The Queen (on the application of Peter Kane) v The Independent Adjudicator
| Jurisdiction | England & Wales |
| Judge | Hugh Mercer |
| Judgment Date | 07 June 2022 |
| Neutral Citation | [2022] EWHC 1376 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4023/2020 |
and
[2022] EWHC 1376 (Admin)
Hugh Mercer QC sitting as a Deputy Judge of the High Court
Case No: CO/4023/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Bimmler (instructed by Coninghams Solicitors) for the Claimant
Myles Grandison (instructed by Government Legal Department) for the Interested Party
Hearing date: 11 May 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to the National Archives. The date and time for hand-down is deemed to be 10:00am on Tuesday 7 th June 2022.
Hugh Mercer QC:
This is an application for judicial review by the Claimant, a Category A prisoner at HMP Whitemoor, to challenge the decision of the Independent Adjudicator (DJ Wright). At a hearing on 31 July 2020, DJ Wright rejected an objection of lack of jurisdiction which the Claimant's solicitor had founded on alleged lack of evidence that the governor had applied his or her mind to the relevant legal test in the Prison Rules for referral. The Claimant is currently serving a sentence of 14 years for supply of heroin. His sentence was extended by a total of 18 additional days by DJ Wright.
Factual Background
A witness statement before me from DJ Wright gives the gist of the events of 7 June 2020 which gave rise to the referral to the adjudicator. The witness statement was made on the basis of evidence given by Governor Wood as supplemented by some CCTV footage viewed by DJ Wright. The Claimant asked me to take care in considering such evidence as the decision and reasoning of a judicial decision maker should stand or fall on the decision itself.
The Claimant had written a letter to a person outside prison and the Governor had asked to discuss the contents of the letter with the Claimant as the prison did not consider the content of the letter to be suitable to be sent. The Claimant was evidently very frustrated by the conversation. He left the Governor's office abruptly and then jumped over the balustrade but landed on netting strung between the floors of the prison. He picked up a wooden box and threw it at a window. He picked up a piece of wood from the debris of the box and threw it in the direction of the Governor as well as shouting offensive language. The Claimant accepted that wood was thrown in the direction of the governor but said that he did not mean to hit her. The wood missed the Governor because she ducked.
As a result, the Claimant attended the first adjudication hearing on 8 June 2020 at which the Governor decided to refer the matter to the police. The police decided to take no action. A different governor, who has been referred to as the second governor, on 10 June 2020 decided to refer four charges to an independent adjudicator giving the following reason:
“due to the nature and the police returning the charge I will send to the independent adjudicator”
The charges consisted of four offences under the Prison Rules all arising in respect of the same incident and therefore referred together to an Independent Adjudicator: assault; criminal damage; using threatening, or insulting behaviour; endangering the health or personal safety of others.
When the matter came before IA Day, question F of the proforma is ticked ‘yes’. This question reads as follows:
“Is the 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)?”
Upon a final adjudication on 31st July 2020 by video link, the narrative record of the hearing records a submission by the claimant's solicitor of lack of jurisdiction due to a failure of the governor to address the issue whether the charge met the seriousness criteria.
The Legal Framework
Rule 53A of the Prison Rules provides as follows under the heading “Determination of the mode of inquiry”:
“(1) before inquiring into a charge the governor shall determine (i) whether the charge is so serious that additional days should be awarded for the offence if the prisoner is found guilty, or (ii) whether it is necessary or expedient for some other reason for the charge to be inquired into by the adjudicator
(2) where the governor determines:
(a) that it is so serious or that it is necessary or expedient for some other reason for the charge to be inquired into by the adjudicator, he shall:
(i) refer the charge to the adjudicator forthwith for him to inquire into it;
(ii) refer any other charge arising out of the same incident to the adjudicator forthwith for him to inquire into it; and
(iii) inform the prisoner who has been charged that he has done so;
(b) that it is not so serious or that it is not necessary or expedient for some other reason for the charge to be inquired into by the adjudicator, he shall proceed to inquire into the charge.”
