Tangney v The Governor of HMP Elmley & Anor [2005] EWCA Civ 1009

Case No C1/2004/2504/QBACF[2005] EWCA Civ 1009
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE MOSES)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 29 July 2005
Before
THE PRESIDENTLORD JUSTICE KEENELORD JUSTICE SCOTT BAKER
Between
THOMAS TANGNEYAppellantTHE GOVERNOR OF HMP ELMLEY1 st RespondentTHE SECRETARY OF STATE FOR THE HOME DEPARTMENT2 nd Respondent
Mr Keir Starmer QC and Mr Hugh Southey (instructed by Messers Bhatt Murphy) for AppellantMr Phillips Sales and Mr Sam Grodzinski (instructed by The Treasury Solicitor) for Respondents
Judgment
[1]The appellant is serving a life sentence for murder. He was convicted at the Central Criminal Court on 19 June 1980 of the murder of a woman in the course of burglary. His tariff of 20 years expired on 24 October 1999. The Secretary of State has accepted the Parole Board’s recommendation of February 2005 that he should be moved to open conditions. The appellant appeals against a decision of Moses J on 12 November 2004 who rejected a challenge to the lawfulness of two decisions of the first respondent, the Governor of HM Prison, Elmley.[2]Whilst at HM Prison, Elmley, the appellant was charged that on 14 December 2002 he had assaulted a prison officer (Officer Coombes) by kissing him on the right cheek, contrary to Rule 51(1) of the Prison Rules 1999 (“the Prison Rules”). He was also charged that about 15 minutes later on the same day he used threatening, abusive or insulting words or behaviour by saying, “I will stab Officer Coombes 27 times,” or words to similar effect, contrary to Rule 51(20).[3]The case has in one sense become academic because the Secretary of State for the Home Department (“The Secretary of State”), who is the second respondent, has agreed that the decision should be set aside because there were two material errors of fact. Accordingly, the findings of guilt on the two adjudications have been quashed. However, the appellant contends that he is nevertheless a ‘victim’ within the meaning of Section 7 of the Human Rights Acts 1998, because he remains at risk of a similar situation occurring in the future, see Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 and Norris v Ireland (1988) 13 EHRR 186. I can see the theoretical force of this point and in any event the outcome of this case affects adjudications by prison governors in respect of other lifers. We have therefore proceeded to hear the appeal.[4]The point at issue is this. The appellant claims he should have been tried by an independent adjudicator rather than by the prison governor. He was, so he contends, entitled to this at common law. Further, trial by the prison governor, he submits, amounted to a breach of Article 6 of the European Convention on Human Rights (“the ECHR”).[5]The original hearing before the governor was adjourned to enable the appellant to obtain legal advice. He had asked for both advice and legal representation. Legal representation was refused. Subsequently, his solicitors sought not only legal representation but also asserted the right to be tried by an independent adjudicator.[6]He was transferred from Elmley to Swaleside where his solicitors continued to seek legal representation and a hearing before an independent adjudicator, but were unsuccessful.[7]The adjudication took place on 5 March 2003. He was found guilty of both offences and ordered to serve 7 days cellular confinement for each offence.[8]The appellant’s solicitors wrote to the Secretary of State on 3 April 2003 raising, among other things, whether prison disciplinary charges against lifers should be heard by independent adjudicators. The Secretary of State replied on 8 May 2003:
“Your letters challenge the findings of guilt on these two adjudications on a variety of grounds. The first, being the legality of the decision to proceed with the hearings as internal adjudications rather than refer them to an independent adjudicator. Policy advice states that in cases involving multiple defendants, should one of the prisoners charged with the incident have the case referred to an independent adjudicator, then all other prisoners charged in connection with the same incident should also normally have their charges referred. This is the only circumstance in which a prisoner with a indeterminate sentence may be referred to an independent adjudicator and one which does not apply to Mr Tangney.”
