Title: High Court Judgment Template
Author: Murphyto
Last saved by: joe.ury
Company: RCJ

Case No: CO/1140/04
Neutral Citation Number: [2004] EWHC 2522 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Wednesday, 10^th November 2004

Before :

THE HONOURABLE MR JUSTICE LIGHTMAN 
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Between :

| THE QUEEN ON THE APPLICATION OF ROGER GLEAVES | Claimant
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| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant

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(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited, 190 Fleet Street
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Mr Hugh Southey (instructed by Hickman & Rose, 144 Liverpool Road, London N1 1LA) for the Claimant
Ms Kate Gallafent (instructed by the Treasury Solicitor, Queen Anne’s Chambers, 28 Broadway, London SW1H 9JS) for the Defendant

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Judgment

Mr Justice Lightman: 
INTRODUCTION
1.	This is an application by Roger Charles Gleaves (“the Claimant”) for judicial review of the decision of the Secretary of State for the Home Department (“the Secretary of State”) to uphold a finding of guilt made on the 18^th September 2003 by the Governor of HMP Whitemoor in prison disciplinary proceedings.  Permission to make this application was given by Jack J on a renewed application on the 24^th June 2004 limited to one only of the three grounds advanced.  On this hearing the Claimant seeks permission to raise two further new grounds.
LEGAL FRAMEWORK 
2.	Section 47(1) of the Prisons Act 1952 provides:
“The Secretary of State may make rules for the regulation and management of prisons … and for the …discipline and control of persons required to be detained therein.”
3.	It is an offence against prison discipline contrary to Rule 51 (20A) of the Prison Rules 1999 (“the Prison Rules”) if a prisoner:
“uses threatening, abusive or insulting racist words or behaviour.”
4.	Rule 51A of the Prison Rules provides that:
“For the purposes of Rule 51 words, behaviour or material are racist if they demonstrate, or are motivated (wholly or partly) by hostility to members of a racial group (whether identifiable or not) based on their membership (or presumed membership) of a racial group, and ‘membership’ ‘presumed’ ‘racial group’ and ‘racially aggravated’ shall have the meanings assigned to them by section 28 of the Crime and Disorder Act 1998.”
5.	These prison rules creating disciplinary offences should be construed no more harshly to the prisoner than if they created criminal offences: consider R v. Board of Visitors ex parte McConkey (1982) The Times 23 September.  Section 28 of the Crime and Disorder Act 1988 should be given a broad and non-technical meaning: R v. White [2001] 1 WLR 1352.  Likewise the provisions of Rule 51 (20A) and 51A should be given such a meaning.  These principles are reflected in paragraph 6.999 in the provisions of the Prison Discipline Manual.
6.	Paragraph 6.999 of the Prison Discipline Manual sets out the matters that must be proved before an offence contrary to Rule 51(20A) of the Prison Rules can be established.  These include:
“…(b) the act, pattern of behaviour or words were threatening, abusive or insulting.  These words should be given their ordinary meanings, taking account of the circumstances of the case.  It should be borne in mind that words or behaviour may be annoying or rude without being necessarily abusive or insulting.  To find guilt it is necessary to be satisfied that a reasonable person at the scene would consider the words threatening, abusive or insulting…
(d) The accused intended to be racist and either threatening or abusive or insulting or was reckless as to whether his or her words or behaviour might be so.”
7.	Rule 54(2) provides that on an inquiry 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.  Paragraph 5.17 of the Prison Discipline Manual elaborates one aspect of the accused’s entitlement:
“5.17  An accused must be allowed to ask questions of the reporting officer and witnesses.  These questions should be asked directly and only if the accused abuses this should the adjudicator require questions to be put through him or her.  The accused must not be prevented from asking questions of witnesses unless the adjudicator is convinced that they are irrelevant to the point at issue.  The adjudicator, the reporting officer and the accused may all question witnesses.”
8.	Rule 61(1) of the Prison Rules provides as follows:
“The Secretary of State may quash any finding of guilt and may remit any punishment or mitigate if either by reducing it or by substituting another award which is in his opinion less severe.”
9.	At least in part to render this jurisdiction meaningful, paragraph 4.23 of the Discipline Manual provides:
“The adjudicator must ensure that a record of proceedings is taken down on form F256.  Form F256 is a document which may be required for a formal review of the hearing.  It need not be a verbatim transcript, but it must record the essence of the case and indicate the way in which the adjudicator pursued the inquiry.  If the prisoner is found guilty it should be clear from the record why the adjudicator rejected any defence put forward.  The salient points of procedure will vary from hearing to hearing but form F256 must record: … requests for witnesses and how they are dealt with … the adjudicator’s response to any other requests … and the grounds for decisions made.”
FACTUAL BACKGROUND
10.	The Claimant is a category B prisoner detained at HMP Whitemoor.  On the 1^st September 2003 the Claimant is alleged to have called Ms Petra MacGuinness (“Ms MacGuinness”), a member of the prison’s education staff who had German origins and a pronounced German accent, a “Kraut”.  As a consequence of the alleged use of this racist language, on the 18^th September 2003 the Claimant was charged with the disciplinary offence of the “use of threatening, abusive or insulting racist words or behaviour” contrary to Rule 51 (20A).  The hearing of the adjudication commenced on the 3^rd September 2003 before the Governor Ms Clare Hurst (“the Governor”).  At the Claimant’s request it was adjourned to the 18^th September 2003 to enable the Claimant to obtain legal advice.
