Haase, R (on the application of) v Independent Adjudicator & Ors [2007] EWHC 3079 (Admin)

[2007] EWHC 3079 (Admin)Case No CO/5612/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/12/2007
Before
MR JUSTICE STANLEY BURNTON
THE QUEEN ON THE APPLICATION OF
Between
JOHN HAASEClaimant(2) THE SECRETARY OF STATE FOR JUSTICEDefendants
Hugh Southey (instructed by Langleys) for ClaimantDavid Perry QC and Sam Grodzinski (instructed by the Treasury Solicitor) for DefendantsHearing Hearing date: 7 December 2007
Judgment

Stanley Burnton J :

[1]The Claimant is a serving prisoner. In these proceedings, which I heard together with the claim in R (Lake) v The Governor, HMP Highdown, in which judgment is to be handed down immediately after this judgment, he challenges the determination made by an Independent Adjudicator exercising jurisdiction in disciplinary proceedings in prison. He contends that the proceedings before the Independent Adjudicator were unfair, and in breach of his Convention right under Article 6, because the prosecution lacked sufficient independence. His challenge is systemic and raises an issue of general importance both in relation to prison disciplinary proceedings and to other criminal proceedings. Essentially, the Claimant contends that the system of hearings by Independent Adjudicators, in which the prosecution case is presented by a prison officer who may be a witness, is institutionally incompatible with Article 6.

The facts

[2]Since the Claimant’s challenge is systemic, the particular facts of his case are almost irrelevant. However, they serve as a useful example of the kind of cases determined by Independent Adjudicators, as indeed do the facts of Mr Lake’s case.[3]On 14th October 2004, the Claimant was sentenced to 14 years’ imprisonment. On 30th September 2005, he arrived at H.M. Prison Full Sutton. On 25th January 2006, Prison Officer Peck, acting under the Prison Governor’s authority and in accordance with section 16A of the Prison Act 1952 and Prison Rule 50, required the Claimant to provide a sample of urine for the purpose of testing for the presence of a controlled drug. The Claimant refused, and was charged with disobeying a lawful order. The adjudication was opened by a governor on 26th January 2006, and later referred for hearing before an Independent Adjudicator.[4]The Claimant instructed solicitors to represent him before the Independent Adjudicator. On 7th April 2006, the Claimant appeared before the Independent Adjudicator, District Judge Nuttall, charged with the offence of disobeying a lawful order. He contested the charge. The prosecution of the Claimant was essentially conducted by the reporting Prison Officer, Officer Peck. The Claimant’s solicitors sought to raise two defences. They contended that the Claimant was unfit to attend for a drugs test when the order was given. In addition, they contended that the order was unlawful because the Claimant was not informed that he would be charged if he did not obey the order.[5]Officer Peck and the Claimant gave evidence in the course of the adjudication. The Claimant’s evidence was inconsistent with that of Officer Peck. In particular, the Claimant said (contrary to the evidence of Officer Peck) that he was not informed that he would be charged if he did not obey the order.[6]The Independent Adjudicator accepted the evidence of Officer Peck. He rejected the evidence of the Claimant that supported his defence. As a consequence he found the Claimant guilty. He was sentenced to serve 21 additional days.

