R v Secretary of State for the Home Department, ex parte Simms

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date22 May 2000
Date22 May 2000

Court and Reference:Administrative Court ; CO/1361/99

Judge

Owen J

R
and
Secretary of State for the Home Department ex p Simms

Appearances:P Weatherby (instructed by Graysons) for S; S Grodzinski (instructed by the Treasury Solicitor) for the Home Secretary.

Issue

Whether it was irrational not to accept the recommendation of the Ombudsman that an adjudication should be set aside; whether it was appropriate to take into account statements in addition to the record of the adjudication.

Facts

S refused an order to squat during a strip search, and was charged with refusing to obey a lawful order. An adjudication commenced, and the reporting officer gave evidence that he suspected that there was something secreted which justified the order. S indicated that he had not refused to obey but had asked to have the search conducted by a doctor or to see the authorisation for the search. The adjudicating governor then adjourned proceedings to investigate the procedure for searching to determine whether it had been followed. When the adjudication reconvened, the adjudicator concluded that the legal requirements for the search were met, and convicted S of the offence, sentencing him to 5 additional days' imprisonment.

S appealed his conviction via the internal appeal process but this was dismissed. He then applied to the Prison Ombudsman, a non-statutory official who is able to investigate complaints by prisoners. The Ombudsman investigated the matter and concluded that the conviction should be set aside because the adjudicator failed to satisfy himself that the searching officer had reasonable grounds to suspect that S had secreted an item in the anal or genital area. However, the Director General of the Prison Service refused to accept the recommendation, having conducted further investigations of those involved in the search and the adjudication.

In the course of this process, documentation from the adjudicating governor set out complaints about the attitude of the Ombudsman. He also indicated that he had ascertained that there was no requirement for a written order from the Governor that the prisoner be ordered to squat, or that a doctor be present, and that he had asked in the course of the adjudication the basis for the searching officer requiring S to squat and had been told that it was based on "security information" (which was eventually revealed to be suspicions relating to drugs) and S's behaviour - though it was accepted that this was not recorded in the record of the adjudication, as it should have been. The adjudicator indicated that he had discussed the matter with the searching officer, who would be able to confirm that the relevant questions had been asked and answered.

Various letters were exchanged between the Director General and the Ombudsman about the matter, at the end of which the Director General maintained his position, noting that whilst the record of adjudication was not complete, the adjudicator had satisfied himself that the searching officers had reasonable grounds for the order. S then challenged the Director General's decision by judicial review, arguing in particular that it was irrational not to accept the recommendation of the Ombudsman and wrong not to consider the matter on the basis of the record of adjudication.

Judgment

1. The Applicant is a prisoner serving a long sentence for a robbery. The length seems to me, in the circumstances, to be of little importance. That he was a prisoner is, of course, of vital importance. He seeks to challenge the decision of the Respondent, the Secretary of State, who was acting through the Director General of the Prison Service, in a decision which was notified to the Applicant on 7 January 1999. That decision refused to quash the results of a prior adjudication involving the Applicant. It refused, despite a recommendation by the Prison Ombudsman that the result should be quashed. The issue is clear and agreed, although the answer, of course, is not. The issue is whether the Respondent acted irrationally in rejecting the recommendation by the Ombudsman to quash the finding.

2. The essential agreed facts relating to the charge in question, with which only I am concerned (there was another charge heard at the same time but that is of no importance) are quite short. On 5 September 1997 the Applicant's cell was searched. During the search the Applicant was ordered to squat, which he refused to do. Officer Swarbrick says that he was conducting a special cell search of the Applicant:

During the strip search stage of the cell search I asked Simms to squat as we had reasonable suspicion to believe that Simms has secreted an unauthorised article around his rectum. Simms refused. I gave Simms a direct order to squat. He again refused. He was then escorted to the segregation unit where he was forced to squat under restraint. This incident was witnessed by Officer Russian who was assisting me during the strip search."

