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
		29 January 2009

Mr Justice COLLINS :

1. The claimant is a prisoner serving a life sentence imposed following his conviction for murder in May 1998. He was at the same time convicted and sentenced to a concurrent term of 25 years (subsequently reduced by the Court of Appeal to 18 years) for attempted murder. Those sentences were concurrent to sentences totalling 6 years imprisonment imposed in 1997 for rape and indecent assault. His tariff for the murder and so the minimum period which he will serve in prison is 20 years.
2. By this claim he seeks to quash a disciplinary finding of guilt on a charge of assault and the subsequent upholding of that finding by the Secretary of State. The finding of guilt by the governor was on 23 November 2006 and that finding was upheld on 6 December 2006. This claim was lodged on 7 February 2007. Permission to apply for judicial review was granted by Calvert-Smith, J on 19 June 2007. While the time taken before a hearing could be held is unsatisfactorily lengthy, there is no prejudice to the claimant since he had undergone the penalties imposed before the claim was lodged.
3. The claimant's record in prison is poor. He had prior to the decision challenged been found guilty of offences against discipline on 42 occasions. Three of these concerned assaults on prison officers and one an assault on a fellow prisoner. The charge with which this claim is concerned was assault on a female prison officer. The allegation read:-

"… [On] 3/10/06 … you committed an assault by punching Officer Jeanes in the head. You also kicked Officer Jeanes twice, which was also in the head."

The assault was a serious one. The claimant was seen by a prison officer to punch Officer Jeanes in the face causing her to fall to the ground whereupon he kicked her head before he could be restrained. The witnessing officer said the claimant threw a punch at him when he went to restrain him. The injuries were serious. Officer Jeanes was concussed. She sustained what she described as a large lump to her head, two black eyes, a bruise to her chest (the claimant had punched her in her chest before punching her in her face) and a cut to the top of her head. She spent some 4 hours at hospital where she was informed there was some internal bleeding but no fractures. She was off work from 3 October until 30 October.

4. This was clearly a very serious assault and one which, if the claimant were convicted in a criminal court, would have merited a substantial sentence of imprisonment. A charge of assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861 would have been appropriate and it might have been proper to charge a more serious offence, for example an attempt to commit or the commission of a substantive offence contrary to Section 18 of the 1861 Act. Having regard to the statements made by the prison officers, a criminal prosecution would have been justified. That was the view of the governor when the charges were first considered since he decided, in accordance with the Prison Discipline Manual (PSO 2000), to refer the matter to the police. In so doing, he was acting in accordance with Paragraph 4.28 of the Manual, which provides:-

"If the charge is criminal in character and the Governor … believes it is sufficiently serious to be reported to the police, the hearing must be opened and adjourned until the outcome of the police investigation or subsequent prosecution is known …"

Where the victim has not asked for referral to the police (as was the position in this case) the governor must decide each case on its merits. In Annex C the Manual sets out guidelines for referral to the police which have been agreed with the police, the Crown Prosecution Service and the Department for Constitutional Affairs (now the Ministry of Justice). Assault is dealt with in C.12 which, so far as material, reads:-

"The following should be referred:

…

… alleged assaults if any if the following elements are present: …

b) The occasioning of serious injury by any means

c) The use of serious violence against any person (providing that more than minor injury was the intended or likely outcome of such an assault, the actual extent of the injuries received may not be significant, minor injury means minor bruising, sprains and minor cuts: serious injury will be more than this …)"

It follows that referral to the police was mandatory.

