Napier v Secretary Of State For Home Department [2004] EWHC 936 (Admin)

Case No CO/5981/02[2004] EWHC 936 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday 29 th April 2004
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE GOLDRING
Between
SCOTT NAPIERClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Hugh Southey (instructed by the Prisoners’ Advice Service) for ClaimantMr Sam Grodzinski (instructed by the Treasury Solicitor) for Defendant
JudgmentThe Hon Mr Justice Goldring :Introduction
[1]The decision which the claimant seeks to quash in this application for judicial review is that of the Secretary of State of 9 September 2002 in which he refused to quash a finding against the claimant following an adjudication. The issue it raises is the effect of the decision of the European Court of Human Rights in Ezeh and Connors v United Kingdom [2002] 15 BHRC 145.

Background

[2]The claimant is a serving prisoner. On 9 July l999, he was convicted of an offence of robbery. He was at the time on licence for an earlier offence of robbery and kidnapping. He was sentenced to a total period of 8½ years’ imprisonment. On 2l March 2002 he threw a bucket of excrement and urine over a prison officer. Next day he was charged with a disciplinary offence. It is alleged that contrary to Rule 51, paragraph 1 of the Prison Rules, he had assaulted the prison officer. The claimant’s request for legal representation was refused. The hearing before the Governor took place on 28 May 2002. The claimant did not dispute that he had thrown the excrement and urine. He argued that the day before he had been falsely accused of assault by the prison officer. He suggested he had acted in self-defence. The charge was found proved. A penalty of 35 additional days was imposed. That had the effect of delaying by 35 days his non-parole release date and his parole eligibility date.[3]On 15 July 2002 a Chamber of the European Court of Human Rights in the case of Ezeh decided that the disciplinary adjudications faced by the two applicant prisoners in that case in which 40 and seven additional days were imposed respectively, constituted the determination of a “criminal charge” within the meaning of Article 6 of the European Convention on Human Rights. Albeit the United Kingdom Government had requested a reference to the Grand Chamber, that decision had far reaching consequences. As a result of it the Secretary of State generally remitted the award of additional days imposed by prison governors after 2 October 2000 on determinate sentence prisoners such as and including the claimant. There is no question therefore of the claimant serving the additional days.[4]On 28 August 2002 the claimant’s then solicitors wrote to the Directorate of High Security Prisons asking for the finding of guilt to be quashed. The Directorate responded on 9 September 2002 refusing to do so. In doing so the Directorate said this:
“The charge about which you were concerned has been thoroughly reviewed by the Directorate of High Security Prisons. The outcome of that review is that the finding of guilt should stand. As you will be aware, the punishment has already been remitted. Although [the claimant] was denied legal representation, the hearing was adjourned on several occasions, which would have afforded him the opportunity to consult with his solicitors. The adjudication was conducted in line with the Prison Discipline Manual and before the recent EC ruling concerning Ezeh and Connors…Therefore legal representation was not a legal requirement… This decision has been sent by the Deputy Director of High Security on behalf of the Director…”
[5]On 1 October 2002 the claimant’s present solicitors wrote to the Prisons Ombudsman’s Office. In a letter dated 8 November 2002 it responded, saying, among other things, “As you will no doubt be aware the Prison Service have remitted all punishments of added days imposed on or after 2 October 2000 as a result of [Ezeh]. Having had the benefit of legal advice in the light of the European Court’s decision, and the action taken by the Prison Service to remit punishments of added days, I am not persuaded there are sufficient grounds for recommending that this adjudication be quashed because you were not granted legal representation.”[6]Subsequently the defendant declined to quash the finding of guilt.[7]At present the claimant is at HMP Whitemoor. He is held in a Closed Supervision Centre (“CSC”). By Rule 46 of the Prison Rules 1999 the Secretary of State may order such a placement. According to the statement of Mr Dyne, an operational manager in the Directorate of High Security Prisons, the function of the CSC unit is to house prisoners whose presence in ordinary locations would give rise to an unacceptable level of disruption and/or danger to other people in the prison.[8]The “CSC Referral Manual,” among other things, sets out the procedure to be followed before such an order can be made. Appendix 5, headed “Operational Manager Risk Assessment Report Guidelines,” refers to the matters to be taken into account when considering the making of a CSC referral. Behaviour in custody is relevant. So too are adjudications. Of adjudications, its states “Official records of behaviours that have broken the rules of the establishment are a clear and easy way to assess levels of risk.”[9]I should underline the limits and somewhat theoretical nature of this application. Mr Southey, on behalf of the claimant, is not seeking to quash the decision of the Secretary of State to allocate the claimant to a CSC. Neither is he submitting that the Secretary of State was not entitled to take into account the allegations (my emphasis) which formed the basis of the adjudication as part of his decision to allocate. This finding of guilt was only one aspect of that decision. The limit of his submission as far as allocation to the CSC is concerned is that no reliance should have been placed on the finding of guilt as determinative of the underlying facts.[10]Moreover, he submits, the finding of guilt means that there is a finding of culpability against the claimant which should not be permitted to stand.[11]On behalf of the claimant there has been filed the statement of Simon Creighton, a solicitor who has specialised in the field of prison law since l993. He states that he has made in excess of 300 applications to the Prison Service to review findings of guilt arising from adjudications at prison establishments. He has never had a case where the punishment was remitted on review but the finding of guilt allowed to stand. Mr Grodzinski, on behalf of the Secretary of State, has told me that there are large numbers of cases in which the added days have been remitted, but the finding of the adjudication allowed to stand. If that is unlawful, it would have repercussions in all those cases.[12]It seems to me that I must consider this matter irrespective both of Mr Creighton’s experience and the possible repercussions.

