DAVID PENMAN FOR JUDICIAL REVIEW [2015] ScotCS CSOH_106 (11 August 2015)

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 106


 


P335/15


 

OPINION OF LORD TURNBULL

In the petition of

DAVID PENMAN

Petitioner;

for

Judicial Review

 

Petitioner: McLean; Balfour & Manson LLP

Respondent: Byrne; Scottish Government Legal Directorate

11 August 2015


Introduction
[1]        The petitioner is a serving prisoner who has brought the present action in order to seek reduction of a disciplinary decision made by the prison authorities concerning his conduct. 


 


The petitioner’s history
[2]        In 2000 the petitioner was convicted of two separate offences of rape and attempted rape, each involving different victims. He was sentenced to an extended sentence of 18 years’ imprisonment, with a custodial element of 10 years and an extension period of 8 years.  In 2006 he was released on non-parole licence and remained at liberty until May 2008[1]
when he was recalled to prison having breached his licence conditions.  His sentence expiry date is 6 October 2017.  He is liable to be detained in prison until that date, unless the Parole Board for Scotland (“the Parole Board”) directs his release prior to then.  As a recalled extended sentence prisoner he is entitled to have his case considered by a Tribunal of the Parole Board at regular intervals.  His case was last considered by such a Tribunal on 21 April 2015. 


 


The circumstances of the disciplinary proceedings
[3]        On 5 November 2013 the petitioner was in the hobbies shed making pens.  On the way back to his hall he was found by Prison Officer Ralston to be in possession of 12 of these pens. He was served the following day with a notice of charge of breach of discipline under rule 112 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011 No. 331) (“the Rules”).  The charge was that he had in his possession articles which he was not authorised to have in that part of the prison.  The day after service of the charge the petitioner was brought before a disciplinary hearing presided over by an adjudicator acting in place of the prison governor.  Despite his pleading not guilty to the charge of breach of discipline the adjudicator found the petitioner guilty of the charge and imposed a punishment, comprising three days forfeiture of recreation, television and earnings privileges.  The petitioner appealed the adjudicator’s decision to the Internal Complaints Committee, as permitted under rule 118 of the Rules but this appeal was dismissed at a hearing of the committee on 14 November 2013.  The petitioner then presented a complaint to the Scottish Public Services Ombudsman.  Intimation of the rejection of that complaint was sent to the petitioner on 19 February 2014. 


The petitioner’s case
[4]        The complaint made by the petitioner was that the disciplinary hearing dealing with his case was conducted in a way which was contrary to the Rules and unfair to him.  


[5]        At the hearing the petitioner’s response to the charge was, as noted by the adjudicator, that he had always previously been allowed to take items such as pens from the hobbies shed along the route to his hall.  Accordingly, whilst accepting being in possession of these items, the petitioner’s explanation was that he had not appreciated that taking them along that route would constitute a breach of discipline.  The importance of the adjudicator giving proper consideration to this contention could be seen from the terms of the Disciplinary Hearings Guide 2012 prepared by the Scottish Prison Service for the assistance of adjudicators.  That guide provides, at paragraph 7.81, that before a charge such as brought against the petitioner can be established it will be necessary to show that the prisoner was aware of a restriction on places where items might be taken within the prison.  It also notes that a genuine belief of an absence of restriction would be a defence.  The paragraph provides that where a prisoner states that he held such a belief the reasonableness of that belief is a matter for the adjudicator.  The petitioner therefore had a valid defence to the charge, namely that he reasonably believed he was entitled to be in possession of the pens on the route back to the hall.  He contended that he had not been given an opportunity to present this defence and to have it considered properly in light of the unfair manner in which the disciplinary hearing was conducted. 


 


The agreed circumstances of the disciplinary hearing
[6]        Much of what took place was agreed between the parties in the pleadings.  The record of the conduct of the hearing as prepared by the adjudicator was produced.  That record noted that the petitioner was prepared to accept written evidence presented to the hearing, without requiring Prison Officer Ralston, or any other witness, to appear.  


