England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Stanley Burnton
[2007] EWHC 3079 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2008

Lord Justice Richards :

1. As a result of changes made to the Prison Rules 1999 following the decision of the European Court of Human Rights in Ezeh and Connors v United Kingdom (2002) 35 EHRR 28 (a chamber decision subsequently confirmed by the Grand Chamber: see (2004) 39 EHRR 1), a disciplinary charge against a serving prisoner which may result in the award of additional days must be referred to an independent adjudicator for determination. That is because such a charge falls within Article 6(1) ECHR and the requirement of an independent and impartial tribunal is not met if the charge is determined (as was formerly the position) by the prison governor. The present claimant seeks to take the effect of Article 6(1) one step further. He argues for a separate implied requirement that the prosecutor be independent, contending that the system of hearings by independent adjudicators in which the prosecution case is presented by a prison officer who may also be a witness is institutionally incompatible with Article 6(1). Stanley Burnton J, as he then was, rejected that argument at first instance (see [2008] 1 WLR 1401) but gave permission to appeal to this court.

The facts

2. I can take the facts from the judgment below:

"3. On 14^th October 2004, the Claimant was sentenced to 14 years' imprisonment. On 30^th September 2005, he arrived at HM Prison Full Sutton. On 25^th January 2006, Prison Officer Peck, acting under the Prison Governor's authority and in accordance with section 16A of the Prison Act 1952 and Prison Rule 50, required the Claimant to provide a sample of urine for the purpose of testing for the presence of a controlled drug. The Claimant refused, and was charged with disobeying a lawful order. The adjudication was opened by a governor on 26^th January 2006, and later referred for hearing before an Independent Adjudicator.

4. The Claimant instructed solicitors to represent him before the Independent Adjudicator. On 7^th April 2006, the Claimant appeared before the Independent Adjudicator, District Judge Nuttall, charged with the offence of disobeying a lawful order. He contested the charge. The prosecution of the Claimant was essentially conducted by the reporting Prison Officer, Officer Peck. The Claimant's solicitors sought to raise two defences. They contended that the Claimant was unfit to attend for a drugs test when the order was given. In addition, they contended that the order was unlawful because the Claimant was not informed that he would be charged if he did not obey the order.

5. Officer Peck and the Claimant gave evidence in the course of the adjudication. The Claimant's evidence was inconsistent with that of Officer Peck. In particular, the Claimant said (contrary to the evidence of Officer Peck) that he was not informed that he would be charged if he did not obey the order.

6. The Independent Adjudicator accepted the evidence of Officer Peck. He rejected the evidence of the Claimant that supported his defence. As a consequence he found the Claimant guilty. He was sentenced to serve 21 additional days."

The claimant's case

3. Article 6(1) provides that "[i]n the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law". Mr Owen QC, on behalf of the claimant, accepts that the "tribunal" in this case, namely the district judge acting as independent adjudicator, met the requirement of independence and impartiality. The case advanced, however, is that the requirement of independence and impartiality is not limited to the tribunal itself. The fundamental requirement in Article 6(1) is that of a fair hearing and in order to meet that requirement the prosecutor, too, must be independent and impartial.
4. The case as originally advanced in the claim form was understood by the respondent to be to the effect that prosecutors must be completely independent of the Prison Service, which would give rise to serious practical and cost issues that were addressed in the respondent's evidence. But it was made clear both before Stanley Burnton J and before us that the case is put on a more limited basis. No absolute dividing line is sought to be drawn, but it is submitted that the requirement of independence and impartiality cannot be met if, as happened here, the prison officer who brings the charge and gives disputed evidence in support of it also acts as prosecutor. It is submitted that there is an insufficient guarantee of independence and impartiality unless, for example, the prosecutor comes from a different prison and is subject to a code of conduct and is given appropriate training so as to ensure that all relevant material is disclosed and that the tribunal is not misled.