The law

[13]Rule 6l(1) of the Prison Rules 1999 provides that “The Secretary of State may quash any finding of guilt and may remit any punishment or mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe.”[14]Insofar as relevant, Article 6 provides “1. In the determination of…any criminal charge against him, everyone is entitled to a fair…hearing… by an independent…tribunal… 3. Everyone charged with a criminal offence has the following minimum rights… (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…”[15]In R (Al Hasan), R (Carroll) and R (Greenfield) v Secretary of State for the Home Department [2002] 1 WLR 545 the Court of Appeal decided that the imposition of additional days in an adjudication did not mean that the claimant was inevitably to be treated as being charged with a criminal offence for the purposes of Article 6. Mr Grodzinski accepts that as far as additional days are concerned, Ezeh sets out the applicable law. The Secretary of State is not contesting appeals to the House of Lords in that regard (although as will become clear, Mr Grodzinski submits that part of the Court of Appeal’s decision is still good law). There is therefore no issue in this application, but that I should apply Ezeh. The dispute is as to its effect. Mr Southey contends that Ezeh requires that irrespective of the imposition of added days an adjudication such as the present must be Article 6 compliant. If not, any finding must be quashed. An Article 6 compliant re-hearing could then take place. Mr Grodzinski submits that stripped of the penalty of additional days, the proper characterisation of the adjudication’s finding is that of an administrative finding of fact based on the evidence presented to the governor: that given the remission of the additional days, the claimant can no longer be said to be a “victim” within the meaning of Article 34 of the Convention.[16]I need not go into the facts of Ezeh except to say that the second applicant was charged with assault. It was alleged that he had run deliberately into a prison officer. As I have indicated, seven additional days’ custody was imposed.[17]The issue in Ezeh was where to place the dividing line between the “criminal” and the “disciplinary.” If the hearing was “criminal” Article 6 applied. If disciplinary or administrative, it did not. It was agreed that the line should be drawn by reference to the threefold test set out the case of Engel and others v the Netherlands, 8 June 1976, Series A no. 22 (the “Engel criteria”). They are set out in Ezeh. “82… [I]t 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 … “However, 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 … It is on the basis of all these criteria that the Court will ascertain whether some of all of the applicants were the subject of a ‘criminal charge’ within the meaning of Article 6 § 1 of the Convention”.

