England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		5th May 2009

1. SIR THAYNE FORBES: This is a rolled up hearing of the claimant's application for permission for judicial review and the hearing of the substantive application if permission is granted, pursuant to the order made by Burton J on 23rd April 2009. I grant permission.
2. The claimant, at all material times, was a prisoner serving his sentence at Her Majesty's Prison The Mount. In these proceedings he seeks to challenge the finding of guilt made against him by the Independent Adjudicator, District Judge Wicks ("the Independent Adjudicator"), on 4th December 2008 whereby the claimant was found guilty of an offence contrary to paragraph 12(a) of Rule 51 of the Prison Rules 1999 to the effect that he had "in his possession any unauthorised article", namely a mobile phone.
3. In addition, the claimant also challenges the refusal by the Chief Magistrate of England and Wales on 6th February 2009 to overturn the Independent Adjudicator's decision and/or to quash the punishment imposed. In fact, it is perfectly apparent that the challenge, so far as it relates to the Chief Magistrate's decision, is a challenge that would only prevail as a consequence of a successful challenge to the finding of guilt. I say that because the Chief Magistrate's jurisdiction is merely to review the punishment imposed, and in this case I am satisfied that if the finding of guilt remains good then there is no possible basis for challenging the punishment actually imposed by the Independent Adjudicator. I need say no more about that aspect of the matter at this stage.
4. The background facts of the matter can be briefly stated. On 5th October 2008 another prisoner, Mr Takkar, was reported for the possession of an unauthorised article, namely the mobile phone in question. On 6th October 2008 an adjudication was opened in respect of that matter by Mr Burnett, who was a prisoner governor, and then perfectly properly referred to an Independent Adjudicator. On 16th October 2008 a hearing into the charge against Mr Takkar was heard by the Independent Adjudicator. At that hearing, Mr Takkar pleaded guilty on a limited basis. However, the basis of his plea was not accepted by the Independent Adjudicator "without first hearing from the reporting officer and the claimant". It is important to realise that the claimant was not present at that particular hearing.
5. Mr Takkar was represented at that hearing by a Mr James Kelly. It is helpful to quote from Mr Kelly's witness statement as to what took place:

"1. On 16th October 2008, I attended HMP The Mount to represent a Mr Takkar at his appearance before the Independent Adjudicator, District Judge Wicks;

2. Mr Takkar had been reported for possession of an unauthorised article, namely a mobile telephone, in his cell on 5th October 2008;

3. Mr Takkar provided me with a signed letter/statement from the claimant in which the claimant admitted that he had said mobile telephone in his possession when he visited Mr Takkar's cell on 5th October 2008 and that the telephone had fallen out of his pocket while he sat on Mr Takkar's bed;

4. The search of Mr Takkar's cell which revealed the telephone occurred within minutes of the claimant leaving the cell;

5. At the hearing before the Independent Adjudicator of 16th October 2008, Mr Takkar entered a plea of guilty to the report he faced;

6. Following the guilty plea, I put forward Mr Takkar's basis of plea (unintended and momentary possession of the mobile telephone), tendering the letter/statement of the claimant. I invited the Independent Adjudicator to accept the basis of plea or, should he feel unable to do that on the basis of my submission and the letter/statement on its own, to adjourn the matter for the equivalent of a Newton hearing;

7. The Independent Adjudicator declined to accept Mr Takkar's basis of plea without first hearing from the reporting officer and the claimant and proceeded to adjourn the matter to 13th November 2008;

8. During the hearing of 16th October 2008, in the presence of three prison officers, I mentioned the claimant by name on a number of occasions as well as stating that his letter/statement was an admission of possession of the telephone on 5th October 2008;

9. I once again represented Mr Takkar at his 'Newton' hearing, before District Judge Wright, on 13th November 2008;

10. During the hearing, the claimant gave evidence in line with his letter/statement, admitting that he had been in possession of the mobile telephone on 5th October 2009 and had inadvertently left it in Mr Takkar's cell;

11. The Independent Adjudicator accepted the evidence presented and Mr Takkar received a suspended sentence;

12. On 14th November 2008, the claimant was reported for possession of an unauthorised article on 5th October 2008, namely the above mentioned mobile telephone."