The judgment in R v Stow

5. At the centre of the claimant's case is the judgment of the Courts-Martial Appeal Court in R v Stow [2005] EWCA Crim 1157, which is relied on as having established the general principle that the prosecutor must be independent and impartial for the purposes of Article 6(1). It is submitted that thereafter the application of the principle in other contexts is a matter of fact and degree.
6. Stow was an appeal against conviction by a naval court-martial under the Naval Discipline Act 1957 as amended by the Armed Forces Act 1996. The appellant's argument was that the court-martial was in breach of Article 6 because the naval Prosecuting Authority (an officer by the name of Commander Crozier) lacked sufficient independence and impartiality, when judged objectively, to exclude the fear of prejudice or bias. The matters relied on were that the Prosecuting Authority at the material time was reported upon within the service, which meant that he could be put under pressure by his superiors; that he was not in his final posting, which could mean that he was amenable to pressure by way of inducements, enticements or threats; and that his rank, which was significantly more junior than that of his Army or Air Force equivalents, made him less immune from pressure or influence.
7. It is apparent from the court's judgment, given by Keene LJ, that the advocate for the Crown, whilst drawing attention to the fact that the express requirement of independence and impartiality in Article 6(1) relates to the tribunal, effectively conceded the need for a degree of independence and impartiality on the part of the prosecution as well, and that the focus of the Crown's submissions was on the existence of sufficient guarantees to meet that requirement in practice:

"18. Lieutenant Commander Towler emphasises that what is required by Article 6 is that the tribunal be independent and impartial. It is the tribunal which determines the innocence or guilt of the accused. The Prosecuting Authority is party to the proceedings before the tribunal but is not itself part of the tribunal which determines the innocence or guilt of the accused. Consequently the Prosecuting Authority is not obliged to attain independence to the same extent as the tribunal itself [emphasis added]. The respondent submits that there are sufficient guarantees to ensure that the Prosecuting Authority is sufficiently independent and impartial to prosecute cases fairly and without interference from outside bodies. It is also submitted that these guarantees permit the Prosecuting Authority to participate in courts-martial in a way that provides the appellant with a hearing which, viewed as a whole, satisfied Article 6."

8. In its reasoning the court referred to a number of decisions of the Strasbourg court: Findlay v United Kingdom (1997) 24 EHRR 221, Morris v United Kingdom (2002) 34 EHRR 52, Grieves v United Kingdom (2004) 39 EHRR 51 and Cooper v United Kingdom (2004) 39 EHRR 171. It noted at paras 28-30 that the focus of attention in the Strasbourg jurisprudence as regards the requirement of independence and impartiality had been on the tribunal itself, that is to say the decision-makers. The judgment continued:

"31. None of this is surprising. It is the independence and impartiality of those involved in the decision-making process which is fundamental to a fair trial. Having said that, however, this court notes that the Strasbourg court has in several of these cases considered the position of the prosecutor when examining the fairness of the court-martial. Thus in Cooper, it assessed the independence and impartiality of the bodies involved in the proceedings prior to the court-martial hearing, including the Royal Air Force Prosecuting Authority. Similarly, in Grieves, a naval court-martial case, it was prepared to look at the position of the naval Prosecuting Authority. Consequently, while the independence and impartiality of the tribunal members and the judge-advocate are of fundamental importance, it seems to us that the Strasbourg jurisprudence does require attention to be paid, when considering Article 6(1), to the extent to which those attributes are to be found in the Prosecuting Authority.

32. We are bound by section 2(1) of the Human Rights Act, 1998 to take into account decisions of the European Court of Human Rights and in any event our own jurisprudence recognises the importance of integrity on the part of the prosecutor. In his foreword to the 2002 guidelines for prosecution advocates, the Lord Chief Justice, Lord Woolf, refers to the prosecution advocate as 'a cornerstone of an open and fair criminal justice system', and the Code for Crown Prosecutors, paragraph 2.2 states:

'Crown Prosecutors must be fair and independent and objective …. They must not be affected by improper or undue pressure from any source.'

They are also required to act in the interests of justice. The reality is that a prosecutor has the ability to influence and even mislead the court. Consequently, we accept that his independence and impartiality are matters to be considered when assessing whether or not there has been proper compliance with Article 6(1)."