[7]        The adjudicator had before her a report from Prison Officer Ralston which set out an account of the petitioner’s possession of the pens.  That account did not address the question of the petitioner’s knowledge of the restriction.  Accordingly, and as noted on the record, the hearing was adjourned for Prison Officer Ralston’s presence.  The adjudicator spoke to the officer privately and in a separate room.  Having done so she reconvened the hearing and found the petitioner guilty.  The adjudicator noted in the record that having discussed the incident with Prison Officer Ralston she had been informed that the petitioner had been told that morning by Prison Officer Ralston that he was not permitted to take pens back to the hall and that they should go to his property.  The reason for the finding of guilt, as noted in the record of the hearing, was as follows:  “Mr Penman was informed that he was not allowed to take the pens back to the hall.”


[8]        The petitioner therefore contended that the adjudicator had taken account of evidence other than that presented at the hearing, that this evidence was crucial to the case against him, that he had no opportunity to consider this evidence in advance of it being presented and that he had been denied an opportunity to cross-examine Prison Officer Ralston on the information provided by him to the adjudicator, all of which was in breach of the terms of the Rules.  Relying on what had been said in University of Ceylon v E.F.W. Fernando [1960] 1 WLR 223 he submitted that an administrative body is required to follow an express provision of a rule applicable to it.


The impact of the finding of guilt
[9]        The punishment imposed on the petitioner had, of course, been served long before the raising of the present action.  The petitioner contended that the present action was necessary in light of other consequences which flowed from the finding of breach of discipline. Having been recalled in 2008 the petitioner was hoping to progress to open conditions and to demonstrate to the Parole Board that the risk which he posed could be managed safely in the community.  He asserted that in July 2013 a meeting of the prison Risk Management Team had viewed his application for progression favourably, but that the subsequent disciplinary proceedings had delayed that progress.  He also asserted that the finding of guilt might be included within his prison dossier provided to the Parole Board and that this finding might weigh against him in the Parole Board’s consideration of the extent to which he would continue to pose a risk to the community and therefore to the Parole Board’s assessment of whether or not he ought to be released. 


 


The respondents’ position
[10]      The respondents contended that the conduct of the disciplinary hearing had not been contrary to the relevant parts of the Rules and policies.  All that took place was that the adjudicator had “clarified” certain material already contained within Prison Officer Ralston’s report.  Alternatively, they contended that the procedure engaged in had not resulted in any substantial unfairness to the petitioner.  They also contended that in any event the present petition was barred by mora, taciturnity and acquiescence and that the public interest in good administration warranted the petition being refused. 


[11]      The respondents also contended that the present petition had no practical purpose.  They pointed out that the prison Risk Management Team had considered the petitioner’s case at meetings dated 31 July 2013, 5 February 2014 and 26 February 2014.  An assessment of the risk posed by the petitioner was prepared for each of these meetings and his supervision level remained assessed as low throughout.  They also pointed out that at a meeting of 28 January 2015 the Risk Management Team recommended that the petitioner should progress to less secure conditions and made no mention of the 2013 disciplinary proceedings.  They pointed out that the Parole Board considered the petitioner’s case on 21 April 2015 and adjourned their consideration for a period of three months to obtain further information.  Other developments had since impacted on the petitioner’s anticipated progression.  In February 2015 the petitioner was detained and interviewed by police officers, following upon which he was cautioned and charged with 3 charges of rape, 23 charges of indecent assault and a charge of breach of the peace.  These charges related to matters which predated the offences for which the petitioner was serving his prison sentence.  As a consequence of this development the prison Risk Management Team reconsidered the petitioner’s position in April 2015 and reversed their decision to progress him to the open estate, indicating that a new management plan would be required. 


 


Discussion
The preliminary plea of mora, taciturnity and acquiescence
[12]      In advancing this preliminary plea the respondents argued that there had been an overall delay of a year and a half between the decision of the disciplinary hearing and the raising of the present petition.  They argued that even looking to the period following upon the decision of the Scottish Public Services Ombudsman nothing was done for 6 months until legal aid was applied for and they argued that nothing was done for a further 5 months even after legal aid had been granted.  The respondents contended that the petition was barred before legal aid was sought in August 2014. 


[13]      In my opinion it would be wrong to look only at the period which had elapsed since the disciplinary hearing, as various other procedures were engaged in thereafter.  The proper chronology within which to assess the question of whether the respondents have established their preliminary plea seemed to me to be as follows.  The adjudicator’s decision was announced at the disciplinary hearing on 7 November 2013. The decision of the Internal Complaints Committee was intimated on 14 November 2013 and the petitioner’s complaint to the Scottish Public Services Ombudsman was rejected on 19 February 2014.  There was then correspondence between the petitioner’s solicitors and the prison governor up until 6 June 2014.  An application for legal aid to challenge the disciplinary hearing decision was made on 11 August 2014.  Legal aid was granted on 25 November 2014 and first orders in the present petition were sought on 2 April 2015. 