The very nature of the offence is a factor of greater import …

[18]At paragraph 85 the Court says this “… 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 86. In addition, it is the Court’s established jurisprudence that the second and third criteria laid down in the Engel judgment are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as ‘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 separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge .”[19]At paragraph 88, “… 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. In this regard, the Court notes that other sanctions were available to the governor at the relevant times (including forfeiture of privileges, exclusion from associated work and cellular confinement) and that the range and severity of sanctions other than additional days has been extended and increased since the applicants’ adjudication proceedings, most recently in August 2002 (paragraphs 37 and 55 above). The Court considers that it has not been convincingly explained why these other sanctions would not have an impact comparable to awards of additional days in maintaining the effectiveness of the prison disciplinary system, including the authority of prison management. In this regard, the Government did not address how a sanction with immediate application would be less effective than an award of additional days which is not served until a prisoner’s early release date (set pursuant to section 33 of the 1991 Act) and which in many cases will be therefore served some time, even years, after the adjudication hearing.”[20]At paragraph 89 the Court stated that its task was “to determine how [the Engel criteria] are to be applied to [a]…system…under which the governors had the power to award up to 42 days of additional custody…”[21]As to the first Engel criterion, it was said that the domestic classification of the offence had “only a formal and relative value; the ‘very nature’ of the offence is a factor of greater import…”[22]Mr. Southey emphasises the second Engel criterion. The Grand Chamber considered it at paragraph 100 and following. “… It is also clear that the charge of assault against the second applicant is an offence under the criminal law as well as under the Prison Rules. It is true that the latter charge involved a relatively minor incident of deliberately colliding with a prison officer which may not necessarily have led to prosecution outside the prison context. It is also true that the extreme gravity of the offence may be indicative of its criminal nature…However, that does not conversely mean that the minor nature of an offence can, of itself, take it outside of the ambit of Article 6 as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the second of the Engel criteria, necessarily requires a certain degree of seriousness…Accordingly, and even noting the prison context of the charges, the theoretical possibility of concurrent criminal and disciplinary liability is, at the very least, a relevant point which tends to the classification of the nature of both offences as ‘mixed’ offences… 105 … The Court considers that awards of additional days were, on any view, imposed after a finding of culpability … to punish the applicants for the offences they had committed and to prevent further offending by them and other prisoners. 106 … Accordingly, the Court considers that these factors, even if they were not of themselves sufficient to lead to the conclusion that the offences with which the applicants were charged are to be regarded as ‘criminal’ for Convention purposes, clearly gives them a certain colouring which does not entirely coincide with that of a purely disciplinary matter. 107 … it is therefore necessary to turn to the third criterion…”[23]Mr. Southey submits that in each case it is necessary for the Secretary of State to assess whether the allegation is sufficiently serious to cross the line from disciplinary to criminal under the second Engel criterion. If it is, irrespective of the outcome, the adjudication must be Article 6 compliant. Although he submits the allegations in this case are more serious than those relating to the second applicant in Ezeh, and would “almost certainly” lead to a prosecution, given his submissions in respect of the third criterion, he does not argue it is necessary for me to decide whether here the line is crossed.[24]The Grand Chamber considered the third Engel criterion in paragraph 108 and following. It rejected the United Kingdom Government’s submissions.[25]It stated in paragraph 120 that “The nature and severity of the penalty which were (sic) “liable to be imposed”…is to be determined by reference to the maximum potential penalty for which relevant law provides…the actual penalty imposed is relevant to the determination…”[26]It then turned to the penalties which were imposed. As it was put in paragraph 124, the “awards of additional days by the governor constitute fresh deprivations of liberty imposed for punitive reasons after a finding of culpability.”