The ground of challenge

[7]It is common ground that Article 6 applied to the hearing before the Independent Adjudicator. It is also common ground that, having regard to his power to make an order resulting in the additional detention of the Claimant, for the purposes of the Convention the proceedings are to be regarded as criminal: c.f. Campbell and Fell v UK (1985) 7 EHRR 165.[8]The challenge to the determination of the Independent Adjudicator is based on the decision of the Courts-Martial Appeal Court in R v Stow [2005] EWCA Crim 1157, in which the appellant’s conviction by a court-martial was quashed on the ground that his trial had been unfair and did not comply with the requirements of Article 6 because the prosecution had lacked the necessary independence.[9]At the beginning of the hearing of this application, I was concerned to know precisely what the Claimant contended to be the requirements of independence on the part of the prosecutor, and I asked Mr Southey to particularise this part of his case. Paragraph 4.3 of the Claimant’s grounds in support of his claim for judicial review, which had been drafted by Mr Southey, is as follows:
“… the claimant submits that there was a violation of article 6 in the course of the disciplinary proceedings against him. That is because there was no independent prosecutor (and Code for Crown Prosecutors). Instead the prosecution was conducted by a Prison Officer who was employed by the Prison Service. The Prison Service was essentially the complainant in the prosecution. Indeed the prosecutor was essentially the primary prosecution witness despite the fact that it was being suggested that that witness was lying. However, the Prison Discipline Manual makes it clear that an independent prosecutor could have been prosecuted.”
[10]The third sentence was understood by the Defendants, understandably in my view, as contending that it was necessary for a prosecutor to be someone independent of the Prison Service. As a result, their evidence went largely to the practical difficulties for the Prison Service and the costs of accepting this contention. However, Mr Southey’s oral submissions were less radical. He said that he had not intended to suggest that it is necessary for the prosecutor to be independent of the Prison Service. He submitted that Article 6 and fairness require that the case against a prisoner should be presented by someone, who may be another prison officer, other than a witness to the alleged offence; and that safeguards are required to ensure the fairness of the proceedings. The object of these safeguards would be to ensure that only proper considerations are taken into account in the conduct of the prosecution; and that proper disclosure is made. There should be a code for prison prosecutors, equivalent to the Code for Crown Prosecutors applicable to prosecutions before the criminal courts; prison prosecutors should receive appropriate training, and there should be a system in place to ensure that the performance of prison officers in adjudications is not taken into account in decisions on their promotion. A trained corps of prison prosecution officers could, in Mr Southey’s submission, satisfy the requirements of Article 6 and fairness.[11]For the Defendants, Mr Perry submitted that none of these measures was required to ensure that proceedings before Independent Adjudicators are fair and comply with Article 6. He made it clear that he considers Stow to have been wrongly decided, for reasons that appear below. He recognised, however, that at the level of the High Court it is either binding or must be considered to be so. He sought to distinguish it on the basis of the difference between proceedings in adjudications and criminal and court-martial proceedings. In addition, he relied on the fact that presenting prison officers are bound to act honestly and fairly, a duty that is expressed in and reinforced by the Prison Discipline Manual.

