England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice The Strand
		13th May 1998

Mr Justice Blofeld:

This case has come before this court in the following way. An application for judicial review by the applicant came before Sedley J on 6 April 1998. Upon the respondent's undertaking through counsel not to seek an order for costs in any event it was ordered that the matter be listed in a Divisional court and decided on the basis of the facts as signed by counsel for both parties. It was further ordered that the matter be expedited and listed for the 30th April 1998 and that skeleton arguments be lodged by close of business on 24th April 1998. All that has been done.

The case is concerned with the mandatory drug testing of prisoners. The particular facts of this application for judicial review are sought to be used in order to obtain the decision of this court about the manner in which scientific evidence is received at adjudications for disciplinary offences, following a positive mandatory drug test (MDT). This particular case has been the subject of correspondence between the applicant's solicitor and the prisons' ombudsman Sir Peter Woodhead. In correspondence his view is:

"Given the large number of mandatory drug testing (MDT) adjudications which are conducted each year and the increasing number of complaints being raised by prisoners about these issues I certainly believe there is an urgent need for the courts to clarify what approach should be taken where prisoners dispute the test results and/or wish to question the laboratory scientist or similar witness."

The respondent also invites the court to give guidance upon the future conduct of MDT hearings.

It is appropriate to set out briefly the agreed facts of this case. This applicant served a prison sentence of 15 years. His release date from prison was 16th April 1998. On 29th October 1997 he was required to provide a sample of urine for the purpose of randomly testing for the presence of controlled drugs pursuant to S16A of the Prison Act 1952. On 5th November 1997 he was issued with a screening certificate prepared on behalf of the respondent stating that his urine had tested positive for opiates and cannabinoids and with a notice of a report of two disciplinary offences concerning each drug contrary to Prison rule 47 paragraph 8A.

On 7th November 1997 the disciplinary hearing was commenced. The applicant requested legal representation and the attendance of the examining scientist. Rule 6.99 of the Prison Discipline Manual reads as follows:

"At the start of a hearing, if the accused enters an unequivocal plea of guilty the adjudicator may proceed with the hearing. If the prisoner pleads not guilty or equivocates over a plea the hearing should be adjourned and the sample sent for a secondary, confirmation, test."

The adjudicator therefore adjourned the hearing to enable a confirmation test to be carried out on the sample. The confirmation certificate dated 19 November 1997 certified that there were traces of opiates and cannabinoids in the applicant's urine consistent with the abuse of controlled drugs. On 21st November 1997 the hearing was resumed. The applicant handed a written statement to the adjudicator stating that he had not knowingly taken cannabis or opiates. He requested the laboratory scientist to be called to give evidence on four matters namely:

"1. The general accuracy of the testing procedure

2. The procedural differences between the screening test and the confirmation

test.

3. The level of the substances detected in the test and

4. Whether any other person had access to the sample and how it had been stored."

Rule 6.99 had to be re-considered by the adjudicator in respect of this request. The relevant part reads:

"At a resumed hearing the result of the latter (confirmation) test must be admitted as evidence. If the accused contests the results of the confirmation test he or she may ask for the relevant laboratory scientist to attend as a witness and ask questions on the evidence. Further the prisoner may arrange for an independent analysis of his or her sample (part of which will have been retained under mandatory drug testing procedures) and submit the results in evidence".

The adjudicator refused the request. It should be noted that the applicant did not indicate that he had arranged for an independent analysis of his sample. The applicant was found guilty on both charges. He received 7 additional days for the presence of cannabis and 21 additional days for the presence of opiates.

On 19th December 1997 the applicant submitted a request for the adjudication to be reviewed by the area manager for Swaleside prison, on the basis that the adjudication was flawed.

As a result on 10th March 1998 the applicant was informed that the charge concerning the cannabis had been upheld but the charge concerning the opiates had been quashed "because of a procedural flaw and not for the reason outlined in your request/complaint".

On 25th March 1998 the applicant's solicitor was informed the second adjudication (the cannabis adjudication) had also been quashed. That was based upon a recognition that the adjudicator may have failed properly to appreciate the evidential status of the confirmation certificate namely that, although considered in the context of the prison rules, it is a hearsay document. Consequently his consideration of the issues and principles to be followed in assessing the merits of the application to have the scientist called may have been conducted under a false premise.

