Bannatyne, R (on the application of) v Secretary of State for the Home Department & Ors [2004] EWHC 1921 (Admin)

Case No CO/4057/2003[2004] EWHC 1921 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 22 July 2004
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF STEPHEN BANNATYNE
(CLAIMANT)
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT (FIRST DEFENDANT)
THE INDEPENDENT ADJUDICATOR (SECOND DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MR OWEN QC AND MR GLEDHILL (instructed by Andersons Solicitors, Nottingham, NG1 5EJ) appeared on behalf of the CLAIMANT
MR GRODZINSK I (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANTS
J U D G M E N T
Between
Bannatyne, R (on the application of)ClaimantSecretary of State for the Home Department & OrsDefendant
[1]This is an application for judicial review of a decision by the Secretary of State contained in a letter dated 20th May 2003 refusing to quash a decision of an independent adjudicator on 16th April 2003, convicting the claimant of an offence against the prison rules, for which he was sentenced to an additional 28 days of imprisonment. The factual background.[2]The claimant is a prisoner. In November 2000, he was sentenced to seven and a half years' imprisonment for an offence of grievous bodily harm. On 21st February 2003, whilst he was detained as a Category B prisoner at HMP Rye Hill, the claimant was involved in a confrontation with a prison officer, Mr Smith. Mr Smith alleged that claimant had head-butted him. The claimant was charged with a disciplinary offence, assault, under rule 51.1 of the Prison Rules. The deputy controller of the prison determined under rule 53A that the charge should be referred to an adjudicator.[3]After adjournments for various reasons, the matter was listed before District Judge Nuttall on 16th April 2003.[4]Mr Smith gave evidence that he and the claimant had been discussing the claimant's canteen account. A refund was due to the claimant; the claimant had been aggressive and had head-butted him. Although he had not been hurt, he was surprised and shocked. The incident was over very quickly and afterwards the claimant had walked off to his friends.[5]Another prison officer, Mr Keogh, said that he witnessed the incident: the claimant walked forward, nose to nose, and pushed his head into Mr Smith's face. Mr Keogh dragged him back and told him to leave it alone. The claimant then walked off. Mr Keogh was sure that there had been contact between the claimant's and Mr Smith's heads.[6]The claimant did not give evidence himself; his witness statement had stated that he had been annoyed with Mr Smith's attitude towards his canteen account and "therefore I faced up to him". According to the claimant's statement, he then walked off to join other prisoners, Wesley Craig and David Sutton, and had not head-butted Mr Smith.[7]Mr Craig and Mr Sutton did give evidence before District Judge Nuttall; both said that the claimant had "faced up" or "squared up" to Mr Smith but had then walked away and had not head-butted him. A third prisoner had provided a witness statement to the same effect but he had been transferred to another prison and the adjudicator declined to accept his witness statement.[8]Mr Craig and Mr Sutton said that Mr Keogh had not witnessed the incident and that he had remained in an office nearby.[9]The adjudicator started to give judgment; his manuscript notes on the Record of the Hearing and Adjudication say this: "I start to give my reasons for convicting the inmate of the assault. I am shouted down by the defendant, I am cross-examined by the inmate's legal representative, the defendant leaves the room. I sentence him with an advocate present and inmate absent".[10]According to the grounds of the judicial review:
"When the district judge indicated that he found the charge proved, the claimant left the room, his solicitor asked how the charge should be proved in the light of the contradictions in the evidence between Mr Smith and Mr Keogh and the fact that the inmate witnesses denied that there had been an assault. "
The district judge indicated that he had a choice of believing the officer or the inmates and that either the officer was lying through his teeth or the inmates were conspiring to pervert the course of justice and that he would rather believe the officers".[11]A somewhat different version of events is set out in the Summary Grounds that were served on behalf of the adjudicator. They say that:
"The adjudicator spent five minutes after the hearing orally giving judgment. This included going through the facts of the case, the credibility of the witnesses and the burden of proof. This was in front of the claimant's representative but not the claimant who had walked out. "