The legal framework.[9]The enabling power for the Secretary of State to make rules for the regulation and management of prisons and the discipline and control of persons required to be detained there is to be found in Section 47(1) of the Prison Act 1952.[10]The relevant rules are the Prison Rules 1999 (1999 S.I. No 728). These were subsequently amended and we have been provided with the consolidated version that includes all the amendments. Rule 51 provides for numerous offences against discipline. These include that a prisoner is guilty of an offence against discipline if he:
“(1) commits any assault; (20) uses threatening, abusive or insulting words or behaviour.”
Rule 53 provides:
“(1) Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the discovery of the offence. (2) Every charge shall be inquired into by the governor or, as the case may be, the adjudicator.”
It is immaterial, for the present purposes, to recite the remainder of the rule. Rule 53A provides:
“(1) Before inquiring into a charge the governor shall determine whether it is so serious that additional days should be awarded for the offence, if the prisoner is found guilty. (2) Where the governor determines: (a) that it is so serious, he shall: (i) refer the charge to the adjudicator forthwith for him to inquire into it; (ii) refer any charge arising out of the same incident to the adjudicator forthwith for him to inquire into it; and (iii) inform the prisoner who has been charged that he has done so. (b) that it is not so serious, he shall proceed to inquire into the charge.” (a) that it is so serious, he shall: (i) refer the charge to the adjudicator forthwith for him to inquire into it; (ii) refer any charge arising out of the same incident to the adjudicator forthwith for him to inquire into it; and (iii) inform the prisoner who has been charged that he has done so. (b) that it is not so serious, he shall proceed to inquire into the charge.”
[11]Subsection (3) provides for reference to an adjudicator where, at any time during the hearing up until the imposition of punishment, it becomes apparent to the governor that additional days should be awarded. The nature of the problem.[12]The present problem arises with lifers because, unlike determinate sentence prisoners, their sentence is divided into two parts, the fixed or tariff period, and the indeterminate period where they continue to be detained but only for so long as is necessary for the safety of the public. Because a lifer is serving a life sentence additional days are not an option that is open as a penalty. No express reference is made in Rule 53A to life prisoners but it has been interpreted by the Secretary of State and the prison service as excluding life prisoners in its application save in respect of Rule 53A (2)(a)(ii), that is where a determinate sentence prisoner is charged with an offence arising out of the same incident and his case is referred to an adjudicator.[13]Essentially what Mr Keir Starmer QC, who has appeared before us for the appellant as he did below, says is this. The rule should not exclude the possibility, whatever the circumstances of the offence, of life sentence prisoners having their disciplinary charges determined by an independent adjudicator. In the first place this is or may amount to a breach of the prisoner’s rights under Article 6 of the ECHR and secondly there may be a breach of the common law principle of procedural fairness. Article 6. Article 6(1) of the ECHR provides:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly………”
[14]It is necessary to look at the threshold at which Article 6 is engaged in the context of prison disciplinary proceedings. The charges against the appellant precisely mirror offences in the criminal law. Common assault is an offence at common law. The use of threatening, abusive or insulting words or behaviour is an offence under Section 4(1)(a) of the Public Order Act 1986. It is, however, to be observed that there are numerous other offences against discipline prescribed in Rule 51 of the Prison Rules that are not matched in the criminal law. Mr Starmer submits that it is nothing to the point that the appellant cannot have additional days added to his sentence, the outcome still has a potentially serious impact on his future liberty. These are offences of violence and he will not be released until the Parole Board considers he no longer poses a risk to the public. His behaviour in prison, and in particular any adjudication against him is particularly important when the Parole Board reviews his case. The same charges against a determinate sentence prisoner would have been heard by an independent adjudicator; there is no reason to treat lifers differently. But, he says, the Secretary of State’s position is that there is no power under the rules to refer the case to an independent adjudicator because that can only be done if the governor thinks the offence is so serious that it may qualify for additional days.[15]We are concerned in this case with the boundary between criminal and disciplinary proceedings in the prison context. It is obvious that prison governors should have autonomy in the control and management of their prisons and that the oversight of discipline by prisoners is a key factor in this. The majority of disciplinary offences by prisoners do not cross the boundary of the criminal law. But some do and some adjudications can, in the case of determinate sentence prisoners, lead to the imposition of additional days, i.e. further incarceration. The question is at what point Article 6 is engaged so as to require adjudication by an independent adjudicator, usually a visiting District Judge. There are three Strasbourg decisions, to which I shall refer in a moment, that set out the approach to be applied. Strasbourg polices the boundaries between criminal and disciplinary charges, but it has to be appreciated that no two Member States operate an identical penal disciplinary system and inevitably when dealing with fact specific situations in which the context is important each Member State has some margin of appreciation.