3. From the phraseology used it is not possible to decide firmly whether Officer Swarbrick said to Simms, 'I want you to squat as we have reasonable suspicion to believe that you have an unauthorised article around your rectum', or whether he merely said, 'I want you to squat' and did so because he had that knowledge himself but did not pass it on. Indeed it becomes apparent, as the case progresses, that there was some doubt certainly early on.

4. As a result of the refusal to squat, an adjudication was opened on 6 September. On the second page of the Record of Hearing and Adjudication, it is indicated how the hearing started. "Time commenced: 10.45…" and then a number of questions with boxes which can be ticked to indicate a response. Such questions as: "Have you received the Notice of Report…?" and "Do you understand the procedure?" "Do you understand the charge?" and "Have you made a written reply to the charge?" It looks as though, in due course, when asked how he pleaded he said "not guilty".

5-22. The Record of Hearing, is headed by the words "Record all salient points". It then sets out:

Evidence read by reporting officer." [There was some question as to what that evidence was. It may very well have been that which I read from Officer Swarbrick]

Then the Governor [who was Mr Holland] records his question: "Do you understand the evidence?" Answer: "I heard what he said."

Governor: "Do you want to ask any questions or dispute it?" Answer: "I didn't refuse it. I said I want a doctor or to see a Governor's certificate."

Governor: "I am adjourning whilst I seek clarification of the searching procedure. I adjourned this case so that I could examine the authorised procedure for searching. I am still unsure of the procedure and consequently I am going to adjourn to study the documentation."

Reopened 10.10 10/9/97 [to which date the hearing had been adjourned]

Evidence read.

Governor: "I have considered all the rules which relate to strip searching and I am satisfied about the legal requirements."

23. As a result of this, the adjudication was that 5 days should be added to the sentence which he was due to serve.

24. It is at this stage that perhaps one ought to consider what had to be proved. The law and the procedure again is not really in issue in any way. The Secretary of State has made rules for upholding discipline within prisons. This particular case was dealt with under the Prison Rules 1964. It is not necessary to read out all of the particular rules again. Again it is quite clear, and agreed, that an adjudication is of a quasi judicial tribunal.

25. The adjudicating Governor hears the evidence and he determines whether the charge is made out or not. The charge must be proved to the criminal standard. So far as this particular offence was concerned, that is refusing to obey a lawful order, it is clear what has to be proved: firstly, that a member of the staff gave an order, secondly, that the order was lawful, which means reasonable and within the authority of the staff member; thirdly, that the accused did not comply with the order; fourthly, that the accused intended not to comply, or was reckless as to whether he was complying with it or not. Various procedures are mandatory. One of the requirements is that the Governor must record the essence of the case. Paragraph 4.23 of the Discipline Manual provides that:

The adjudicator must ensure that a record of proceedings is taken down on form F256. Form F256 is a document that may be required for a formal review of the hearing. It need not be a verbatim transcript but it must record the essence of the case and indicate the way in which the adjudicator pursued the inquiry."

26. Pausing there, the Applicant points out that the document may be required for a formal review and therefore the argument is that the document should relate what was done to ensure that each item, which had to be proved, was, in fact, proved. It is also correct to say that the words: "the essence of the case" are far from being explicit. The situation, as has been indicated, was that the Applicant indicated two matters which concerned him. That, of course, did not mean that other matters did not have to be proved, but there is certainly an argument for saying that the essence of the case, in the circumstances, was to be satisfied as to the two matters which had been raised, in particular, by the Applicant, although, of course, the other matters had to be established as well.

27. By 4.26 of the rules:

The adjudicator must be satisfied that the subsequent note [that is if there are contemporaneous notes] is an accurate record of the hearing. It should then be signed by the adjudicator who is responsible for the adequacy and accuracy of the record. Should it prove necessary to amend the record of the hearing this may only be done for the purposes of accuracy. This should be done by striking through the original text and entering amendments...

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