[27]It went on to say, “126… in…Engel… the Court found…[that]… 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 … Accordingly, given the deprivations of liberty, liable to be and actually imposed on the present applicants, there is a presumption that the charges against them were criminal within the meaning of Article 6, a presumption which could be rebutted entirely exceptionally, and only if those deprivations of liberty could not be considered ‘appreciably detrimental’ given their nature, duration or manner of execution… 128 … The Court also observes that there was nothing before the Chamber, and nothing was submitted to the Grand Chamber, to suggest that awards of additional days would be served other than in prison and under the same prison regime as would apply until the normal release date… 129 In these circumstances, the Court finds that the deprivations of liberty which were liable to be, and which were actually, imposed…cannot be regarded as sufficiently unimportant or inconsequential as to displace the presumed criminal nature of the charges against them. The Court notes that the maximum penalty that could have been awarded against Mr Engel and the actual penalty imposed on him – 2 days’ strict arrest in both respects – was found to be of too short a duration to belong to the criminal sphere. However, it observes that, in any event the lowest penalty imposed in the present cases was substantially greater than that…. 130. In such circumstances, the Court concludes as did the Chamber that the nature of the charges together with the nature and severity of the penalties, were such that the charges against the applicants constituted criminal charges within the meaning of Article 6 of the Convention, which Article applied to their adjudication hearings.”[28]Mr. Southey submits that means that not only the actual but the potential penalty has to be taken into account. Any adjudication which might realistically result in days being added must be Article 6 compliant. Here there was plainly such a risk. Remission of the added days by the Secretary of State does not change the need for Article 6 compliance. Remedy[29]By Article 34 of the Convention, “the court may receive applications from any person…claiming to be the victim of a violation…”[30]In Posokhov v Russia ECtHR Application 63486/00 the Court stated “…it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether or not the applicant can claim to be a victim of the violation alleged is relevant to all stages of the proceedings under the Convention…The Court…reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance and then afforded redress for, the breach of the Convention…”[31]The Secretary of State having remitted the imposition of 35 additional days and accepted that the adjudication on 28 May 2002 amounted to the determination of a “criminal charge” for the purposes of Article 6 and that its requirements were not met, how does Mr. Southey maintain the claimant is a “victim who may seek a remedy?”[32]He submits that in the light of his interpretation of the effect of Ezeh, both the acknowledgement and the remedy were insufficient. The finding still left the claimant culpable. The acknowledgement of a violation of Article 6 failed adequately to recognise the extent of the Article 6 breach. Only the element of added days was acknowledged. There was no acknowledgement that because of the breach the quality of the decision was adversely affected. Had the claimant been represented by a lawyer, the decision might have been different. A proper acknowledgement of the breach would have resulted in the quashing of the decision. Only quashing would amount to adequate redress.[33]He submits that what was said in Attorney General’s Reference (No 2 of 2001 [2004] WLR 1, a criminal prosecution in which the very different issue of the effect of delay was considered, has application to this case. He draws attention to the observations of Lord Bingham at page 11D, where he said that “If the hearing is shown to have been held by a tribunal lacking independence or impartiality or legal authority, a conviction can be quashed and a re-trial ordered if a fair trial can still be held.”[34]At paragraph 134 Lord Millett said that “If the hearing is not fair, or is before a tribunal which is not independent and impartial…then the correctness of the…decision is brought into question. The object of these rights is to secure to the individual a just determination of the dispute or criminal charge which is a far beyond challenge as human justice can make it.”[35]Those observations are consistent, submits Mr. Southey, with what is said in the domestic criminal law context as exemplified by such decisions as Togher [2001] 1 Cr App R 33.[36]Mr. Southey also submits that adequate redress means that the claimant should be put in the position he would have been had the Article 6 violation not occurred. He relies on the observations of Lord Woolf CJ at paragraph 59 of Anufrijeva v Southwark London Borough Council [2004] 2 WLR 603 at paragraph 59, where the Lord Chief Justice spoke of “The fundamental principle [of the European Court] underlying the award of compensation is that the court should achieve what it describes as restitutio in integrum. The applicant should insofar as possible, be placed in the same position as if his…Convention rights had not been infringed.”[37]Damages would not be appropriates argues Mr. Southey because the adjudication might be correct. The only remedy is quashing and a possible re-trial.