Prison Service Instruction 05/2018 (“PSI”), is entitled Prisoner Discipline Procedures (Adjudications). Annex A to the PSI gives guidance on referral to an independent adjudicator of which the following is most relevant:
“2.31 the adjudicator should state their reasons for referral to the IA on form IA1 under ‘additional comments’, as quoting ‘seriousness of the offence’ alone may not be sufficient in all cases. Care should be taken not to compromise their independence; Staff must not discuss individual cases with the IA.
2.32 The test for seriousness (see paragraph 2.28 in this Annex) is whether the offence poses a very serious risk to order and control of the establishment, or the safety of those within it. Governors/Directors should also bear in mind that IAs are an expensive resource, as is the legal aid that prisoners may claim for representation at IA hearings. Each case will be assessed on its merits, but the following offers some guidance:
• Serious assaults should always be referred, e.g. those where the injuries include broken bones, broken skin, or serious bruising …”
The Procedural Background
In terms of the procedural background, John Howell QC sitting as a Deputy Judge of the High Court refused permission on paper and David Lock QC, also a Deputy Judge, refused permission following an oral renewal hearing. In the Court of Appeal before Lord Justice Popplewell, the application for permission was renewed only in respect of the first ground. The Lord Justice commented as follows:
“The ground advanced is arguable and raises an important point of practice. It is also arguable that the Judge's alternative basis for rejecting the application at paragraph 16 of his judgement fails to address the relevant question of whether the prison governor made the determination required by rule 53A.”
David Lock QC had decided upon refusing permission that:
i) Although there was no material before the adjudicator to explain why the prison governor had made a decision that the ‘so serious’ test was satisfied, because the adjudicator had no obligation to investigate the factual basis upon which the prison governor found that the ‘so serious’ test was met on the facts, the adjudicator could not have acted unlawfully in failing so to inquire;
ii) The conduct in this case was plainly sufficient to satisfy the ‘so serious’ test and in any event the claimant had pleaded guilty to two of four charges which showed that it was entirely proper to have referred the case to an adjudicator.
The Role of Independent Adjudicators
The Claimant's first ground focuses on the reasons given by the adjudicator for considering there to have been a sufficient ‘determination’ by the prison governor for there to have been a lawful referral. This is the logical starting point, as it is the governor's determination which refers the charge to the adjudicator under rule 53A. The adjudicator is given a specific task of inquiry by Rule 53A but that task has to be lawfully conferred on the adjudicator without which he has no power to act. The adjudicator appears in my judgment to be in the same or at least in an analogous position to that of any statutory tribunal – that it only has those powers conferred by the relevant statutory framework. Both counsel before me agreed that an adjudicator has the power to inquire into the legality of the reference to the adjudicator as this goes to the adjudicator's jurisdiction. In support of that position, I was referred in particular to the words of paragraph 2.33 of Annex A of the PSI:
“Once a charge has been referred to an IA it cannot be referred back to a governor — the IA will deal with it from then on. However, if the IA considers the referral to have been unlawful, they may decide not to proceed and therefore the adjudication will be dismissed. An unlawful referral would be one in which the PSI or Prison or YOI rules have not been correctly followed i.e. the case should not have been referred in the first place if the guidelines in the PSI were followed correctly, for example, if a Governor referred a case that was simply a charge of disobeying an Officer, with no other aggravating features.”
The essential framework and therefore the jurisdiction of the adjudicator is provided by rule 53A. While there is no duty to inquire into the factual basis of the governor's finding, it must in my judgment be apparent to the adjudicator that the governor has applied his or her mind to the ‘so serious’ threshold. In this context, an adjudicator reviewing whether Rule 53A had been complied with would be entitled to expect to see brief reasoning, capable of being interpreted as...
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Secretary of State for Justice v Peter Kane
...THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE HUGH MERCER QC (SITTING AS A DEPUTY HIGH COURT JUDGE) [2022] EWHC 1376 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Myles Grandison (instructed by GLD) for the Michael Bimmler (instructed by Coninghams......