[16]The appellant relies on Ezeh and Connors v United Kingdom (2004) 39 EHRR 1. That was a case in which the appellants had been denied legal representation and/or legal aid for proceedings before the prison governor in respect of offences committed whilst in custody. Both received additional days. It was held that the ECHR applied and there had been a violation of Article 6(3)(c). It is to be noted that the decision is Ezeh and Connors was responsible for the introduction of Rule 53A into the Prison Rules.[17]The root decision in the European jurisprudence is Engel v The Netherlands (1979-80) 1 EHRR 647. The applicants were conscript soldiers serving in the Netherlands armed forces. Various penalties were imposed for breaches of military discipline. The Supreme Military Court confirmed the decisions challenged but reduced the punishment in two cases. The applicants complained, inter alia, that the proceedings were not in conformity with the requirements of Article 6. The court observed at the start of its judgment (see paragraph 4) that when interpreting and applying rules of the Convention in that case it had to bear in mind particular characteristics of military life and its effects on the situation of individual members of the armed forces. It seems to me the same observation applies to prisoners and the management of prisons.[18]The court said this at paragraph 82 as to whether proceedings are considered to be disciplinary or criminal under Article 6:
“Hence, the court must specify, limiting itself to the sphere of military service, how it will determine whether a given ‘charge’ vested by the State in question - as in the present case- with a disciplinary character nonetheless counts as ‘criminal’ within the meaning of Article 6. In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle may employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government. However, the supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the ‘criminal’ sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so.”
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.[19]These three criteria have to be considered in the context of the prison system. That this is so is apparent from Campbell and Fell v United Kingdom (1985) 7 EHRR 165. The applicants, both convicted prisoners, were injured in a disturbance in prison and were afterwards charged with contravening the disciplinary regulations. The court said that in Engel and Others it was confining its attention to the sphere within which the case was concerned, namely military service. It continued at paragraph 69:
“(The court) is well aware that in the prison context there are practical reasons and reasons of policy for establishing a special disciplinary regime, for example security considerations and the interests of public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor-made sanctions which may not be at the disposal of the ordinary courts and the desire of the prison authorities to retain ultimate responsibility for discipline within their establishments.”
But it went on that the guarantee of a fair hearing, which is the aim of Article 6, is one of the fundamental principles of any democratic society and justice cannot stop at the prison gate. It followed that the principles in Engel are relevant mutatis mutandis in a custodial setting and that a dividing line between ‘criminal’ and ‘disciplinary’ has to be maintained just as much in the prison context.[20]Having pointed out that classification of the offence by national law had only a relative value, the court said at paragraph 71 that the nature of the offence was of greater import. It continued:
“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 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.”
[21]The court said it was therefore necessary to go on and consider, in Campbell’s case, the third criterion namely the nature and degree of severity of the penalty that he risked incurring. It concluded that loss of remission was a ‘criminal’ penalty for the purposes of the Convention.[22]Returning then to Ezeh and Connors, the importance of this decision is that it emphasised that the first of the three criteria identified in Engel was no more than a starting point. Of much more significance were the second and third. These were alternative and not necessarily cumulative. The court said at paragraph 86:
“For Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded ‘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 a separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge.”
The court went on to make some observations about the parties’ submissions concerning the application of the Engel criteria to the prison environment. These included at paragraph 88:
“88 In the first place, the Court notes that the Government’s central submission was that the necessity of maintaining an effective prison disciplinary regime had to weigh heavily in determining where the dividing line between the criminal and disciplinary lay. As in its Campbell and Fell judgment the Court would not question the importance of preserving an effective system of order and control in prison. However, it does not find compelling the Government’s argument that the loss by the governor of the power to award ‘additional days’ would undermine the prison disciplinary regime in England and Wales.”