The submissions on behalf of the Secretary of State

[38]Mr. Grodzinski in my view rightly defined the key question in these terms. Is it sufficient in order for the claimant to be awarded proper redress for the punishment of added days to be remitted or does Article 6 also require the governor’s factual finding to be quashed so that it must thereafter be regarded as inherently unreliable for all purposes connected with the management of the claimant in prison? He submits that only by answering that question can one answer the question of whether the claimant is still a victim.[39]Mr. Grodzinski submits the Secretary of State’s acknowledgement of a violation of Article 6 was plain. To adopt the wording in Posokhov the Secretary of State “acknowledged, either expressly or in substance, and then afforded redress…”[40]The sufficiency of the acknowledgement and redress, accepted Mr. Grodzinski, depended on the basis on which the Secretary of State accepted a violation occurred. That basis was a correct acceptance of the effect of the decision in Ezeh. Mr. Grodzinski submitted that the decisive factor in Ezeh was the third Engel criterion. Paragraph 105 of the judgment referred to the imposition of added days both as punishment for offences and prevention of further offending (see paragraph 22 above). Here, as Mr. Dyne made clear, there was no punishment following the adjudication. Placement in CSC does not amount to a punishment.[41]The fact the Court spoke of features of the offences giving a “certain colouring” was not sufficient to lead to the conclusion the proceedings were criminal, submitted Mr. Grodzinski. Paragraph 107 of the judgment (see paragraph 22 above) stated in terms that it was “therefore necessary” to consider the third Engel criterion to resolve the issue.[42]The Court’s assessment in paragraphs 120 to 129 underlined the importance of the punishment imposed: the added days. Here, because of the absence of punishment following the remission of the added days, nothing “appreciably detrimental” had happened to the claimant, as referred to in paragraph 126 of the judgment (paragraph 27 above).[43]As to Mr. Southey’s submission that the potential for adding days would be sufficient to bring the proceedings within Article 6, Mr. Grodzinski does not agree. The only issue with which the claimant is concerned is whether he will serve added days. That cannot happen.[44]In short, submits Mr. Grodzinski, the decisive factor in Ezeh was the added days. Absent those added days, the proceedings did not have to comply with Article 6.[45]Mr. Grodzinski also relies on that part of the decision in Al Hasan which he submits is still good law.[46]Al Hasan was serving a life sentence. No additional days could be imposed in his case. In Carroll’s and Greenfield’s two and 21 respectively were. In giving the judgment of court, Lord Wolfe CJ, referring to Al Hasan and Carroll said at paragraph 48 that “In…[their cases]…the severity of the penalty actually imposed…point in our judgment uncontestedly to the conclusion that no criminal charge is involved.”[47]Finally, Mr. Grodzinski submits that stripped of its penal consequences the finding of “guilt” falls properly to be analysed as an administrative finding of fact, made by the adjudicating governor based on the evidence before him. That is different from those cases in domestic criminal law in which a conviction is quashed because the trial did not meet Article 6 requirements. There the conviction has to be quashed. Otherwise the defendant would continue to suffer from the stigma of a criminal conviction. No lawful purpose could be served by such a conviction remaining on the record as a record of fact. Here, the position is quite different. There has been no conviction. Additionally, there is a legitimate purpose in the prison authorities keeping the governor’s factual finding on the claimant’s file. Such a finding is relevant when making informed decisions regarding his management, something they are obliged to do.[48]Further, it is unarguably the case that the prison authorities are entitled to make decisions about the appropriate conditions in which to hold prisoners based on the evidence before them. No formal finding of guilt need be made. There is no obligation to charge the prisoner with a criminal offence. The CSC Committee, which to some extent relied on the adjudication, could if it wished have made precisely the same finding on the same evidence without having to comply with Article 6.[49]As to the argument that restitutio in integrum applies, Mr. Grodzinski submits it is misplaced. Such a principle applies in a claim for financial compensation. As is stated at paragraph 141 of Ezeh, the Grand Chamber, approving what was said in the Chamber, decided that it could not speculate as to what might have occurred had there been no breach of Article 6. A finding of a violation was sufficient just satisfaction of any non pecuniary damage sustained.

My conclusion

[50]At the heart of this application is the claimant’s case that he is still a victim in respect of whom the court should make an order. The basic question can be reduced to this. Having regard to the Grand Chamber’s decision in Ezeh, has the Secretary of State sufficiently acknowledged his violation of the claimant’s Article 6 rights and afforded him adequate redress?

