FROM THE HIGH COURT OF JUSTICE THE QUEEN'S BENCH
DIVISION ADMINISTRATIVE COURT
Mr Justice Mitting CO/3927/2010
Strand London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE TOMLINSON
| The Queen on the application of Jason Garland
|- and -
|The Secretary of State for Justice (1)
The Prisons and Probation Ombudsman (2)
David Pievsky (instructed by Treasury Solicitors) for the Respondent
Hearing dates: Tuesday 1st November 2011
Crown Copyright ©
Lord Justice Hughes:
"Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the discovery of the offence. "
1. the charge was insufficiently particularised;
2. there was an abuse of process because the hearing took place before they had in fact visited to view the CCTV and advise Mr Garland upon it, although it was shown to Mr Garland and to the Governor at the hearing;
3. it appeared that the charge might not have been laid in time.
Of these only the third now survives.
(a) the meaning of the rule is that the charge must be laid as soon as possible, that is to say more quickly than within 48 hours if that is possible, but in any event within that period unless there are exceptional circumstances; moreover "within" means before the passing of the 48th hour.
(b) the Defendant Secretary of State cannot show either that the charge was laid as soon as possible or that it was laid within 48 hours;
(c) the legal consequence of this failure is that the adjudication is invalid.
The meaning of the Rule
"promptly and in any event not later than 3 months after the grounds to make the claim first arose"
He asked us to read the Prison Rule as if it said the same. But it does not. The wording is significantly different, as the words "in any event", present in the CPR and not in the Prison Rule, plainly demonstrate. If Parliament had wished to say "and in any event" it could easily have done so. Indeed it did do so in the adjacent Prison Rule 54(1) which provides:
"54 Rights of prisoners charged
(1) Where a prisoner is charged with an offence against discipline, he shall be informed of the charge as soon as possible and, in any case, before the time when it is inquired into by the governor or, as the case may be, the adjudicator."
I do not agree with Mr Southey that this formulation could not have been adopted in Rule 53(1) because provision was being made for exceptional circumstances. On the contrary, the rule could readily have been, expressed, if Mr Southey's construction were the intended result, in terms such as:
"the charge shall be laid as soon as possible and in any event, save in exceptional circumstances, within 48 hours of the discovery of the offence."
"Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible"
"a magistrates' court shall not try an information... unless the information was laid... within six months from the time when the offence was committed. "
The evidence in that case showed that although there was a computerised record which provided a date within six months of the offence for the laying of the information, in fact that date was automatically generated by default and did not reliably show when the information was properly laid, as distinct from when first notification of the possible prosecution was given. The true information date could have been anything up to four days after the cut-off date and there was no way of knowing if the time had been exceeded. I do not agree that there is such uncertainty in this case. Here all the evidence points to the charge having been laid at the end of the 48 hour period and thus within the rule. The use of the word 'approximately' was, as I have said, imposed on the officer by the pro forma. It did not indicate uncertainty beyond the minute.
The legalconsequences of infringement of the rule.
Lady Justice Black:
Lord Justice Tomlinson