11.	The hearing resumed on the 18^th September 2003.  I shall first set out the course of events as set out in the record of the hearing.  Ms MacGuinness gave evidence that the Claimant called her a Kraut.  The Claimant then said that he did not call her a Kraut, but had used the term “Sauerkraut” in a conversation in her presence with another prisoner.  He added:
“This is not with regard to racial origin, it is a crudite.”
12.	He also said that he mimicked (as he sometimes did) a German accent and stated in this accent:
“Ve hav vays of making you talk.”
13.	The Governor asked the prison’s Race Relations Liaison Officer (“the Officer”) as an expert two questions.  The first was whether “kraut” was a racially derogatory comment.  The officer replied that the Prison Service definition of racially derogatory was anything which an individual finds offensive.  The second was whether talking with a mimicked accent could be deemed to be racially offensive.  The officer replies that this was not only racially offensive, but would also have the effect of intimidation.
14.	The Governor then said that the charge was proved and she went on to say that this behaviour was unacceptable and intolerable “regardless of your intentions”.  She then imposed an appropriate punishment on the Claimant for this disciplinary offence.
15.	On the 30^th September 2003 the Claimant applied to the Secretary of State,  acting by the Director of High Security Prisons (“the Director”), to appeal against and seeking a review of the decision of the Governor.  The relevant grounds of complaint were:
i)	that the Governor, after Ms McGuinness had read out her evidence, informed the Claimant that notwithstanding the provisions of the Prisons Manual, the Claimant could not direct questions directly to Ms MacGuiness: all questions had to be directed through the Governor;
ii)	the calling of the Officer as an expert witness to give expert evidence on the questions put to her by the Governor; and
iii)	the failure of the Form 256 to provide a complete and accurate record of the hearing and in particular the reason for not allowing the Claimant to put questions directly to Ms MacGuinness.
16.	In the appeal form the Claimant stated that he made his remarks when he was very annoyed with Ms MacGuinness because he considered that she had discriminated against him; that he had said to himself in an audible manner: “Ve haf vays of making you obey” (in the style of the TV programme ‘Allo ‘Allo); that a prisoner at the end of the room with whom he had regular verbal jousts, exclaimed: “I did not know that you spoke German, Mr Gleaves”; and that the Claimant had turned to him with a sneer and responded in French: “Je ne parle par le sauerkraut” (“I do not speak the pickled cabbage”).
17.	On the 3^rd December 2003 the Claimant’s solicitors made representations much to the same effect.
18.	By letter dated the 16^th December 2003 to the Claimant, the Director on behalf of the Secretary of State wrote that, having thoroughly reviewed the representations made by the Claimant, he had concluded that the adjudication was properly and fairly conducted and the punishment should stand.
19.	By a letter before claim dated the 9^th January 2004, the Claimant’s solicitors complained that the Secretary of State had not responded with adequate reasons to the representations made to him why the adjudication should be quashed.  The Secretary of State replied giving the detailed reasons required of him by letter dated the 13^th January 2004.  The Claimant accepts that the Secretary of State has since that date fulfilled his obligations in this regard and this is no longer an issue.
20.	On the 15^th March 2003 the Claimant applied for permission to bring judicial review proceedings to quash the decision of the Secretary of State.  The grounds (so far as material) were:
i)	that the Claimant was denied a fair hearing because he was unable to question witnesses directly;
ii)	that the Governor erred in failing to consider whether the Claimant had the requisite mens rea for the disciplinary offence to be proved; and
iii)	that the Governor erred by relying on expert evidence to determine whether language used by the Claimant was racially offensive and whether it would intimidate the alleged victim.
21.	On the 30^th April 2004 Crane J on the papers refused permission.  He gave his reasons as follows:
“This was the simplest of cases.  Representation was unnecessary.  It is unclear what witness the Claimant wished to call might have said.  Nor does he specify precisely what questions he wished to ask and which he was not permitted to ask.  There was no necessity for the governor to have handed the adjudication over.  Assuming that mens rea was required and was not considered, there was no likelihood of a different result.  While expert evidence was wholly unnecessary and inappropriate, it cannot realistically have made any difference.”
22.	The Claimant renewed his application before Jack J.  The Secretary of State was not represented on the application.  On the 24^th June 2004, Jack J gave permission in the following terms:
“The issues which arose in this really very straightforward matter were whether the applicant had called Mrs MacGuinness a Kraut when his evidence was that he had not.  Mr  Gleaves claimed that they had been talking in a German accent in her presence.  Was that done to insult her?  Unfortunately, perhaps as a result of questions being put to the Race Relations Liaison Officer, the Governor made this finding
‘I find this behaviour unacceptable and intolerable regardless of your intentions.’
No finding was made as to whether the prisoner had called Mrs MacGuinness a Kraut and it appears that the finding may well have been made on the basis of the mimicked accent.
It is with considerable reluctance that I grant permission for judicial review on this ground, because I regard  the matter as trivial.  Nonetheless I feel bound to give permission.”
23.	Jack J proceeded to refuse permission on the two other (no longer relevant) grounds advanced at the hearing.