6. The reason that this matter comes before the court today relates to the time constraints in respect of a charge laid against the prisoner under the Prison Rules. Under issue 253 of the Prison Discipline Manual relating to adjudications, initially issued on 30th December 2005, the relevant paragraph is 2.3 of Chapter 2:

"A charge is formally laid when form F1127 (Notice of Report) is handed to the accused. Prison Rule 53 and YOI Rule 58 require that a disciplinary charge against a prisoner shall be laid as soon as possible and save in exceptional circumstances within 48 hours of the alleged offence being discovered [In practice this means within 48 hours of discovery of evidence linking the accused to the offence]. This applies irrespective of whether any part of those 48 hours includes a weekend or public holiday . . . It may be that, on occasion, the substantive hearing of a charge has to be delayed whilst the detailed evidence to support it is prepared."

7. The short point taken on behalf of the claimant in these proceedings is that, at the hearing before the Independent Adjudicator on 16th October 2008, production of the signed letter/statement by the solicitor representing Mr Takkar and the further indication by that solicitor of the name of the claimant and the fact that the letter constituted an admission by the claimant of his having been in possession of the mobile phone at the material time, constituted evidence of the commission of the offence by the claimant, in respect of which the prison authorities took no action against the claimant until the 14th November 2008, well after the 48 hours' time limit had expired.
8. Counsel for the parties are agreed that the essential issue in these proceedings is what meaning is to be attached to the following words:

"A charge shall be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the alleged offence being discovered."

9. On behalf of the claimant, Mr O'Callaghan submitted that the production of the letter, signed by the claimant, and the identification of the claimant at the proceedings before the Independent Adjudicator on 16th October 2008 plainly constituted evidence. Since it was evidence produced in the presence of the reporting officer and two other officers, it was evidence which to all intents was evidence in relation to the offence that was discovered in their presence, and thus made known to the prison authorities. Mr O'Callaghan submitted that the same facts also clearly satisfied the critical words that follow in paragraph 2.3 of Chapter 2, namely that the matters to which I have just referred plainly constituted "evidence linking the accused to the offence". Mr O'Callaghan submitted, therefore, that the prison authorities should have taken the steps to charge the claimant within 48 hours of the occurrence of these matters on 16th October 2008. They plainly failed to do so and the resulting charge of 14th November 2008 was substantially out of time. On that basis, he submitted, the decision of the Independent Adjudicator who dealt with the charge against the claimant should be quashed.
10. The Independent Adjudicator who dealt with the charge against the claimant was District Judge Wicks. When these matters were drawn to his attention by way of defence to the charge, namely that it was out of time, the Independent Adjudicator ruled as follows (and I quote from paragraph 6 of Miss Broad's written skeleton argument on behalf of the Secretary of State):

"Mr Kelly for P

Submission

While proceedings today are based on admission I adjourned hearing on 13/11 there has been an earlier notification of guilt of PK by solicitor to Adjudicator GLW on 16/10 . . . .

On 16/10 at hearing of adjudication of P Takkar Mr Kelly proffered statement by P Kamara saying he therein admitted him being person who had phone -- Adjudicator GL Wicks declined to read it and said he would wish that evidence to be given by P Kamara personally. Matter was then put over to 13/11 for that purpose. Contention is however that that earlier declaration and proffering of statement was sufficient to trigger 'knowledge' in prison officers present and this action based on later oral admission is out of time.

Ruling

I do not consider that a solicitor's statement made in an adjudication of another P that a second P (now PK the defendant in the present proceedings) had made an admission in writing, and the proffering of that statement to I/A (who declined to read it, indicating that he would wish to such 'evidence' to be given orally by P concerned) could have amounted to sufficient evidence in the sense intended by Rule 2.3 to enable a charge there and then to be laid against that second P. I find the following as reasons for this view --

(1) It happens that today the same solicitor as represented original P Takkar represents the P whose admission was proffered. It is unthinkable in my view that if solicitors representing Prisoner A could implicate Prisoner B, whom he did not then represent (I have no idea whether Mr Kelly represented present defendant on 16/10 or not; it does not matter, in my view, since, if his submission is correct, it would have to apply without such connection) could trigger a case there and then against that other prisoner.

(2) I consider, moreover, that only the actual giving of evidence, following, as necessarily applies, warning by I/A as to consequences of self-incrimination, would be sufficient to constitute a sufficient quality of evidence to sustain an allegation.

(3) No officer in my view could have justifiably charged this P, absent on 16/10, with having committed an offence on 5/10, on the basis of what had happened. Only on 13/11 was there, prima facie, proper grounds so to do. In my view the present proceedings are prima facie valid."