5. On 30 October 2006 the police informed the prison that they would not be taking any action. No reasons for that decision have been provided. I am bound to say that it is well-nigh impossible to understand what proper reason there could have been to decline to take action. There was clear corroborated evidence of a serious assault. It may I suppose be that, since the claimant was serving a life sentence, the view was taken that to prosecute would be pointless since no additional term of imprisonment could be imposed and no other penalty would be available. If such a view was held, it was mistaken. In R v Hills & Others [2008] EWCA Crim 1871, the Court of Appeal has confirmed that a court has power to direct that a sentence of imprisonment should take effect at the end of the tariff period. Hills was guilty of a serious assault on a prison officer which received a sentence of 3 years imprisonment. He was serving an indeterminate sentence imposed in October 2006 with a tariff of 4 years. The offence of assault took place in June 2007. The judge directed that the sentence of 3 years should be consecutive to the tariff of 4 years. The court in upholding the judge's approach said this (Paragraph 10), after citing s.154 of the Powers of Criminal Courts (Sentencing) Act 2000:-

"That seems to us to give the court the power to direct that a sentence should or could commence at a different date. The sentencing regime which has been created in particular by the Criminal Justice Act 2003 provides for clear dates upon which minimum terms will come to an end which enable a court to identify with precision the dates upon which otherwise an offender could be considered for release or parole. That being the case, there is in our judgment no practical reason why an order should not be made which requires the offender to commence to serve an additional period after the minimum period before he can be considered for parole. The old authorities to the contrary effect are no longer relevant now that minimum terms are clearly identified."

If the tariff has been served, there is no problem since any sentence imposed will have to be served before any consideration of parole can arise.

6. Once the police had decided not to take any action, the disciplinary charge was to be pursued. The claimant's solicitors had written to the governor on 24 October 2006 requesting that the charge be referred to an outside adjudicator because, being an allegation of a 'brutal assault', Article 6 of the ECHR was engaged. The same letter identified four witnesses (one prison officer and three inmates) whom the claimant requested should attend any hearing. A request was also made in a later letter that the claimant should have access to legal representation.
7. The Manual deals in Chapter 13 with referral to an independent adjudicator (who will normally be a district judge). 13.2.1. provides:-

"As soon as the Governor … considers that a charge if proved could warrant a punishment of additional days, s/he must adjourn the hearing and refer the case to an independent Adjudicator."

But, since it is believed that additional days cannot be awarded to prisoners serving indeterminate sentences, 13.3 provides:-

"Cases involving multiple defendants, at least one of whom is serving a determinate sentence or is on remand, are the only ones in which a prisoner with an indeterminate sentence may be referred to an Independent Adjudicator."

Thus the Governor did not refer the charge to an Independent Adjudicator but decided to adjudicate on it himself. In so doing he was following the requirements of the Manual. Mr Southey submits that this was wrong since the charge ought to have been regarded as a criminal charge so that Article 6 applied and there was accordingly a need to have it heard by an independent tribunal. There are further complaints made about the conduct of the hearing and the refusal to allow legal representation. In granting permission, Calvert-Smith, J was unimpressed with the complaints, but did not specifically refuse permission to argue them. In any event, Mr Grodzinski has not sought to argue that I could not consider them.

8. Before dealing with the complaints, it is convenient to determine the Article 6 point. The reason for the approach set out in Paragraphs 13.2 and 13.3 of the Manual is the belief that the jurisprudence of the ECHR supported by domestic cases limits the application of Article 6 in prisoner disciplinary charges to those where an additional period in custody may result. Only an Independent Adjudicator may impose what are called Additional Days and these are limited to a maximum of 42 days for offences arising from a single incident. Paragraph 7.38 of the Manual provides:-

"Additional days may only be imposed on prisoners serving determinate sentences (i.e. short-term or long-term prisoners as defined by the Criminal Justice Act 1991 or fixed-term prisoners as defined by the Criminal Justice Act 2003); prospective additional days may be imposed on remand prisoners, contingent on their later conviction and receipt of a determinate sentence. The definition in the Acts do not include prisoners serving indeterminate sentences, i.e. life imprisonment (including detention at Her Majesty's pleasure, custody for life, etc) Imprisonment (or Detention) for Public Protection (IPP), or those subject to Detention and Training Orders (DTO), and those prisoners are therefore not liable for punishments of additional days. "

Apart from lesser penalties such as forfeiture of privileges, exclusion from associated work or activities and stoppage of earnings, the most severe penalty available to a governor is cellular confinement for a maximum period of 21 days. Following the finding of guilt, the claimant's punishment consisted of 21 days cellular confinement and forfeiture of privileges of association and access to canteen facilities for 42 days. He was also barred from access to TV, radio, newspapers, tobacco and personal possessions for 42 days, but the Secretary of State did not uphold the ban on TV, radio and newspapers.

