Wilson v The Independent Adjudicator and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones |
| Judgment Date | 24 January 2017 |
| Neutral Citation | [2017] EWCA Civ 127,[2016] EWHC 176 (Admin) |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2016/0807 |
| Date | 24 January 2017 |
[2017] EWCA Civ 127
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QBD, DIVISIONAL COURT
(LORD JUSTICE BURNETT
AND MR JUSTICE OUSELEY)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Lloyd Jones
C1/2016/0807
Mr Matthew Stanbury (instructed by Swain & Co Solicitors) appeared on behalf of the Applicant
The Respondent did not attend and was not represented
This is a renewed application by Mr Ryan Wilson for permission to appeal an order of Burnett LJ and Ouseley J sitting as a Divisional Court made on 5 February 2016 dismissing his claim for judicial review. That claim challenged a finding in prison disciplinary proceedings that the applicant had breached the Young Offender Institution Rules 2000 on the basis that the Independent Adjudicator had committed an error of law when determining that the defence of duress was not available to the applicant. The Independent Adjudicator was unrepresented before the Divisional Court. The Secretary of State for Justice opposed the judicial review claim as an interested party.
The applicant was sentenced to four and a half years' detention in a young offender institution for robbery, and he was due for release in June 2016. On 11 August 2014 he alerted an officer that he had been threatened into keeping hooch (that is, illicit alcohol) in his cell. Having seen the hooch, another officer reported the applicant to the governor of the young offender institution for having an unauthorised article in his possession contrary to Rule-51(2) of the 2000 Rules. In view of the seriousness of the case the governor referred the case to the Independent Adjudicator.
The Independent Adjudicator, District Judge Strongman, adjourned the first hearing for evidence to be obtained from the two officers. At the resumed hearing on 12 September 2014 the applicant wished to advance the common law defence of duress, saying that he had been threatened with a knife held to his throat to make him store the hooch. The Independent Adjudicator found as a matter of fact that the applicant had been threatened as set out in the reports of the officers, "with immediate violence involving the use of a knife" and had told the authorities about the hooch as soon as the threat was over. He held that in a criminal trial the defence of duress would have been available. As a matter of law it would not be available in prison disciplinary proceedings. This was because disciplinary proceedings differed from criminal proceedings, such a defence would create difficulty in maintaining prison discipline and only limited penalties were available. The Independent Adjudicator therefore treated the applicant as effectively pleading guilty. The duress was mitigation. He awarded ten additional days which he suspended for four months, and I note that the period of suspension passed without activation of the additional days.
Before the Divisional Court the applicant, represented by Mr Stanbury as he is today, raised three points. First, it was submitted that prison disciplinary proceedings before the Independent Adjudicator fall within the scope of the definition of criminal charges under Article 6 of the European Convention On Human Rights and, for that reason, the disciplinary offence that the applicant was charged with should be seen as criminal for the purposes of substantive criminal law and therefore attract the common law criminal defences. Secondly, it was submitted that as a matter of construction the 2000 Rules do not expressly exclude the common law defence of duress. Thirdly, it was submitted that the availability of a defence of self-defence in proceedings before the Independent Adjudicator, which is not expressly provided for in the 2000-Rules, is further evidence that common law defences are available in such proceedings unless excluded by express statutory provision.
Ouseley J, with whom Burnett LJ agreed, dismissed the claim. In doing so the judge was prepared to assume that Article 6 applies to all prison disciplinary proceedings before an Independent Adjudicator and therefore applied in this case, although he recognised that there was room for argument of the point. However, he did not accept the applicant's argument on the effect of Article 6 on the applicant's claim. Article 6, he said, self-evidently only affects the procedure by which a person is subjected to a criminal charge. The fact that the procedural safeguards in Article 6 may be applicable did not require the adoption of otherwise inapplicable domestic substantive criminal law.
The court then considered whether duress was available as a general defence under the 2000 Rules as a matter of statutory construction. It noted the general distinction between criminal and disciplinary offices. A number of reasons pointed towards treating the 2000 Rules as non-criminal disciplinary codes. In particular, first, the 2000 Rules are made avowedly for the...
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