Robinson, R. v [2017] EWCA Crim 936

[2017] EWCA Crim 936Case No 201604812/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 14 June 2017
Strand
London, WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE HADDON CAVE
Venue RECORDER OF BIRMINGHAM
(HIS HONOUR JUDGE INMAN QC)
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
ANTHONY ROBINSON
Computer Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Powles appeared for ApplicantMr B Douglas-Jones appeared for Crown
J U D G M E N T (Approved)
[1]MR JUSTICE HADDON-CAVE: On 3rd February 2014 the applicant received a sentence of 40 months' imprisonment for burglary of a dwelling-house at Warwick Crown Court. On 5th April 2015 the appellant absconded from HMP Hewell Grange. Ten days later, on 15th April 2015, the appellant was arrested and charged with escape from lawful custody. The next day, on 16th April 2015, the appellant appeared before Kidderminster Magistrates' Court and the case was referred to Worcester Crown Court. The appellant was returned to custody at HMP Hewell Grange. He was placed on report in accordance with Prison Rules 1999 rule 51, paragraph 7: "Escapes from prison or from legal custody".[2]On 18th April 2015 the appellant appeared before the prison governor who referred the matter to the independent adjudicator. On 1st May 2015 the appellant appeared before the independent adjudicator (DJ Cadbury) and entered a guilty plea to the charge. He received a sentence of 14 days from the independent adjudicator, consecutive to the 40 month sentence of imprisonment that he was already serving.[3]On 1st June 2015 the appellant appeared at Worcester Crown Court and told his representative that he had already been dealt with by way of adjudication and had had 14 days added to his sentence. He asked whether there were any issues of autrefois convict, ie double jeopardy. He was told by his representatives that there was not, as he had not been convicted by a court of competent jurisdiction. The representative in question had in mind the decision of R v Hogan [1960] 2 QB 513. The applicant was also told that Annex B of NOMS ACPO CPS Protocol on Handling Crimes in Prison provides that all absconds must be reported to the police with a view of prosecution of escape (see paragraph B1). The applicant was also advised by his representative that the sentence imposed on him could be taken into account by the sentencing judge.[4]The applicant appeared before Mr Recorder Cliff on 1st June 2015 and entered a plea of guilty to the charge of escape from lawful custody. He received a sentence of 3 months' imprisonment consecutive to his current sentence.[5]No reference was, however, made to the 14 day sentence which he had already received from the independent adjudicator. Accordingly, Recorder Cliff was unaware of the previous proceedings and the fact that the applicant had already received punishment of 14 days under the prison adjudication procedure. Equally, it appears that DJ Cadbury was also unaware on 1st May 2015 that the matter had been referred to the police. He was subsequently asked about the matter and explained as follows:
"I've checked my notebook and confirm I did deal with Robinson and HMP Hewell on 1st May 2015, sitting as an independent adjudicator, for escape and sentenced him to 14 added days to his sentence. It was an internal disciplinary hearing. I would not have dealt with the case had I known it was to be or had been referred to the police."
[7]Unsurprisingly perhaps this matter has gone further. The unfairness visited upon the applicant by being sentenced twice for the same offence was fortunately picked up by a prison law consultant, Jane Ireland, in May 2016, and hence this appeal.[8]The applicant sought leave to appeal out of time against conviction and sentence. His application has been referred by the Registrar to the Full Court.[9]We are grateful to counsel, Mr Stephen Powles, for the appellant, and Mr Benjamin Douglas-Jones, for the prosecution, neither of whom appeared below, for their research and able assistance.[10]It is common ground that the adjudication and conviction cannot both stand. The question for the court today is which should be quashed. Mr Powles submits that the adjudication amounted to a criminal proceeding by a court of competent jurisdiction to which the rule against double jeopardy autrefois convict applies, and accordingly, the Crown Court was barred from further convicting and punishing the appellant for the same offence and the conviction should be quashed.[11]Mr Douglas-Jones submits that the prison adjudication should not have gone ahead whilst criminal proceedings were pending, and accordingly, it is the prison adjudication that should be quashed.[12]Both have helpfully researched the English and European law positions as to the status of prison adjudications. Mr Powles submits the decision of R v Hogan [1961] 2 QB 513 which, as we have said, was relied upon below (in which the Court of Appeal held that a prison adjudication in relation to an escaped prisoner did not prevent subsequent criminal proceedings in respect of the same escape) could not stand in the light of modern legal developments. Analysis[13]The rule against double jeopardy (autrefois acquit and autrefois convict) has long been a feature of the common law. Blackstone in his commentaries book 4 (1759 edition), page 329, referred to "universal maxim of the common law of England, that no man is to be brought into jeopardy of his life or limb more than once for the same offence."[14]The key issue in this case is whether the adjudication was void or voidable. We have set out above the chronology of proceedings at the beginning of this judgment. The crucial point is that the appellant was arrested and charged on 15th April 2015, i.e. before the matter was referred to prison adjudication. Accordingly, the criminal proceedings were already on foot and extant by the time the matter came before the independent adjudicator.[15]DJ Cadbury has explained that he would not have proceeded with the adjudication or dealt with it had he known that the matter was to be or had been referred to the police. He was quite right to make this clear.[16]Rule 2.19 of the Prisoner and Discipline Proceedings Rules provides as follows:
"2.19. Where the charge is escape or abscond the adjudicator will confirm whether the prisoner is being, or has already been, prosecuted for the same offence. If so, it would be double jeopardy to continue with the adjudication for that charge."