[14]      Mora is a question of fact and degree and will turn upon the question of what is a reasonable time in all the circumstances taking account of the complexity of the matter, the need to take advice, gather information and the like - Hendrick v Chief Constable, Strathclyde Police 2014 SC 551 paragraph 54. 


[15]      Taciturnity means a failure to speak out in assertion of a right of claim when a reasonable person in that position would be expected to speak out – Hendrick paragraph 56. 


[16]      Acquiescence means assent to what has taken place judged objectively and inferred from inaction and silence, the question for the court being how the matter would have appeared to a reasonable person observing the petitioner’s conduct, knowing of all the circumstances of which the petitioner knew when acting in the way he did – Hendrick paragraph 57. 


[17]      Applying these principles to the circumstances of the present case, it is correct, as counsel for the respondents submitted, to start by placing the decision which the petitioner seeks to reduce into proper context.  Disciplinary proceedings are an ordinary part of management within the prison regime.  The procedure, which is provided for by statutory instrument, is designed to create an expeditious and efficient system of management within which good order and discipline can be maintained in the prison.  A charge must be brought within no more than 48 hours of the discovery of the act giving rise to it.  The disciplinary hearing must be held no later than the next day after the charge has been brought and the prisoner must be informed of the decision at the conclusion of the hearing.  Any appeal made by a prisoner found guilty of a breach of discipline must be intimated no later than 14 days after the date of the decision but a disciplinary appeal does not suspend the punishment imposed at the disciplinary hearing.


[18]      It is a well understood requirement that any petition for judicial review should be raised promptly.  If the decision made at a disciplinary hearing is to be challenged by judicial review it seems obvious that it is the sort of decision which must be challenged “with alacrity”, to borrow the phrase used by Lord Eassie in the case of Devine v McPherson 2002 SLT 213.  In some cases, as observed by Lord Glennie in the case of United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831, this will require a petition to be lodged within weeks, rather than any other period.  The requirements of good administration in the context of prison management involve disciplinary decisions being made and acted upon quickly, without the uncertainty of them being disturbed many months or years later.  However, it is also right to acknowledge that this is not the sort of decision in which other parties have an interest or upon which others may quickly take action.


[19]      It is also necessary to take account of the correspondence to which I have referred.  The petitioner’s solicitors began corresponding with the prison governor concerning the circumstances of the disciplinary hearing on 13 March 2014, shortly after receipt of the Scottish Public Services Ombudsman’s decision.  By letter dated 29 April 2014 the solicitors wrote setting out the various complaints which the petitioner sought to advance concerning the conduct of the disciplinary hearing and asserting that his right to a hearing before an independent and impartial tribunal in terms of Article 6 of the European Convention on Human Rights had been breached.  The letter concluded with a request that the guilty finding be expunged from the petitioner’s record.  After further exchanges they wrote again, on 21 May 2014, pointing out that the accuracy of the record taken at the disciplinary hearing was disputed and asking for the governor’s comments on the petitioner’s concerns regarding Prison Officer Ralston being questioned by the adjudicator outwith the hearing room and outwith the presence of the petitioner.  A response was sent on 6 June 2014, which pointed out that the procedures at the hearing had already been assessed through the complaints process. 


[20]      Counsel for the respondents’ submitted, correctly, that this correspondence was all in the context of an apparent claim based upon Article 6, which did not feature in the present petition.  However, I did not consider that it was correct, or fair, to view the matter in such a narrow and compartmentalised fashion.  


[21]      It is obvious that the petitioner has been seeking to challenge the decision of the disciplinary hearing from 7 November 2013 onwards but there is force in the respondents’ contention that a petition for judicial review should have been raised much earlier than it was.  Both the passage of time which elapsed before the application for legal aid and the passage of time which elapsed after it was granted reflect periods of unjustified delay.  Either one might be sufficient to constitute mora.  However, the only fair reading of the letters sent by the petitioner’s solicitors, and in particular the letters of 29 April and 21 May, was that the petitioner was continuing to speak out in assertion of a right to challenge the decision of the disciplinary hearing, as he had been doing by then for a period in excess of 6 months.  That interpretation is reinforced by the petitioner’s application for legal aid to enable him to challenge that very decision. 