11. It can be seen that the essence of the Independent Adjudicator's decision was that only the actual giving of evidence following a warning against self-incrimination would have been sufficient in the circumstances of this case to constitute a sufficient quality of evidence to sustain the charge against this claimant. In my view, in coming to that conclusion, the Independent Adjudicator fell into error.
12. A reading of Rule 2.3 is not in any way restricted in its terms to the sort of quality of evidence that the District Judge plainly had in mind. Rule 2.3 is, as I have already said, expressed in the following terms:

"The charge shall be laid within 48 hours of the alleged offence being discovered. In practice, this means within 48 hours of discovery of evidence linking the accused to the offence."

13. On behalf of the Secretary of State, Miss Broadfoot very properly accepted that the written letter/statement proffered by the solicitor at the hearing on 16th October, together with the identification of the author of the letter and the fact that the letter constituted an admission by its author, did constitute evidence of the claimant having committed the offence. Miss Broadfoot's submission was that although it was evidence, it was not evidence that had been in any meaningful way communicated to the prison authorities. The letter was not handed to any of the officers at the hearing. They heard what it was said to contain, but they did not have the letter in their hands to consider it, although plainly the opportunity to do so was present. Miss Broadfoot submitted that in those circumstances it would be wrong to say that, so far as the prison authorities were concerned, they had discovered the evidence relating to the alleged offence on 16th October. It was only later when the matter became clarified and was the subject of oral evidence on 13th November, when the prison authorities did become fully aware of that evidence and then took the appropriate action within 48 hours.
14. I am not persuaded by that submission. On any view, the letter/statement produced by the solicitor, signed by the claimant, in which there was a clear admission of the commission of the offence, and where that fact and the identity of the claimant was made known, did constitute evidence. Furthermore, it was evidence that linked the claimant to the commission of the offence. It may be that it would not have been appropriate to charge the claimant immediately that the matter was made known at the hearing on 16th October, but the prison authorities had 48 hours in which to act on the basis of what had taken place at the hearing. In my judgment, any failure to make the prison authorities fully aware of the actual written words in the document itself was the responsibility of the reporting officer who was present when the document was produced. Even though he did not see the written words, he was made fully aware by the solicitor representing Mr Takkar what the document in question contained. It contained the admission and it contained the signature and the identity of the claimant. That was evidence made known to the officer which he did not act upon, apparently, at the time, by seeking to be provided with a written copy of the document in question. But that it was evidence that linked the claimant to the commission of the offence seems to me to be beyond argument.
15. I am reinforced in my conclusion that this sequence of events did constitute discovery of the evidence in question within the meaning of Rule 2.3 by the decision of the Divisional Court in Tesco Stores Ltd v London Borough of Harrow [2003] EWHC 2919, a case that concerned the expiry of the time limit for prosecution under section 34 of the Food Safety Act 1990. Section 34 provided, so far as material, that no prosecution for an offence under that Act should be brought "after the expiry of . . . one year from its discovery by the prosecutor". At paragraph 14, Newman J referred to the meaning of the word "discovery" in that section, and held that it was when "all the facts material to found the relevant charge under the Act were disclosed to the appropriate officer" (see paragraph 14). At paragraph 35, Newman J went on to lay down some general guidance on the issue of discovery in that context, and said this:

"[It] seems to me that the Magistrates may . . . be assisted by asking the question: whether the facts disclosed, objectively considered, would have led a prosecuting authority to have reasonable grounds to believe that an offence may have been committed by some person who has been identified to it? Discovering the offence should be taken to mean discovering grounds sufficient to found a reasonable belief an offence has been committed. It seems to me such an approach is consistent with the statutory intention which can be drawn from the section and at that stage investigation can begin of the primary facts which are then known to the prosecutor. It is at that moment that time should be begin to run."

