England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/12/2007

Stanley Burnton J :

Introduction

1. In these proceedings, as in the case of R (Haase) v Independent Adjudicator and others 2007] EWHC 3079 (Admin), heard by me at the same time, the Claimant, a serving prisoner, seeks judicial review of the decision of an Independent Adjudicator finding him guilty of a disciplinary offence and sentencing him to 28 additional days in custody.
2. The challenge brought by Mr Lake is specific to his case. He contends that the proceedings against him were unfair because the Independent Adjudicator failed to secure the attendance of a key witness. The Defendants contend that the Independent Adjudicator acted properly in exercising his discretion, and that the proceedings were fair.

The facts

3. On 28 June 2005, during a cell search, a mobile phone SIM card was found in a bottle of shampoo in the Claimant's cell. He was charged with the disciplinary offence of possession of an unauthorised item contrary to rule 51(12) of the Prison Rules 1999.
4. On 30 June 2005, an adjudication hearing commenced in front of a governor grade officer at the prison. The governor heard evidence. In particular, the Claimant indicated that the bottle of shampoo in question had been lent to him in the shower by another prisoner, Mr Wimbury. Mr Wimbury then attended and confirmed this, and said that he had obtained the bottle from another prisoner, whom he declined to name. The governor referred the case to the Independent Adjudicator, who unlike the governor has the power to award additional days in custody.
5. The hearing before the Independent Adjudicator took place on 2 August 2005: The Claimant was represented by a solicitor. Mr Wimbury did not attend. There was a report from a prison officer that he was unwilling to attend, but this was not tested, and it is now said that the report was incorrect. No steps were taken to secure his attendance.
6. Mr Wimbury had obtained a note signed by the person claiming ownership of the shampoo bottle; this note was witnessed by a prison officer. It was not put before the adjudicator.
7. As mentioned above, the Independent Adjudicator found the Claimant guilty. She relied on both Mr Wimbury's non-attendance as undermining his account as recorded by the governor and on what she saw as inconsistencies in the account as recorded.

The procedural framework

8. This is set out in my judgment in Haase, to which I refer. The following additional provisions of the Prison Discipline Manual Adjudications are also relevant:

5.12 The accused should be asked to indicate in advance of the hearing the witnesses s/he would like to call so that arrangements can be made to make them available. The accused may still, during the course of the hearing, ask to call witnesses.

5.13 Any person employed by the Prison Service may be required to appear as a witness and give evidence as part of his/her duties (but see paragraph 5.32). The same is true of staff of contracted out prisons and services. Prisoner witnesses may be required to attend the adjudication but cannot be compelled to give evidence. If they decline, this must be recorded in the record of the hearing. Prisoner witnesses must not suffer a loss of pay from a standard prison pay scheme as a result of attending. It is immaterial whether or not evidence is offered. Other people may be invited to attend as witnesses but there is no power to compel their attendance. Copies of the letter of invitation and of the reply, if any, must be made available to the accused and form part of the record of the hearing. If the presence of the witness(es) is required by the accused and his/her evidence is deemed relevant to the hearing, and yet there are compelling security reasons why they should not be admitted to the prison or they decline to attend, charges against the prisoner may have to be dismissed. Witness costs must be borne by the prison.

5.14 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 has already been established. The accused should first be asked what assistance or evidence the accused believes the witness might give. If the request is refused the adjudicator must give reasons and these must be noted on the record of the hearing. A witness may be refused, for example:

If it is clear that s/he was not present at a material time and has no relevant information to offer; or

If the adjudicator believes that the request is simply part of an attempt to make the hearing unmanageable; or

If the adjudicator already accepts, as true, the evidence that the accused hopes the witness will confirm.

The applicable provisions of the European Convention on Human Rights

9. Article 6 is as follows:

1. 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Discussion

10. It is common ground that the proceedings before the Independent Adjudicator involved the determination of a criminal charge for the purposes of Article 6. They were therefore subject to the requirement of fairness under paragraph 1, and to the right to obtain the attendance of witnesses on his behalf under paragraph 3(d).
11. It is clear from the Independent Adjudicator's reasons that the non-attendance of Mr Wimbury was a material factor in his decision. If, therefore, the Claimant was unfairly or wrongfully deprived of his evidence, it seems to me that the trial was unfair, both under the Convention and under common law.
12. The adjudicator had power to require Mr Wimbury to attend the hearing, under paragraph 5.13. However, the Claimant's solicitor, who had been told that Mr Wimbury was unwilling to attend, did not ask the adjudicator to exercise this power. Nor did he suggest that the report that he was unwilling to attend was incorrect. He may have accepted that Mr Wimbury was unwilling to give evidence, or he may have considered that Mr Wimbury's evidence would not be helpful, but, whatever the reason was, he did not ask the adjudicator to secure his attendance.
13. In my judgment, the adjudicator was entitled to assume that the Claimant's solicitor had a good reason not to ask her to require Mr Wimbury's attendance. Even though the procedure before the Adjudicator is inquisitorial, she was not required to go behind the solicitor's apparent decision or to assume that it may have been ill-founded or inconsistent with his instructions. It would have been dangerous to have asked the solicitor whether he had a good reason not to ask for a direction that Mr Wimbury attend, since this question might have elicited matters which were the subject of privilege or which were inadmissible and prejudicial, and for the adjudicator to have required him to attend without any application on behalf of the Claimant might have been seen as demonstrating bias.
14. The Claimant's solicitor knew of the note referred to in paragraph 6 above, but not of its contents. He could have, but did not, call for it to be produced. The Claimant did not refer to it when he gave evidence. The adjudicator did not know of it, and cannot be criticised for its non-production. It had been witnessed by a prison officer, but there is no evidence that that officer was aware of its contents or significance.
15. In this case the Claimant was not deprived of the right to obtain the attendance of a witness; he, by his solicitor, did not seek to exercise that Convention right. Similarly, the evidence of the letter, if admissible, was not put before the Independent Adjudicator as a result of the Claimant's solicitor not asking her to direct its production. These matters did not, in these circumstances, render the hearing unfair.
16. For these reason, I have concluded that the proceedings before the Adjudicator were fair and that the Claimant's rights under Article 6 were not infringed. The application for judicial review will be dismissed.