9. The decision of the ECtHR which is the starting point for considering whether Article 6 applies to disciplinary proceedings is Engel & Others v The Netherlands (1979) 1 EHRR 647. That case concerned disciplinary penalties imposed on conscript soldiers. In relation to three applicants, the penalty available was such as to constitute deprivation of liberty so that the court decided that in their cases the charges fell within Article 6. The court made clear that its decision was limited to the sphere of military service when it specified how it would determine whether a 'given charge vested by the State in question … with a disciplinary character' nonetheless counts as criminal within the meaning of Article 6 (Paragraph 82). But in Paragraph 81 it set out what it regarded as important and, as later cases showed by repeating what was said, fundamental considerations. It said this:-

"The Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. This is made especially clear by Article 7. Such a choice, which has the effect of rendering applicable Articles 6 and 7, in principle escapes supervision by the court.

The converse choice, for its part, is subject to stricter rules. If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a 'mixed' offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention. The court therefore has jurisdiction, under Article 6 and even without reference to Articles 17 and 18, to satisfy itself that the disciplinary does not improperly encroach upon the criminal. "

10. Paragraph 82 sets out the criteria which apply in determining whether a charge should be regarded as criminal. There are three which have been helpfully and succinctly summarised by Scott Baker LJ in R(Tangney) v The Governor of HMP Elmsley [2005] HRLR 36 in Paragraph 18 thus:-

"So the court identified the three criteria:

i) the classification of the offence in domestic law;

ii) the nature of the offence; and

iii) the severity and nature of the punishment."

11. In Campbell and Fell v United Kingdom (1984) 7 EHRR 165, the ECtHR applied the approach it had adopted in Engel to a prison disciplinary case. Campbell, an IRA prisoner, had allegedly been involved in a mutiny and was charged with two offences, one of mutiny and one of doing gross personal violence to a prison officer, namely striking him with a broom handle. These were, under the regime then in force, designated especially grave offences and, having been convicted Campbell was awarded a total of 570 days loss of remission, together with other losses of privileges. Having established that the offences were classified in domestic law as disciplinary offences, (the first Engel criterion), the court considered the second criterion in Paragraph 71 thus:-

"In any event, the indications so afforded by the national law have only a relative value; the very nature of the offence is a factor of greater import.

In this respect, it has to be borne in mind that misconduct by a prisoner may take different forms; certain acts are clearly no more than a question of internal discipline, whereas others cannot be seen in the same light. Firstly, some matters may be more serious than others; in fact, the Rules grade offences, classifying those committed by Mr Campbell as 'especially grave'. Secondly, the illegality of some acts may not turn on the fact that they were committed in prison: certain conduct which constitutes an offence under the Rules may also amount to an offence under the criminal law. Thus, doing gross personal violence to a prison officer may correspond to the crime of 'assault occasioning actual bodily harm' and, although mutiny and incitement to mutiny are not as such offences under the general criminal law, the underlying facts may found a criminal charge of conspiracy. It also has to be remembered that, theoretically at least, there is nothing to prevent conduct of this kind being the subject of both criminal and disciplinary proceedings.

The Court considers that these factors, whilst not of themselves sufficient to lead to the conclusion that the offences with which the applicant was charged have to be regarded as 'criminal' for Convention purposes, do give them a certain colouring which does not entirely coincide with that of a purely disciplinary matter."

12. The Court continued in Paragraph 72:-

"It is therefore necessary to turn to the last criterion stated in … Engel …, namely the nature and degree of severity of the penalty that Mr Campbell risked incurring."

It discussed the question whether remission amounted to a privilege so that its loss could be regarded as a punishment, referring to the St Germain case [1979] 1 All ER 701. It concluded:-

"By causing detention to continue for substantially longer than would otherwise have been the case, the sanction came close to, even if it did not technically constitute, deprivation of liberty and the object and purpose of the Convention require that the imposition of a measure of such gravity should be accompanied by the guarantees of Article 6."