24.	Following the grant of permission the Secretary of State (under the false impression that permission has been given on all the grounds sought) served and filed Detailed Grounds of Resistance and evidence from Judith Fisk, Claire Hurst and Ms MacGuinness directed at all the grounds in the Claimant’s Grounds in Support.  The Claimant also served evidence.
ISSUES
25.	The only issue on which permission was granted was whether the adjudicator did make a finding that the Claimant called Ms MacGuinness a Kraut.  (It is properly agreed between the parties that it makes no difference whether the Claimant used the term Kraut or Sauerkraut.)  Crane J had no doubt that the Claimant did do this.  Jack J (who did not have the assistance of counsel for  the Secretary of State) felt that there was some doubt whether the Governor’s finding may only have been made on the basis of the mimicked account.  If Jack J had had the assistance which I had from Ms Gallafent as counsel for the Secretary of State, I very much doubt whether having been taken through a  record of proceedings he would have been left in any doubt.  The charge made was of calling Ms MacGuinness a Kraut and the Governor said that the charge was proved.  The mimicry was merely evidence of surrounding circumstances.  If there were any doubt in this regard (which I do no think that there is) the evidence of the Governor makes plain that this was so.
26.	I am asked however to go on and decide whether the adjudication should be quashed on the ground that the Governor erred in: (a) failing to consider adequately the Claimant’s defence; and (b) relying on the expert evidence to determine whether the language used by the Claimant was offensive and intimidating towards the alleged victim Ms MacGuinness.  The former did not, but the latter did, form part of the grounds relied on in the Claimant’s appeal to the Director.
27.	Paragraph 4.23 of the Manual required the Governor on the form F256: (1) to record the essence of the case and indicate the way in which the adjudicator pursued the inquiry; and (2), if the prisoner was found guilty to make clear why the adjudicator rejected any defence put forward.  The Governor did not record on the form F256 her decision (and her notification to the Claimant of her decision) that the Claimant should direct his questions to Ms MacGuinness through her or the reasons for this or why she rejected the defence put forward by the Claimant.  The obvious explanation for the reasons why she failed to record why she rejected the defence was that (in the words of Crane J) this was the simplest of cases and (in the words of Jack J) this was a very straightforward matter.
28.	To meet the challenge to her decision the Governor on the 4^th August 2004 signed a witness statement.  In that statement she stated that: (1) prior to the hearing the Officer asked her to see Ms MacGuinness as she was shaken by the incident with the Claimant and felt intimidated.  The Governor thought it helpful if she talked here through the process to be followed and assured here that she would request that all questions which the Claimant asked should be directed through her to minimise here feelings of intimidation; (2) she had felt that the term Kraut clearly referred to Ms MacGuinness whether the Claimant’s remarks had been made to her or to another prisoner in her hearing and that the word and mimicry were both (objectively) racially offensive, intimidatory and (subjectively) had intimidated Ms MacGuinness.  The advice of the Officer merely confirmed her view; (3) she had been satisfied that the charge had been proved beyond reasonable doubt and in particular it had been so proved that the Claimant had used the word “Kraut” and mimicked a German accent loudly enough for others, including Ms MacGuinness to hear, that Ms MacGuinness felt intimidated and abused by this action, and that the Claimant had intended to create this feeling or was reckless whether his actions caused this feeling.  She was certain that the Claimant was intelligent enough to understand the impact of her actions on other people.
“14.  I believe that [the Claimant] was fully aware of the effect of his actions on Ms MacGuinness.  In any event, whether he had meant to cause offence or had used his words recklessly, neither was acceptable and his use of the terminology was clearly offensive to Ms MacGuinness.”
29.	If the evidence of the Governor is accepted, it establishes that the Governor did adequately consider the Claimant’s defence and what were the reasons why she required the Claimant to direct his questions to Ms MacGuinness through herself and why she rejected the Claimant’s defence.  In short she had good and sufficient reasons to find the charge proved and, whilst there was no legitimate scope for expert evidence on the issues on which it was admitted, (as held by Crane J), its admission had no effect on the outcome of the adjudication.  As regards the Claimant’s intentions, the Governor’s views find support in the Claimant’s own evidence that he made his remarks when (and implicitly because) he was angry with Ms MacGuinness.
30.	The critical issue is whether the evidence of Ms MacGuinness as to her reasons should be admitted.  The Claimant submits that it should be rejected.  Guidance on the approach to this question is given by Stanley Burnton J in R (on the application of Nash) v. Chelsea College of Art and Design (2001) The Times 25 July:
“3.22	Where there is a statutory duty to give reasons as part of the notification of the decision, so that … the adequacy of the reasons is itself made a condition of the legality of the decision, only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.  In other cases, the Court will be cautious about accepting late reasons.  The relevant considerations include the following, which to a significant degree overlap:
(a)	Whether the new reasons are consistent with the original reasons…
(c)	Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal’s decision, or are a retrospective justification of the original decision.  This consideration is really an aspect of (b).
(d)	The delay before the later reasons were put forward.
(e)	The circumstances in which the later reasons were put forward.  In particular, reasons put forward after the commencement of proceedings must be treated especially carefully.  Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.”