It can thus be seen that as both the charges which were initially found proved against this applicant have been quashed this applicant is no longer in jeopardy. Further we have been informed that he has now been released from prison. Nevertheless the possibility remains that he may again be convicted of an offence and sentenced to a term of imprisonment and that during that term of imprisonment may be selected for a random test for the presence of controlled drugs pursuant to S16A of the Prison Act 1952. It is only to that extent that this particular applicant has an interest in this case.

It is obvious that if this court does not take the opportunity of dealing with these matters today another similar case will be brought before another division of this court. In all these circumstances the court has decided that it is appropriate to accede to the request of both parties and to treat the applicant as having a sufficient interest to enable the case to proceed.

Legal Framework

Section 47 of the Prison Act 1952 allows the Secretary of State for the Home Department to make "rules and regulations for the management of prisons". S.47(2) states:

"Rules made under this Section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case."

The rules at the material time are contained in the Prison Rules 1964 (S.I. 1964 No.388).

Prison rule 46A permits prison authorities to take samples from prisoners for the purpose of testing for controlled drugs.

Prison rule 47 paragraph 8A makes it a disciplinary offence for a prisoner to administer a controlled drug to himself or to fail to prevent the administration of a controlled drug to him by another person.

Prison rule 47A states that it shall be a defence for a prisoner charged with an offence under rule 47(A) paragraph 8(A) to show that:

"(a) the controlled drug had been prior to its administration lawfully in his possession for his use or was administered to him in the course of a lawful supply of the drug to him by another person."

Prison Rule 49 is headed "Rights of prisoners charged." Under paragraph (2) of that rule it is stated:

"At any enquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case".

Prison Rule 50 states that the maximum punishment for an offence under Rule 47 paragraph 8(A) is an award of 42 additional days.

It is now necessary to consider the relevant parts of the Prison Discipline Manual issued by the Prison Service in 1995.

The preface to the manual states that:

"The manual contains both instructions and guidance on procedures related to the discipline system. Governors and controllers must comply with the instructions and must take account of the advice. The manual should help all those involved - adjudicators, staff, prisoners and their representatives - in understanding the process. Its contents have been shaped by the decisions of the courts and by experience in the field. Adjudicators must manage hearings in accordance with the rules of natural justice and following the guidance in this manual will offer the best prospect of that."

The forward indicates that:

"Prisoners or young offenders charged with a disciplinary offence should be given access to this manual on request.

Paragraph 5 deals with "evidence".

Paragraph 5.5 states:

"The adjudicator may accept written evidence but if the accused denies or contests it its reliability may be put in doubt. Thus a previously written statement may be accepted only if it is read out and either the writer is present at the hearing so that the accused may have an opportunity of questioning or the accused consents to it being accepted without having such an opportunity."

Paragraph 5.7 states:

"The adjudicator may decide to hear hearsay evidence subject to the overriding requirement to be fair to the accused. First hand evidence is obviously preferable to hearsay evidence but there will be occasions, for instance where no members of staff witnessed the alleged offence or where an absconder from another establishment is being dealt with, when a reporting officer has to rely on what on he or she has been told. If the accused pleads not guilty, a finding of guilt based solely on hearsay evidence would clearly be unsafe. Where an accused disputes the hearsay evidence and for this purpose wishes to question

the witness, and where there are insuperable or very serious difficulties in arranging attendance, the adjudicator should refuse to admit that evidence or, if it has already come to notice, should expressly dismiss it from consideration ... ."

Paragraph 5.11 states:

"An adjudicator has the discretion to refuse to call witnesses named by the prisoner or by the reporting officer but this must be done reasonably and on proper grounds and not, for example, for reasons of administrative convenience or because the adjudicator considers the case against the prisoner is already made out ..."

Mandatory drug tests were started in 1995. As a result there were additions made to this disciplinary manual. The relevant document is IG 30/1996. Paragraphs 6.95 to 6.99 deal with drug use offences in particular. Paragraph 6.96 states that prisoners are to be charged under Prison Rule 47 paragraph 8A only as a result of samples taken under mandatory drug testing provisions.

Paragraph 6.97 states that:

"Discovery of an alleged offence occurs when two elements have been established. First that an initial screening test has given a positive result of a controlled drug and second that at all material times the prisoner was in prison custody when the drug was administered."

We then come to paragraph 6.99 which I have set out earlier in this judgement when dealing with the specific facts of this case.

