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
		08/12/2011

Stephen Males QC:

Introduction

1. In this claim for judicial review the claimant – Charles Bates, a serving prisoner – challenges the decision of an independent adjudicator finding him guilty of possessing an unauthorised article, namely a mobile phone, in breach of the Prison Rules 1999 as amended. He contends that the proceedings were unfair and that the finding of guilt was irrational.
2. Permission to bring this claim was granted by Mr. Rabinder Singh QC. The defendant adjudicator, District Judge Zani, has taken no part in these proceedings beyond setting out his recollection of the matter in summary grounds for contesting the claim. The claim has been resisted by the Secretary of State for Justice as an Interested Party.

The facts

3. In 2006 the claimant was convicted of robbery and sentenced to 12 years imprisonment. On 23 December 2008 he absconded from an open prison and remained at large until recaptured on 11 February 2009. During that period he committed further offences and on 4 November 2009 was convicted on four counts of robbery. He was given an indeterminate sentence of imprisonment for public protection with a minimum term of four years and was transferred to HMP Pentonville.
4. On the morning of 19 March 2010 and for about a month before this date the claimant was sharing a cell with another prisoner named Scott Robinson. On that morning, prior to the claimant being transferred to a different cell, prison officers conducted a search of the claimant's cell. The claimant was asked to identify which of the property within the cell belonged to him and identified as his a PlayStation 2. A mobile camera phone was discovered hidden inside the rear of the PlayStation.
5. On 20 March 2010 the claimant and Mr. Robinson were both charged with the disciplinary offence of possessing an unauthorised article contrary to Rule 51(12)(a) of the Prison Rules. They came separately before the prison governor and both pleaded not guilty to the charge. The claimant, at that stage unrepresented, indicated that he had received the notice of report of the offence alleged against him, that he understood the charge and the proceedings, that he had had enough time to think about what he wanted to say, and that he did not wish to call any witnesses. He asked for legal representation. The governor referred the charges against both prisoners to an independent adjudicator.
6. It transpired, however, that Mr. Robinson was due to be released on 26 March 2010, and that no independent adjudicator was due to visit the prison before the date set for his release. Although there is no evidence about this, it seems likely either that his release date had been overlooked or that it was assumed that the hearing could be held before Mr. Robinson's scheduled release.
7. On 25 March 2010, the day before his release, Mr. Robinson wrote a letter to the prison governor in the following terms, a copy of which was handed to the claimant:

"On the 19^th/3/2010 a mobile phone was found in my cell and me and my cellmate Charlie Bate were put on report for the offence. I would like to take full responsibility for the unauthorised article as Mr. Bates had no knowledge of it being in the cell. I placed it in his play station without him knowing and would like to take this opportunity to own up to the offence as it had nothing to do with Mr. Bates. Thank you for taking the time to read this letter."

8. It is a reasonable inference that by the time this letter was written, Mr. Robinson was confident that the hearing of the charge against him would not take place before his release, and that he was therefore no longer at risk of having time added to his sentence.
9. Mr. Robinson was duly released on the following day and accordingly the charge against him was not pursued further.
10. The hearing of the charge against the claimant was held at the prison on 31 March 2010. The claimant was advised by his solicitor beforehand and the same solicitor (Margaret Obi, a partner of Powell Spencer & Partners) represented him at the hearing before the independent adjudicator. Although the claimant and Ms. Obi had discussed making an application to dismiss the charge on the basis of Mr. Robinson's letter, in the event no such application was made. When Ms. Obi raised the letter with the independent adjudicator, he said that he would consider it as part of the evidence in the case. Ms. Obi did not suggest that this course was in any way inappropriate, or that procedural fairness required that the charge against the claimant be dismissed.
11. At the hearing the claimant confirmed once again, either himself or through his solicitor, that he had received the notice of report of the offence alleged against him, that he understood the charge and the proceedings, that he had had enough time to think about what he wanted to say, and that he did not wish to call any witnesses. The claimant gave evidence, saying that he had no knowledge of the mobile phone being in the cell, which he had shared with Mr. Robinson for a month. Although he confirmed that the PlayStation was his, he said that Mr. Robinson must have placed the phone there without his knowledge. He said that he had never seen the phone, and that he had no reason to open the back of the PlayStation. He added that he had not seen Mr. Robinson after the search of the cell as they had been held separately and there had been no contact between them. In addition to his own evidence, the claimant relied on the letter written by Mr. Robinson.
12. At the conclusion of this evidence and after hearing brief submissions from the claimant's solicitor, the independent adjudicator found the charge against the claimant proved. His contemporary record of the hearing states that he regarded Mr. Robinson's statement as a matter of concern as he was being released very shortly, and noted that Mr. Robinson had pleaded not guilty when he appeared in front of the governor. In view of this, the adjudicator found that Mr. Robinson's credibility was "seriously damaged". In his signed statement of summary grounds following service of the application for judicial review, the adjudicator added that:

"Albeit Mr. Robinson, in that statement, purported to accept responsibility for the telephone, he did not explain why he had pleaded 'Not Guilty' when he and Mr. Bates appeared in front of the Prison Governor at the initial hearing, nor -- so far as I recollect -- did he say why he chose to place the telephone in the playstation which belonged to Mr. Bates. The said telephone was found by the prison officer in the said playstation accepted as belonging to Mr. Bates. The solicitors, at the conclusion of the evidence, made submissions on Mr. Bates' behalf. I found the case proved beyond reasonable doubt having considered all the evidence. Put shortly I did not find Mr. Bates nor the evidence placed before me i.e. the statement of Mr. Robinson to be credible."

13. It appears from Ms. Obi's note of the hearing that the adjudicator also made a comment that there were far better places to conceal a mobile phone than in the back of a PlayStation and that he believed that the claimant knew that it was there.
14. Having found the charge proved, the adjudicator imposed a punishment of seven days cellular confinement. The claimant appealed to a Senior District Judge for a review of the adjudicator's decision, but the Senior District Judge observed that he was not permitted to review the finding of guilt and concluded that the punishment of seven days cellular confinement was fully justified. That punishment has now been served, but the claimant seeks to challenge the finding of guilt against him because of the adverse impact which it may have in due course when he is considered for release.

The grounds of challenge

15. The claimant has four grounds of challenge. It should be pointed out, however, that the only decision which is challenged in these proceedings is the independent adjudicator's decision on 31 March 2010 to find the claimant guilty of the disciplinary charge against him. There is no challenge to any of the decisions leading up to the hearing on 31 March 2010, although some of the claimant's submissions criticised these earlier decisions.
16. First, it is said that the claimant was deprived of the right to a fair hearing, contrary to the Prison Rules, the rules of natural justice and Article 6 of the European Convention on Human Rights because the hearing was held after the release of Mr. Robinson from prison which, it is said, deprived the claimant of the sole material witness who could establish his innocence.
17. Second, it is said that the independent adjudicator's rejection of the evidence contained in Mr. Robinson's letter was irrational, and in particular that Mr. Robinson's previous plea of not guilty did not show that his subsequent confession was false, because it was at least as likely that Mr. Robinson had pleaded not guilty in order to avoid the consequences of his unlawful act -- just as many guilty defendants who initially plead not guilty in criminal proceedings subsequently change their plea.
18. Third, it is said that the adjudicator's reason for finding the charge proved against the claimant, namely that there were far better places to conceal a mobile phone than the PlayStation, was never put to him at the hearing, and the hearing was therefore unfair because it deprived him of the opportunity to meet the case against him.
19. Finally, it is said that the reasoning that the claimant must be guilty because there were far better places to conceal a mobile phone was irrational because somebody had hidden the phone in the PlayStation, so that the fact that a bad hiding place might have been chosen did not point to guilt on the part of the claimant as distinct from Mr. Robinson.