In Paragraph 75, it stated:-

"Taking into account, therefore, both the 'especially grave' character of the offences with which Mr Campbell was charged and the nature and severity of the penalty that he risked incurring –and did in fact incur – the Court finds that Article 6 is applicable to the Board of Visitors adjudication in this case. It is accordingly not necessary to consider the sanctions, other than forfeiture of remission, which could have been or were imposed on him."

13. It is far from clear from the judgment whether the second and third Engel criteria had both to be met if Article 6 were to apply. Mr Grodzinski made the point that the offences charged and proved against Mr Campbell were clearly very serious and each could have led to criminal prosecution: indeed, they were classified as especially grave. Nonetheless, the court took the view that the factors which it identified were not of themselves sufficient to lead to the conclusion that they should be regarded as criminal. He submitted that if those factors did not on their own qualify, it was impossible to say that the assault by the claimant, severe though it was, could.
14. In Ezeh and Connors v United Kingdom (2004) 39 EHRR 1, the Grand Chamber of the ECtHR considered the application of Article 6 in prison discipline cases. Mr Ezeh had been charged with threatening to kill a probation officer if she did not write down what he said in preparing a parole assessment report. It was his 22^nd offence against discipline and 7^th of threatening to kill or injure a member of the prison staff. On being found guilty, he was awarded inter alia 40 additional days custody. Mr Connors had been charged with assault. The allegation was that when running round a track in the prison exercise yard he had collided with an officer. The officer said he had done it deliberately. He was awarded, on being found guilty, inter alia 7 additional days custody. This was his 37^th offence against discipline. It is difficult to judge how serious Mr Ezeh's offence really was – much would depend on whether he intended his threats to be taken seriously and whether in the circumstances they were so taken – but Mr Connors' was clearly relatively minor. It was not suggested that the officer was injured at all and so at most what he did would have amounted to a common assault.
15. The court cited relevant passages in Engel and Campbell and Fell, in particular those in Campbell and Fell (Paragraph 69 of the judgment in that case) which accepted the practical need to establish a special disciplinary regime in prison bearing in mind the need to deal with misconduct expeditiously, the existence of tailor made sanctions not available to a criminal court and the desire of the prison authorities to retain ultimate responsibility for discipline within the establishments. But the guarantee of a fair hearing was one of the fundamental principles of any democratic society and justice could not stop at the prison gates so that there was, in appropriate cases, no warrant for depriving inmates of the safeguards of Article 6. In Paragraphs 85 and 86 of its judgment, the Court said this:-

"85. In addition, as in the Campbell and Fell judgment, the Grand Chamber agrees with the Chamber that it is correct to apply the 'Engel criteria' to the facts of the present cases in determining where to place the dividing line between 'criminal' and the 'disciplinary'. The Court will do so in a manner consistent with the object and purpose of Article 6 of the Convention, while making 'due allowance' for the prison context and for the 'practical reasons and reasons of policy' in favour of establishing a special prison disciplinary regime.

86. In addition, it is the Court's established jurisprudence that the second and third criteria laid down in the Engel judgment are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as 'criminal' from the point of view of the Convention, or that the offence made the person liable to a sanction which, by its nature and degree of severity, belongs in general to the 'criminal' sphere. This does not exclude that a cumulative approach may be adopted where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge."

16. The Court thus makes it clear that the second Engel criteria is free standing. The difficulty arises in ascertaining whether an offence is by its nature to be regarded as criminal. The Court sought to deal with this in Paragraphs 100 to 107 of its judgment which I should set out in full. They read:-

"100. In explaining the autonomous nature of the concept of 'criminal' in Article 6 of the Convention, the Court has emphasised that the contracting states could not at their discretion classify an offence as disciplinary instead of criminal, or prosecute the author of a 'mixed' offence on the disciplinary rather than on the criminal plane, as this would subordinate the operation of the fundamental clauses of Article 6 to their sovereign will. The Court's role under that Article is therefore to satisfy itself that the disciplinary does not improperly encroach upon the criminal.

