R (Al-Hasan) v Secretary of State for the Home Department; R (Carroll) v Same
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM |
| Judgment Date | 22 February 2001 |
| Neutral Citation | [2001] EWHC 129 (Admin) |
| Docket Number | Case No: CO/248/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 February 2001 |
[2001] EWHC 129 (Admin)
IN THE SUPREME COURT OF JUDICATURE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Latham and
Mr Justice Potts
Case No: CO/248/2001
Richard Clayton & Phillippa Kaufmann (instructed by Howells of Sheffield for the Claimant)
Philip Sales & Cecilia Ivimy (instructed by The Treasury Solicitors for the Defendant)
The claimant is a serving prisoner, who but for an award of 21 additional days to his sentence would have been released on the 16th February 200The additional days were awarded as a result of a finding at an adjudication on the 21st December 2000 that as a result of a mandatory drugs test which showed the presence of opiates, he had committed the offence of administering a controlled drug to himself or failing to prevent the administration of a controlled drug to him by another person contrary to Rule 51(9) of the Prison Rules 1999. In these proceedings, the claimant seeks an order quashing the decision on the ground that he is the victim of breaches of Article 6(1) and (3) and Article 5(4) of the European Convention on Human Rights (ECHR), in that he was deprived of a hearing before an independent tribunal and denied legal representation, and further on the ground of procedural unfairness.
The factual background in more detail is as follows. The claimant, now aged 21, was at the relevant time serving a 2 year sentence. Whilst he was detained at HMP Doncaster, he was subjected to mandatory drug testing. He was required to provide a sample of urine on the 16th October, which proved positive, as I have already said, for opiates. He was therefore charged with an offence under Rule 51(9). HMP Doncaster is a private prison. Disciplinary proceedings in such prisons are conducted by a Controller or Deputy Controller appointed for the purpose by the defendant, instead of a Governor as at a prison run by the Prison Service. The offender, if the charge is found proved, has the right to ask for a review of the decision by an area manager.
On the 20th October 2000 the adjudication opened before the Deputy Controller, Mr Parry, at which the claimant pleaded not guilty. The hearing was adjourned for seven days for a confirmation test and for the claimant to seek legal advice. The confirmation test proved positive. On the 27th October 2000, the adjudication resumed but was further adjourned. On the 2nd November 2000, solicitors on behalf of the claimant wrote to the Controller, Mr Jones, seeking an adjournment so that an independent analysis could be conducted on the sample. The hearing was resumed on the 10th November 2000 but adjourned to the 24th November. On that day the independent test results were not yet known; accordingly the hearing was yet again adjourned. However the Mr Parry on that occasion completed what is known as the Tarrant Stamp. This is a proforma series of questions which a Controller or Governor has to ask him or herself in order to decide whether or not the prisoner requires legal advice, or any form of representation at the hearing of the adjudication. The questions are intended to cover the matters which this court said an adjudicating governor should have in mind in the case of R -v—Secretary of State for the Home Department ex parte Tarrant [1985] 1 QB 251. In effect, Mr Parry concluded that the claimant was capable of presenting his own case, that there were no unusual difficulties, that he was entitled to legal advice but not to legal representation.
There is a dispute between the claimant and Mr Parry as to whether or not the claimant himself requested legal representation. There is no doubt that his solicitors did so in a letter of the 7th December 2000, and again in a letter of the 14th December 2000. Although no direct response was received to those requests, it is clear by implication that Mr Parry intended to adhere to the conclusion he reached on the 24th November, because on the two subsequent hearings that is on the 14th December 2000 and the 21st December 2000, the claimant was unrepresented. It is not necessary to resolve the difference in recollection between the claimant and Mr Parry. If Article 6(3) of the European Convention on Human Rights applies, and required that he be represented, there has been a breach of that Article. If not the Claimant accepts that Mr Parry's conclusion was not unlawful or irrational.