9. The court then referred to comments in Cooper and Grieves on the position of the military prosecuting authorities, before turning to examine the individual features of the case and to express its conclusions in these terms:

"39. We have not found this an easy case to determine. There were undoubted safeguards in existence, as set out earlier in this judgment. Certainly the Prosecuting Authority should [original emphasis] have acted independently and impartially and there is no evidence that he did not. But merely because he was under such an obligation is not enough. He has to be in such a position that an objective observer would regard him as freed from potential pressure in his decision-making. Given the system of reporting on him which existed at that time within the Royal Navy, we have concluded that such an observer would not have seen him as sufficiently protected from such pressure. That then has to be combined with the other factors referred to, namely his rank and scope for further promotion within the service. When we put all those together, we are forced to conclude that the naval Prosecuting Authority at the time of this court-martial did not enjoy necessary safeguards of his independence and impartiality. We are glad to know that the shortcomings which we have referred to have since been removed.

40. While the Prosecuting Authority may not enjoy such a pivotal role as the Judge Advocate, his independence and impartiality is of great importance to a fair trial. It seems to this court that the court-martial of the appellant cannot, in these circumstances, be held to have observed the appellant's rights under Article 6(1). If his trial was not fair, then in our judgment his conviction cannot be regarded as safe."

The Strasbourg case-law

10. Of the Strasbourg decisions referred to in Stow (see para 8 above), the one on which Mr Owen placed particular weight was Cooper. That case related to the Air Force court-martial system as amended by the Armed Forces Act 1996 in the light of earlier authority. The applicant contended that the system as amended "remained incompatible with the independence and impartiality and, in consequence, the fairness requirements of Article 6(1)" (para 82). He advanced the general submission that service tribunals should have no role to play in the trial of criminal charges against service personnel in times of peace, because the nature and ethos of the armed forces were such as to give rise to legitimate doubts about the ability of a service tribunal independently and impartially to try its personnel. Alternatively he argued that his own court-martial lacked independence and impartiality, referring in that regard to various aspects of the role and functions of the Higher Authority, the Prosecuting Authority, the Court Administration Officer, the President of the court-martial, the Judge Advocate, the ordinary members of the court-martial, and the Reviewing Authority. As to the Prosecuting Authority, it was submitted that the Authority was part of the legal branch which gave general advice to the service authorities so that the Authority's officers were subjected to pressures in relation to career prospects and discipline, and that such officers were also likely to be subordinate in rank to, and subjected to pressure from, the Higher Authority. The Government's response included detailed arguments directed towards establishing the independence of the Prosecuting Authority and the Authority's legal officers as a matter of fact. The various submissions of the applicant and the Government are summarised at length at paras 82-103 of the judgment.
11. The Court's assessment started with a statement of principles relevant to the issues of independence and impartiality of the tribunal (paras 104-106). In applying those principles to the case in question, the Court considered first, and rejected, the applicant's general submission that a service tribunal could not try criminal charges against service personnel consistently with the independence and impartiality requirements of Article 6(1). The Court then turned to the applicant's criticisms of the role and functions of the various persons and bodies involved in his court-martial. It looked first at the Higher Authority, the Prosecuting Authority and the Court Administration Officer. In relation to the Prosecuting Authority, it said this:

"113. The Prosecuting Authority is appointed by the Queen and is legally qualified. Members of the staff are legally qualified and are employed exclusively on prosecution duties. The decision to prosecute is made on the basis of legal criteria similar to those applied by the Crown Prosecution Service and in accordance with the Codes of Conduct of the respective branches of the legal profession. While the Prosecuting Authority is also the RAF Director of Legal Services, he is answerable to the Attorney-General only, and is not reported upon within the service on his prosecution duties. There being no chain of command or service connection between the Higher and Prosecuting Authorities either claimed or apparent, any seniority in rank of the Higher Authority over the Prosecuting Authority would not be sufficient to conclude, as the applicant suggests, that the latter is 'likely to' be influenced by the former."

12. Having similarly rejected the criticisms made in relation to the Higher Authority and the Court Administration Officer, the Court concluded on this aspect of the case:

"115. For these reasons, the Grand Chamber finds that the applicant's submissions concerning these three bodies do not cast any doubt on the Chamber's findings in the Morris case as to the genuineness of the separation of the prosecuting, convening and adjudicating roles in the court-martial process under the 1996 Act. The Grand Chamber further considers that there is no reason to doubt the independence of the decision-making of those bodies from chain of command, rank or other service influence."