In his oral judgment, the adjudicator made it clear that the number of witnesses for the claimant was not a substitute for the quality of evidence and that he preferred the quality of the officer's evidence to that of inmates. "The claimant and his friends dealt identically with one narrow issue which led the adjudicator to conclude that there had been collusion and that their evidence lacked credibility. The adjudicator took into account the attitude of the witnesses and concluded without doubt that the inmates could not be relied upon. "On the salient points the adjudicator found the evidence of the officers to be credible with no cause to suspect corruption. They both gave evidence that the claimant made contact with the officer, amounting to an assault. Although their versions of events were not identical, this adjudicator did not find either of them to be lying; on the contrary it would be more worrying if witnesses standing with different lines of vision were to give identical evidence as it suggests it may have been rehearsed. "Against the evidence of the officers there was, in the adjudicator's view, a rehearsed account given to support the inmate by friends".[12]By letter dated 17th April 2003, the claimant's solicitors in effect reiterated the claimant's version of events. It was said that Mr Smith's and Mr Keogh's accounts had been contradictory and that the claimant had three witness statements to prove that the assault had not taken place. The letter contended that the charge had not been proved beyond reasonable doubt and that the finding of guilt was unreasonable and should be dismissed.[13]The Secretary of State's letter dated 20th May 2003 said inter alia:
"It is for the adjudicator to decide what evidence he believes and who is telling the truth. On this occasion, he believed that the reporting officer and the officer witnesses were telling the truth"
. The Judicial Review Proceedings.[14]The application for permission to apply for judicial review was lodged on 19th August 2003. Although it is, in form, a challenge to the defendant's decision in the letter dated 20th May 2003, it is in substance a challenge to the adjudicator's decision on 16th April 2003.[15]That decision was challenged on four grounds. In addition to the complaint made in the letter dated 17th April (that the adjudicator's decision was unreasonable/unlawful) it was contended that the adjudicator's reasoning was inadequate, that in order to be compliant with the requirements of Article 6 of the European Convention on Human Rights (the "Convention"), the hearing before the adjudicator should have been in public and that the differential treatment of prisoners faced with a loss of liberty, whose position was comparable to that of a defendant facing summary criminal proceedings, was in breach of Article 14 when taken together with Article 6 of the Convention.[16]Although all of these grounds were elaborated in the claimant's skeleton argument, in opening of the claimant's case, Mr Owen QC made it clear that the principal point which was pursued on the claimant's behalf was the contention that he had a right, under Article 6, to a public hearing which had been unlawfully denied to him because of the general rule that prison disciplinary hearings were not heard in public but in private, in prison.[17]He accepted that the "differential treatment" point based upon the combined effect of Articles 6 and 14 could not be advanced as a separate submission. It stood or fell with the principal point. Although Article 6.1 states that judgment "shall be pronounced publicly", the claimant did not complain of a breach of the Convention on that account if his principal submission -- that the hearing before the adjudicator should have been public -- was rejected. The criticisms of the adjudicator's reasoning (or lack of it) as set out in the letter dated 17th April 2003 were maintained but they were not further developed in submission.[18]Mr Owen fairly conceded that there was a dispute as to what had happened in the hearing after the claimant had left and that if the version of events in the adjudicator's summary grounds was accepted, he conceded that adequate reasons had been given for the adjudicator's decision.[19]If, on the other hand, the version of events as described in the claim form was accepted, then he submitted that adequate reasons had not been given and/or that the adjudicator's decision was unreasonable in the face of the evidence.[20]It is convenient to dispose of this subsidiary issue at the outset. It is common ground that the adjudicator was required to give adequate reasons for his decision. It is trite law that the adequacy of a judge's reasons should not be considered in the abstract but in the light of the particular issues on which he or she is called to adjudicate.[21]In the present case, there was a very narrow factual dispute. All the witnesses were agreed that there was a confrontation between the claimant and Mr Smith during which the claimant "faced up" to Mr Smith. The only live issue was whether the claimant went further and moved his head so that it just touched Mr Smith's. I say "just touched" because there was never any suggestion that Mr Smith was injured in any way.[22]Two prisoners said that this further move did not happen; two prison officers said that it did. In these circumstances, the adjudicator was entitled to say no more than that he believed the officers' accounts rather than the accounts of the prisoners. The suggestion that in doing so the adjudicator had somehow lost sight of the need for a disciplinary offence to be proved to the criminal standard of proof is wholly unrealistic. Since there was evidence from two prison officers which the adjudicator was entitled to accept, it cannot be said that his decision was perverse or contrary to the weight of the evidence. Since the adjudicator saw the witnesses and heard them giving evidence and being cross-examined, this court would be particularly slow to interfere with his assessment of their credibility.[23]Thus, whichever version of events after the claimant's departure from the hearing is accepted, I am satisfied that the criticisms of the adjudicator's decision on reasons/rationality grounds are not well founded.[24]The sole remaining issue is therefore whether the hearing before the adjudicator should have taken place in public.