[22]      Each of the elements of mora, taciturnity and acquiescence require to be established.  In my judgement, taciturnity has not been established.  There has not been the sort of silence which would found this aspect of the plea.  The lengthy period of time over which the petitioner has been advancing various different challenges to the disciplinary decision is eloquent of a determined intention on his part.  The letters from his solicitors and the application for legal aid to permit yet a further challenge to be advanced are all consistent with an on-going determination.  In my judgement, it cannot be said that the reasonable person looking objectively at the situation would have concluded that the petitioner had decided not to challenge the decision of the disciplinary hearing and that he had acquiesced in it.  Counsel for the respondents at one stage sought to argue a rather vague point concerning prejudice but in the course of discussion agreed that there would be no re‑prosecution of the disciplinary charge if the decision was reduced and departed from his argument on prejudice.  Accordingly, in my view, the respondents have failed to establish their plea of mora, taciturnity and acquiescence. 


 


The merits of the petitioner’s claim
[23]      Both parties were broadly agreed that the admitted facts would enable me to determine whether the disciplinary hearing had been conducted in accordance with the Rules.  The petitioner acknowledged that even if he succeeded in establishing a breach of the Rules he would still require to establish that the procedure which had taken place was contrary to natural justice and unfair to him.  Since there was a dispute about what precisely occurred after the adjudicator spoke to Prison Officer Ralston, evidence would require to be led on this aspect of the case, should it arise. 


[24]      Paragraph 113 of the Rules sets out the procedure to be followed at a disciplinary hearing.  That paragraph provides that the adjudicator may take into account oral evidence and written evidence at the hearing.  Written evidence may only be considered without associated oral evidence if the prisoner agrees.  The paragraph also provides that the adjudicator must allow the prisoner to call witnesses and to cross-examine any witness not called by him. 


[25]      The record of the disciplinary hearing notes the petitioner’s agreement that the hearing should proceed upon the basis of the report from Prison Officer Ralston, which had been provided to the adjudicator.  It is obvious from the face of the record that the hearing was adjourned in order to permit the adjudicator to communicate with Prison Officer Ralston.  The information acquired from him was relied upon by the adjudicator and plainly contributed in a material fashion to her decision.  By definition, the information was obtained other than at the hearing and outwith the petitioner’s presence.  The petitioner was given no opportunity to cross-examine Prison Officer Ralston.  


[26]      I am satisfied that the adjudicator conducted the hearing held on 7 November 2013 in a manner which was contrary to the procedure provided for by the Rules.  As was recognised, this decision does not lead directly to an order that the decision should be reduced.  Before I could conclude that the overall procedure was unfair to the petitioner I would need to hear evidence on the other disputed aspects.  However, before making an order for a second hearing at which oral evidence is led the petitioner requires to satisfy me that there would be some practical purpose to be served in making an order for reduction as is sought. 


[27]      It is difficult to understand what purpose the petitioner considers would be served now by an order for reduction of the decision of the disciplinary hearing.  The petition itself focuses almost entirely on the circumstances of the hearing.  Such averments as were first made concerning the consequences of the decision appear to relate to the petitioner’s failure to progress as anticipated in light of the assessment made by the prison Risk Management Team in July 2013.  However, as noted above, a meeting of that group in January 2015 agreed that he should progress to the open estate in light of his positive response to custody.  All of the petitioner’s history in custody appears to have been taken into account in arriving at that decision.  It is specifically noted within the record of that meeting that the petitioner has incurred two misconduct reports, yet progression is still recommended.  Once reference to this decision was introduced, by way of adjustment to the respondents’ answers, the petitioner introduced, for the first time, an averment to the effect that the respondents “might, at their discretion”, include information about a breach of discipline in the dossier to be forwarded to the Parole Board, and that a finding of breach of discipline is a potentially significant factor in the Parole Board’s decision in such cases.  It was this issue of impact on any decision to be taken by the Parole Board which was focused upon by counsel for the petitioner at the hearing.  The way it was put at paragraph 24 of his written note of argument was this: 

“.. the petitioner’s concern is about the potentially longer-lasting effects of the decision, which might conceivably have a bearing on the approach of the Parole Board to any application for release.”