16. As it seems to me, applying that approach to the circumstances of 16th October 2008, it is manifest that those facts to which I referred earlier relating to the letter/statement of the claimant and the information provided by the solicitor, objectively considered, would have led a prosecuting authority to have reasonable grounds to believe that an offence may have been committed by the person identified in that information. I agree with the approach stated by Newman J in the Tesco case. I recognise that that is a case which was concerned with a very much larger time limit than in the present case. However, as it seems to me, that is a distinction which makes no difference to the proper interpretation of the word "discovered" or "discovery".
17. On any view, as I have already said, the information provided at the hearing of 16th October was evidence that linked the claimant to the offence in question. It was evidence which, in all material respects, was fully disclosed to the prosecuting authority in the form of the reporting officer who was present at that hearing. In my judgment, the reasons given by the Independent Adjudicator for rejecting those arguments do not withstand analysis and scrutiny. Rule 2.3 is not concerned with evidence of the highest and most persuasive quality. It is expressed in very general terms and is satisfactorily explained by the words that follow the sentence making the 48-hour time limit a mandatory time limit in which the rule indicates that, in the ordinary way, the evidence should be evidence that links the prisoner to the commission of the offence in question. In my judgment, this evidence plainly did and came firmly within the provisions of Rule 2.3, as I have already indicated.
18. In the course of argument, I suggested to Miss Broadfoot that possibly the best point in favour of upholding the decision of the Independent Adjudicator would be that, in the particular circumstances of this case, this was a case which fell within the sort of exceptional circumstances contemplated in paragraph 2.3, in effect extending the time limit. Miss Broadfoot made it clear that that part of paragraph 2.3 had never been relied on at any stage and that it was not appropriate for the Secretary of State to rely upon any such argument at this stage. In my view, that approach was entirely appropriate and to the credit of the Secretary of State and those who represent him.
19. However, Miss Broadfoot also indicated that it would be helpful if I were to make some observation about the expression "exceptional circumstance" as used in Rule 2.3. As it seems to me, and without this being in any way an exhaustive analysis of those words, the words have been included to ensure that in certain circumstances that can be described as "exceptional", an extension of the 48-hour period will be appropriate. In this particular case, given the rather unusual nature of the way in which matters emerged, it may well have been appropriate to consider that these circumstances were exceptional. The main feature of exceptionality would be that this was a case where there had been a plea of guilty to the offence in question by prisoner Takkar. The evidence relating to the claimant's commission of an offence only emerged as part of the process of mitigation. In relation to that, it is clear that the Independent Adjudicator was right to deal with that matter by way of a Newton hearing, so that the matter was properly investigated. It might have been that, at the end of the Newton hearing, the Independent Adjudicator rejected this mitigation as a fabrication. In those circumstances, the prison authorities could, as it seems to me, perfectly properly argue that until resolution of the Newton hearing, it would not have been appropriate to charge the claimant, because to do so would have lent possible and inappropriate credence to the matters being put forward by Mr Takkar as part of his mitigation, those matters having not yet been adjudicated upon.
20. In all those circumstances, as it seems to me, it would have been perfectly proper for the Prison Service to say that it was aware of the evidence that suggested that this claimant was guilty of the charge in question, but that it would have been premature to charge him until the outstanding evidence with regard to the credibility of the matter from the perspective of the prisoner Takkar had been adjudicated upon. Once that had been done then it would have been appropriate to charge the claimant. Had that argument been presented to me, I suspect that the outcome of these proceedings would have been very different, but it was not. As Miss Broadfoot very properly indicated, the Secretary of State has taken a view that it was not appropriate to rely on such an argument and therefore, although I indicate its nature and also indicate that it is an argument that would have had merit, it is not one that falls to be applied or decided in the particular circumstances of this case.
21. I therefore revert to what I said earlier, which is simply this. As of 16th October 2008, evidence was discovered at the hearing which plainly implicated the claimant in this offence. That evidence was evidence that linked him to the commission of the offence, for reasons already explained. The charge in question was not preferred until long after the 48-hour time limit had expired and the Independent Adjudicator erred, in my view, for the reasons given, in concluding that the time limit had not been exceeded.
22. For those reasons, therefore, I have come to the conclusion that the decision of the Independent Adjudicator should be and is hereby quashed. It follows that the decision of the Chief Magistrate must also fall, it being one the effectiveness of which is wholly dependent upon the subsistence of the order made by the Independent Adjudicator.
23. MR O'CALLAGHAN: My Lord, Mr Kamara is publicly funded so I would ask for costs in this matter.
24. MISS BROADFOOT: My Lord, I cannot resist an application for costs. My solicitor left me an instruction that, just to preserve my client's position, I need to formally ask for leave to appeal.
25. SIR THAYNE FORBES: I do not think there is any reasonable prospect of success, Miss Broadfoot.