[25]It is common ground that the starting point for answering that question has to be the decision of the European Court of Human Rights (the "Court") in Campbell and Fell v United Kingdom, 1984, 7 EHRR, 165. The applicants in that case were convicted prisoners who were injured during a disturbance in prison during which prison officers were also injured. The applicants were convicted by the Board of Visitors of offences under prison disciplinary regulations and sentenced to substantial loss of remission of their sentences.[26]In Campbell's case, he was awarded 570 days' loss of remission in addition to other penalties such as forfeiture of privileges, loss of earnings and cellular confinement. He contended that he had been convicted of disciplinary offences which amounted in substance to criminal charges for the purposes of Article 6 of the convention without having been afforded a hearing which complied with the requirements of Article 6.[27]It was contended on behalf of the United Kingdom Government that the adjudication of a Board of Visitors did not involve the determination of criminal charges and that therefore Article 6 was not applicable.[28]Referring to Engel v The Netherlands (No 1), 1 EHRR, 647, the court said in paragraphs 68 and 69 of its judgment:
"68... (a) The Convention is not opposed to the Contracting States creating or maintaining a distinction between criminal law and disciplinary law and drawing the dividing line, but it does not follow that the classification thus made is decisive for the purposes of the Convention. "(b) if the Contracting States were able at their discretion, by classifying an offence as disciplinary instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 and 7, the application of these provisions would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention. "69. The Court was careful in the Engel and Ors judgment to state that as regards the dividing line between the 'criminal' and the 'disciplinary', it was confining its attention to the sphere with which the case was concerned, namely military service. It 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. "
However, the guarantee of a fair hearing which is the aim of Article 6 is one of the fundamental principles of any democratic society within the meaning of the Convention. As the Golder judgment shows, justice cannot stop at the prison gates and there is, in appropriate cases, no warrant for depriving inmates of the safeguards of Article 6".[29]Applying the principles set out in Engel, the court concluded that taking into account both the especially grave character of the offences with which Campbell was charged and the nature and severity of the penalty that he incurred, Article 6 was applicable to the Board of Visitors' adjudication. The court concluded that Article 6 had not been complied with in two respects: the Board of Visitors did not pronounce its decision publicly and Campbell was not entitled to legal assistance prior to the adjudication or to legal representation during it.[30]Article 6 is in the following terms: "(1) 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 partial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private lives of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. "(2) Everyone charged with a criminal offence should be presumed innocent until proved guilty according to law. "(3) Everyone charged with a criminal offence has the following minimum rights: "(a) to be informed promptly in a language he understands and in detail, of the nature and cause of the accusation against him; "(b) to have adequate time and facilities for the preparation of his defence; "(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; "(d) to examine or have examined witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; "(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court".[31]The court dealt with the applicant's complaint that there had been no public hearing in paragraphs 86 to 88 of its judgment as follows:
"86. The applicant complained of the fact that the adjudication by the Board of Visitors in his case had not been conducted in public, although he admitted that for him this was a marginal point. "
The Commission considered that there had been a failure to comply with Article 6 in this respect. The government submitted that the practice whereby a Board's proceedings were always held in private was legitimate: they relied on the entitlement under Article 6 to exclude press and public from a trial 'in the interests of ... public order or national security in a democratic society', 'where ... the protection of the private life of the parties so requires' or, alternatively, because there were 'special circumstances where publicity would prejudice the interests of justice'. Security problems, the possible propagation of malicious allegations by a prisoner and the latter's own wishes for privacy were cited in support of this submission. "87. It is true that ordinary criminal proceedings -- which may well have concerned dangerous individuals or necessitate the production of a prisoner before the court -- nearly always take place in public, notwithstanding the attendant security problems, the possible propagation of malicious allegations and the wishes of the accused. However, the Court cannot disregard the factors cited by the Government, notably the considerations of public order and the security problems that would be involved if prison disciplinary proceedings were conducted in public. Such a