R (Haase) v Independent Adjudicator
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Scott Baker,Sir Anthony Clarke MR |
| Judgment Date | 14 October 2008 |
| Neutral Citation | [2008] EWCA Civ 1089 |
| Docket Number | Case No: C1/2008/0274 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 October 2008 |
[2008] EWCA Civ 1089
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Stanley Burnton
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Anthony Clarke Mr
Lord Justice Scott Baker and
Lord Justice Richards
Case No: C1/2008/0274
Tim Owen QC and Hugh Southey (instructed by Langleys) for the Appellant
David Perry QC and Sam Grodzinski (instructed by The Treasury Solicitor) for the Respondent
The Defendant did not appear and was not represented
Hearing date: 28 July 2008
As a result of changes made to the Prison Rules 1999 following the decision of the European Court of Human Rights in Ezeh and Connors v United Kingdom (2002) 35 EHRR 28 (a chamber decision subsequently confirmed by the Grand Chamber: see (2004) 39 EHRR 1), a disciplinary charge against a serving prisoner which may result in the award of additional days must be referred to an independent adjudicator for determination. That is because such a charge falls within Article 6(1) ECHR and the requirement of an independent and impartial tribunal is not met if the charge is determined (as was formerly the position) by the prison governor. The present claimant seeks to take the effect of Article 6(1) one step further. He argues for a separate implied requirement that the prosecutor be independent, contending that the system of hearings by independent adjudicators in which the prosecution case is presented by a prison officer who may also be a witness is institutionally incompatible with Article 6(1). Stanley Burnton J, as he then was, rejected that argument at first instance (see [2008] 1 WLR 1401) but gave permission to appeal to this court.
The facts
I can take the facts from the judgment below:
“3. On 14 th October 2004, the Claimant was sentenced to 14 years' imprisonment. On 30 th September 2005, he arrived at HM Prison Full Sutton. On 25 th January 2006, Prison Officer Peck, acting under the Prison Governor's authority and in accordance with section 16A of the Prison Act 1952 and Prison Rule 50, required the Claimant to provide a sample of urine for the purpose of testing for the presence of a controlled drug. The Claimant refused, and was charged with disobeying a lawful order. The adjudication was opened by a governor on 26 th January 2006, and later referred for hearing before an Independent Adjudicator.
4. The Claimant instructed solicitors to represent him before the Independent Adjudicator. On 7 th April 2006, the Claimant appeared before the Independent Adjudicator, District Judge Nuttall, charged with the offence of disobeying a lawful order. He contested the charge. The prosecution of the Claimant was essentially conducted by the reporting Prison Officer, Officer Peck. The Claimant's solicitors sought to raise two defences. They contended that the Claimant was unfit to attend for a drugs test when the order was given. In addition, they contended that the order was unlawful because the Claimant was not informed that he would be charged if he did not obey the order.
5. Officer Peck and the Claimant gave evidence in the course of the adjudication. The Claimant's evidence was inconsistent with that of Officer Peck. In particular, the Claimant said (contrary to the evidence of Officer Peck) that he was not informed that he would be charged if he did not obey the order.
6. The Independent Adjudicator accepted the evidence of Officer Peck. He rejected the evidence of the Claimant that supported his defence. As a consequence he found the Claimant guilty. He was sentenced to serve 21 additional days.”
The claimant's case
Article 6(1) provides that “[i]n the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law”. Mr Owen QC, on behalf of the claimant, accepts that the “tribunal” in this case, namely the district judge acting as independent adjudicator, met the requirement of independence and impartiality. The case advanced, however, is that the requirement of independence and impartiality is not limited to the tribunal itself. The fundamental requirement in Article 6(1) is that of a fair hearing and in order to meet that requirement the prosecutor, too, must be independent and impartial.