It is now convenient to consider the documentation served on a prisoner who is selected for a mandatory drug test and who thereafter is tested positive.

Initially he is served with a "mandatory drug test authorisation form" which sets out a variety of reasons why he is required to provide a sample of urine. In this case it was a "random test". That form at paragraph 6 states:

"Your sample will be split at the point of collection into separate containers which will be sealed in your presence. In the event of you disputing any positive test result one of these containers will be available for a period up to twelve months for you to arrange if you so wish for an independent analysis to be undertaken at your own expense".

After the urine sample has been given it is sent by the prison authorities for analysis. Once that analysis has been undertaken if it proves negative that is an end of the matter. If it proves positive the authorising scientist issues a "screening certificate". In the body of that certificate is stated the result of the analysis. Here it states "drugs tested. Cannabinoids positive. Opiates positive."

The prisoner receives a copy of the screening certificate, together with a piece of paper stating that there are no matters that bring this case within Rule 47A which provides a prisoner with a defence. The prisoner at the same time is provided with a document that proves the chain of custody of the sample. No point arises on this in this case. If the prisoner does not unequivocally plead guilty the sample is re-analysed and a confirmation certificate is issued by the authorising scientist. This certificate also sets out that the sample has been tested and has been found positive.

In this case it was positive for cannabinoids and opiates. After setting that

finding out these words were added:

"Interpretation of positives

Cannabinoids. Consistent with abuse of a controlled drug.

Opiates. Consistent with abuse of a controlled drug.

Stated medication

None."

The respondent has filed three affidavits two from Mr Parsons and one from Mr Derby who are both higher executive officers in the prison service.

Mr Parsons states in his first affidavit that he has been responsible since December 1995 for the day to day management of the prison service MDT programme. After describing the initial screening of samples he sets out that the confirmatory tests were carried out using a two stage process known as gas chromatography/mass spectrometry.

He states that the prison service checks the accuracy of its testing in three ways.

There is a blind performance challenge (BPC) programme. Samples are formulated in a laboratory to look like prison samples and are mixed in with packages of real samples before delivery to the laboratory. The BPC programme is operated by an independent company specialising in quality assurance. Screening tests have taken place on more than 1,700 BPC samples between May '97 and February '98. There has been one 'false negative' result and one 'false positive' result. The 'false positive' result was on the initial screening test not on the confirmation test. There are no details given about the 'false negative' test. Laboratory procedures have been corrected. In order further to ensure correct results since June 1997 confirmatory tests have been carried out on all BPC samples that screened positive. These have demonstrated that the initial screening tests in those cases have been accurate.

The second check is provided by a laboratory audit. Two interim and two full ones each year.

The third check is through independent analysis of prisoners' samples. As the prisoner has the right to obtain an independent analysis of the sample and has done so in some 195 cases these tests have been monitored to see whether the independent analysis has contradicted the prison service's analysis. In no case has this been shown to be so.

Finally Mr Parsons stated that in 1997 there were 16,324 adjudications on charges arising from MDTs.

Mr Derby stated that in those 195 requests for independent analysis legal aid has been issued in 65 cases. He also exhibited to his affidavit the relevant pages of the Prison Service mandatory drug testing Manual, to which I will refer later.

The applicant has referred us to an affidavit by Mr Hamish Arnott his solicitor. That affidavit exhibits a statement from Dr Ronald C Denney. Dr Denney is a forensic scientist and a consultant who has worked in various areas of drugs synthesis and analysis for more than 30 years. He is now visiting lecturerer in forensic science at King's College London and at the Univeristy of Greenwich and is external examiner at the University of the West of England.

In his statement Dr Denney says that the screening test certificate does not give sufficient information to a prisoner and he fears that that certificate might persuade a prisoner effectively to plead guilty. He would like to see the level of the drug shown on the screening certificate. A second affidavit from Mr Parsons on behalf of the Secretary of State, however, makes it clear that the nature of the screening test is such that it cannot quantify the level of drugs detected.