[23]Mr Sales, who has appeared for the Secretary for State, submits that the three criteria are very fact specific and it is crucial to look at the facts of the particular case. In the present case it is the third criterion that is the material one. He submits that the facts of this case do not meet the criteria to engage Article 6.[24]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 be 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.[25]Mr Sales goes on to submit, however, that there are no circumstances in which the third criterion can ever be met in the case of a lifer, quite apart from the fact that, like the other two criteria, it is not met in the present case. For my part, I find it difficult to envisage circumstances in which criterion three would be met in the case of a lifer although I would not rule out the possibility altogether.[26]Mr Starmer’s response is that Mr Sales’ concession is not reflected in the prison manual. There is no guidance other than Rule 53A. The authorities simply do not envisage disciplinary proceedings against the lifer being heard by an independent adjudicator, other than under Rule 53A(2)(a)(ii) if the charge is linked to another one. Thus, even if the circumstances of the now academic charges do not engage Article 6, the appellant remains, theoretically at least, vulnerable to a charge being brought at some point while he remains in prison. If the end result is a possible deprivation of liberty then the third criterion is satisfied but even if this is not so, Article 6 can still be engaged by the combined effects of the criteria, especially the second and third. Mr Starmer reminded us that in Ezeh the Court had observed at paragraph 104 that the extreme gravity of the offence may be indicative of its criminal nature, but that the converse is not true that the minor nature of the offence can of itself take it outside the ambit of Article 6. The decision in Ezeh was that the nature of the charges together with the nature and severity of the penalties were such that the charges constituted criminal charges within the meaning of Article 6.[27]The focus of the present case has changed somewhat. In the claim for judicial review the appellants sought a declaration in the following terms:
“That it is possible to construe Rule 53A of the Prison Rules 1999 (as amended) in a manner which is compatible with the European Convention on Human Rights by reading it as providing in the case of a life prisoner: “that the Governor shall determine whether it is so serious that additional days should be awarded for the offence if a prisoner were not serving a life sentence.”
In other words lifers should be treated on the same footing from the view point of hearings by a independent adjudicator as determinate sentence prisoners. The alternative declaration sought was that Rule 53A is incompatible with Article 6 and therefore ultra vires.[28]In my judgment Article 6 was not engaged on the facts of the present case. The appellant, as a lifer, was never vulnerable to the punishment of additional days and there were no consequences sufficiently serious to trigger the third of the Engel criteria, even in combination with the other two.[29]Mr Starmer submits that the very fact of an adjudication, regardless of the severity of the punishment, may have serious consequences for a prisoner’s potential liberty; it may tip the scales with the Parole Board. It should I think be kept in mind that what the Parole Board has to consider in the case of a life sentence prisoner is whether it is safe for him to be released, whether he presents a danger to life or limb. Ordinarily the wing and various other reports which will be in the Parole Board’s dossier are likely to carry much more weight than the bare fact of an adjudication. Incidentally the appellant in the present case has some 30 adjudications against him and, perhaps more significantly, a history of absconding. In any event, his adjudication was set aside and the Secretary of State has accepted the Parole Board’s recommendation that he be moved once again to open conditions. This case inevitably fails on the facts.