The matter came back before the Deputy Controller on the 12th December, by then, solicitors acting for the claimant had informed the Controller that the independent test confirmed the presence of opiates. The claimant, however, applied for an adjournment because he believed that some cigarettes that he smoked had been spiked by another prisoner. He was not prepared to name him at the hearing. Nevertheless the matter was adjourned for two days. At the resumed hearing on the 14th December, the claimant asked Mr Gleeson, a fellow prisoner, to give evidence. Mr Gleeson said that he had given the claimant "a roll-up" in which there had been heroin. He was asked whether he himself had ever tested positive for drugs. He said that he had not, and was on the Frequency Test programme. The hearing was once again adjourned.
On the 15th December 2000, the Controller wrote to the claimant's solicitors in reply to the letters to which I have already referred. The solicitors were informed that the claimant had not asked for legal representation, but had been allowed to seek legal advice. The letter concluded:
"The hearing was adjourned for seven days to enable enquiries regarding the witnesses background and connections to be made."
When the matter came back before Mr Parry on the 21st December 2000, he said nothing about what enquiries he had made or their results. He simply said that he disbelieved Mr Gleeson, and found the charged proved. He then made the award of 21 additional days.
In the second statement which he made for the purpose of the hearing before us, Mr Parry said that the enquiries that he made were simply to determine whether Mr Gleeson had ever tested positive for drugs and whether or not he was on the Frequency Test Programme. His enquiries established that Mr Gleeson had been telling the truth in this respect. Mr Parry accordingly did not consider it necessary to raise the matter at the final hearing, as the results of the inquiries had been to the claimant's advantage.
To complete the story, the claimant asked for a review of the decision by the appropriate Prison Services Manager, who concluded on the 16th January 2001 that the adjudication was properly and fairly conducted and the punishment awarded should stand.
Mr Clayton, on behalf of the claimant, submits that the charge that the claimant faced under Rule 51(9) of the Prison Rules was a criminal charge within the meaning of Article 6 of the ECHR. As a result, the claimant was entitled to a fair hearing by an independent and impartial tribunal, and to defend himself through legal assistance. He submits that neither Mr Parry nor the Area Manager who reviewed Mr Parry's decision could properly be described as independent or impartial, and that the decision of Mr Parry not to allow him legal representation denied him the right to defend himself through legal assistance. His alternative argument under Article 6 is that the decision to award 21 additional days amounted to a determination of the claimant's civil rights which equally required an independent and impartial tribunal. As to Article 5(4) he submits that the claimant has been deprived of his liberty by an order for detention entitling him to take proceedings by which the lawfulness of the detention can be decided speedily by a court. He submits that the area manager when conducting the review does not constitute a court for the purposes of this article. Underpinning his submissions in respect of both Article 5 and 6, is his submission that the decision to award 21 additional days is a separate and distinct decision in relation to his detention from the original sentence, which he accepts could not be the subject of challenge under the ECHR. He further submits that the failure of Mr Parry to disclose to the claimant the results of the enquiries that he made after the hearing of the 14th December 2000 amounts to procedural unfairness which would in itself justify judicial review by this court.
Mr Sales, on behalf of the defendant, submits that the charge which the claimant faced was a disciplinary, not a criminal charge, and did not involve any determination of the claimant's civil rights. The claimant was, at all material times, subject to a sentence of 2 years imprisonment. That remained the legal justification for his detention and cannot be a breach of any provision of the ECHR. He submits that if he is right in this submission, this disposes of the argument under Article 5(4) and Article 6. As to procedural unfairness, he submits that there was no obligation on Mr Parry to inform the claimant of the result of his enquiries, as they had merely confirmed Mr Gleeson's evidence in relation to the matters about which he had enquired, so there was no further benefit which the claimant could have obtained had he been made aware of the results of the enquiries.
It is common ground that the Human Rights Act 1998 requires both the defendant and this court to act in uniformity with the ECHR. The relevant provisions are as follows:
"Article 5
Right to Liberty and Security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his...
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