R (Garland) v Secretary of State for Justice and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 08 February 2011 |
| Neutral Citation | [2011] EWHC 789 (Admin) |
| Docket Number | CO/3927/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 February 2011 |
[2011] EWHC 789 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR JUSTICE MITTING
CO/3927/2010
Mr Hugh Southey QC (instructed by Messrs Bhatt Murphy) appeared on behalf of the Claimant
Mr D Pievsky (instructed by the Treasury Solicitor) appeared on behalf of the 2nd Defendant
: On 13th March 2009, the claimant, a serving prisoner at HMP Whitemoor, was, it was alleged, in breach of prison rules by failing to co-operate with a search. Approximately 48 hours later, the charge was brought against him. It was ultimately determined against him by an adjudicator who directed that he should be stopped 80 per cent of his earnings for 21 days and denied canteen privileges for the same time. No other sanction was imposed.
He complained to the Prison and Probation Ombudsman, who conducted a detailed review of the manner in which the charge had been dealt with. The main thrust of his complaint was that the finding against him should not have been made on the merits. The Ombudsman rejected that complaint and it is not the subject of these proceedings.
In the course of the proceedings, those advising the claimant alighted upon the fact that there might have been an infringement of rule 53 of the Prison Rules in relation to the giving of notice of charge. Rule 53 provides:
"(1) Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the discovery of the offence."
That is an amended rule. The earlier version of the rule simply contained a requirement that the charge should be laid as soon as possible. That gave rise to litigation in R v Board of Visitors of Dartmoor Prison ex parte Smith [1987] 1 QB 106, in which the court unanimously held that the requirement that the charge be laid as soon as possible was a mandatory requirement which had not been satisfied on the facts. Given that the facts were that the charge was not laid until 2nd May 1984 in respect of an incident which had occurred on 16th February 1984, that conclusion was unsurprising. It was unnecessary for the court to do more than simply express its view on the facts. The requirement had not been fulfilled. The court would, I suspect, have been surprised to have been confronted with circumstances in which a charge had been laid approximately 48 hours after the alleged offence for it to be contended that the charge had not been laid as soon as possible.
The Ombudsman, in his decision letter considering this challenge, observed as follows:
"The F1127A (notice of report) was issued to Mr Garland. This original document was not available for the investigator to see. However, the Investigator has seen the F1127B, a copy of the F1127A which is retained on file. This shows that the notice of report was issued at approximately 4.50pm on 15 March. This evidence is corroborated on the F1127A issue sheet.
The Investigator saw that the notice of report was issued approximately 48 hours after...
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R Jason Garland v The Secretary of State for Justice and Another
...soon as possible and within a maximum of 48 hours, failing which the charge should be dismissed. The High Court refused permission: [2012] 2 Prison LR 51. JG appealed. Judgment: Hughes LJ: 1. This appeal raises a question on the construction of r53(1) of the Prison Rules 1999 (SI 728/1999),......