The legal framework

20. It is accepted on both sides that a prisoner facing a disciplinary charge must be given a full opportunity of hearing what is alleged against him and of presenting his case, that he is entitled to be legally represented in proceedings before an independent adjudicator and to call witnesses, and that the criminal standard of proof applies. There was some debate in the parties' written submissions whether the proceedings before the independent adjudicator were criminal proceedings to which Article 6 (3) of the ECHR applied, in circumstances where the claimant was not at risk of having time added to his sentence (because he was serving an indeterminate term) but was at risk of a punishment of cellular confinement being imposed. R (King) v. Secretary of State for Justice [2010] EWHC 2522 (Admin), [2011] 1 WLR 2667 holds that a prison disciplinary hearing resulting in a penalty of cellular confinement amounts to a determination of a prisoner's civil right of association, so that Article 6 (1) applies, but that it is not an infringement of Article 6 for a hearing to take place before a prison governor because the availability of judicial review cures any lack of independence in the governor's position. However, that issue does not arise in this case as the adjudicator was independent and in my judgment, as the parties eventually agreed, Article 6 adds nothing on the facts of the present case to the protection afforded to the claimant by the Prison Rules and the principles of natural justice.
21. It is, however, worth mentioning the circumstances in which a disciplinary charge may be referred to an independent adjudicator because, paradoxically, one of the claimant's alternative complaints in this case is that the charge against him should not have been so referred. This is the opposite complaint to the complaint made in the King case, which was that a prison governor lacked the independence necessary to satisfy Article 6.
22. Rule 53 of the Prison Rules requires that a disciplinary charge shall be laid against the prisoner as soon as possible and, save in exceptional circumstances, within 48 hours of the discovery of the offence. That rule was complied with. The offence was discovered on 19 March 2010 and the charge was laid on the following day. Save in exceptional circumstances it must then be inquired into by the governor on the next working day after it is laid or, where it is referred to an independent adjudicator, within 28 days after the referral.
23. Whether to refer the charge to an independent adjudicator is governed by Rule 53A, which requires the prison governor to determine whether the charge is so serious that additional days should be awarded for the offence if the charge is proved. If he determines that it is, the governor must refer the charge to the adjudicator, together with any other charge arising out of the same incident. If he decides that it is not so serious, the governor must proceed to inquire into the charge himself. However, in the case of a prisoner such as the claimant who is already serving an indeterminate term, there is no question of adding additional days to the sentence. Indeed according to paragraph 4.15 of the Prison Discipline Manual dealing with adjudications (PSO 2000) a disciplinary charge against a prisoner serving an indeterminate term can only be referred to an independent adjudicator if the charge involves multiple defendants at least one of whom is serving a determinate sentence.
24. Charges against more than one prisoner are dealt with in paragraphs 4.12 to 4.15 of the Manual. Where more than one prisoner has been charged with offences arising out of the same incident, as in this case, paragraph 4.14 of the Manual states that if the case of one of the prisoners concerned is referred to an independent adjudicator, then all other prisoners charged with the same offence should also normally have their charges referred. This is obvious good sense. It will then be best practice, as paragraph 4.12 indicates, for the adjudicator to hear the cases at the same hearing. This ensures that the adjudicator does not take into account evidence heard in one adjudication when reaching a decision in another case, and allows the adjudicator and the parties to hear all the evidence in the same proceeding. However, the adjudicator has the power to hear the cases separately where there is a good reason to do so. An example, although only an example, is if there is a risk of problems between two prisoners, as may occur if they have been fighting. In such a case the Manual explains that care must be taken to ensure that evidence in one hearing is not taken into account in reaching a decision at another adjudication where that evidence has not been presented.
25. Applying these provisions in the present case, the prison governor must have determined that the charge against Mr. Robinson was so serious that additional days should be awarded if the charge was proved. Having so decided, he was required to refer Mr. Robinson's case to an independent adjudicator. Whether the governor made that determination in the knowledge of Mr. Robinson's imminent release date is not known. There has been no challenge to that decision in these proceedings, and accordingly the governor's state of mind has not been investigated. Once Mr. Robinson's case had been referred, there was power to refer also the claimant's case and it was sensible to do so unless a good reason was suggested for not doing so. No such reason was suggested. If it had been appreciated that Mr. Robinson would be released before an independent adjudicator would consider his case, it may well be that neither his nor the claimant's case would have been referred.