 


[28]      When the Parole Board is considering whether or not to direct the release of a prisoner serving an extended sentence, the sole question for its determination is whether or not it is satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined.  Counsel for the petitioner was unable to identify in what manner a disciplinary finding, made in 2013, about the possession of pens in an unauthorised part of the prison, would impact on any future decision to be made by the Parole Board in the petitioner’s circumstances.  It is relevant to note that the Parole Board considered his case at a Tribunal held on 21 April 2015 and continued its consideration for the reasons given in its decision letter of 23 April.  That letter reviewed the petitioner’s history in custody and called for a variety of updated reports to be made available to the Parole Board.  These included a risk management plan to be implemented in the event of his release and an update on the outstanding charges against the petitioner.  No reference to the 2013 disciplinary finding appears in that letter.   


[29]      The petitioner was represented by a solicitor at the 21 April Tribunal and will have been provided with a copy of the dossier given to the Tribunal members.  The petitioner must know whether or not any reference was made to the disciplinary hearing of November 2013 in his dossier and must be in a position to identify the impact which he considers that finding is capable of having on his prospects before the Parole Board in light of all of the other information which he will also know is contained within his dossier.  These considerations are important, as the remedy of reduction sought by the petitioner is an inherently discretionary remedy – King v East Ayrshire Council 1998 SC 182. If it would serve no practical purpose to grant the order sought by the petitioner then this would weigh heavily in the determination of whether to exercise a discretionary power.  As it was put by the Lord President in King at page 194: 

“In particular, it is relevant for the court to consider what practical effect the person seeking reduction will achieve if the decision is reduced.”


 


The Lord President also drew attention to the way in which Lord Wilberforce had made the point in the case of Malloch v Aberdeen Corporation 1971 SC (HL) 85 in stating at page 118: 

“A breach of procedure, whether called a failure of natural justice or an essential administrative fault, cannot give him a remedy in the Courts unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.”


 


[30]      The present petition does not seek to address the punishment imposed on the petitioner, nor does it seek any redress for wrongful punishment.  In the absence of any colourable explanation as to what impact the 2013 disciplinary hearing might have in considering whether the petitioner, a serious sexual offender, continues to pose a risk of serious harm to the public, the contention advanced on the petitioner’s behalf by counsel is, in my opinion, simply speculation.  I agree with the contention made by counsel for the respondents that it is nothing more than fanciful to suggest that the disciplinary decision made in November 2013 might weigh against the petitioner in any future decision to be made by the Parole Board in light of his further history since then and the various risk assessment exercises which have been undertaken by the prison Risk Management Team since that time. 


[31]      It is also important to take account of the nature of the proceedings which were instituted against the petitioner.  They are designed to be of a summary nature and to be dealt with expeditiously.  There is an obvious public interest in good administration within the prison regime.  Part of that good administration involves confidence that disciplinary decisions will be final and not subject to disturbance at a point much later in time.  


[32]      Taking these considerations into account I am satisfied that it would be wrong to exercise a discretionary power of judicial review in the petitioner’s favour and to reduce the decision of the disciplinary hearing made in November 2013, even in light of my conclusion that the hearing was conducted in a manner which contravened the Rules and even if it could be established that the proceedings were contrary to natural justice and unfair to him.  No practical effect would accrue to the petitioner by my doing so.  


[33]      Counsel for the respondents argued that his submissions concerning the public interest in good administration should be seen as a second and distinct preliminary plea. It did not seem to me that this was a helpful way in which to assess these submissions. I saw them as reflecting part of the circumstances which weighed in the exercise of my discretion as to whether the remedy sought should be granted.


 


Disposal
[33]      In light of the decision which I have arrived at the petitioner’s case on natural justice falls away and a second hearing is not necessary.  Whilst the answers for the respondents do not contain a specific plea in law focusing the absence of practical purpose, I understood that both counsel saw this argument as being encompassed within the second plea in law for the respondents.  I will therefore sustain the second plea in law for the respondents, repel their remaining pleas in law, repel the pleas in law for the petitioner and refuse the prayer of the petition.  I will find the petitioner liable to the respondents in the expenses of the action as an assisted person and I will modify the award of expenses to nil. 




[1] This date and that of the petitioner’s conviction are both taken from the records of the Scottish Prison Service Risk Management Team meetings rather than the dates given in the petition and in the Note of Argument for the petitioner.