101. In the above-cited Campbell and Fell judgment it was noted that misconduct by a prisoner might take different forms; while certain acts were clearly no more than questions of internal discipline, others could not be seen in the same light. Relevant indicators were that 'some matters may be more serious than others', that the illegality of the relevant act might turn on the fact that it was committed in prison and that conduct which constituted an offence under the Rules might also amount to an offence under the criminal law so that, theoretically at least, there was nothing to prevent conduct of this kind being the subject of both criminal and disciplinary proceedings.

102. Moreover, criminal penalties have been customarily recognised as comprising the twin objectives of punishment and deterrence.

103. In the present cases, the Court notes, in the first place, that the offences in question were directed towards a group possessing a special status, namely prisoners, as opposed to all citizens. However, the Court does not accept the Government's submission that this fact renders the nature of the offences prima facie disciplinary. It is but one of the 'relevant indicators' in assessing the nature of the offence.

104. Secondly, it was not disputed before the Grand Chamber that the charge against the first applicant corresponded to an offence in the ordinary criminal law. It is also clear that the charge of assault against the second applicant is an offence under the criminal law as well as under the Prison Rules. It is true that the latter charge involved a relatively minor incident of deliberately colliding with a prison officer which may not necessarily have led to prosecution outside the prison context. It is also true that the extreme gravity of the offence may be indicative of its criminal nature, as indicated in the Campbell and Fell judgment. However, that does not conversely mean that the minor nature of an offence can, of itself, take it outside the ambit of Article 6 as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the second of the Engel criteria, necessarily requires a certain degree of seriousness. The reliance on the severity of the penalty in the Campbell and Fell judgment was a matter to the third of the Engel criteria as opposed to a factor defining the nature of the offence.

Relying on Convention case law, the Government contested the weight to be attached to this concurrent criminal and disciplinary liability. However, in the case most directly in point, the Campbell and Fell judgment, the Court referred to a 'theoretical' possibility of the impugned acts being the subject of concurrent criminal and disciplinary pursuit as a relevant factor in the assessment of the nature of the offence and it did so independently of the gravity of the offences in question. Accordingly, and even noting the prison context of the charges, the theoretical possibility of concurrent criminal and disciplinary liability is, at the very least, a relevant point which tends to the classification of the nature of both offences as 'mixed' offences.

105. Thirdly, the Government submit that disciplinary rules and sanctions in prisons are designed primarily to ensure the successful operation of a system of early release so that the 'punitive' element of the offence is secondary to the primary purpose of 'prevention' of disorder. The Court considers that awards of additional days were, on any view, imposed after a finding of culpability to punish the applicants for the offences they had committed and to prevent further offending by them and other prisoners. It does not find persuasive the Government's argument distinguishing between the punishment and deterrent aims of the offences in question, these objectives not being mutually exclusive and being recognised as characteristic features of criminal penalties.

106. Accordingly, the Court considers that these factors, even if they were not of themselves sufficient to lead to the conclusion that the offences with which the applicants were charged are to be regarded as 'criminal' for Convention purposes, clearly gives then a certain colouring which does not entirely coincide with that of a purely disciplinary matter.

107. The Court finds, as did the Chamber, that it is therefore necessary to turn to the third criterion: the nature and degree of severity of the penalty that the applicants risked incurring. "

17. I confess that I do not find the reasoning entirely satisfactory nor is it clear what sort of offending meets the second criterion. The word 'Accordingly' which commences Paragraph 106 does not seem to me to follow from what the court had said in the preceding paragraphs. I think all one can say is that the court clearly took the view that on their facts the offences charged in that case did not on their own qualify. How that would have left Mr Campbell's offending had the court been considering his case is far from clear, although the court did not suggest that that decision was wrong. It is equally unclear how the court would have treated the claimant's case. Having considered the third Engel criterion, the court concluded:-

"In such circumstances, the court concludes as did the Chamber that the nature of the charges together with the nature and severity of the penalties, were such that the charges against the applicants constituted criminal charges within the meaning of Article 6 … which … applied to their adjudicative hearings."