course would undoubtedly occasion difficulties of greater magnitude than those that arise in ordinary criminal proceedings. A Board's adjudications are, as befits the character of disciplinary proceedings of this kind, habitually held within the prison precincts and the difficulties over admitting the public to those precincts are obvious. If they were held outside, similar problems would arise as regards the prisoner's transportation to and attendance at the hearing. To require that disciplinary proceedings concerning convicted prisoners should be held in public would impose a disproportionate burden on the authorities of the State. "88. The Court therefore accepts that there were sufficient reasons of public order and security justifying the exclusion of the press and public from the proceedings against Mr Campbell. There was accordingly no violation of Article 6(1) in this respect".[32]Although this decision is not binding on me, I am required by Section 2(1)(a) of the Human Rights Act 1998 to take it into account. Mr Owen accepted that, realistically, he had to persuade me that Campbell and Fell was no longer good law.[33]On behalf of the Secretary of State, Mr Grodzinski submitted that Campbell and Fell had been considered by the Court in a number of recent decisions, in none of which had there been any suggestion that the decision was no longer good law, indeed the reverse was the case: the decision had been referred to with varying degrees of approval. It is convenient to refer to those cases before examining Mr Owen's submissions.[34]In Riepan v Austria (judgment dated 14th November 2000), the authorities held a criminal trial of a prisoner who had previously escaped from prison, within the prison where he was detained. He complained that he did not have a public hearing. The Austrian Government argued that although the hearing was held within a prison, it was in fact a public hearing. The Court rejected this argument, saying:
"27. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6. This public character protects litigants against the secretive administration of justice with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society."
[35]A number of cases were cited including Pretto v Italy. The judgment continues:
"The public character of the proceedings assumes a particular importance in a case such as the present, where the defendant in the criminal proceedings is a prisoner, where the charges relate to the making of threats against prison officers and where the witnesses are officers of the prison in which the defendant is detained. "28. It was undisputed in the present case that the publicity of the hearing was not formally excluded. However, hindrance in fact can contravene the Convention just like a legal impediment ... "29 ... The court considers that a trial complies with the requirement of publicity only if the public is able to obtain information about its date and place and if this place is easily accessible to the public. In many cases these conditions would be fulfilled by the simple fact that a hearing is held in a regular courtroom large enough to accommodate spectators. However, the court observes that the holding of a trial outside a regular courtroom, in particular in a place like a prison, to which the general public in principle has no access, presents a serious obstacle to its public character. In such a case, the State is under an obligation to take compensatory measures in order to ensure that the public and the media are duly informed about the place of the hearing and are granted effective access."
[36]The Court then considered whether such compensatory measures had been taken in that case and concluded that they had not. Amongst the circumstances to which the Court drew attention was the fact that the room in which the hearing was held was: "... hardly designed to encourage public attendance. It was held early in the morning in a room which, although not too small to accommodate an audience, does not appear to have been equipped as a regular courtroom".[37]The Court then considered whether the lack of a public hearing was justified for any of the reasons set out in the second sentence of Article 6(1) and concluded that it was not. In so concluding, the Court said this in paragraph 34:
"The Court considers that the present case concerning ordinary criminal proceedings cannot be compared to that of Campbell and Fell v the United Kingdom, where it held that a requirement that disciplinary proceedings against convicted prisoners should be held in public would impose a disproportionate burden on the authorities of the State. The Court would add that security problems are a common feature of many criminal proceedings, but cases in which security concerns justify excluding the public from a trial are nevertheless rare ..."
[38]In B v the United Kingdom and P v the United Kingdom (2002), 34 EHRR 19, the Court was concerned with complaints by applicants for residence orders in relation to their children that their applications had not been heard in open court with a public pronouncement of the Court's judgment. Their cases had been heard and judgments had been pronounced in chambers.[39]In paragraph 36, the Court said this:
"The court recalls that Article 6(1) of the Convention provides that, in the determination of civil rights and obligations, 'everyone is entitled to a fair and public hearing'. The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(1), a fair hearing, the guarantee of which is one of the foundations of a democratic society."