Holding the hearing after the release of Mr. Robinson

26. The claimant contends that the hearing on 31 March 2010 was unfair because it was held after the release from custody of the claimant's cellmate and co-defendant Mr. Robinson, "thereby depriving the Claimant of the sole material witness that could establish his innocence". However, as became apparent during the argument before me, this formulation of the claimant's ground of challenge potentially involves two rather different complaints, the first being that the claimant was deprived of the benefit of Mr. Robinson's oral evidence in his favour, while the second (acknowledging in effect that Mr. Robinson was unlikely to have accepted responsibility while there was still a possibility that this could lead to additional days being added to his sentence) is that the claimant could only be dealt with fairly in proceedings where Mr. Robinson was a co-defendant, so that once he was released fairness demanded that the proceedings against the claimant be dismissed.
27. The first complaint assumes that Mr. Robinson was potentially a witness who would have given evidence supporting the claimant -- that is to say, that he would have given oral evidence accepting sole responsibility for the mobile phone to the same effect as in his letter of 25 March 2010. The claimant's complaint in this situation would then be that it was unfair that he did not have the benefit of Mr. Robinson's oral evidence in his favour at the hearing on 31 March 2010. However, there are a number of answers to such a complaint, each of which is fatal to it.
28. First, the claimant did not ask for any opportunity to arrange for Mr. Robinson to attend to give oral evidence, as he could have done pursuant to paragraphs 5.12, 5.13 and 5.14 of the Prison Discipline Manual. On the contrary, the claimant stated in terms at the 31 March 2010 hearing, as he had previously stated at the initial hearing on 20 March 2010, that he did not wish to call witnesses. He chose instead to rely on Mr. Robinson's written statement in his letter.
29. Second, Mr. Robinson could not have been compelled to give evidence and there is no reason to think that he would have been willing to attend to do so, even if his whereabouts were known.
30. Third, there is no procedural unfairness in the fact that the adjudicator proceeded to determine the matter on the basis of the evidence which was put before him. He was not required to suggest to a legally represented prisoner that the prisoner's interests would be better served by seeking to call oral evidence, even if he had thought this was the case. Nor was he required to request the attendance of Mr. Robinson himself, even if this had been practicable. A similar conclusion was reached by Harrison J on the facts of R (Maloney) v. Governor of HMP Rochester [2000] Prison L.R. 23 at [40] to [43]. The present case is even stronger in view of the fact that the present claimant was legally represented, unlike the claimant in that case.
31. Fourth, the claimant was not deprived of the benefit of Mr. Robinson's evidence, such as it was. On the contrary his evidence in the form of his letter was before the independent adjudicator and was considered by him. The claimant made a tactical decision to rely on the written evidence, which was perfectly understandable in the circumstances. The fact that this evidence was not believed is not a matter of procedural unfairness, but goes to the merits.
32. Fifth, it is in any event very unlikely that the presence of Mr. Robinson would have made any difference. At the hearing before me, Ms. Whitaker on behalf of the claimant accepted that if his written statement had no credibility, as the adjudicator found, his live evidence to the same effect was equally unlikely to have been accepted. Indeed by the end of the hearing her submission was that the question whether Mr. Robinson could have been called was irrelevant, as his oral evidence would have added nothing in circumstances where his credibility was compromised. I would add, moreover, that there was always a risk that his presence would have made things worse for the claimant.
33. For these reasons I reject any complaint to the effect that it was unfair for the claimant not to have the benefit at the hearing of Mr. Robinson's oral evidence accepting sole responsibility to the same effect as set out in his letter of 25 March 2010.
