QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF JOHN HAASE
|- and -
|(1) INDEPENDENT ADJUDICATOR DISTRICT JUDGE NUTTALL
|(2) THE SECRETARY OF STATE FOR JUSTICE
David Perry QC and Sam Grodzinski (instructed by the Treasury Solicitor) for the Defendants
Hearing date: 7 December 2007
Crown Copyright ©
Stanley Burnton J :
The ground of challenge
"… the claimant submits that there was a violation of article 6 in the course of the disciplinary proceedings against him. That is because there was no independent prosecutor (and Code for Crown Prosecutors). Instead the prosecution was conducted by a Prison Officer who was employed by the Prison Service. The Prison Service was essentially the complainant in the prosecution. Indeed the prosecutor was essentially the primary prosecution witness despite the fact that it was being suggested that that witness was lying. However, the Prison Discipline Manual makes it clear that an independent prosecutor could have been prosecuted."
Independent Adjudications in Prisons
"These Rules amend the Prison Rules 1999 by providing for an adjudicator, approved by the Secretary of State to inquire into charges of serious offences against discipline set out in those Rules. Where the governor determines that a charge is sufficiently serious, he must refer it to the adjudicator, who is to inquire into the offence no later than 28 days after it has been referred. At an inquiry into a charge that has been referred to the adjudicator, the prisoner who has been charged is given the opportunity to be legally represented. If the adjudicator finds a prisoner guilty, he has the power to impose upon him any punishment which the governor can impose, and can also impose an award of up to 42 additional days to be served in prison. These Rules also remove from the governor the power to impose any additional days as a punishment on a prisoner found guilty by him, and add to his powers in certain other respects."
53.(1) 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.
(2) Every charge shall be inquired into by the governor or, as the case may be, the adjudicator.
(3) Every charge shall be first inquired into not later, save in exceptional circumstances or in accordance with rule 55A(5), than:
(a) where it is inquired into by the governor, the next day, not being a Sunday or public holiday, after it is laid;
(b) where it is referred to the adjudicator under rule 53A(2), 28 days after it is so referred.
53A -(1) Before inquiring into a charge the governor shall determine whether it is so serious that additional days should be awarded for the offence, if the prisoner is found guilty.
(2) Where the governor determines:
(a) that it is so serious, he shall:
(i) refer the charge to the adjudicator forthwith for him to inquire into it;
(ii) refer any other charge arising out of the same incident to the adjudicator forthwith for him to inquire into it; and
(iii) inform the prisoner who has been charged that he has done so;
(b) that it is not so serious, he shall proceed to inquire into the charge.
(a) at any time during an inquiry into a charge by the governor; or
(b) following such an inquiry, after the governor has found the prisoner guilty of an offence but before he has imposed a punishment for that offence,
it appears to the governor that the charge is so serious that additional days should be awarded for the offence if (where sub-paragraph (a) applies) the prisoner is found guilty, the governor shall act in accordance with paragraph (2)(a)(i) to (iii) and the adjudicator shall first inquire into any charge referred to him under this paragraph not later than, save in exceptional circumstances, 28 days after the charge was referred.
54.(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.
(2) At 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.
(3) At an inquiry into a charge which has been referred to the adjudicator, the prisoner who has been charged shall be given the opportunity to be legally represented.
The instigation and conduct of disciplinary proceedings against prisoners are fair and just, and in the interests of maintaining order, control and a safe environment.
the instigation and conduct of disciplinary proceedings against prisoners will be appropriate, fair, reasonable and just, and in the interests of maintaining order, control and a safe environment in the establishment.
R v Stow
13. There are three matters relied on by the appellant in his argument that there was such a breach, because the Prosecuting Authority was not sufficiently impartial, when judged objectively, to exclude the fear of prejudice or bias. The first of those is that the Prosecuting Authority at the time of this trial, Commander Crozier, was reported upon within the service. He was in fact the subject of one report by the Chief of Staff to the Second Sea Lord. It is said that the report on him covered, amongst other things, his prosecuting duties and how he performed them, and that this meant that he could be put under pressure by his superiors. Mr Tregilgas-Davey, who appears for the appellant, submits that this undermined the Prosecuting Authority's objective independence. His position is contrasted with that of the prosecuting authorities in the Army and Royal Air Force. In those services there is no reporting on the RAF and Army prosecuting authorities, in order to prevent any fear of the chain of command having a hand in decisions about the trial process or there being any appearance of such a possibility. It is submitted that the lack of such a clear break between the naval Prosecuting Authority and the chain of command was a significant failing in terms of his objective independence as required by Article 6. The point is made that, since the appellant's trial, the practice of the Prosecuting Authority being reported on has ceased. This change, it is submitted, is an acknowledgment that the previous practice fell foul of objective independence.