[40]The case of Sutter v Switzerland 1984, 6 EHRR 272, was cited.[41]Having noted that the requirement to hold a hearing in public was subject to exceptions, as was apparent from the text of Article 6(1) itself, the Court said this in paragraph 39: "The applicants submit that the presumption in favour of a private hearing in cases under the Children Act should be reversed. However, while the Court agrees that Article 6(1) states a general rule that civil proceedings, inter alia, should take place in public, it does not find it inconsistent with this provision for a State to designate an entire class of case as an exception to the general rule where considered necessary in the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties, although the need for such a measure must always be subject to the Court's control".[42]The cases of Campbell and Fell and Riepan were cited.[43]Finally, there is the decision of the Grand Chamber in Ezeh and Connors v the United Kingdom 2003, 15 Butterworths Human Rights Cases, 145. Both applicants were serving prisoners who were charged with offences contrary to the prison rules and, after adjudications, were awarded additional days (40 and 7 respectively) in custody. Both had asked for and been refused legal representation. They contended that there had been a violation of Article 6(3)(c).[44]In a judgment delivered on 15th July 2002, a Chamber of the Court accepted their submissions. The Government referred the matter to the Grand Chamber maintaining that Article 6 did not apply to the adjudication process because the charges against the applicants were disciplinary, not criminal. In the meantime, the Government had responded to the 2002 judgment by enacting the Prison (Amendment) Rules 2002, under which prison governors refer serious cases where additional days should be awarded for the offence to an independent adjudicator, in practice a District Judge as happened in the claimant's case.[45]The fact that hearings before an adjudicator were still held within the prison walls and not in public was made clear to the Grand Chamber (see paragraph 79 of the judgment). But it was not raised as an issue because it was being argued on behalf of the applicants in that case that the new procedures following the 2002 Amendment Rules were Article 6 compliant (see paragraph 72).[46]The Grand Chamber upheld the decision of the Chamber. Applying the criteria in Engel, it concluded that the depravations of liberty which were liable to be and which were actually imposed on the applicants could not be regarded as sufficiently unimportant or inconsequential as to displace the presumed criminal charges against them.[47]In paragraph 83, the Grand Chamber referred, with approval, to paragraphs 68 and 69 of the court's judgment in Campbell (see above).[48]In paragraphs 84 and 85, the Grand Chamber said this:
"While the court in Campbell therefore recognised the special nature of the prison environment which distinguished prisoners from the military context examined in Engel v The Netherlands, it went on to emphasise the fundamental nature of the fair hearing guarantees of Article 6 and that there was, in appropriate cases, no warrant for depriving prisoners of the safeguards of that article. "85. In such circumstances, as in Campbell v the United Kingdom, the Grand Chamber agrees with the Chamber that it is correct to apply the 'Engel criteria' to the facts of the present cases in determining where to place the dividing line between the 'criminal' and the 'disciplinary'. The court will do so in a manner consistent with the object and purpose of Article 6 of the Convention, while making 'due allowance' for the prison context and for the 'practical reasons and reasons of policy' in favour of establishing a special prison disciplinary regime."
[49]In paragraph 88, the Court said:
"As in Campbell v the United Kingdom, 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 ... "
The Government have argued, as a practical consideration against interpreting Article 6 so as to make its guarantees applicable to cases such as the present ones, that the new system is less effective than the former system, and, in particular, that it has given rise to additional administrative and financial burdens as well as to delay in the adjudication. The court in Campbell accepted that there might be practical reasons and reasons of policy for establishing a special prison disciplinary system, but responded by emphasising that, in appropriate cases, there was no warrant for depriving prisoners of the safeguards of Article 6 of the Convention. In the court's view, the obstacles relied on by the government are not, on their own, such as to entail the inapplicability of Article 6 to proceedings before the prison governor".[50]Mr Owen did not submit that Campbell and Fell had been criticised in any of these later authorities and acknowledged that it was at least implicitly approved in Riepan. He submitted however that the reasoning in paragraph 87 of the judgment was jejune, the Convention was a living instrument and there had been changes since 1984 which justified a reconsideration of the Court's decision.[51]Firstly, there was a greater emphasis upon the general principle that justice should be done in public; secondly, there was a greater recognition that lack of resources was no justification for a state's failure to comply with its obligations under the Convention and thirdly, the decision of the Grand Chamber in Ezeh represented a shift in attitude towards prisoners' rights. The dividing line between disciplinary and criminal offences had been moved and the logical consequence of treating offences as criminal for the purposes of Article 6(1) was that any hearing of such criminal offences should be in public.[52]I do not accept those submissions. There is nothing to suggest that any of the matters referred to in paragraph 87 of the Court's judgment in Campbell and Fell, in particular the considerations of public order and the security problems that would be involved if prison disciplinary proceedings were conducted in public, are of any less force in 2004 than they were in 1984.