R (Haase) v Independent Adjudicator
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 2007 |
| Neutral Citation | [2007] EWHC 3079 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2007 |
| Docket Number | Case No: CO/5612/2006 |
[2007] EWHC 3079 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Stanley Burnton
Case No: CO/5612/2006
Hugh Southey (instructed by Langleys) for the Claimant
David Perry QC and Sam Grodzinski (instructed by the Treasury Solicitor) for the Defendants
Hearing date: 7 December 2007
Stanley Burnton J :
Introduction
The Claimant is a serving prisoner. In these proceedings, which I heard together with the claim in R (Lake) v The Governor, HMP Highdown, in which judgment is to be handed down immediately after this judgment, he challenges the determination made by an Independent Adjudicator exercising jurisdiction in disciplinary proceedings in prison. He contends that the proceedings before the Independent Adjudicator were unfair, and in breach of his Convention right under Article 6, because the prosecution lacked sufficient independence. His challenge is systemic and raises an issue of general importance both in relation to prison disciplinary proceedings and to other criminal proceedings. Essentially, the Claimant contends that the system of hearings by Independent Adjudicators, in which the prosecution case is presented by a prison officer who may be a witness, is institutionally incompatible with Article 6.
The facts
Since the Claimant's challenge is systemic, the particular facts of his case are almost irrelevant. However, they serve as a useful example of the kind of cases determined by Independent Adjudicators, as indeed do the facts of Mr Lake's case.
On 14th October 2004, the Claimant was sentenced to 14 years' imprisonment. On 30th September 2005, he arrived at H.M. Prison Full Sutton. On 25th 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 26th January 2006, and later referred for hearing before an Independent Adjudicator.
The Claimant instructed solicitors to represent him before the Independent Adjudicator. On 7th 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.
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.
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 ground of challenge
It is common ground that Article 6 applied to the hearing before the Independent Adjudicator. It is also common ground that, having regard to his power to make an order resulting in the additional detention of the Claimant, for the purposes of the Convention the proceedings are to be regarded as criminal: c.f. Campbell and Fell v UK (1985) 7 EHRR 165.
The challenge to the determination of the Independent Adjudicator is based on the decision of the Courts-Martial Appeal Court in R v Stow [2005] EWCA Crim 1157, in which the appellant's conviction by a court-martial was quashed on the ground that his trial had been unfair and did not comply with the requirements of Article 6 because the prosecution had lacked the necessary independence.
At the beginning of the hearing of this application, I was concerned to know precisely what the Claimant contended to be the requirements of independence on the part of the prosecutor, and I asked Mr Southey to particularise this part of his case. Paragraph 4.3 of the Claimant's grounds in support of his claim for judicial review, which had been drafted by Mr Southey, is as follows:
"… the claimant submits that there was a violation of article 6 in the course of the disciplinary proceedings against him. That is because there was no independent prosecutor (and Code for Crown Prosecutors). Instead the prosecution was conducted by a Prison Officer who was employed by the Prison Service. The Prison Service was essentially the complainant in the prosecution. Indeed the prosecutor was essentially the primary prosecution witness despite the fact that it was being suggested that that witness was lying. However, the Prison Discipline Manual makes it clear that an independent prosecutor could have been prosecuted."
The third sentence was understood by the Defendants, understandably in my view, as contending that it was necessary for a prosecutor to be someone independent of the Prison Service. As a result, their evidence went largely to the practical difficulties for the Prison Service and the costs of accepting this contention. However, Mr Southey's oral submissions were less radical. He said that he had not intended to suggest that it is necessary for the prosecutor to be independent of the Prison Service. He submitted that Article 6 and fairness require that the case against a prisoner should be presented by someone, who may be another prison officer, other than a witness to the alleged offence; and that safeguards are required to ensure the fairness of the proceedings. The object of these safeguards would be to ensure that only proper considerations are taken into account in the conduct of the prosecution; and that proper disclosure is made. There should be a code for prison prosecutors, equivalent to the Code for Crown Prosecutors applicable to prosecutions before the criminal courts; prison prosecutors should receive appropriate training, and there should be a system in place to ensure that the performance of prison officers in adjudications is not taken into account in decisions on their promotion. A trained corps of prison prosecution officers could, in Mr Southey's submission, satisfy the requirements of Article 6 and fairness.
For the Defendants, Mr Perry submitted that none of these measures was required to ensure that proceedings before Independent Adjudicators are fair and comply with Article 6. He made it clear that he considers Stow to have been wrongly decided, for reasons that appear below. He recognised, however, that at the level of the High Court it is either binding or must be considered to be so. He sought to distinguish it on the basis of the difference between proceedings in adjudications and criminal and court-martial proceedings. In addition, he relied on the fact that presenting prison officers are bound to act honestly and fairly, a duty that is expressed in and reinforced by the Prison Discipline Manual.
Independent Adjudications in Prisons
The determination of disciplinary charges against detained prisoners by Independent Adjudicators was introduced following the decision of the European Court of Human Rights in Ezeh and Connors v. United Kingdom, (Application nos. 39665/98 and 40086/98) (2002) 35 EHRR 28, in which it was held that the determination of prison disciplinary allegations by a governor, resulting in an award of additional days, was within the scope of Article 6, and that the governor was not an independent and impartial tribunal as required by that Article. The decision of the Chamber was upheld by the Grand Chamber on 9 th October 2003: (2004) 39 EHRR 1.
Following the delivery of the Chamber's judgment on 25 July 2002, the Prison Rules 1999, made by the Home Secretary under the power conferred by section 47 of the Prison Act 1952, were amended by the Prison (Amendment) Rules 2002 (SI No. 2116/2002) (the 'Amendment Rules'), which came into force on 15 August 2002. The effect of the amendment was described in the explanatory note to the Amendment Rules:
"These Rules amend the Prison Rules 1999 by providing for an adjudicator, approved by the Secretary of State to inquire into charges of serious offences against discipline set out in those Rules. Where the governor determines that a charge is sufficiently serious, he must refer it to the adjudicator, who is to inquire into the offence no later than 28 days after it has been referred. At an inquiry into a charge that has been referred to the adjudicator, the prisoner who has been charged is given the opportunity to be legally represented. If the adjudicator finds a prisoner guilty, he has the power to impose upon him any punishment which the governor can impose, and can also impose an award of up to 42 additional days to be served in prison. These Rules also remove from the governor the power to impose any additional days as a punishment on a prisoner found guilty by him, and add to his powers in certain other respects."
Independent Adjudicators are District Judges who visit prisons on a regular...
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