14. Secondly, the appellant points to the fact that Commander Crozier was not in his final posting, again unlike his Army and RAF counterparts. This could mean that he was susceptible to pressure by way of inducements, enticements or threats. He was actively pursuing career advancement and promotion within the navy. The lack of any such insulation against such potential pressure deprived the naval courts-martial of a valuable and much needed safeguard. Again, Mr Tregilgas-Davey places reliance on the fact that, since this trial, the naval practice has changed. The new Prosecuting Authority is in his final posting.
15. Thirdly, the appellant points to the rank of Commander Crozier, significantly more junior than his Army or Air Force equivalents, where the post of Prosecuting Authority is in both cases held by two star officers. This too, it is argued, makes the naval Prosecuting Authority less immune from pressure or influence.
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 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).
36. The main feature which has caused us concern is the reporting within the service on Commander Crozier's performance as Prosecuting Authority. It is all very well to contend that he is answerable only to the Attorney-General. If the appraisal of him within the service comments upon his performance as the Prosecuting Authority and reflects the decisions he has made in that capacity, then an objective observer could be concerned that those decisions might influence his prospects of promotion.
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 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 free 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 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.
104 The Court recalls that in order to establish whether a tribunal can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.
In this latter respect, the Court also recalls that what is at stake is the confidence which such tribunals in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. In deciding whether there is a legitimate reason to fear that a particular court lacked independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified.
It is further recalled that there are two aspects to the question of "impartiality": the tribunal must be subjectively free of personal prejudice or bias and must also be impartial from an objective viewpoint in that it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The Court notes that the present applicant did not suggest that anyone involved in his court-martial process was subjectively biased against him.
Since the concepts of independence and objective impartiality are closely linked, the Court will consider them together in the present case.
105 In the Findlay judgment, the Court concluded that the applicant's misgivings about the independence and impartiality of his army court-martial, convened prior to the entry into force of the 1996 Act, had been objectively justified. The Court was mainly concerned about the conflicting roles of the "convening officer" in the proceedings: he had a key prosecuting role but at the same time appointed the members of the court-martial who were subordinate in rank to him and fell within his chain of command. He also had the power to dissolve the court-martial before or during the trial and acted as "confirming officer" after the trial so that a court-martial's verdict and sentence were not effective until "confirmed" by that officer.
106 In the subsequent Morris case, a Chamber of the Court examined concerns expressed about the structural independence and objective impartiality of an army court-martial convened following the entry into force of the 1996 Act.
The Court found that service tribunals could in principle determine criminal charges against service personnel consistently with Art. 6(1) of the Convention, although such tribunals would only be tolerated as long as sufficient safeguards were in place to guarantee their independence and impartiality. It was also found that the 1996 Act had gone a long way towards meeting the concerns expressed in the Findlay judgment, abolishing as it did the posts of "convening officer" and "confirming officer" and separating the prosecution, convening and adjudication elements of the court-martial process. The Court further found that the independence of the court-martial was not undermined by the manner of appointment of its members.
However, and while considering the PPCM (Permanent Presidents of Courts-Martial) to be a "significant guarantee of independence" and the presence of the Judge Advocate to be an "important guarantee", these and other safeguards (rules on eligibility for selection and the oath taken by members) were considered insufficient by the Court to exclude the risk of outside pressure being brought to bear on the ordinary officer members. Further, the Court found the principle that a tribunal's binding decision should be unalterable by a non-judicial authority had been breached by the role of the Reviewing Authority, a principle which had been considered in the above-cited Findlay case to be a component of the "independence" guarantee of Art. 6(1) of the Convention.
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.