[53]The current problems are spelt out in some detail in a witness statement of Mr Munro, a prison governor and senior manager within the Prison Administration Group of Her Majesty's Prison Service. It is unnecessary to rehearse the detail because during the course of his submissions, Mr Owen accepted that the realistic option, given such considerations as the need for visitors' appointments to be made in advance, for advance security checks to be carried out, for arrangements to be made both for the security of the visitors and for the security of the prisoners and for suitable accommodation, which is not currently available within prison walls and which could not be provided unless space was available, and only then at great cost, was not to admit the public into the prison but to take those prisoners who wished to have a public hearing to a local courtroom.[54]I have no doubt that that concession was rightly made, particularly bearing in mind the need recognised by the court in the judgment in Riepan for "compensatory measures" to be taken if a hearing in a prison was to be regarded as a genuine hearing in public.[55]Mr Owen submitted that the resource implications of making arrangements to transfer prisoners who wished to have a public hearing from the prison to a local courtroom would not be disproportionate, since only a minority of cases are referred by governors to independent adjudicators under Rule 53A.[56]Mr Munro's witness statement mentions a figure of 5,000 cases a year. During the hearing, that figure was updated. According to Home Office records, there were some 7,000 cases between September 2003 and the beginning of July 2004, which were referred by governors to adjudicators. By extrapolation, that would give a figure of around 8,500 cases per annum.[57]Mr Owen pointed out that this was very much a worst case figure since many prisoners do not choose to have legal representation and many prisoners would not wish to have their cases heard in public. He submitted that the great majority of prisoners would probably waive their right to a public hearing so the problem of transporting prisoners to and from local courtrooms would be relatively small, certainly by comparison, for example, with the large number of prisoners who are daily transported between prisons and the courts.[58]It may well be the case that only a minority of prisoners would ask for a public hearing. It is to be noted that the claimant did not ask for a public hearing; the complaint that the hearing was not in public was first raised in the judicial review proceedings. According to Mr Munro, since the new system has come into force, under the 2002 Amendment Rules, no other prisoner has asked for a public hearing before an adjudicator.[59]Nevertheless the security implications cannot be lightly dismissed. The figures produced by Mr Munro show, perhaps unsurprisingly, that there is a significantly increased risk of prisoners escaping whilst they were under escort outside the prison walls. As a matter of common sense, once a prisoner has been convicted and is actually serving a sentence of imprisonment, he has a greater incentive to try to escape than a defendant who has been remanded in custody and who still hopes for an acquittal or after the verdict for the possibility of a non-custodial sentence, or a lenient (but not unduly lenient) custodial sentence.[60]Since offences against prison discipline occur in prison, the vast majority of witnesses are likely to be prisoners and prison officers. In the present case, the claimant wished to call four prisoners as witnesses. In the event, only two were available to be called. The security implications of transporting up to five prisoners to a local court should not be underestimated. In addition, two prison officers (who could not be expected to escort the prisoners since they would be occupied giving evidence) would also be absent from the prison for at least a significant part of the day. Like the Court in Campbell and Fell, I do not consider that these practical considerations can be disregarded.[61]Turning to the other factors relied upon by Mr Owen, I accept that the Convention is a living instrument but there is nothing in any of the authorities which have been cited above to suggest that the Court's approach to disciplinary hearings in prison in the Campbell and Fell case has become outdated or been overtaken by events. The court was well aware that the hearing of cases in public was one of the fundamental principles of a democratic society. Both Pretto v Italy and Sutter v Switzerland are referred to in the court's judgment in Campbell and Fell. That fundamental principle was also referred to by the court in Riepan (see paragraph 27 above). The court clearly did not consider that the existence of this fundamental principle in any way undermined the distinction between ordinary criminal proceedings, which should be heard in public, and disciplinary proceedings of the kind considered in Campbell and Fell (see paragraph 34 of the Court's judgment).[62]For the sake of completeness, I should mention that Mr Owen cited a number of domestic authorities which deal with the general principle that proceedings should be conducted in public. It is unnecessary to cite those authorities because Mr Owen accepted that they did not impose any wider obligation than that which is to be found in Article 6(1). They merely explain "in more muscular language" the underlying justification for the fundamental principle that hearings should, as a general rule, be held in public. As explained above, that fundamental principle was well appreciated by the court in Campbell and Fell and it makes no difference that it has subsequently been expressed in more muscular language. In the circumstances, these domestic authorities do not advance the claimant's case any further. Either he is entitled to a public hearing under Article 6(1) or he is not.[63]Turning to the question of resources, the cases cited by Mr Owen, such as R (Noorkoiv) v the Secretary of State for the Home Department 2002 1 WLR 3284 do not assist the claimant's case.