13. Mr Owen submitted that the second sentence of para 115 was a free-standing examination of the independence of the prosecutor and supported the view that prosecutorial independence and impartiality are a distinct requirement under Article 6(1): the Court would otherwise have dealt with the matter differently.
14. In the remainder of its judgment the Court rejected the applicant's other points in relation to the court-martial, before concluding "that the applicant's misgivings about the independence and impartiality of his court-martial, convened under the 1996 Act, were not objectively justified and that the court-martial proceedings cannot consequently be said to have been unfair" (para 134).
15. The Court's judgment in Grieves was given on the same day as that in Cooper. The complaint in Grieves was broadly the same, save that it related to a court-martial in the Royal Navy. The Court's statement of the relevant principles was materially identical to that in Cooper, again focusing on the criteria for determining the independence and impartiality of the tribunal (para 69). The judgment summarised the decision in Cooper, including the substance of para 115 of Cooper (quoted above). The Court found that differences concerning the Prosecuting Authority in the naval context were not material but that certain other aspects of the naval court-martial, most importantly concerning the position of the Judge Advocate, were materially different and were such as to give rise to a violation of Article 6(1). The case adds nothing to Cooper on the issue that arises on the present appeal.
16. It was common ground before us that, to the extent that the Strasbourg Court has looked at the position of the prosecutor in other cases, it has done so only in so far as it touched on the independence and impartiality of the tribunal. For example, in Findlay, a case relating specifically to the independence and impartiality of the tribunal, the Court found a violation of Article 6(1) because there was a close link between the prosecuting authorities and the convening officer, the members of the court-martial were not sufficiently independent of the convening officer, and the decision of the court-martial was not effective until ratified by the convening officer (paras 73-77). Another case to which Mr Perry QC, for the respondent, drew our attention is Padovani v Italy (application no. 13396/87, judgment of 26 February 1993), in which the Court considered the compatibility with Article 6(1) of a magistrate's dual function of investigation and judgment, holding that the summary investigative measures carried out by the magistrate in the particular case did not give rise to an objectively justified fear that he lacked impartiality when acting thereafter as judge in the case.
17. Mr Perry also referred to Huber v Switzerland (application no. 12794/87, judgment of 23 October 1990), which concerned the right conferred by Article 5(3) on everyone arrested or detained in accordance with Article 5(1) to be brought promptly before a judge or other officer authorised by law to exercise judicial power. The majority of the Court held there to be a breach of that provision in circumstances where the judicial power was exercised by a District Attorney whose impartiality was "capable of appearing open to doubt" by reason of his entitlement to intervene in the subsequent criminal proceedings as a representative of the prosecuting authority (para 43). In his dissenting opinion, Judge Matscher took the view that at the time of taking the relevant decision the District Attorney was acting as a fully independent and impartial organ. He observed that it could perhaps be argued that at a later stage, since he had previously played a role in the investigation, the District Attorney would no longer be an independent and impartial representative of the prosecuting authority, but that "no provision of the Convention entitles the accused to have as 'opponent' an independent and impartial prosecutor". The majority judgment, however, did not touch on that point.