14. Before the Board of Visitors, a plea of not guilty on each charge was entered on behalf of the applicant, who did not submit any written defence. According to the record of the proceedings - which apparently in neither case lasted longer than fifteen minutes -, one prison officer gave evidence on the mutiny charge, reading a statement describing the part allegedly played by Mr. Campbell and the other prisoners in the incident, and another gave evidence on the personal violence charge, to the effect that he had been struck by Mr. Campbell. The evidence of the first witness was accepted by the Board and its chairman put certain questions to the second.
Two prison officers gave evidence in that case instead of the one in the case of Mr Haase, and the tribunal consisted of the Board of Visitors rather than an Independent Adjudicator, but I see no reason to infer that these proceedings were materially different from those in the present case. Yet the Court did not suggest that the lack of an independent prosecutor affected compliance with Article 6.
105. The ultimate decision upon this question, of course, must necessarily be for the European Court of Human Rights. As Lord Bingham of Cornhill observed in R (Ullah) v Special Adjudicator  2 AC 323, 350 (para 20), "the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court." In the same paragraph Lord Bingham made two further points: first, that a national court "should not without strong reason dilute or weaken the effect of the Strasbourg case law"; secondly that, whilst member States can of course legislate so as to provide for rights more generous than those guaranteed by the Convention, national courts should not interpret the Convention to achieve this: the Convention must bear the same meaning for all states party to it. Para 20 ends:
"The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
106. I would respectfully suggest that last sentence could as well have ended: "no less, but certainly no more." There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg. …
The importance of the citizen's right to bring a private prosecution was emphasised prior to the 1985 Act in the case of Gouriet v. Union of Post Office Workers  3 All ER 70, where Lord Wilberforce at p.79 said:
"The individual, in such situations, who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences, and though ultimately liable to be controlled by the Attorney-General (by taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or partiality on the part of authority."
I would not want to be party to any decision restricting or inhibiting the right to bring a private prosecution, rare though it is nowadays in the case of individuals.
The present case
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
It is proper to take account of the facts and circumstances of particular cases, as the European court has consistently done.
69. The Court was careful in the Engel and Others judgment to state that, as regards the dividing line between the "criminal" and the "disciplinary", it was confining its attention to the sphere with which the case was concerned, namely military service. It is well aware that in the prison context there are practical reasons and reasons of policy for establishing a special disciplinary regime, for example security considerations and the interests of public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor-made sanctions which may not be at the disposal of the ordinary courts and the desire of the prison authorities to retain ultimate responsibility for discipline within their establishments.
Later in its judgment, the Court said:
87. It is true that ordinary criminal proceedings - which may well concern dangerous individuals or necessitate the production of a prisoner before the court - nearly always take place in public, notwithstanding the attendant security problems, the possible propagation of malicious allegations and the wishes of the accused. However, the Court cannot disregard the factors cited by the Government, notably the considerations of public order and the security problems that would be involved if prison disciplinary proceedings were conducted in public. Such a course would undoubtedly occasion difficulties of greater magnitude than those that arise in ordinary criminal proceedings. A Board's adjudications are, as befits the character of disciplinary proceedings of this kind, habitually held within the prison precincts and the difficulties over admitting the public to those precincts are obvious. If they were held outside, similar problems would arise as regards the prisoner's transportation to and attendance at the hearing. To require that disciplinary proceedings concerning convicted prisoners should be held in public would impose a disproportionate burden on the authorities of the State.
88. The Court therefore accepts that there were sufficient reasons of public order and security justifying the exclusion of the press and public from the proceedings against Mr. Campbell. There was accordingly no violation of Article 6 para. 1 (art. 6-1) in this respect.
Purpose of the adjudication process
1.1 An adjudication has two purposes:
To help maintain order, control, discipline and a safe environment by investigating offences and punishing those responsible;
To ensure that the use of authority in the establishment is lawful, reasonable and fair.
Minor report hearings are a form of adjudication and are subject to the same principles though their procedures are simpler.
The role and responsibilities of the adjudicator
1.2 The role of the adjudicator is to inquire into a report of alleged events and to decide whether an offence under Prison Rule 51 or YOI Rule 55 has been established beyond reasonable doubt. The adjudicator must investigate the charge, being prepared to question, in a spirit of impartial inquiry, the accused, the reporting officer and any witnesses. This inquisitorial role is therefore different from the one of a magistrate or judge in criminal proceedings.