The case as originally advanced in the claim form was understood by the respondent to be to the effect that prosecutors must be completely independent of the Prison Service, which would give rise to serious practical and cost issues that were addressed in the respondent's evidence. But it was made clear both before Stanley Burnton J and before us that the case is put on a more limited basis. No absolute dividing line is sought to be drawn, but it is submitted that the requirement of independence and impartiality cannot be met if, as happened here, the prison officer who brings the charge and gives disputed evidence in support of it also acts as prosecutor. It is submitted that there is an insufficient guarantee of independence and impartiality unless, for example, the prosecutor comes from a different prison and is subject to a code of conduct and is given appropriate training so as to ensure that all relevant material is disclosed and that the tribunal is not misled.
The judgment in R v Stow
At the centre of the claimant's case is the judgment of the Courts-Martial Appeal Court in R v Stow [2005] EWCA Crim 1157, which is relied on as having established the general principle that the prosecutor must be independent and impartial for the purposes of Article 6(1). It is submitted that thereafter the application of the principle in other contexts is a matter of fact and degree.
Stow was an appeal against conviction by a naval court-martial under the Naval Discipline Act 1957 as amended by the Armed Forces Act 199The appellant's argument was that the court-martial was in breach of Article 6 because the naval Prosecuting Authority (an officer by the name of Commander Crozier) lacked sufficient independence and impartiality, when judged objectively, to exclude the fear of prejudice or bias. The matters relied on were that the Prosecuting Authority at the material time was reported upon within the service, which meant that he could be put under pressure by his superiors; that he was not in his final posting, which could mean that he was amenable to pressure by way of inducements, enticements or threats; and that his rank, which was significantly more junior than that of his Army or Air Force equivalents, made him less immune from pressure or influence.
It is apparent from the court's judgment, given by Keene LJ, that the advocate for the Crown, whilst drawing attention to the fact that the express requirement of independence and impartiality in Article 6(1) relates to the tribunal, effectively conceded the need for a degree of independence and impartiality on the part of the prosecution as well, and that the focus of the Crown's submissions was on the existence of sufficient guarantees to meet that requirement in practice:
“18. Lieutenant Commander Towler emphasises that what is required by Article 6 is that the tribunal be independent and impartial. It is the tribunal which determines the innocence or guilt of the accused. The Prosecuting Authority is party to the proceedings before the tribunal but is not itself part of the tribunal which determines the innocence or guilt of the accused. Consequently the Prosecuting Authority is not obliged to attain independence to the same extent as the tribunal itself [emphasis added].The respondent submits that there are sufficient guarantees to ensure that the Prosecuting Authority is sufficiently independent and impartial to prosecute cases fairly and without interference from outside bodies. It is also submitted that these guarantees permit the Prosecuting Authority to participate in courts-martial in a way that provides the appellant with a hearing which, viewed as a whole, satisfied Article 6.”
In its reasoning the court referred to a number of decisions of the Strasbourg court: Findlay v United Kingdom (1997) 24 EHRR 221, Morris v United Kingdom (2002) 34 EHRR 52, Grieves v United Kingdom (2004) 39 EHRR 51 and Cooper v United Kingdom (2004) 39 EHRR 171. It noted at paras 28–30 that the focus of attention in the Strasbourg jurisprudence as regards the requirement of independence and impartiality had been on the tribunal itself, that is to say the decision-makers. The judgment continued:
“31. None of this is surprising. It is the independence and impartiality of those involved in the decision-making process which is fundamental to a fair trial. Having said that, however, this court notes that the Strasbourg court has in several of these cases considered the position of the prosecutor when examining the fairness of the court-martial. Thus in Cooper, it assessed the independence and impartiality of the bodies involved in the proceedings prior to the court-martial hearing, including the Royal Air Force Prosecuting Authority. Similarly, in Grieves, a naval court-martial case, it was prepared to look at the position of the naval Prosecuting Authority. Consequently, while the independence and impartiality of the tribunal members and the judge-advocate are of fundamental importance, it seems to us that the Strasbourg jurisprudence does require attention to be paid, when considering...
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