Discussion

18. I am not persuaded that Article 6(1) imposes any general requirement as to the independence and impartiality of the prosecutor. If, on the particular facts, a lack of independence or impartiality on the part of the prosecutor has resulted in unfairness to the defendant, then of course there may be a violation of Article 6(1); but a lack of prosecutorial independence or impartiality does not in itself render the proceedings unfair or give rise to an automatic violation. Thus I would reject Mr Owen's contention that the system of prison disciplinary hearings as currently operated is institutionally incompatible with Article 6(1).
19. It is highly significant that the express requirement of independence and impartiality laid down by Article 6(1) relates only to the tribunal, i.e. to the decision-makers. As the court said in Stow, "it is the independence and impartiality of those involved in the decision-making process which is fundamental to a fair trial" (para 31 of the judgment, quoted above). Unless the tribunal is independent and impartial there can be no assurance of fairness. But if the tribunal is independent and impartial, then it seems to me that fairness can in principle be achieved without imposing an additional general requirement as to the independence and impartiality of the prosecutor. There is insufficient justification for implying such an additional requirement into Article 6(1).
20. Nowhere has the Strasbourg Court said that Article 6(1) requires the prosecutor to be independent and impartial. The only relevant statement in the case-law is to the contrary effect, in the dissenting opinion in Huber v Switzerland (para 17 above), but neither in the majority judgment in that case nor elsewhere has the point been clearly addressed. It is true that in the second sentence of para 115 of Cooper, on which Mr Owen placed such reliance, the Court made a finding as to the independence of the prosecutor which was distinct from its finding as to the separation of prosecuting and adjudicating roles and which might be taken to suggest that the independence of the prosecutor is a distinct consideration under Article 6(1). But the finding has to be looked at in the context of the case as a whole. Whilst the applicant took issue with the independence and impartiality of the prosecutor as part of his overall challenge to the compatibility of the court-martial with Article 6(1), there was no clear-cut argument that the lack of prosecutorial independence or impartiality gave rise to a distinct violation even if the tribunal itself was independent and impartial in compliance with Article 6(1). Moreover the legal principles set out by the Court, which it then sought to apply to the case, all related to the independence and impartiality of the tribunal and not of the prosecutor. It is perhaps unsurprising that the Court dealt with the position of the prosecutor in the terms addressed by both parties, finding no reason to doubt his independence (or, plainly, his impartiality) as a matter of fact. It was unnecessary in the circumstances to consider what the position under Article 6(1) might be in the absence of such independence or impartiality; and I do not think that the judgment can be read as an implied acceptance by the Court that there would be a violation of Article 6(1) in that event. In my view, therefore, Cooper does not provide any real support for the case advanced by the claimant in the present proceedings.
21. By contrast, the judgment of the Court of Appeal in Stow does on the face of it provide some support for the claimant's case, since the decision rested on the conclusion that the Prosecuting Authority did not enjoy sufficient safeguards of his independence and impartiality for the purposes of Article 6(1). For several reasons, however, I take the view that the decision should be treated with caution.
22. First, the need for a degree of independence and impartiality on the part of the prosecution was effectively conceded by the Crown in Stow (see para 7 above), and the court evidently did not have the benefit of the range of arguments presented to us in the present case as to why no such requirement is to be read into Article 6(1).
23. Secondly, and no doubt partly because of the concession and the limited argument, the court in Stow does not seem to have appreciated quite how limited the Strasbourg case-law is on the issue of prosecutorial independence and impartiality. Moreover, in para 31 of the judgment the court goes no further than to state that the Strasbourg jurisprudence on Article 6(1) "does require attention to be paid" to the extent to which the attributes of independence and impartiality are to be found in the prosecutor; but it then slips from that formulation into an apparent acceptance, not vouchsafed by the Strasbourg jurisprudence, that Article 6(1) requires the prosecutor to have such attributes.
24. Thirdly, in my view the court in Stow placed undue weight (at para 32 of its judgment) on the characteristics of Crown Prosecutors and the requirements laid down for them in the Code for Crown Prosecutors. I do not take issue for one moment with what was said about Crown Prosecutors, but it must be borne in mind that independent prosecutors are not a universal feature of our criminal justice system (let alone of the systems in other European states). As Stanley Burnton J said in the judgment below:

"33. … Mr Perry pointed out that, surprisingly, the Court in Stow did not refer to, and therefore it appears did not appreciate or consider, the impact of its decision on private prosecutions. The right to bring a private prosecution has traditionally been regarded as an important constitutional right, although more recently its value has been less highly regarded ….

34. It would be difficult to see how an individual could bring a private prosecution if the prosecutor is required to be independent. At the very least, he would have to instruct counsel or a solicitor; and instructing a solicitor from a firm whom he instructed on other matters would presumably result in a lack of the necessary independence, since the solicitor might be concerned that his conduct of the prosecution would affect his or his firm's instructions in other matters. The position of organisations such as the NSPCC and the RSPCA, who are entitled to and do bring prosecutions, would also be difficult. What of an inspector of either of those organisations who had witnessed child or animal abuse, and who might otherwise act as prosecuting officer in a magistrates' court? How can his (or her) position be distinguished from that of the prosecutor in Stow? It is, I think, no answer to suggest that the distinction is that only public authorities are subject to the provisions of the Human Rights Act 1998 and Convention duties. The duty to ensure that trials of criminal proceedings are fair is that of the State, and cannot depend on the identity of a particular prosecutor, any more than it can be said that there is no such duty in civil proceedings between private parties.

