on three occasions; that he was only able to provide a sample of 10 ml (the required sample is 35 ml – see paragraph 6.113 of the MDT PSO) notwithstanding that he was given the maximum period of time (four hours) to provide a full sample. The Claimant explained to the testing officer that he was fasting in light of the approaching Court of Appeal hearing. The prison officer confirmed in evidence that the Claimant made him aware of this. The day when the Claimant was called for testing was the third day of the three-day fast. The Court of Appeal hearing was to take place on the 21 st January 2010.
The evidence before the Adjudicator was that the Claimant was a devout Muslim; that there are many individual voluntary fasts in the Muslim faith; that a person can engage in an individual voluntary fast for three days for particular personal reasons and the evidence of the prison Imam who gave evidence before the Adjudicator was that " on a personal level if you start [to] fast you should go straight with it to the end". The Claimant's evidence before the Adjudicator (which was not challenged) was that he had been advised by another Imam to fast for three days prior to his approaching Court of Appeal hearing. His evidence was also that he had been unable to provide a sample of the requisite quantity despite his best efforts. Again this was not challenged. His subjective belief that he could not...
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R Tony Eguakhide v Governor of HMP Gartree
...sample (which is not of itself a breach of the fast). If the [Claimant] had attended but then been unable to produce a sufficient sample, Bashir would have applied and he could not have been penalised for his inability to do so. But the requirement to attend and make the attempt was lawful.......