Garland, R (on the application of) v Secretary of State for Justice & Anor [2011] EWCA Civ 1335

[2011] EWCA Civ 1335Case No C172011/0971/QBACFIN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEALFROM THE HIGH COURT OF JUSTICE THE QUEEN'S BENCHDIVISION ADMINISTRATIVE COURTMr Justice Mitting CO/3927/2010Venue Royal Courts of Justice, Strand London, WC2A 2LLDate 17/11/2011
Before
LORD JUSTICE HUGHESLADY JUSTICE BLACKLORD JUSTICE TOMLINSON
Between
The Queen on the application of Jason GarlandAppellantThe Secretary of State for Justice (1)RespondentsThe Prisons and Probation Ombudsman (2)Respondent
Hugh Southey QC (instructed by Bhatt Murphy Solicitors) for AppellantDavid Pievsky (instructed by Treasury Solicitors) for RespondentHearing Hearing dates: Tuesday 1st November 2011
Judgment
[1]This appeal raises a question on the construction of Rule 53(1) of the Prison Rules 1999 (SI 728/1999), which reads:
"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]Mr Garland is serving a sentence of imprisonment for public protection. On 13 March 2009, in the segregation unit at Whitemoor Prison, he was lawfully required to submit to a search. As is now established, he declined and resisted by, inter alia, moving, his... arms.. about and shouting. Two days later on 15 March he was given notice of a disciplinary charge of failing to obey a lawful order. The proceedings are essentially summary and take the form of a hearing before the Governor. He had solicitors advising him in anticipation of the hearing. After adjournments at his or their request on 16 March, 28 March and 5 April, to give the solicitors time to make a visit to see CCTV footage of the incident, the substantive hearing took place on 24 April. The charge was proved and 4 days later on 28 April the penalty imposed was 21 days' stoppage of 80% of his earnings and of canteen privileges. Neither extra days on his sentence nor loss of time was ordered.[3]Mr Garland lodged an appeal to the Director of High Security within National Offender Management Service ("NOMS"). He reviewed the adjudication on its merits but upheld it.[4]On 2 June Mr Garland's solicitors sought to make further challenge to the decision. There exists no further appeal, but they applied to the Prisons and Probation Ombudsman to declare that there had been maladministration. When that failed, as, after a 10 page report it did, they sought and were granted a review of that decision within the office of the Ombudsman. That also failed. They raised 3 grounds: 1. the charge was insufficiently particularised; 2. there was an abuse of process because the hearing took place before they had in fact visited to view the CCTV and advise Mr Garland upon it, although it was shown to Mr Garland and to the Governor at the hearing; 3. it appeared that the charge might not have been laid in time. Of these only the third now survives.[5]A claim for judicial review followed on that single ground. The challenge was both to the original adjudication and to the Ombudsman's decision. Mitting J refused permission. The present appeal challenges that decision.[6]Since by the time of judicial review proceedings the only point at issue was whether the Governor's adjudication was invalid for want of compliance with Rule 53(1), the claim against the Ombudsman was always unnecessary and added nothing to the prisoner's case. If the original adjudication was void, as is contended, no decision by the Ombudsman was needed. If it was not void, there was nothing wrong with the Ombudsman's decision. For that reason I would in any event uphold Mitting J's decision in relation to the Ombudsman and accordingly dismiss the appeal as against him.[7]For the prisoner, Mr Southey QC submits:(a) the meaning of the rule is that the charge must be laid as soon as possible, that is to say more quickly than within 48 hours if that is possible, but in any event within that period unless there are exceptional circumstances; moreover "within" means before the passing of the 48th hour.(b) the Defendant Secretary of State cannot show either that the charge was laid as soon as possible or that it was laid within 48 hours;(c) the legal consequence of this failure is that the adjudication is invalid.[8]It is convenient to start with the second stage of Mr Southey's submissions. The timing point was not taken at the hearing nor on the first appeal to the Director, so there was no decision about it. We have, however, seen most of the relevant documents, as did the Ombudsman. I proceed on the assumption, made on both sides before us, that in inquisitorial and summary proceedings such as these it was part of the Governor's function to satisfy himself that any jurisdictional requirements had been complied with.[9]In this context it appears to be accepted that a charge is laid when a pro forma (F1127) is completed setting it out. The prisoner is given one copy of this (F1127A) and another copy is retained. There remains extant a copy of the form. It recites that the offence was alleged to have been committed "at approximately 1650" on 13 March. Either this document or another record completed contemporaneously records that the notice was given to the prisoner "at approximately 1650" on 15 March. The use of the word 'approximately' is, in each case, not the officer's; it is part of the pro- forma, no doubt because there will rarely be precise timing of disciplinary events, which may moreover last for a little time. Nevertheless, Mr Southey contends that because that wording has been adopted by the framers of the form, and since 1650 on 15 was exactly 48 hours after 1650 on 13th, there is uncertainty about whether the charge was laid either as soon as possible, or within 48 hours. Such uncertainty means, he submits, that the process is invalid and the adjudication must be struck down.