[64]As the President of the Family Division pointed out in Clibbery v Allan 2002, FLR 261: "There is nothing in Article 6 of the European Convention which requires all cases, willy nilly, to be heard in open court. To hear them in private and to debar publication of the proceedings heard in private must be necessary in a democratic society and proportionate to that necessity. The European Court recognised in B v the United Kingdom that the Article 6 requirement to hold a public hearing was subject to exceptions".[65]The president then set out paragraph 37 of the Court's judgment in B v the United Kingdom (see above) and concluded: "The Human Rights Act 1998 and the European jurisprudence underline our own long-established principles of open justice which are entirely in conformity with the Convention and which our exceptions do not, in my judgment, breach".[66]The claimant's argument on resources seeks in effect to pull itself up by its own boot straps. There is no question of the State using a lack of resources as an excuse for failing to comply with the claimant's rights under Article 6. The question is, what is the extent of the claimant's rights under Article 6? The claimant does not have an absolute right to a public hearing; that right is qualified and the Convention recognises that a hearing in private may be justified in certain circumstances, including in the interests of public order. The court's reasoning in Campbell and Fell in respect of that issue is still applicable and it is no answer to say that with an open ended application of resources, the obvious public order problems of moving prisoners out of prison to judges, rather than vice versa, might possibly be solved.[67]Finally, the decision in Ezeh endorses, and certainly does not criticise, the decision in Campbell and Fell. Mr Owen submitted that it shifted the dividing line between disciplinary and criminal offences. In my judgment, the Grand Chamber merely applied the approach set out in Campbell and Fell and its conclusion that prisoners who were at risk of less severe punishments were also entitled to the protection of Article 6 does not in any way invalidate the Court's reasoning in Campbell and Fell as to how Article 6 should be applied in the context of a special disciplinary regime within a prison.[68]I have mentioned considerations of security. In paragraph 86 of Campbell and Fell, the Court also mentioned prisoners' concerns for privacy. Mr Owen acknowledged that many prisoners might wish for their cases to be heard in private, hence his submission that taking prisoners outside the prison to judges would not be an unduly onerous burden for the state.[69]However, his submission that prisoners who wished for privacy could waive their right to a public hearing does not provide a complete or satisfactory answer to the problem. In addition to the prisoner charged with the disciplinary offence, the other witnesses are likely to be prisoners and prison officers. Whatever the wishes of the prisoner charged, prisoner witnesses may wish to keep the fact that they are in prison and/or the address of that prison as private as possible.[70]For slightly different reasons, prison officers may not wish the nature or address of their employment to be made public any more than is absolutely necessary. The fact that witnesses in criminal trials have to give such information in public does not mean that considerations of privacy are irrelevant in deciding whether or not the present system of holding adjudications in prison is justified. Indeed given that much of the justification for holding hearings in public is the public interest rather than the interest of the individual litigant who, as the authorities cited by Mr Owen show, would often prefer to keep the proceedings involving him private, I find the proposition that the right, if it exists, to a public hearing could simply be waived at the behest of the individual prisoner a somewhat difficult concept to accept.[71]For all of these reasons, I am satisfied that there is no reason to depart from Campbell and Fell. Indeed, Mr Munro's evidence confirms that the reasoning in paragraph 87 of the Court's judgment is still sound.[72]It follows that this application must be dismissed.[73]For the sake of completeness, I should make it clear that hearings before adjudicators, although they are heard within the prison walls, are not private in the sense that no one else is admitted. Whilst it is true that members of the general public are not admitted, other public bodies can and do make unannounced visits to adjudications. The Independent Monitoring Boards (the IMB), the successors to the Boards of Visitors, are under a duty to monitor inter alia adjudications. Similarly, the Chief Inspector of Prisons makes unannounced visits to adjudications and to a lesser extent, the prison ombudsman may also make unannounced visits to adjudications. The prisoner is entitled to legal representation and to receive a record of the adjudication and there is nothing to prevent him or his legal representative from making that record public.[74]I have mentioned that the claimant did not request a public hearing at any stage. Had I reached a different conclusion on the principal issue, Mr Grodzinski would have wished to argue that in not requesting a public hearing, the claimant had waived his rights. I found it unnecessary to hear detailed submissions on that issue but even if I had reached a different conclusion on the principal issue, I would have been most reluctant to grant any relief to the claimant beyond a bare declaration. In particular, I can see no good reason for quashing the adjudicator's determination on the ground that the adjudication was not held in public, bearing in mind that there was no request made to either the adjudicator or the Secretary of State for a public hearing.[75]For these reasons, this application is refused.[76]Yes, thank you.[77]MR GRODZINSKI: I am grateful, my Lord. I have no applications to make.[78]MR OWEN: My Lord, two applications; one which is, I hope, uncontroversial, which is a public funding detailed assessment. If there is no certificate on file, I will make sure that there is one.