34. In view of her acceptance that it was unlikely that the live evidence of Mr. Robinson would have made any difference to the outcome of the hearing on 31 March 2010, Ms. Whitaker explained that the claimant's essential case was that once Mr. Robinson was released on 26 March 2010, there was no possibility of the claimant receiving a fair hearing. She said that this was because one or other of the claimant and Mr. Robinson (if not both) must have been guilty of the offence, and that fairness required that the adjudicator should be able to assess the relative credibility of each of them. Therefore, she said, once Mr. Robinson had been released the only fair course was for the adjudicator to accede to the suggestion made by the claimant's solicitor that an application to dismiss the charge should be made and accepted. She added that this submission did not depend on Mr. Robinson's acceptance of responsibility in his letter of 25 March 2010, but would equally have been the position if he had been released without having written his letter or otherwise accepted responsibility.
35. I reject this way of putting the case.
36. First, the claimant, who was legally represented, did not make any application to dismiss the charge. As Ms. Obi's statement makes clear, at most she canvassed the possibility of such an application with the independent adjudicator, but having done so, she did not make any such application but accepted his suggestion that the appropriate course was for Mr. Robinson's statement to be considered as part of the evidence. The adjudicator cannot be criticised for not acceding to an application which was never made. The claimant, with the benefit of legal advice, made a decision to proceed with the hearing and to rely on Mr. Robinson's written evidence.
37. Second, however, and more fundamentally, even if such an application had been made, I consider that the adjudicator would have been entitled to proceed with the hearing of the charge against the claimant, and that it would have been surprising if he had not done so. This way of putting the case amounts in effect to a complaint that the claimant was unfairly deprived of the opportunity to have his case considered at a hearing before Mr. Robinson's release where each of the cellmates was claiming ignorance of the mobile phone and seeking to blame the other for possessing it and hiding it without his knowledge; and that once this was no longer possible because Mr. Robinson had been released, the case against the claimant could not proceed. Typically, however, as in a criminal trial with cut throat defences being run, such a situation works against both defendants. Thus it is common for defendants, concerned about the adverse effect of a hearing at which each is blaming the other, to seek separate trials, and (as Ms. Whitaker accepted) for the prosecution to resist this strenuously -- and usually successfully. In these circumstances the submission that the claimant could not be tried fairly in the absence of his co-defendant is unreal.
38. In my judgment the submission that fairness could only be achieved if the claimant and Mr. Robinson were dealt with together at the same hearing mistakes the nature of the adjudicator's task. That task was not to decide upon the relative credibility of each of the co-defendants in order to determine which of them was telling the truth, with each of them having (as Ms. Whitaker put it) a 50% chance of being believed. Rather the adjudicator was required to determine whether he was satisfied to the criminal standard of the claimant's guilt, taking account of all the evidence in the case. There is no reason to conclude that this task could not be performed fairly in the absence of Mr. Robinson or that it was not performed fairly in this case. The Manual makes clear that there is no objection in principle to hearing cases against co-defendants separately in appropriate circumstances. That is what happened and the claimant was found not to be a credible witness. There is no reason to think that his credibility would have been improved by the presence of Mr. Robinson seeking to blame him for hiding the mobile phone even if Mr. Robinson's evidence had also lacked credibility.
39. Accordingly I reject this first challenge on the ground of procedural unfairness.
40. The claimant had an alternative way of putting this complaint, namely that the prison governor should have dealt with the charges against the claimant and Mr. Robinson on 20 March 2010 without referring them to an independent adjudicator. However, leaving aside the formal point that the only decision challenged in these proceedings is the adjudicator's decision to find the claimant guilty on 31 March 2010, this alternative complaint falls away once it is determined that the claimant received a fair hearing on 31 March 2010. Indeed to have proceeded on 20 March 2010 could have been met with an alternative complaint that the claimant or Mr. Robinson had not had a fair opportunity to obtain legal representation.