Dr Denney considers that the confirmatory certificate needs re-designing, or at least needs to have more information upon it. He considers that it is not clear that the findings are as a result of the confirmatory test and not simply repeating the result of the screening test. His further criticism is that this certificate does not provide anyone with sufficient data to be able to check the accuracy of the results. He is also concerned that the certificate does not indicate that the tests have been carried out by properly qualified personnel. Further he is concerned that in the case of cannabis metabolites the result may be influenced by passive smoking. He says that there is no indication on either certificate of the level of drugs. He also says that in the case of passive smoking cannabis metabolites can be found in the order of 20 ng/ml compared with say 200 ng/ml for an actual smoker. Mr Parsons in his second affidavit says that, at present, the level of positive drugs found in the confirmation testing are left off the certificate as a safeguard for the prisoner. This is done because the amounts are exceedingly small and if they were put on the certificate it might be that the adjudicator would give too much weight to them and that the punishment given to the prisoner would be greater. Mr Parsons also explains that no test for cannabinoids is shown as "positive" unless the reading is in excess of 50 ng/ml, to guard against the possibility of passive smoking of cannabis.

I now turn to the applicant's submissions. It is recognised by the applicant that, in the present case, there is no relief that can be given by this court. The applicant therefore wishes this court to give indications as to what type of further information should be given to a prisoner who undergoes a mandatory drug test which is found to be positive. He does not submit that there should be a confirmation test in every case. Nor is it his submission that a prisoner has an absolute right to require the attendance of a scientific witness. But he submits that there should be more information provided to the prisoner either by way of a statement from the scientist or by way of information attached to the papers that are served upon him. He would like to see more information on the screening certificate and on the confirmation certificate. He stresses that the scheme as set out in the prison rules and the Prison Discipline Manual should be followed. In particular he points to paragraph 5.7 of the Prison Discipline Manual which says:

"If the accused pleads not guilty, a finding of guilt based solely on hearsay evidence would clearly be unsafe"

The applicantt submits that by accepting the confirmatory certificate and refusing permission to the prisoner for the scientific witness to attend and be cross examined the prisoner is convicted wholly on hearsay evidence.

He cites Regina v Board of Visitors of Hull Prison, ex parte St Germain and others (No.2) [1979] 1 WLR 1401. The judgement of the court was given by Geoffrey Lane LJ, as he then was, at page 1404. E-G He refers to prison rule 49(2) and states that this rule reflects:

" ... one of the most basic rules of natural justice, namely, that every party to the controversy has a right to a fair hearing. He must know what evidence has been given and what statements have been made effecting him; and then he must be given an opportunity to correct or contradict them."

Mr Parker QC for the respondent in his submissions does not dispute the framework of MDT adjudications as set out by the applicant. At the outset of his submissions he accepted that more information could be given to the prisoners both on the screening certificate and generally. He drew attention to the comments in the statement of Dr Denney and submitted that the affidavits filed on behalf of the respondent dealt with these comments. He referred us to the "Mandatory drug testing for prisoners manual of policy and procedures". The current version is version 5 issued on 10th January 1997. At the front of this manual are these words:

"This manual is intended for prison service staff use only. It must not be disclosed to prisoners or to persons outside the prison service.""

The relevant information contained in these pages has been summarised in the affidavits of Mr Parsons, to which I have already referred.

It was submitted on behalf of the respondent that the accuracy of both the screening and confirmation tests is fully demonstrated by the information in the affidavits. He accepted that a prisoner should be entitled to question a scientific witness if he had proper material on which to do so. He accepted that if the information contained in the mandatory drug testing for prisoners manual was made available to prisoners, in the appropriate form, it might substantially lessen the number of occasions on which a prisoner could properly ask for the scientific witness to attend for cross examination. But he submitted that the right of a prisoner to obtain his own independant analysis has already been and remains an important safeguard.

Breach of European Conventions.

Mr Duffy QC in his skeleton argument made a submission based upon Article 6 of the European Convention on Human Rights. But in his oral submissions he did not place great reliance on this aspect of the case. He accepted that in order to come within Article 6 (1) it has to be shown that this offence was not simply a discipline offence but also a criminal offence. He recognised that as the potential penalty and that actually imposed have to be considered and as the potential maximum penalty was the imposition of an additional 42 days, it was not possible to submit that this offence was a criminal offence. See Pelle v France 1986 50 DR 263. He also recognised that the convention is not yet part of domestic law. Thirdly he accepted that the test set out by Geoffrey Lane LJ, as he then was, in ex parte St Germain and Others (No.2) which I have already set out, would be the test under European law in any event and therefore even if he could succeed under the Convention the test would be the same as under domestic law. Mr Parker submitted that the Convention did not apply in any event because not only is it not part of the domestic law but there is no relevant ambiguity in the Prison Act, the Prison Rules or the Prison Discipline Manual that the Convention could help to resolve. He also, in his skeleton argument, submitted that this offence was not a criminal offence. I conclude that the Convention does not apply for the reasons submitted by Mr Parker.