18. Mr Grodzinski, in submitting that it was only when a prisoner faced a punishment of additional days that Article 6 was applicable, placed particular reliance on R(Napier) v Secretary of State for the Home Department [2004] 1 WLR 3056, a decision of Goldring J. Mr Napier had been found guilty of assaulting a prison officer. The penalty of 25 additional days had been remitted following the ECtHR's decision in Ezeh and Connors, but Mr Napier sought to have the determination of guilt expunged for failure to comply with Article 6. Goldring J rejected his claim on the ground that the governor's decision, stripped of its penal consequences, was an administrative finding of fact without the stigma of a conviction. In paragraph 51 Goldring J (as the report reads) said this:-

"In my view a proper reading of the Ezeh and Connors case leads to the conclusion that, absent the imposition of added days, absent the requirement that the adjudication needs to be Article 6 compliant. In other words, without these added days, application of the Engel criteria would have led to a different conclusion."

But this was not and, as is apparent from the later paragraphs, was not intended to be a conclusion which applied to all offences which were dealt with through the disciplinary process. In Paragraph 54, he said:-

"Although the nature of the allegations against the claimant was more serious that that of [Connors], it was not such in my view as to bring it independently within the second Engel criterion."

19. Mr Napier had thrown a bucket of excrement and urine over an unfortunate prison officer. This was clearly most unpleasant for the officer, but no physical injury was caused. Thus it would not prima facie have fallen within C.12 of the Manual so as to require referral to the police. Thus Goldring J's decision that Article 6 would in the circumstances only apply where the penalty resulted in additional time in custody was clearly right and was based on the particular facts of the case. It emphasises the point which emerges from the ECtHR jurisprudence that the fact that particular conduct may constitute a criminal offence – an assault is an obvious example – does not of itself mean that Article 6 applies. Equally, it follows that conduct which is referred to the police will, if the police decide not to take action, not necessarily be regarded as criminal so that Article 6 applies to subsequent disciplinary proceedings, assuming that no additional days can be awarded.
20. In R(Tangney) v The Governor of HM Prison Elmsley (supra) the Court of Appeal considered the application of Article 6. Mr Tangney was serving a life sentence. His tariff of 20 years had expired in 1999. The offences with which he was charged were an assault on a prison officer, whom he had allegedly kissed on his cheek, and using threatening, abusive or insulting words or behaviour by saying that he would stab a particular officer 27 times. Findings of guilt on both charges had been set aside, but the claimant concluded that he was still a victim because he remained at risk of a similar situation occurring. In Paragraph 24, Scott Baker LJ, who gave the only reasoned judgment, said this:-

"It is I think clear that the engagement of Article 6 is dependent on the three criteria set out in Engel and discussed in the later cases of Campbell and Ezeh. The three criteria are, I accept, both separate and cumulative. Mr Sales' basic point is that the appellant simply does not get home on the facts of the present case. He says it is possible to envisage a very small minority of cases where it may be possible for a prisoner to succeed on criterion one and two, particularly criterion two, but, he submits, such cases are likely to be rare in the extreme. I think he is correct in this regard. It is possible for cases to arise where the first two criteria are met. Suppose, for example, a prisoner seriously injures another prisoner. The governor refers the matter to the police, as would ordinarily be the case where a serious criminal offence appears to have been committed, but for some reason, perhaps lack of evidence, there is no prosecution. Nevertheless, the prisoner is charged domestically under the Prison Rules. In such circumstances, I can envisage the engagement of Article 6. But that is not this case."

