R Jason Garland v The Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lady Justice Black,Lord Justice Tomlinson |
| Judgment Date | 17 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1335 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 November 2011 |
| Docket Number | C172011/0971/QBACF,Case No: C172011/0971/QBACF |
[2011] EWCA Civ 1335
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL
FROM THE HIGH COURT OF JUSTICE THE QUEEN'S BENCH
DIVISION ADMINISTRATIVE COURT
Mr Justice Mitting CO/3927/2010
Royal Courts of Justice
Strand London, WC2A 2LL
Lord Justice Hughes
Lady Justice Black
and
Lord Justice Tomlinson
Case No: C172011/0971/QBACF
Hugh Southey QC (instructed by Bhatt Murphy Solicitors) for the Appellant
David Pievsky (instructed by Treasury Solicitors) for the Respondent
This appeal raises a question on the construction of Rule 53(1) of the Prison Rules 1999 (SI 728/1999), which reads:
"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."
Mr Garland is serving a sentence of imprisonment for public protection. On 13 March 2009, in the segregation unit at Whitemoor Prison, he was lawfully required to submit to a search. As is now established, he declined and resisted by, inter alia, moving, his… arms.. about and shouting. Two days later on 15 March he was given notice of a disciplinary charge of failing to obey a lawful order. The proceedings are essentially summary and take the form of a hearing before the Governor. He had solicitors advising him in anticipation of the hearing. After adjournments at his or their request on 16 March, 28 March and 5 April, to give the solicitors time to make a visit to see CCTV footage of the incident, the substantive hearing took place on 24 April. The charge was proved and 4 days later on 28 April the penalty imposed was 21 days' stoppage of 80% of his earnings and of canteen privileges. Neither extra days on his sentence nor loss of time was ordered.
Mr Garland lodged an appeal to the Director of High Security within National Offender Management Service ("NOMS"). He reviewed the adjudication on its merits but upheld it.
On 2 June Mr Garland's solicitors sought to make further challenge to the decision. There exists no further appeal, but they applied to the Prisons and Probation Ombudsman to declare that there had been maladministration. When that failed, as, after a 10 page report it did, they sought and were granted a review of that decision within the office of the Ombudsman. That also failed. They raised 3 grounds:
1. the charge was insufficiently particularised;
2. there was an abuse of process because the hearing took place before they had in fact visited to view the CCTV and advise Mr Garland upon it, although it was shown to Mr Garland and to the Governor at the hearing;
3. it appeared that the charge might not have been laid in time.
Of these only the third now survives.
A claim for judicial review followed on that single ground. The challenge was both to the original adjudication and to the Ombudsman's decision. Mitting J refused permission. The present appeal challenges that decision.
Since by the time of judicial review proceedings the only point at issue was whether the Governor's adjudication was invalid for want of compliance with Rule 53(1), the claim against the Ombudsman was always unnecessary and added nothing to the prisoner's case. If the original adjudication was void, as is contended, no decision by the Ombudsman was needed. If it was not void, there was nothing wrong with the Ombudsman's decision. For that reason I would in any event uphold Mitting J's decision in relation to the Ombudsman and accordingly dismiss the appeal as against him.
For the prisoner, Mr Southey QC submits:
(a) the meaning of the rule is that the charge must be laid as soon as possible, that is to say more quickly than within 48 hours if that is possible, but in any event within that period unless there are exceptional circumstances; moreover "within" means before the passing of the 48th hour.
(b) the Defendant Secretary of State cannot show either that the charge was laid as soon as possible or that it was laid within 48 hours;
(c) the legal consequence of this failure is that the adjudication is invalid.
It is convenient to start with the second stage of Mr Southey's submissions. The timing point was not taken at the hearing nor on the first appeal to the Director, so there was no decision about it. We have, however, seen most of the relevant documents, as did the Ombudsman. I proceed on the assumption, made on both sides before us, that in inquisitorial and summary proceedings such as these it was part of the Governor's function to satisfy himself that any jurisdictional requirements had been complied with.
In this context it appears to be accepted that a charge is laid when a pro forma (F1127) is completed setting it out. The prisoner is given one copy of this (F1127A) and another copy is retained. There remains extant a copy of the form. It recites that the offence was alleged to have been committed "at approximately 1650"l on 13 March. Either this document or another record completed contemporaneously records that the notice was given to the prisoner "at approximately 1650" on 15 March. The use of the word 'approximately' is, in each case, not the officer's; it is part of the pro—forma, no doubt because there will rarely be precise timing of disciplinary events, which may moreover last for a little time. Nevertheless, Mr Southey contends that because that wording has been adopted by the framers of the form, and since 1650 on 15 was exactly 48 hours after 1650 on 13th, there is uncertainty about whether the charge was laid either as soon as possible, or within 48 hours. Such uncertainty means, he submits, that the process is invalid and the adjudication must be struck down.
The meaning of the Rule
I do not agree that the Rule means that it is broken even if the charge is laid in less than 48 hours unless it is also shown that it was laid as soon as possible. Mr Southey invited our attention by analogy to CPR 54. 5(1) which provides, as is very well known, that judicial review proceedings must be begun
"promptly and in any event not later than 3 months after the grounds to make the claim first arose"
He asked us to read the Prison Rule as if it said the same. But it does not. The wording is significantly different, as the words "in any event", present in the CPR and not in the Prison Rule, plainly demonstrate. If Parliament had wished to say "and in any event" it could easily have done so. Indeed it did do so in the adjacent Prison Rule 54(1) which provides:
"54 Rights of prisoners charged
(1) Where a prisoner is charged with an offence against discipline, he shall be informed of the charge as soon as possible and, in any case, before the time when it is inquired into by the governor or, as the case may be, the adjudicator."
I do not agree with Mr Southey that this formulation could not have been adopted in Rule 53(1) because provision was being made for exceptional circumstances. On the contrary, the rule could readily have been, expressed, if Mr Southey's construction were the intended result, in terms such as:
"the charge shall be laid as soon as possible and in any event, save in exceptional circumstances, within 48 hours of the discovery of the offence."
Moreover, both parties before us were agreed that the present rule 53(1) came into existence after the decision of this court in R v Board of Visitors of Dartmoor Prison ex p Smith [1987] 1 QB 106. In that case the present rule's predecessor was under consideration....
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