I have come to the following conclusions.

There is no relief that this court can give to this applicant and I would therefore dismiss his application.

The proceedures of prison discipline tribunals are not laid down by statute. They are masters of their own procedure provided that they achieve the appropriate degree of fairness. R v Army Board ex parte Anderson [1992] 1QB 169. Technical rules of evidence do not apply to these tribunals.

The overriding requirement of prison discipline tribunals is to ensure that they are conducted in accordance with Rule 49(2), giving full weight to what was said by Geoffrey Lane LJ in ex parte St Germain (No.2).

Scientific evidence is as much evidence as any other sort of evidence. But by reason of its nature a fair hearing can be achieved by dealing with it differently to other types of evidence. Paragraph 6.99 of the Prison Discipline Manual makes it mandatory for the result of the confirmation test to be admitted as evidence.

I accept that the confirmation test certificate is hearsay evidence. I recognise that paragraph 6.99, on the face of it, conflicts with paragraph 5.7. But paragraph 5.7 is not specifically considering scientific evidence of this type but evidence of non scientific facts. I consider that paragraph 6.99 is to be preferred when a discipline tribunal is dealing with a mandatory drug test adjudication.

This court now knows the details of the procedures that are carried out and the checks that are made in order to ensure that both the screening test and the confirmation test are accurate. Prisoners should have this type of information in all MDT cases. I consider that if this type of information were available in some form in future to prisoners charged with MDT offences then it would rarely be appropriate for the adjudicator to permit a prisoner to have the relevant laboratory scientist attend for cross examination. But I accept that circumstances may arise from time to time when it is necessary for the scientist to attend. I do not consider that it matters in what form this information is given to the prisoner. As other forms are served on the prisoner together with the screening certificate it might be appropriate for as much information as possible to be given to the prisoner at that time. I consider that this court should only give general guidance. Cases will inevitably depend on their own facts. Different drugs may require different information. So it is with some hesitation that I deal with a few details. The screening certificate should state upon it that this test is only a preliminary test. The levels of drugs should be set out upon the confirmation certificate. I regard it as important that all the information that is given to the prisoner is in a form that is readily understandable.

Lord Justice Kennedy: I agree.

LORD JUSTICE KENNEDY: For the reasons set out in the judgment which have been handed down, this decision will not give rise to any form of relief. The application for judicial review will, therefore, be formally dismissed.

MR DUFFY QC: Can I thank your Lordships for the speed in which you delivered the judgment? My Lords, there are two applications. Firstly, may I apply for legal aid taxation on behalf of the Applicant?

LORD JUSTICE KENNEDY: Yes, certainly.

MR DUFFY QC: Secondly, my Lords, since we find ourselves in the position of being the party against whom the judgment was formally dismissed, it falls to me to make an application for leave to allow matters to go further. In this matter I recognise that there is a balance to be struck. This is obviously a matter of public importance, but equally your Lordships will have to weigh whether, in view of the fact that this is not concretely rooted on a particular case, it affords a sensible vehicle for the matter to go further to the Court of Appeal.

LORD JUSTICE KENNEDY: I have grave difficulties myself with that concept. Do you not, Mr Duffy? Perhaps, it is unfair to ask you.

MR DUFFY QC: My Lords, I simply make the application that I am instructed to make.

LORD JUSTICE KENNEDY: We do not grant leave. Thank you for your attendance and thank you for the submissions that you made. We hope that the judgment which my Lord has prepared in fact covers the issues which were raised during the course of the submissions. In a sense it is almost advisory, but that was what we were seeking to do.

MR DUFFY QC: My Lord, may I say that we do appreciate the judgment which, I think, will give us assistance on this point.

MR JUSTICE BLOFELD: Mr Duffy, may I say that I am very grateful to you for drawing my attention to the notice under the new Practice Direction?

MR DUFFY QC: My Lords, should I say that the thanks is due to those behind me. Yesterday I was, in fact, in Luxembourg doing a case, and so it goes to my juniors.

MR JUSTICE BLOFELD: I am grateful to both of them.

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