1.3 Adjudicators must act fairly and justly. They are responsible for the conduct of their hearings. The parts of this PSO that deal with procedure during hearings are advisory unless indicated as mandatory. If adjudicators (PS) depart from the guidance and, in doing so, compromise fairness and justice, their decisions risk being overturned.
2.1 Normally the member of staff against whom the alleged offence was committed or who witnessed the particular incident will lay a charge. Another member of staff can lay it, for example, where a prisoner who was unlawfully at large is taken to another establishment, or where the officer against whom the alleged offence took place is not available to lay the charge, perhaps because s/he has been taken to hospital. The person bringing the charge is referred to as the reporting officer. In MDT (mandatory drug test) charges, the collecting officer does not have to be the reporting officer.
2.2 Reporting officers should consult an Adjudication Liaison Officer, or if one is not available, a member of their own management line, before a charge is laid. Adjudication Liaison Officers should offer guidance to reporting officers on whether to lay charges and, if so, the correct charges to lay. The Governor or Director must ensure that at least one of their staff is nominated as Adjudication Liaison Officer and has received training in the proper interpretation of offences. The Adjudication Liaison Officer, acting as a point of reference for staff, should be a source of advice and with the training officer, provide training.
Preliminaries to the hearing (see also paragraph 2.25)
2.20 If, before a hearing, the accused, or his/her legal representative, asks for a copy of all statements to be submitted in evidence so as to prepare a defence or mitigation these must be supplied at public expense. A member of staff not conducting the hearing must make arrangements. S/he must also provide the names of witnesses to the incident that the accused may not know. Copies must also be provided of any statements made or other material discovered in the course of investigation unless there are compelling grounds for non-disclosure. This might be the case where disclosure could present a real risk to its author or others named in it, or where a medical report constitutes one of the exclusions from disclosure under the Data Protection Act 1998. The latter exclusions are:
Records or parts of records which, in the opinion of the doctor or other health professional concerned, would disclose information likely to cause serious harm to the physical or mental health of the patient or of any other individual; or
Information provided by an individual other than the patient who could be identified from that information.
A healthcare officer is not regarded as a health professional within the meaning of the Act unless s/he is a registered nurse.
2.21 Where a prisoner asks before a hearing to interview prisoners or other witnesses who may have relevant evidence, in or out of hearing of prison staff, the Governor/Director or Controller should allow such interviews if s/he judges it reasonable and the witnesses are willing. Where it is decided that such interviews must take place within the hearing of staff, the officer supervising the interview must not be the reporting officer or any other officer who may be called to give evidence at the adjudication. The supervising officer should not disclose the nature of the discussion unless it presents a threat to security or unless there is a clear intention to defeat the ends of justice; in these circumstances the interview should be terminated.
2.22 In addition to access to this PSO, a prisoner must be granted reasonable access to relevant reference books to help prepare a defence and a request for an adjournment of a hearing for that purpose should be allowed. Sufficient copies of this PSO must be available to meet demand.
2.23 Where a prisoner asks, before a hearing, for the names of witnesses or others involved in the incident that gave rise to the charge, whether of staff or prisoners, the names, if known, must be supplied. The adjudicator should take steps, which do not disrupt the orderly running of the establishment, to identify any witness(es) the accused can describe. Members of staff will not be required to take part in an identification parade against their will. Where members of staff are called as witnesses they must not be combined with other roles such as that of escorting officer.
Access to a solicitor
3.1 Any prisoner whose charge is referred to the Independent Adjudicator must be offered the opportunity to seek legal representation at the time of referral. Failure to do this may result in delays and could lead to the case being dismissed (see chapter 13 for further details).
3.2 The adjudicator must adjourn the hearing if:
After a charge has been read out, the prisoner who requests legal assistance has not had reasonable time to contact a solicitor; or
The first time a prisoner asks to consult his/her solicitor is during the hearing.
Any further requests by an accused to consult a solicitor should be considered as they arise. In setting time limits for such consultation, the adjudicator will be guided by the nature of the charge and any impending date of release. The prisoner must be advised when the hearing will resume. If by then s/he has not asked for or received legal advice, the adjudicator may proceed, providing s/he is satisfied that the prisoner has had reasonable opportunity to obtain advice. A prisoner who does not know of a solicitor should be advised to approach the Legal Services Officer for help in selecting one.