21. Mr Grodzinski submitted that his then leader, Mr Sales, was wrong to have accepted that there could be any case in which a prisoner could succeed on the second Engel criterion alone. In my view, such a concession was inevitable having regard to what the ECtHR said in paragraph 86 of Ezeh and Connors. While the observations of Scott Baker LJ can be categorised as obiter dicta, they were clearly considered on the basis of full argument. The examples given are interesting. An assault which seriously injures a prison officer would equally qualify. Refusal by the police to take action on the ground of lack of evidence might make disciplinary action difficult to justify, although I recognise that the process is inquisitorial rather than adversarial.
22. In this case, the police have given no reason for their failure to take action. The evidence was strong, and the injuries were serious. It seems to me that this case does meet the second Engel criterion and that accordingly the hearing should have been before an independent adjudicator. For reasons which I shall develop later in this judgment, this situation need not arise again. And I must make clear that I accept that this case is to be regarded as exceptional on its facts and this decision cannot be regarded as in any way detracting from Scott Baker LJ's observations in Paragraph 24 of his judgment in Tangney. Where a proper decision has been made to deal with the offence as a disciplinary matter because the police have decided not to take any action, it will be an exceptional case that justifies the application of Article 6. That is entirely consistent with the ECtHR approach. This is in my judgment such an exceptional case.
23. That does not mean that the claimant is entitled to the relief he seeks. Although I recognise that a failure to apply Article 6 in providing an independent tribunal will normally require that a decision made should be quashed, there will be rare cases where it is clear that no prejudice arose since the decision would inevitably have been the same. This, as will become clear, is in my judgment such a case. It is therefore necessary to consider what happened at the hearing, both to decide whether any relief should be granted and to deal with the allegations that there was procedural unfairness.
24. The first complaint is that the claimant's application for legal representation was wrongly refused. The principles upon which discretion should be exercised stem from the decision of the Divisional Court in R v Secretary of State for the Home Department ex p Tarrant and others [1984] 1 All ER 799. They are set out in Annex O to the Manual. 0.7 lists them. They are:-

1. The seriousness of the charge and the potential penalty.

2. Whether points of law are likely to arise.

3. The capacity of the prisoner to present his own case.

4. Whether or not there are likely to be procedural difficulties.

5. The need for reasonable speed.

6. The need for fairness as between prisoners and between prisoners and prison staff.

25. The governor considered these, as set out in the relevant form which has to be filled in to demonstrate that such consideration has taken place. While no doubt cellular confinement is a relatively severe penalty, there was no question that additional days could not be awarded. The governor dealt with the seriousness of the charge and of the potential penalty thus:-

"Matter referred to police not serious enough for the police to deal with. Cannot award [Additional Days]."

26. The assumption – for such it must have been since no reasons were given by the police – that they believed the charge was not serious enough cannot be accepted. It clearly was serious enough. But that does not mean that representation was required. The facts upon which the charge was based were straightforward. The claimant had had the benefit of legal advice and was able to communicate satisfactorily. There was no reason to believe that he would be unable to present his case properly and through his solicitors he had already indicated what witnesses he wished to give evidence. It was suggested by Mr Southey that a conviction would have serious consequences when his record was considered once he had served his tariff period and so was eligible for parole. His record without this conviction was appalling and his tariff had a number of years to run. There was an obvious need for speed – the events had occurred on 3 October 2006 and the hearing would have had to have been delayed. The governor was in the circumstances entitled to exercise his discretion against allowing any legal representation.
27. It is instructive to record the relevant parts of what occurred at the hearing. The evidence was read out at the outset and the claimant was given further time to read it. He had said that it was not accurate and he was asked what parts were not accurate. His reply was:-

"The part about me swinging a punch at Officer Davies."

He was then asked whether any other part was not accurate and he said 'No'. Thus he was apparently admitting that he had assaulted P.O. Jeanes. The attempt to punch Officer Davies occurred P.O. Davies said, when he went to stop the claimant continuing to kick P.O. Jeanes.

28. The questions and answers continued as follows:-

"Q. So is all other parts of the evidence accurate?

A. Yes.

Q. So are you agreeing that it is correct you punched Officer Jeanes in the head?

A. I don't know.

Q .What do you mean you don't know? Are you saying you cannot remember?

A. Yes. I can't remember.

Q. Did you kick Officer Jeanes twice?

A. I don't know.

Q. Are you saying you can't remember?

A. Yes. I cannot remember."

The unsatisfactory nature of the claimant's responses is all too obvious.

29. One of the inmates whom the claimant had asked to attend was then called. He was asked by the claimant whether he remembered what happened 'on events leading up to that day' to which he replied 'no, not really'. He was then asked whether he remembered what happened on that day. He said:-

"I was there but far away. Could not hear what was said. Saw a commotion – turned into a big mad fight – officers attended with their truncheons and then it all died down."