[30]What is in effect now sought by the appellant is a declaration of incompatibility on speculative facts. Mr Sales referred us to Taylor v Lancashire County Council and Another [ 2005] EWCA Civ 284, in particular paragraphs 25 to 29 and 37 to 44, especially paragraph 43. The present case, he submits, is even stronger because here we are concerned with subordinate legislation whereas Taylor was concerned with primary legislation.[31]The way forward seems to me to be this. It is necessary to wait and see whether a case ever arises in the prison disciplinary context of a charge against a lifer being heard by the prison governor rather than an independent adjudicator that does engage Article 6. As has already been pointed out, the issue is likely to be very fact sensitive. The overall criteria can only be applied to specific facts.[32]Take for example, the hypothetical case to which I referred in para 25. If the case satisfied the Engel criteria the governor would have to comply with Article 6. Rule 53A would fall to be considered compatibly with Article 6 by virtue of the Convention: see Ghaidan v Godin Mendoza [2003] 2 WLR 1533. Words could be written into Rule 53A to cover lifers as well as determinate sentence prisoners and thus an otherwise ultra vires rule would be saved: see R v Secretary of State for the Home Department ex parte Simms [2002] 1 AC 115, and R (Hammond) v Secretary of State for the Home Department [2004] EWHC 2753 (Admin) para 33. The rule has to be read subject to the relevant right.[33]An alternative course the Secretary of State may wish to consider with a view to avoiding possible further litigation, is to amend the Prison Rules by adding Rule 53B to provide that the governor has power to refer an adjudication with regard to a lifer to an independent adjudicator if, in the exceptional circumstances of the case, he deems it necessary or expedient to do so.[34]R v (Napier) v Secretary of State for the Home Department [2004] 1 WLR 3056 was a decision of Goldring J in which he considered the effects of Ezeh and Connors. The claimant, a serving prisoner, was charged with assaulting a prison officer. At an adjudication before the governor the charge was found proved and a penalty of 35 additional days was imposed. The Secretary of State accepted that the adjudication had amounted to a criminal charge for the purposes of Article 6 and that there had been a breach of Article 6 and remitted the imposition of the additional days but refused to quash the finding of guilt. A claim for judicial review failed because once the additional days had been remitted, the governor’s finding of guilt fell properly to be analysed as an administrative finding of fact. I should add that Napier preceded the introduction of Rule 53A of the Prison Rules. Goldring J said:
“51 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 those added days, application of the Engel criteria would have led to a different conclusion. I say that for several reasons.”
The judge’s reasoning was as follows (I summarise): i) The argument essentially revolved around the effect of adding days in relation to the requirements of Article 6. ii) When considering the Engel criteria in the context of the prison environment there was a distinction between adding days and other lesser sanctions. iii) The fact of a charge of assault was not, in itself, sufficient for the second Engel criterion to be made out. Although it added a certain colouring, it was necessary for the court to look to the third criterion to see if the boundary had been crossed. iv) It is by reference to the penalty that was ‘liable to be imposed’ and was in fact imposed that the court considers the applicability of Article 6. v) The prisoner is not concerned with a theoretical risk which may not arise. A potential penalty of added days would not, without more, require an adjudication to be Article 6 compliant. He concluded at paragraph 97:
“In short, I agree with Mr Grodzinski that the decisive fact in the Ezeh and Connors case was the addition of days. That was why the boundary between administrative and criminal was crossed and why such adjudications had to comply with Article 6. I agree too that on facts such as the present, an adjudication not involving the imposition of added days does not fall foul of Engel and Connors v United Kingdom that what was stated to the Court of Appeal to that effect in R (Al-Hasan) v Secretary of State for the Home Department [2002] 1WLR 545 is still good law.”