3.3 Information disclosed by a prisoner during an interview with the Legal Services Officer must not be used in evidence during the course of an adjudication.
Request for legal representation, legal advice or for a McKenzie friend
3.4 At the start of every hearing the adjudicator must ask the prisoner whether s/he wishes to have additional assistance and, if the prisoner expresses interest, must explain about the possibilities of legal representation, legal advice, or of assistance from a friend or adviser (also known as a McKenzie friend - see Annex O.24).
Prison Service legal representation
3.18 In Prison Service adjudications, where legal representation is agreed for the prisoner, the adjudicator (PS) must consider whether legal representation for the Prison Service is required. This is most likely to be appropriate in cases where points of law or procedural difficulty are likely to arise. If the adjudicator decides that the Prison Service should also be legally represented then a member of staff must liaise with the Treasury Solicitor's agents locally to arrange it. Advice may be sought from the Adjudications Helpline. The adjudicator (PS) must have no direct involvement in these arrangements. It should be remembered that at a legally represented hearing the adjudicator remains the master of his/her own procedure and that procedure remains inquisitorial and not adversarial in nature. The role of the Prison Service solicitor is to give legal advice to the adjudicator (PS) as necessary. Annex B sets out the functions of the solicitor representing the Prison Service.
Arrangements for legal representatives
3.19 Legal representatives may ask for certain facilities in advance of the hearing, which may have a bearing on security or good order and discipline. Examples are a visit to the scene of an alleged incident or interviews with prisoners or staff. A member of staff not involved in the adjudication must consider such requests.
3.20 When such an interview is requested with other prisoners or with staff, and they are willing to be interviewed, the manager making the arrangements should normally allow the interview. Where such requests are made during the hearing, the adjudicator, provided s/he considers the request reasonable, should ask a member of staff not involved in the adjudication to make suitable arrangements and, where necessary, should adjourn the proceedings for that purpose.
3.21 Where the person considering the request for facilities cannot provide them and the adjudicator believes that this prejudices a fair hearing, there may be no alternative but to dismiss the charge.
3.22 Interviews between the prisoner's legal representative and potential witnesses should normally take place in sight but out of hearing of prison officers.
3.23 Where the person considering the request for facilities decides that interviews must take place within the hearing of staff for reasons of security or because of the possibility of coercion of witnesses, the officer supervising the interview must not disclose the nature of the discussion unless it presents a threat to security (in which case, the interview should be terminated) or unless there is a clear intention to defeat the ends of justice. In these circumstances the adjudicator must be informed at the adjudication.
5.16 If, unknown to the accused, someone has witnessed the incident, and a member of staff knows this, s/he must bring this to the attention of the adjudicator. If the accused knows of a witness but refuses to help to identify that person, the adjudicator is under no duty to adjourn to allow for an investigation as to who the alleged witness may be.
Chapter 10 of the Manual is entitled "Model Procedure for the Conduct of an Adjudication" and includes the following paragraphs:
10.11 The adjudicator should hear the evidence of the reporting officer and invite the accused to question him/her on that evidence or on relevant matters which the officer has not covered in the evidence. The adjudicator may also wish to ask questions for clarification.
10.13 The adjudicator should invite the accused to offer a defence to the charge, including any written statement, or explain his/her actions, and to give oral evidence if s/he wishes. This is the appropriate time for the accused to comment on the evidence.
10.14 If the accused asks to call witnesses, whether named in advance or during the hearing, the adjudicator should ask what the accused thinks their evidence will establish. Unless the adjudicator is satisfied that the witnesses will not be able to give relevant evidence, they should be called. If the adjudicator decides not to call a witness requested by the accused s/he must be told why and given the opportunity to comment. The reason for the decision must be noted on form F256.
10.15 Unless the witness is employed by the Prison Service or a contracted out prison the adjudicator must first ask if s/he is willing to give evidence (see paragraph 5.13).
10.16 The adjudicator should invite the accused's witnesses to say what they know of the incident and invite the accused, if s/he so wishes, to question them on their evidence or on anything else that appears relevant to the case.
10.17 The reporting officer should also be given the opportunity to question the accused and witnesses.
10.18 The adjudicator may ask questions of witnesses or to call witnesses even though they have not been named by the accused or the reporting officer.