31.	There was in this case no statutory duty to give reasons and the adequacy of the reasons is not of itself a condition of the legality of the decision.  It is however important that Governors do comply fully with the provisions of paragraph 4.23 of the Manual because the liberty of the prisoner is at issue and it is important that both the prisoner, the Secretary of State and the Parole Board are provided with a full and reliable record of the course of the adjudication and the reasons for rejecting a prisoner’s defence.  Taking into account this consideration and the considerations referred to by Stanley Burnton J, I have no doubt that the evidence of the Governor is entirely credible and consistent with the full facts and is in no way inconsistent with the contents of the record.  The Claimant does not and can not challenge her veracity and there is no real risk that the reasons given in her statement have been composed after the event to support the Governor’s decision or are a retrospective justification.  The Governor’s evidence established what could all but be inferred from the finding of guilt in this straightforward case and the undisputed evidence.  I think that I can and should accept and rely on the Governor’s evidence and that accordingly the challenge to the finding of guilt fails.
ISSUE II
32.	The second issue is whether I should allow the Claimant to advance two further grounds of challenge for which no permission has been granted.
33.	The grounds are that the requirement that the Claimant ask questions through the Governor was contrary to the provisions of the Discipline Manual and that the form F256 is incomplete in that no reference is made to the requirement imposed by the Governor that the Claimant ask questions of Ms MacGuinness through her.  The Claimant gives as the justification for this new challenge, that there was no basis for raising it until receipt of the Governor’s witness statement and that the Director was misled on the review into believing that the Claimant asked no questions of Ms MacGuinness.  In support of this contention the Claimant relied on a passage in the Secretary of State’s letter dated the 13^th January 2004 explaining his reasons for rejecting the various challenges made by the Claimant to the Governor’s decision which reads as follows:
“2)	Mr Gleaves was not allowed to question the reporting officer himself.  The Governor did ask Mr Gleaves if he agreed with the evidence and he responded only to correct the evidence given.  He did not ask or attempt to question [Ms MacGuinness] directly.”
34.	The Claimant submits that this passage evidences the misunderstanding derived from the deficiencies in the completed form F256 by the Secretary of State that the Claimant did not ask of Ms MacGuinness any questions at all and that by reason of it the misleading statement in the letter did not raise the challenge the Claimant now wishes to raise, and that the Claimant only felt able to raise the issue when the Governor in her witness statement said that the Claimant asked Ms MacGuinness questions through her.
35.	I consider that this contention is totally untenable.  The Claimant at all times knew that he had asked questions of Ms MacGuinness through the Governor and that this was not on the record.  The passage in the letter merely stated the true fact that he had asked no questions to her directly: all questions were asked indirectly through the Governor.  The requirement that questions be asked only  through the Governor was one of the grounds of complaint to the Director and was one of the claims in the application for judicial review.  Implicit in this complaint are the facts that the form F256 failed to record the Governor’s direction and that the Claimant’s questions were asked through the Governor.  Sensibly and properly these complaints were not advanced at the oral hearing.  No doubt they were not advanced because it was perceived that they had no merit and indeed they have no merit.  The requirement of the Governor cannot have had any effect on the outcome.  This view is reinforced when consideration is given to the questions which the Claimant says in his evidence he wanted to ask directly.  There is no reason why, having abandoned these grounds of challenge, the Claimant should be allowed to raise them again at this late stage.  In a word there is no sufficient justification for allowing these new grounds to be raised and they have no merit, and I refuse permission.
CONCLUSION
36.	I accordingly dismiss this application.