That evidence was not helpful to the claimant, but the inmate was made available in case the claimant wanted him recalled later.

30. P.O. Jeanes then gave evidence. She was unable to recall what had caused her to fall to the floor. P.O. Davies was in the room and the governor asked him whether he had seen the blow which had knocked P.O. Jeanes to the floor. He said he had, but he had not seen the punch to the chest. P.O. Jeanes was unable to remember more than one kick. Again, P.O. Davies was asked whether he had seen the kicking. He said he had. Both officers confirmed that the claimant had assaulted P.O. Jeanes. The claimant was then asked what questions he had for P.O. Jeanes, whereupon he said:-

"I am now refusing to take part in this adjudication on advice from my solicitors."

The governor then asked:-

"Why do you not want to take part?"

The answer from the claimant was:-

"I don't know."

He then left. The inmate who had previously given evidence was then recalled and asked whether he would answer some questions. He said he would not as he did not want 'to be any part of this'. He then left.

31. I am sure that the claimant's solicitors could not have given him advice to refuse to take part. It is to be noted that Prison Officer Anderson, whom the solicitors had asked to be made available to give evidence, had come on the scene having heard a commotion to see two officers restraining the claimant and P.O. Jeanes lying badly injured on the floor with her hands covering her head. She was unable to respond to P.O. Anderson's attempts to speak to her: that was consistent with her having been rendered unconscious by the assault. She was certainly, as P.O. Anderson said, very dazed when she was able to be moved to the nurse's office. P.O. Anderson's evidence could not have assisted the claimant; indeed, it was supportive of the case against him.
32. Complaint is made about the questioning of P.O. Davies at the same time as P.O. Jeanes. It meant that both officers were in effect giving simultaneous evidence. That is not in accordance with the procedure set out in the Manual. The course adopted by the governor, while understandable, was irregular. Normally, as in a criminal case, witnesses should be out of the room when evidence is being given by other witnesses, particularly where, as here, their evidence effectively constitutes the case against the prisoner. But in the circumstances of this case and having regard to the lack of any apparent challenge to the accuracy of the evidence given, there was no prejudice to the claimant. Complaint is also made that the governor did not call the other witnesses referred to in the solicitors' letter. The claimant's attitude made that unnecessary. He chose to walk out despite the warning that the hearing would proceed in his absence and, in the light of the overwhelming unchallenged evidence, the governor was entitled to find the case proved.
33. There is no merit in the complaints of procedural unfairness. It is clear that the claimant had no defence to the charge. Thus he could not have been prejudiced by the failure to refer the matter to an independent adjudicator. The result would have been the same.
34. It seems to me that in the light of R v Hills those responsible should reconsider how to deal with lifers. I can see no reason why there should not be the possibility of a penalty of additional days for those whose tariff has not expired. Those additional days can be added to the tariff. While no doubt 42 days may not seem particularly important for one whose tariff is very lengthy, there are those serving IPPs whose tariff may be short. Thus lifers who have not served their tariff period when an offence is committed can and in my view should be treated in the same way as those subject to a determinate sentence.
35. I recognise that for those whose tariff has expired additional days is not a possibility. But in all cases if the offence was serious and criminal the police will have been asked to consider taking action. It is important that police action should be taken whenever a sentence of imprisonment exceeding that which can result from a disciplinary finding seems a possible result. Furthermore, it is in my view essential that the police indicate why they are not taking action if that is their decision. If the evidence is in their view unsatisfactory, that may determine whether any particular disciplinary charge can properly be pursued. If the view is taken that the offence was insufficiently serious to justify proceedings that can be taken into account. If the police do their job properly, it is difficult to see that any offence which they decide not to pursue could be regarded as one which, when the disciplinary process is undertaken, could attract the application of Article 6 in the case of lifers whose tariff has expired. In this way, the problem which this case exemplifies should not arise. Furthermore, and most importantly, greater protection can be provided for prison officers and fellow inmates if it is known that assaults will be likely to result in additional loss of liberty.
36. For the reasons I have given, this claim is dismissed.