[35]Mr Sales relies on Goldring J’s analysis. He submits that the appellant’s fundamental difficulty in the present case is that he is not complaining about additional days. His complaint is about what may happen further down the line. Because of the adjudication his eventual release may be prejudiced. It may tip the scales between release on licence and continued incarceration. In this regard Mr Starmer drew our attention to paragraph 7.27 of the prison manual: “ A person serving an indeterminate sentence cannot receive additional days. However, if at the time of the adjudication, he or she has been given a provisional date of release, the adjudicator may inform the prisoner that a recommendation will be made to the Parole Board or Home Secretary that the date of release should be postponed.[36]I accept the submission of Mr Sales that the appellant cannot avail himself of the third criterion because(i) the ‘penalty’ of which he complains is not imposed by the decision by the decision-maker on the adjudication and(ii) any decision by the Parole Board not to release is a decision based on risk to the public rather than punishment to the prisoner. The decision to release or not, as the case may be, is made by the Parole Board. The Parole Board is obliged to release a prisoner if, once the tariff period has ended, it is satisfied his continued detention is no longer necessary for the protection of the public: see section 28 of the Crime Sentences Act 1997. I agree with Mr Sales that his argument is assisted by Napier.[37]I have not thus far referred to R (Al-Hasan) v Secretary of State for the Home Department [2002] 1 WLR 545 and [2005] 1 WLR 688. Two of the appellants in that case (Mr Fitzgerald’s clients) were prisoners at a high security prison. A search was ordered which involved the prisoner squatting so that items which might be hidden in their genital or anal areas could be seen. The appellants refused to squat. Both were charged with refusing to obey a lawful order. The charges were found proved by the deputy governor, who imposed a penalty of two additional days on one of the men together with various other penalties, and penalties not involving additional days on the second man. The second man was a lifer; the first was not. The Secretary of State upheld the decisions and judicial review was refused. The Court of Appeal dismissed the appeals but the decision was reversed by the House of Lords who held that the fair minded independent observer would conclude that there was a real possibility of bias since the deputy governor had been present when the squat search was approved. The ruling was therefore tainted by procedural unfairness for want of independence and impartiality on the part of the tribunal.[38]Mr Sales relied on paragraph 48 of the judgment of the Court of Appeal given by Lord Woolf CJ:
“48 In the case of Mr Fitzgerald’s clients, the nature of the offence and the severity of the penalty actually imposed for the offence point in our judgment uncontestedly to the conclusion that no criminal charge is involved. Mr Fitzgerald argued that the nature of the proceedings is a more satisfactory second criterion but we do not accept this gloss improves on the Engel approach. We are concerned as to whether a criminal charge is involved. The nature of the offence was essentially disciplinary. Furthermore, the penalty which was imposed in the case of Mr Carroll, did involve additional days but additional days of a very limited number and not an additional sentence of imprisonment. It is true that the rule potentially provided for 42 additional days being imposed but as a matter of practice anything other than a small number of additional days would have been set aside as inappropriate for an offence of disobeying an order. We therefore have no hesitation in confirming the detailed and clear reasoning of Newman J for saying that Mr Fitzgerald’s clients were not subject to a criminal charge.”
Moses J thought he was bound by the Court of Appeal’s decision that the (second) life prisoner’s penalty of 15 days stoppage of earnings and loss of privileges did not lead to the conclusion that the proceedings in which it was imposed were criminal. That part of the Court of Appeal’s judgment was untouched by the House of Lords. Mr Sales submits we are bound by this paragraph of the Court of Appeal’s judgment. The Court of Appeal decision in Al-Hasan, of course, predated the Strasbourg decision in Ezeh and Connors. Indeed it is referred to in the judgment in that case, but not in the context of penalties other than additional days.[39]For my part, I find it difficult to extract any principle from paragraph 48 of Al-Hasan that is binding on this court. Lord Woolf CJ was dealing in that paragraph with both of Mr Fitzgerald’s clients, one of whom was a determinate sentence prisoner and received additional days, the other of whom was a lifer and did not. I cannot see that Lord Woolf CJ was seeking to lay down any general principle applying to lifers who were not vulnerable to the imposition of additional days. All he was doing was applying the Engel criteria to the facts of the case before him. From my part I prefer to decide the present appeal on grounds other than that we are bound by Al-Hasan. Common law.