Secretary of State for Justice v Peter Kane
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lady Justice Thirlwall,Lord Justice Peter Jackson |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWCA Civ 842 |
| Year | 2023 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001247 |
and
[2023] EWCA Civ 842
Lord Justice Bean
Lady Justice Thirlwall
and
Lord Justice Peter Jackson
Case No: CA-2022-001247
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
HUGH MERCER QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Myles Grandison (instructed by GLD) for the Appellant
Michael Bimmler (instructed by Coninghams) for the Respondent
Hearing date: 4 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 14 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an appeal by the Secretary of State for Justice in a claim for judicial review by a prisoner, Peter Kane, who challenged the decision of an Independent Adjudicator (“IA”), District Judge (Magistrates' Court) Deborah Wright, following a hearing on 31 July 2020. The IA accepted pleas to two charges of breaches of Prison Rules by Mr Kane (“the Respondent”) and found that two further breaches were proven and imposed sanctions of a cumulative total of 18 additional days to be served in prison. Mr Kane was then a category A prisoner at HMP Whitemoor, serving a sentence of 14 years imprisonment for supplying heroin.
The events which led to the hearing occurred on 7 June 2020 at about 11am. Governor Wood spoke to the Respondent regarding a letter that he proposed to send. She explained that she was not prepared to permit him to send the letter because it contained material which she considered to be abusive. The Respondent became upset at this decision and verbally abused the Governor using florid and wholly unacceptable language. He exited the room where this conversation took place and threw himself over a railing onto netting which was in place to prevent prisoners harming themselves. He also picked up a wooden item described as an “applications box” and threw it at a window causing it to smash. He then threw a piece of wood in the direction of Governor Wood's head. She ducked and the piece of wood did not hit her. Unsurprisingly, the Respondent was the subject of prison discipline charges for these events.
The Respondent appeared before Governor Mallon on 8 June 2020 charged with 4 matters namely:
a. Assaulting Governor Wood;
b. Endangering health and personal safety of others;
c. Damaging prison property; and
d. Threatening, abusive or insulting words or behaviour.
Governor Mallon referred these matters to the police because of his concern about the seriousness of the matters. However, it appears that a prompt decision was made by the police not to investigate, thereby leaving the matters to be dealt with under the prison discipline system.
The referral
The matter having been returned to the prison within two days, it came before a different prison governor, Mr Butler, on 10 June 2020. Governor Butler then decided to refer the four charges to an IA, giving the following reason for the referral to the Independent Adjudicator:
“due to the nature and the police returning the charge I will send to the IA”
As all four charges arose out of the same incident, they were all referred together.
Following the referral, the charges were listed before Deputy District Judge Day sitting as an Independent Adjudicator on 26 June 2020. IA Day decided to adjourn the matter to the next sitting on 17 July 2020, so that legal advice and representation for the Respondent could be obtained and the reporting officer and CCTV evidence made available. IA Day filled in four separate proformas (one for each of the four charges) with details of the outcome of the hearing. The proforma included ‘Question F’, which read “Is IA satisfied that the Governor gave proper consideration to whether the charge is so serious that added days should be awarded if the prisoner is guilty (i.e. the offence poses a very serious risk to order and control of the establishment, or the safety of those within it)?”. It is also indicated on the proforma, next to Question F, that a negative answer to that question must lead to a decision to dismiss the charges. IA Day on each proforma ticked ‘Yes’ in response.
The adjourned hearing on 17 July 2020 took place before IA Wright. She decided to further adjourn the hearing to 31 July 2020, due to the absence of the Reporting Officer and of the Respondent's solicitor. She answered “Yes” to Question F on all four proforma hearing records.