The meaning of the Rule

[10]I do not agree that the Rule means that it is broken even if the charge is laid in less than 48 hours unless it is also shown that it was laid as soon as possible. Mr Southey invited our attention by analogy to CPR 54. 5(1) which provides, as is very well known, that judicial review proceedings must be begun "promptly and in any event not later than 3 months after the grounds to make the claim first arose" "54 Rights of prisoners charged (1). Where a prisoner is charged with an offence against discipline, he shall be informed of the charge as soon as possible and, in any case, before the time when it is inquired into by the governor or, as the case may be, the adjudicator." "the charge shall be laid as soon as possible and in any event, save in exceptional circumstances, within 48 hours of the discovery of the offence."[11]Moreover, both parties before us were agreed that the present rule 53(1) came into existence after the decision of this court in R v Board of Visitors of Dartmoor Prison ex p Smith [1987] 1 QB 106. In that case the present rule's predecessor was under consideration. It had then been Rule 48(1) and had read:
"Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible"
[12]In that case the delay in laying the charge had been some ten weeks and there were other fatal defects in the procedure. This court held, inter alia, that the then formulation of the Rule proceeded on the basis that failure to comply had the effect of rendering the adjudication invalid. The Secretary of State had forcefully contended that that would make the question of compliance uncertain, and subject to time- consuming investigation and argument, in a large number of cases which were intended to be dealt with summarily and without delay. The parties before us were agreed that the new formulation of the Rule was clearly intended, whatever else it did, to inject a degree of certainty and to reduce the scope for such investigation and argument. I agree. But the new rule would not achieve this desirable object if it is given the construction for which Mr Southey contends, since in that event it would remain open to argument and investigation in every case whether the charge could possibly have been laid earlier than it was.[13]For these reasons I have no doubt that the rule means that the charge must be laid as soon as possible, which means within 48 hours unless there are exceptional circumstances making that impossible. In other words, the authorities have 48 hours in any event, and longer if there are exceptional circumstances making it impossible to lay the charge within that time.[14]Secondly, I do not at all agree that the use of the word "within" carries the implication that the charge must be laid earlier than the 48th hour. That "bookend" approach to the period of 48 hours is to import the conventions of indictment drafting when there is no reason at all for doing so. In ordinary language a charge which is laid on the stroke of the 48th hour is laid within 48 hours. The rule means "not later than 48 hours after".[15]Mr Southey further submitted that the use of the word "approximately" created in this case an uncertainty which is in similar case to that considered in the context of summary trials in magistrates' courts in Atkinson v DPP [2004] EWHC 1457 (Admin); [2005] 1 WLR 96. The statutory provision there in question was section 127 Magistrates' Courts Act 1980 which provides that:
"a magistrates' court shall not try an information... unless the information was laid... within six months from the time when the offence was committed. "
The evidence in that case showed that although there was a computerised record which provided a date within six months of the offence for the laying of the information, in fact that date was automatically generated by default and did not reliably show when the information was properly laid, as distinct from when first notification of the possible prosecution was given. The true information date could have been anything up to four days after the cut-off date and there was no way of knowing if the time had been exceeded. I do not agree that there is such uncertainty in this case. Here all the evidence points to the charge having been laid at the end of the 48 hour period and thus within the rule. The use of the word 'approximately' was, as I have said, imposed on the officer by the pro forma. It did not indicate uncertainty beyond the minute. The legal consequences of infringement of the rule.[16]That is enough to dispose of this appeal. We have, however, heard detailed argument on the proper approach to infringement of the rule, had there been such. I think that, having done so, we should express our conclusions about it.[17]Mr Southey's succinctly made submission is that because this rule is the successor to the old Rule 48 which was considered in ex p Smith this court is bound by that decision to hold that the consequence of infringement of the rule is complete invalidity in the adjudication.[18]For the Secretary of State, Mr Pievsky submits that ex p Smith was a decision upon a differently framed rule and is accordingly not binding in relation to the present one. Moreover he submits that the approach to the question of when infringement of a rule such as this carries with it legal invalidity of all that follows has, since ex p Smith, undergone a revision consequent on the decision of the House of Lords in R v Soneji [2005] UKHL 49; [2006] 1 AC 340.[19]Mr Pievsky's second submission sparked an interesting discussion of the rules of stare decisis. Mr Southey's riposte is that(a) ex p Smith is not inconsistent with anything in Soneji and(b) in any event Soneji is modified by the later House of Lords decision in R v Clarke and McDaid [2008] UKHL 8; [2008] 1 WLR 338.[20]There is no doubt that in Soneji the House of Lords abandoned the old analysis of rules of this kind as either mandatory or directory, and the sub-analysis of directory rules into those where substantial compliance was necessary to validate subsequent actions and those where it was not. Rather, their Lordships held, the simple question should be addressed:
'what consequence did Parliament intend should ensue from non-compliance with the rule ?'
[21]Clarke and McDaid did not depart in any respect from the principles set out in Soneji. The statutory provisions there in question were sections 1(1) and 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 which provided for a bill of indictment (which had of itself no legal standing save as a proposal of charges) to become an indictment when it is signed. It was common ground that a valid indictment was a pre-condition to a valid Crown Court trial. The House of Lords faithfully asked itself the Soneji question, namely what Parliament had meant, when passing the 1933 Act, should be the consequence of lack of signature: see paragraph [18] in the speech of Lord Bingham. Since at the time of the 1933 Act signature was taking the place of the previously existing endorsement of the bill by a Grand Jury, the answer was clear: the signature validated the indictment in the same way as the Grand Jury's decision previously had done.[22]Although Soneji helpfully re-phrased the question which it is necessary to ask when the issue is what is the legal consequence of failure to comply with a legislative rule, and thus re-focussed attention on Parliamentary intention, it was often the case that the old terminology of mandatory and directory provisions merely attached those labels to the results of a similar process of enquiry. In Soneji Lord Carswell (at [65]) described the expressions 'mandatory' and 'directory' as "convenient shorthand", whilst in Clarke and McDaid Lord Rodger (at [28]) remarked that those expressions were the end, rather than the beginning, of the relevant enquiry. Whilst this court in ex p Smith did employ the then conventional language of those expressions, it also, as it seems to me, addressed the question of Parliamentary intention.[23]For all those reasons, I would not myself feel free to depart from the decision in ex p Smith on the grounds that it can no longer stand with Soneji in the House of Lords. But the question whether this court is or is not free to depart from ex p Smith does not arise. The present rule has significantly different wording. The reasoning of ex p Smith does not apply equally to it. In that case this court was at pains to say that the requirement that the charge be laid "as soon as possible" incorporated a marked degree of flexibility. When it was possible to lay the charge was a fact sensitive question depending on the individual facts of every case. By way of example, the charge would still be laid "as soon as possible" if it were delayed to enable the officer to take advice on whether the right thing to do was to charge. Likewise it would still be laid "as soon as possible" if it were delayed to enable investigation to take place to establish whether there was evidence which justified laying a charge. Thus, the rule did not, on the construction put upon it by this court, mean that possibility was judged strictly. In those circumstances it was perfectly sensible to conclude that Parliament meant that if that elastic notion of possibility were not satisfied, the adjudication fell.[24]Now, however, the new rule has introduced a fixed period for compliance, subject only to exceptional circumstances, not simply to lack of possibility within the meaning contemplated in ex p Smith. Now it becomes necessary to ask whether Parliament can have intended, as Mr Southey has to contend, that a charge laid a minute outside the 48 hour period must, in the absence of exceptional circumstances, render invalid any adjudication which follows, even if the prisoner is wholly unprejudiced by the timing, and perhaps even unaware of it. Now it becomes necessary to ask whether Parliament can have intended that a charge laid just outside the 48 hour period because of the kind of considerations contemplated in ex p Smith, such as advice on charging or further enquiry into evidence, must render invalid any ensuing adjudication: such circumstances could not, in many such cases, properly be termed 'exceptional' any more than could, for example, the fact that an officer's day off duty intervened.[25]I conclude that Parliament did not intend that any non-compliance with this rule, however minimal and however devoid of prejudicial effect, should render invalid everything which follows. That is not to say that the prison authorities are able to treat the rule as an empty vessel. If a charge is laid outside the 48 hour period it is at peril of being struck down, by means of the Governor or Adjudicator dismissing it, or, in the last resort, by the court quashing any adjudication. Those consequences should certainly follow if the prisoner has been occasioned any prejudice by the delay. They may also follow if there is simply no excuse for unwarranted delay. These are intended to be summary and largely inquisitorial proceedings, and it is clearly intended that they should be concluded speedily.[26]Accordingly, for the several reasons set out, I would dismiss this appeal. The Judge's refusal of permission to apply for judicial review thus stands.

Lady Justice Black:

[27]I agree. Lord JusticeTomlinson[28]I also agree.

Cited in 3 later judgments