[40]The appellant’s second line of attack is that there was a breach of his right to a fair hearing at common law. The argument runs thus. The right to a fair hearing at common law carries with it a right to a hearing before an independent adjudicator in circumstances where fairness demands such an adjudication. Accordingly, the governor has, in appropriate circumstances, a discretion to refer charges against a lifer to an independent adjudicator. Such a right cannot be removed by subordinate legislation in the form of the Prison Rules. The appellant relied on R v Secretary of State for the Home Departmentex parte Tarrant [1985] 1 QB 251 and Simms. However, the judge found that there is no fundamental common law right to a hearing before an independent adjudicator in prison discipline proceedings as submitted by Mr Starmer. He pointed out that such a right has never been identified in cases such as R v Board of Prison Visitors of HM Prison Maze ex parte Hone and McCarten or, I would add, in any other case. Nor has any commentator suggested that there is any common law principle that would prevent prison governors from adjudicating on disciplinary charges.[41]In my judgment the underlying principle is to be found in the words of Lord Bridge of Harwich in Lloyd v McMahon [1987] 1 AC 625, 702:
“My Lords, the so called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirement of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute had conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”
[42]In Honeand McCarten the House of Lords regarded the Board of Visitors as exercising disciplinary powers on behalf of the Secretary of State (see Lord Goff at 388E). But the House did not suggest that there was anything wrong about the exercise of disciplinary powers by a body that was not independent of the executive.[43]Mr Sales submits that the appellant points to no part of the adjudication process that rendered it unfair. He referred us to the words of Lord Woolf CJ in Al-Hasan at paragraphs 55 and 56 under the general heading of “the fairness issue”:
“55 While the domestic courts have been content to regard proceedings conducted before a governor in a prison as disciplinary proceedings, this has not prevented the courts on applications for judicial review scrutinising closely the fairness of what occurs in the course of disciplinary proceedings. The court recognises the disadvantages which a prisoner can be under in appearing before a tribunal conducted by a governor of the very prison of which he is an inmate. 56 It is recognised that a prisoner can required to be legally advised and in a limited category of cases to be represented (Ex p Tarrant [1985] QB 251). The degree of protection which the courts will require for the prisoner increases with the gravity of the offence and the complexity of the proceedings. However, the court has to recognise the need within a prison environment to maintain discipline by having a reasonably expeditious process for dealing with disciplinary offences. In the case of both sets of the appeals we have the impression that the proceedings were being conducted generally in a fair manner and if the court is to interfere with the decisions which were reached on the grounds of fairness, this will depend on the specific criticisms made of the adjudication process as applied to the facts of the particular appeal.”
[44]Although the Al-Hasan appeal was allowed by the House of Lords, the principle set out in these paragraphs remains undoubted. Indeed Lord Roger of Earlsferry said at p. 693:
“11 Nor should it be supposed that only professional judges are capable of the necessary independence of approach. That would be to disregard the realities of life in many organisations today…….Equally, I have no doubt that a informed and fair- minded observer would regard prison governors, or their deputies, as being quite capable of interpreting and applying the person rules fairly and independently, even though they are obviously committed to upholding them. In all these situations, if things do go wrong, the decision can be judicially reviewed or challenged in a employment tribunal, as the case may be. The present case is an example of that safeguarding action. 12 Nothing in the decision of the House today casts any doubt on the validity of the decision of such bodies taken in the ordinary way.”
[45]In my judgment what Mr Starmer is seeking to do is to extract from the common law a principle of fairness that would impose a higher standard then that imposed by Article 6 which is, as I have sought to show, inapplicable on the facts of this case. I agree with Moses J that there is no such common law principle. The true common law principle which is well established, is that the standards of natural justice are flexible and vary according to context, which includes the statutory scheme and the functions of the decision-maker. If the appellant cannot succeed under Article 6 he cannot succeed at common law. Conclusion[46]Article 6 of the ECHR is not engaged in the circumstances of this case. Mr Sales accepts that there may be very rare cases in which the first two criteria in Engel may be met and Article 6 engaged in the prison adjudication context; he does not accept that there can ever be a case where the third criterion is met. In my judgment other cases should be left to be considered if and when they arise. As Article 6 was not engaged I can see no reason for the Administrative Court to quash the decision. I do not regard the appellant, on the evidence, as being at risk of a future breach of Article 6. The fact that it may be possible to envisage remotely unlikely, but different, circumstances in which Article 6 might possibly be engaged is no reason for granting this appellant relief. Nor can I see any breach of any common law duty of fairness. I agree with the decision of Moses J and I would dismiss the appeal. Lord Justice Keen: I agree. The President: I also agree.

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