MR JUSTICE SULLIVAN: There is not, seven days.

[80]MR OWEN: The other application is for permission to appeal. Your Lordship is aware there are two bases for permission to appeal: one is the prospect of success, which is always difficult to argue in front of a judge who has just refused an application.

MR JUSTICE SULLIVAN: Yes, it is but always worth a try.

[82]MR OWEN: The second, however, is the -- "some other substantial reason" is the phraseology that is used in the practice direction which is the ground that now covers, in effect, public interest in the Court of Appeal considering the case.[83]When your Lordship granted permission on this case initially, it was on public interest grounds in effect. That was accepted by certainly the Secretary of State in his acknowledgment that there was a good reason for a hearing on this reason. In other words, it was an issue that had to be argued at some stage.[84]Given the importance of the issue, my submission is that there are proper grounds for the Court of Appeal to consider the issue as well and it is on that basis that I make the application for permission to appeal.

MR JUSTICE SULLIVAN: What do you want to say about that, Mr Grodzinski?

[86]You need not trouble me about whether there are reasonable prospects of success. If it succeeds, it only succeeds on the latter point.[87]MR GRODZINSKI: I am just re-reading the grounds of your Lordship's grant of permission. I think your Lordship said: "The First Defendant opposes the grant of permission, [that is us, Secretary of State] but the detailed account of events at the hearing before the adjudicator is more appropriately dealt with on the evidence at a full hearing".[88]I am not sure your Lordship per se accepted the matter raised an issue of --[89]MR JUSTICE SULLIVAN: No, I think the defendants are the wrong way round. The first defendant is the adjudicator and actually the Secretary of State is the second defendant, so I was referring to the Secretary of State's acknowledgment of service. I think in fact your skeleton argument put them the wrong way round but it has not caused any confusion so it does not matter.[90]If you go to the Secretary of State's acknowledgment, it says: "[It] intends to contest ... but respectfully suggests that this case raises issues of general importance for the Prison Service and that it is in the public interest that they be resolved by the Court following full argument. The Secretary of State therefore does not oppose the application for permission to apply for JR".[91]And then you wanted further time to put in evidence and so forth.[92]MR GRODZINSKI: My Lord, yes. I do not contest that given the importance, certainly for the Prison Service, of an adverse finding in this case that the matter did raise a matter that justified full consideration at a substantive hearing, which is obviously what has happened before your Lordship. But given the terms in which your Lordship has expressed his judgment and the uncontroversial way in which the case of Campbell and Fell has been relied upon and the singular lack of any authority that Mr Owen was able to point to that controverted reliance upon Campbell and Fell, this is not a case which, in my submission, needs any further investigation by the Court of Appeal. It is not a question of having to grapple with a number of apparently conflicting authorities where the Court of Appeal might have something further to say.[93]MR JUSTICE SULLIVAN: Thank you very much. Do you want to add anything?[94]MR OWEN: No.[95]MR JUSTICE SULLIVAN: I do not think it would be appropriate to grant permission to appeal. I do not think on the facts there is a reasonable prospect of success. So far as "other substantial reason" is concerned, whilst it is fair to say that the matter or the issue is of general importance for the Prison Service and did deserve consideration at least at first instance of the full argument, having heard the full argument, I think it is for Mr Owen to persuade the Court of Appeal there is some other substantial reason to go forward.[96]Thank you.

Cited in 1 later judgment