35. There are public authorities too whose prosecutions would be affected by the requirement of independence on the part of the prosecutor: local authorities, whose inspectors may also act as prosecutors in fair trading cases, and whose planning officers may do so in planning enforcement cases …."

25. By way of underlining what was said in Stow about the position of prosecutors, Mr Owen cited United Nations Guidelines on the Role of Prosecutors (UN Doc. A/CONF.144/28/Rev.1 at 189 (1990)), in which the fourth recital refers to the crucial role played by prosecutors in the administration of justice. However, the recitals say nothing about the independence of prosecutors; whereas the second recital does refer in terms to "the right to a fair and public hearing by an independent and impartial tribunal" (emphasis added) as being enshrined in the Universal Declaration of Human Rights (i.e. in a provision materially identical to Article 6(1) ECHR). In my view the Guidelines take the claimant's case no further.
26. The various considerations to which I have referred lead to me to doubt the correctness of Stow and to take the view that it should be limited in its scope. I do not read the judgment as intending to lay down a principle of general application as to the independence and impartiality of prosecutors. The court's focus was on the specific context of a court-martial, and what was said about prosecutorial independence and impartiality should not in my view be treated as governing cases arising in other contexts.
27. Stanley Burnton J felt able to distinguish Stow by reference to differences between courts-martial and prison disciplinary proceedings:

"44. The offences considered by Independent Adjudicators are at the less serious end of the spectrum of gravity More serious offences, which may involve greater punishment than 42 additional days, are referred to the ordinary criminal courts. Courts-martial may determine far more serious offences. Disciplinary offences should be dealt with speedily. Prison officers are expected to act fairly and with integrity, and their duty to do so in the context of proceedings before Independent Adjudicators is required by the Prison Disciplinary Manual Adjudications. Prisoners are entitled to legal representation. The Independent Adjudicator himself is under an express duty to act fairly and justly, and to conduct an impartial inquiry. The proceedings are inquisitorial rather than adversarial. There is provision for disclosure of the identity of witnesses and of statements. If a prisoner defendant or his legal representative considers that there is other documentation that should be disclosed, they can seek a direction from the Independent Adjudicator. These considerations, together with those referred to by the European Court, distinguish this case from the court-martial considered in Stow, and lead me to conclude that fairness does not require an independent prosecutor in such cases, and that the proceedings in the present case were fair."

28. Whilst many of the features referred to in that passage do have their counterpart in a court-martial, I agree that the prison disciplinary context is a very different one when looked at as a whole and that the court is not bound in relation to it by the decision in Stow. It may be that, because of the concession and limited argument on which it was based, Stow can be treated as non-binding in any event; but in the circumstances I do not need to consider that question.
29. For the reasons I have given, I take the view that there is no general requirement under Article 6(1) of prosecutorial independence and impartiality and I see no basis for finding such a requirement to exist in the prison disciplinary context. If a lack of prosecutorial independence or impartiality is said to have affected the prosecutor's conduct or to have had some other effect on the proceedings, that can be taken into account in determining on the particular facts whether the overall requirement of a fair hearing under Article 6(1) has been met. The claimant's case, however, has been advanced on the basis of an institutional incompatibility with Article 6(1) rather than by reference to any actual unfairness on the particular facts; and once the institutional argument is rejected, the claim must fail. In any event I agree with Stanley Burnton J in finding not only that fairness did not require an independent prosecutor but also that the proceedings in the present case were fair. In particular, there is no reason to believe that relevant documents were withheld or that the tribunal was in any way misled, and nothing to show that the independent adjudicator's assessment of credibility was affected by the fact that the reporting prison officer who gave evidence was also conducting the prosecution.
30. Accordingly, I would dismiss the appeal.

Lord Justice Scott Baker :

31. I agree.

Sir Anthony Clarke MR :

32. I also agree.