Rejection of Mr. Robinson's evidence

41. The claimant's second ground of challenge is that it was irrational for the adjudicator to reject Mr. Robinson's written statement accepting full responsibility for possession of the mobile phone of which he said that the claimant had no knowledge. There is, it seems to me, some tension between the claimant's first and second grounds of challenge. If, as the claimant maintains, a decision to reject Mr. Robinson's evidence can be challenged on the ground that it is irrational -- that is to say, that the only rational decision which the adjudicator could have come to on the evidence actually before him was to dismiss the charge -- it can hardly be said that the proceedings were unfair. However, it is unnecessary to explore this tension further as I reject this further ground of challenge also.
42. In my judgment the adjudicator was entitled to reject the evidence of Mr. Robinson for the reason which he gave – namely that he regarded this evidence as suspicious in view of the fact that it was provided on the day before his release so that he was not at risk of any punishment, and that the contradiction between this evidence and Mr. Robinson's plea of not guilty was seriously damaging to his credibility. The claimant's argument that it is at least as likely that Mr. Robinson's plea was untrue misses the point. The point was that the contradiction damaged Mr. Robinson's credibility, so that his evidence could properly be discounted. However, it was still necessary for the charge against the claimant to be proved to the criminal standard. The rejection of Mr. Robinson's evidence did not necessarily mean that the claimant was guilty, and it would have been a mistake if the adjudicator had held that it did.
43. In my judgment, however, the adjudicator did not make this mistake. Instead, he considered all the evidence and found the charge proved. The case against the claimant was compelling as the phone was found in what was admittedly his PlayStation, and the adjudicator heard the claimant's own evidence and found it to lack credibility. This is a conclusion on the evidence which he was entitled to reach and which cannot be regarded as irrational. As Harrison J put it in Maloney at [44], the court should be slow to interfere with an adjudication by a prison governor when there is material upon which it is open to the governor to act. That applies with at least as much force to the decision of an independent adjudicator. There was such material in this case and there is no reason to interfere with the adjudicator's decision.

Far better places to conceal a mobile phone

44. I can take the third and fourth grounds of challenge together, as they both concern the adjudicator's remark that there were far better places to conceal a mobile phone than the back of the claimant's PlayStation. In my judgment more has been made of this remark than is warranted, although it is fair to add that Ms. Whitaker did not put it in the forefront of her submissions. It is clear that this was not the reason for the adjudicator's decision. It was not mentioned in the adjudicator's own contemporary record of his decision and is not mentioned in his summary grounds either. It was at most a peripheral comment. Accordingly there is no basis for any challenge on the ground of procedural unfairness from the fact that this point was not put to the claimant at the hearing, nor is there any ground of challenge based on the irrationality of this point as a reason for the adjudicator's decision. It was not the reason for the adjudicator's decision. The reason for the adjudicator's decision was that the phone was found in the claimant's PlayStation and that the adjudicator did not believe the claimant's evidence.

Delay

45. The claim form in this application for judicial review was first issued on 1 July 2010 but named the wrong defendant, the Secretary of State for Justice, and was amended on 20 October 2010 to name the independent adjudicator as the correct defendant. It is therefore out of time. In giving permission on 7 October 2010, and thus before the amendment, Mr. Singh QC observed that it would be open to the Secretary of State to rely on delay if so advised. The Secretary of State has duly done so, pointing to what are said to be periods when the claim was not made promptly. In the event I have rejected the claim on its merits. If there had been any force in the merits of the claimant's case, I would not have refused relief on the ground of delay.

Conclusion

46. The claim is dismissed.