On 31 July 2020, the substantive adjudication hearing took place, again in front of IA Wright. She noted in her narrative record of the hearing that a preliminary objection had been raised by the Respondent's solicitor Mr Coningham at the start of the hearing. The objection was that there was a lack of evidence for any finding that the referring governor had properly considered whether the charges met the applicable seriousness threshold before referring them, and that the IA accordingly lacked jurisdiction. The IA was invited to dismiss the charges. This issue equated to the question posed as Question F on the proforma hearing records. IA Wright made a preliminary ruling on this objection which she recorded as follows:
“One preliminary point. Procedure followed when matter referred to me. Does the charge meet the seriousness criteria. Noted in the record due to the nature of the police returning it to the IA. Required by the PSI. Says I do not have jurisdiction.
I am satisfied that the matter is serious enough for referral. First there are certain types of matter which are considered serious enough for referral in the light of Covid 19 hearings and the new regulations. Second although the governor does not explicitly say so, he felt that the matter was serious enough for referral to the police. I have jurisdiction because the Governor was perfectly entitled to refer to me and in any event I am not bound by the PSI.”
Following this preliminary ruling, the Respondent pleaded guilty to the charges of criminal damage and using threatening, abusive or insulting words or behaviour. He pleaded not guilty to the charges of assault and endangering the health or personal safety of others. IA Wright heard evidence on the two contested charges and found them proved. At the conclusion of the 31 July 2020 hearing, she sentenced the Respondent to punishments of 18 additional days of detention each on the assault and endangering health and safety charges, as well as 12 additional days of detention each on the damage and using abusive words charges, all sentences to run concurrently with each other.
The Respondent applied, pursuant to Rule 55B of the Prison Rules, for a review of the sentence imposed by the Senior District Judge (Chief Magistrate) on 13 August 2020. DJ Goozée, acting as nominated district judge on behalf of the Senior District Judge, upheld the sentence on 17 August 2020.
The claim for judicial review
Mr Kane issued a claim for judicial review on four grounds. Ground 1, the only relevant one for present purposes, was that:
“The Independent Adjudicator erred in declining to dismiss the charges on a preliminary point raised on behalf of the Claimant, namely that she could not be satisfied that the adjudicating governor had given proper consideration to the seriousness of the offences before referring them to her. In arriving at her decision not to dismiss the charges, the Independent Adjudicator took into account and relied on irrelevant considerations which she recorded as the reasons for her decision and/or acted irrationally in finding that such proper consideration had been given, when there was no evidence for such a finding.”
The application for permission was first considered on the papers by John Howell QC, sitting as a Deputy Judge of the High Court. In a decision of 9 February 2021 he refused permission to apply for judicial review. His reasoning on Ground 1 was:
“Ground 1. The Governor decided to refer the matter to an Independent Adjudicator (“the IA”) on June 10 2020 “due to its nature”, given that the police had returned “the charge”. The nature of the charges were unarguably serious (the offences alleged posed a very serious risk to order and control of the establishment, or the safety of those within it) and were such that, if proved, added days were likely to be awarded. The complaint in relation to the Governor's decision (which is the relevant decision for the purpose of Rule 53A) is thus that he did not state that in his view it was so serious that additional days should be awarded due to the nature of the charge if found guilty. In context that was unarguably what the Governor intended to indicate by stating that the reference was made due to the nature of the charge. Whether or not the IA's reasons are flawed, any such error was immaterial in those circumstances.”
The application was renewed to an oral hearing which came before David Lock QC (also sitting as a Deputy Judge of the High Court) on 18 March 2021. In a decision handed down on 23 March 2021 he too refused permission for judicial review. He said, at [13]:
“The central flaw in ground 1 is that there is no requirement under the Prison Rules 1999 for an Independent Adjudicator to investigate the factual basis upon which a decision was made by a Prison Governor that either the “so serious” test was met on the facts of an individual case or that it was necessary or expedient for some other reason for the charge to be inquired into by the adjudicator. If the Independent Adjudicator was under no legal duty to inquire into the reasons that the charges were transferred to her, in my judgment she cannot be said to have acted unlawfully in failing to do so. An Independent...
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