Paragraph 2.19 of the rules must be seen in the context of paragraph 2.18 of the rules, which begins:
"In situations where a serious criminal offence appears to have occurred the police should be contacted immediately it is discovered."
[17]It was, therefore, a breach of the Prisoner Discipline Proceedings Rules for the adjudication to have gone ahead. The independent adjudicator was not made aware of the criminal proceedings as he should have been. The question for determination is whether or not his decision and imposition of a penalty of 14 days, at that stage, on 1st May, was void or voidable. We are clear that the decision of the independent adjudicator was void. The wording of paragraph 2.19 of the rules is pellucid. For the adjudication to have continued in the face of criminal proceedings about to be or already being prosecuted, would have been a breach of the prison rules and have been double jeopardy.[18]We were helpfully referred by Mr Douglas-Jones to the case of W v Lord Chancellor [2015] EWCA Civ 742, in which my Lord, Sir Brian Leveson, said this:
"44. The Court went on to adopt the distinction drawn by the House of Lords in Re McC (A Minor) [1985] AC 528 between custody decisions which are, on the one hand, voidable because they are wrong in law by reason of errors within jurisdiction and, on the other hand, those which are void ab initio and ex facie because they are so wrong in law as to be outside or in excess of jurisdiction. These were summarised in Benham in this way (at [25]): 'In its judgment [i.e. that of the House of Lords], a magistrates court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause; (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent.'"
[19]In our view, the decision of the independent adjudicator, through no fault of his own, was so wrong in law as to be outside or in excess of jurisdiction. The first two of the three criteria referred in Benham set out above, apply in this case.[20]In our judgment, for the decision of the independent adjudicator was void ab initio but not merely voidable. There are sound policy reasons for this, in our view, namely, that prisoner adjudications should not be allowed to prevent or disable the Crown Court from proceeding to exercise its proper jurisdiction in relation to the criminal law.[21]Mr Powles referred us the case of R v Brooks [2016] EWCA Civ 1033, in support of his submission that the decision of the independent adjudicator was voidable not void. However, that case involved very different facts in which an adjudicator wrongly failed to recuse himself and we do not regard that authority as relevant to the current situation. For all those reasons, we turn to the question of what this court now should do.[22]The Administrative Court has of course jurisdiction to quash the decision of an independent adjudicator where a decision is reached on a material error of fact or where there is a breach of rules of natural justice and unfairness - see R v Criminal InjuriesCompensation Board ex parte A [1999] 2 AC 330 [344B-345C] per Lord Slynn of Hadley and E v Secretary of State for the Home Department [2004] QB 1044 at 1071, paragraph 66, per Carnwath LJ (as he then was) giving the judgment of the court. The Administrative Court a fortiori has jurisdiction to quash decisions of Tribunals which are void ab initio. It is clear, in our view, that the independent adjudicator erred fundamentally in proceeding with the adjudication when criminal proceedings were extant.[23]Mr Douglas-Jones fairly accepts in these circumstances and, indeed, avers that the adjudication cannot stand. The disciplinary proceedings should not have continued for the reasons that we have given.[24]In these circumstances, this court can and hereby does reconvene itself as the Administrative Court, abridging time and dispensing with procedural formalities to allow a claim for judicial review to take place. We review the decision of the independent adjudicator and quash his decision and the sentence of 14 additional days. The effect of this is to remedy the material error of the independent adjudicator and rectify the decision which, as we have held, was void and therefore remove the unfairness imposition of an additional 14 days which was imposed upon the applicant. We pay tribute to the researches of counsel on the question of whether R v Hogan [1962] QB 513 can stand in the light of modern legal developments and European law. We do not need formally to decide this point but have little doubt in the light of the authorities such as Engel v Netherlands 1 EHRR 647, Ezeh and Connors v UK (2004) 39 EHRR 1; Zolotukhin v Russia (2012) 54 EHRR 16 Grand Chamber; A and B vNorway applications No 24130/11 and 2978/12, [2016] ECHR 987; R v McLean [2014] NIQB 124 and R(Napier) v Secretary of State for the Home Department [2004] WLR 3056. In our view the question admits of one answer. Where a prison adjudication proceeding involves punishment by loss of liberty such proceedings amount to “criminal proceedings” by a body of competent jurisdiction and the rule against double jeopardy applies, i.e. the decision in R v Hogan (supra) no longer stands. But for present purposes, it is sufficient for this court to grant permission to appeal, reconvene as the Administrative Court, abridge time, dispense with formalities and allow the claim for judicial review of the decision of the independent adjudicator and quash that decision of 1st May 2015 and the sentence of an additional 14 days.