The effect of the decision in Ezeh

[51]In my view a proper reading of Ezeh leads to the conclusion that absent the imposition of added days, absent the requirement that the adjudication needed 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.[52]First, as the summary of the applicants’ and Government’s submissions to the Grand Chamber make clear (paragraphs 70 to 81), the argument before the Grand Chamber essentially revolved around the effect of adding days having regard to the requirements of Article 6. It seems to me the observations of the Court should be considered in that light.[53]Second, when considering the Engel criteria in the context of the prison environment, the Court drew a distinction between the sanction of adding days and the other, lesser, sanctions available to the prison governor for the control of prison discipline. It is difficult to read the observations at paragraph 88 of the judgment without concluding that in the Court’s view it is the nature of the punishment which makes the difference (see paragraph 19 above).[54]Third, the fact that there was a charge of assault against the second applicant in Ezeh did not of itself mean that the second Engel criterion was made out. Although there was “a certain colouring,” it was not enough to cross the threshold from administrative to criminal. It was “therefore necessary” for the Court to consider the third Engel criterion. Although the nature of the allegations against the claimant was more serious than that of the second applicant in Ezeh, it was not such in my view as to bring it independently within the second Engel criterion. Indeed, Mr. Southey has not urged such a conclusion upon me. At most, it amounts to no more than “colouring” here.[55]Fourth, it is by reference to the penalty which was “liable to be imposed” and which was in fact imposed that the Court considers the applicability of Article 6. Paragraph 120 suggests that. Paragraph 124 refers to the additional days constituting fresh deprivations of liberty imposed as a punishment after a finding of culpability. Paragraph 126 states that “given the deprivations of liberty, liable to be and actually imposed…there is a presumption that the charges…were criminal.” That presumption could only be displaced if those deprivations were not detrimental as described. Paragraph 128 refers to the fact the additional days would be served in prison under the normal prison regime. Finally, as it is put in paragraph 129, those deprivations of liberty in such circumstances were not sufficiently unimportant or inconsequential as to displace the presumed criminal charges.[56]Fifth, I do not take the Court to mean, as Mr. Southey submitted, that a potential penalty of added days without more would be enough to require an adjudication to be Article 6 compliant. Further, it seems to me Mr. Grodzinski is right when he submits that the only thing which interests the claimant is whether he is to serve more days in prison. He is not concerned with a theoretical risk which will not arise. Such a risk is irrelevant.[57]In short, I agree with Mr. Grodzinski that the decisive factor in Ezeh 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 Ezeh: that what was stated by the Court of Appeal to that effect in Al Hasan is still good law.

Acknowledgement and redress

[58]In my view the Secretary of State has both acknowledged his breach of the Claimant’s Convention rights and afforded sufficient redress. He has acknowledged that because days were added, the claimant should have been afforded his Article 6 rights. He has remitted the sentence. I do not accept Mr. Southey’s submissions to the effect that proper acknowledgement and redress would have involved quashing the decision: that the claimant’s position is analogous to that of the defendant in a criminal trial whose conviction was obtained in breach of his Convention rights. It does seem to me that stripped of its penal consequences the finding of guilt falls properly to be analysed as an administrative finding of fact based on the evidence before the governor. It can be reached quickly. It does not involve the stigma of a conviction. There is a legitimate use to which such a finding can be put: the making of sensible and informed decisions regarding the claimant’s management in prison.[59]Neither do I accept Mr. Southey’s submissions that the applicability of the doctrine of restitutio in integrum requires the conviction to be quashed. It does not seem to me the observations of the Lord Chief Justice in Anufrijeva are to the point. This is not a claim for financial compensation. The court cannot speculate as to what might have happened had there been no breach of the claimant’s Article 6 rights (as was said in paragraph 141 of Ezeh). The claimant has received just satisfaction for the non pecuniary loss he has suffered.[60]As I stated earlier, Mr. Grodzinski in my view rightly defined the issues in these terms. Is it sufficient in order for the claimant to be awarded proper redress for the punishment of added days to be remitted or does Article 6 also require the governor’s factual finding to be quashed so that it must thereafter be regarded as inherently unreliable for all purposes connected with the management of the claimant in prison? Only then can one decide whether the claimant is still a victim.[61]In my view, for the reasons I have stated, proper redress does not require the quashing of the finding. The claimant is no longer a victim. This application for judicial review must be refused. - - - - - - - - - - - - - - - - - - - - - MR JUSTICE GOLDRING: I hand down the judgment in the terms I have indicated. I am grateful to counsel for their corrections which I have incorporated. MR GRODZINSKI: My Lord, the Secretary of State seeks no order of costs. MR JUSTICE GOLDRING: Thank you. MR SOUTHEY: In terms of costs, the claimant's application is just for settlement for the purpose of the Community Legal Services. MR JUSTICE GOLDRING: Certainly. MR SOUTHEY: My Lord, the claimant also does seek leave to appeal in relation to the matter, as your Lordship, I think, is well aware, although if your Lordship characterised this, perhaps understandably, as a challenge of a somewhat theoretical nature, at the same time it is one which does have significant implications. MR JUSTICE GOLDRING: I do see what you are saying entirely, Mr Southey. I have given this some thought and my present reaction is not to grant permission, however to indicate in my reasons that it is a matter with some wider implications but that it is in this particular instance wholly academic. I also have in mind that the House of Lords, if not directly at least indirectly, will be, I suspect, considering this topic. MR SOUTHEY: My Lord, certainly in terms of the second point, of course, as I think we indicated to your Lordship at the start of the hearing in this matter, neither side has had any indication of when the House of Lords is likely to look at it and in practical terms it is likely to be some time in the future, and when I say some time I think it is realistic to talk possibly about maybe a year in the future because I know the House of Lords is listing at the moment for next year. That is speculative to an extent. In terms of whether it is of benefit to this particular claimant, we obviously accept this was not a challenge to the decision regarding the CSC and that is true. At the same time we would submit that it is a matter that has been relied on by the Prison Service, the finding of guilt in this matter, in its decision-making, and as a consequence although it would not necessarily mean, and perhaps it is inlikely to mean, that the CSC decision would reversed, at the same time the CSC decision would have to be retaken, in our submission, based on the correct analysis of the decision. MR JUSTICE GOLDRING: I follow that, Mr Southey. Unless there is anything you want to add, I will just ask Mr Grodzinski for his view. Do you have anything you want to say on this topic? MR GRODZINSKI: My Lord, not in any great detail. I would not invite your Lordship to grant leave to appeal. Just making three short points: the first is that whatever the possible wider implications of the judgment, the test still has to be whether there is a prospect of success in order to warrant granting permission. I say, with respect, although your Lordship decision is clear and cogent, it essentially turns on the straightforward application, and the victim test which your Lordship has come what I would say is the right conclusion. MR JUSTICE GOLDRING: You would, Mr Grodzinski, because I agreed with you. MR GRODZINSKI: On the point my learned friend made as to the timing of the House of Lords, at the outset of the hearing we both accepted that it would be some time before the House of Lords gave their opinions on this matter but the point was that in the interim it was said by my learned friend that some court guidance would be of benefit. That is exactly what we have had. The parties know where they are now. An additional view on the subject -- if it is true that the matters is going to be canvassed by the House of Lords anyway, what difference does it make whether the settled view of the law prior to then is from your Lordship or from the Court of Appeal? MR JUSTICE GOLDRING: The second might have rather greater weight than the first. I am not asking for your comment. MR GRODZINSKI: I say no more. MR SOUTHEY: My Lord, just one point. In terms of the test to go to the Court of Appeal, the test is a two-limb test. It is either merits or a compelling other reason, so merits are not the only factor. That having been said, my submissions earlier, which were brief to assist the court, were not intended to suggest that we in any way thought there was not merit. In many respects the issue of who is a victim is a matter that, perhaps surprisingly, has not really been considered under the Human Rights Act. As far as I am aware on the Law Reports on the Human Rights Act in the UK, this is probably now the leading case on who is a victim in many respects, in the sense that there is not very much else. I am not necessarily saying it has huge wider implications. There is not very much in the UK domestically, I am confident. MR JUSTICE GOLDRING: Mr Southey, I am not persuaded but I will make it plain in the reasons, which I shall not draft immediately, I will draft them when I have finished the next case, but I shall make it plain that there are some possible wider implications and the Court of Appeal itself will decide in all the circumstances whether it wishes to grant permission or not. MR SOUTHEY: Thank you, my Lord. MR JUSTICE GOLDRING: I am grateful to both of you.

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