Independent Adjudications in Prisons

[12]The determination of disciplinary charges against detained prisoners by Independent Adjudicators was introduced following the decision of the European Court of Human Rights in Ezeh and Connors v. United Kingdom, (Application nos. 39665/98 and 40086/98) (2002) 35 EHRR 28, in which it was held that the determination of prison disciplinary allegations by a governor, resulting in an award of additional days, was within the scope of Article 6, and that the governor was not an independent and impartial tribunal as required by that Article. The decision of the Chamber was upheld by the Grand Chamber on 9th October 2003: (2004) 39 EHRR 1.[13]Following the delivery of the Chamber’s judgment on 25July 2002, the Prison Rules 1999, made by the Home Secretary under the power conferred by section 47 of the Prison Act 1952, were amended by the Prison (Amendment) Rules 2002 (SI No. 2116/2002) (the ‘Amendment Rules’), which came into force on 15August 2002. The effect of the amendment was described in the explanatory note to the Amendment Rules:
“These Rules amend the Prison Rules 1999 by providing for an adjudicator, approved by the Secretary of State to inquire into charges of serious offences against discipline set out in those Rules. Where the governor determines that a charge is sufficiently serious, he must refer it to the adjudicator, who is to inquire into the offence no later than 28 days after it has been referred. At an inquiry into a charge that has been referred to the adjudicator, the prisoner who has been charged is given the opportunity to be legally represented. If the adjudicator finds a prisoner guilty, he has the power to impose upon him any punishment which the governor can impose, and can also impose an award of up to 42 additional days to be served in prison. These Rules also remove from the governor the power to impose any additional days as a punishment on a prisoner found guilty by him, and add to his powers in certain other respects.”
[14]Independent Adjudicators are District Judges who visit prisons on a regular basis. With effect from 18 April 2005 the Prison (Amendment) Rules 2005 (SI 869/2005) amended the Prison Rules 1999 so as to transfer responsibility for approving Adjudicators from the Secretary of State to the Lord Chancellor. The amendments also provided for reviews of punishments imposed by adjudicators to be conducted by a Senior District Judge (Chief Magistrate) approved by the Lord Chancellor, or a deputy judge nominated by the Senior District Judge. There is no appeal against or review of a finding that a disciplinary offence has been committed, other than by way of judicial review.[15]Expedition in the determination of prison disciplinary offences is required by rule 53 of the Prison Rules 1999: 53.(1) Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the discovery of the offence. (2) Every charge shall be inquired into by the governor or, as the case may be, the adjudicator. (3) Every charge shall be first inquired into not later, save in exceptional circumstances or in accordance with rule 55A(5), than:(a) where it is inquired into by the governor, the next day, not being a Sunday or public holiday, after it is laid;(b) where it is referred to the adjudicator under rule 53A(2), 28 days after it is so referred. (4) … (a) where it is inquired into by the governor, the next day, not being a Sunday or public holiday, after it is laid; (b) where it is referred to the adjudicator under rule 53A(2), 28 days after it is so referred.[16]The mode of inquiry is the subject of rule 53A: 53A -(1) Before inquiring into a charge the governor shall determine whether it is so serious that additional days should be awarded for the offence, if the prisoner is found guilty. (2) Where the governor determines:(a) that it is so serious, he shall: (i) refer the charge to the adjudicator forthwith for him to inquire into it; (ii) refer any other charge arising out of the same incident to the adjudicator forthwith for him to inquire into it; and (iii) inform the prisoner who has been charged that he has done so;(b) that it is not so serious, he shall proceed to inquire into the charge. (3) If: (a) at any time during an inquiry into a charge by the governor; or (b) following such an inquiry, after the governor has found the prisoner guilty of an offence but before he has imposed a punishment for that offence, it appears to the governor that the charge is so serious that additional days should be awarded for the offence if (where sub-paragraph (a) applies) the prisoner is found guilty, the governor shall act in accordance with paragraph (2)(a)(i) to (iii) and the adjudicator shall first inquire into any charge referred to him under this paragraph not later than, save in exceptional circumstances, 28 days after the charge was referred. (a) that it is so serious, he shall: (i) refer the charge to the adjudicator forthwith for him to inquire into it; (ii) refer any other charge arising out of the same incident to the adjudicator forthwith for him to inquire into it; and (iii) inform the prisoner who has been charged that he has done so; (b) that it is not so serious, he shall proceed to inquire into the charge. (a) at any time during an inquiry into a charge by the governor; or (b) following such an inquiry, after the governor has found the prisoner guilty of an offence but before he has imposed a punishment for that offence,[17]The rights of prisoners charged with disciplinary offences are the subject of rule 54: 54.(1) Where a prisoner is charged with an offence against discipline, he shall be informed of the charge as soon as possible and, in any case, before the time when it is inquired into by the governor or, as the case may be, the adjudicator. (2) At an inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case. (3) At an inquiry into a charge which has been referred to the adjudicator, the prisoner who has been charged shall be given the opportunity to be legally represented.[18]The Prison Disciplinary Manual Adjudications, PSO 2000, may be accessed at http://www.hmprisonservice.gov.uk/resourcecentre/psispsos, and may be downloaded. It states that the desired outcome of adjudications is that: The instigation and conduct of disciplinary proceedings against prisoners are fair and just, and in the interests of maintaining order, control and a safe environment.[19]The performance standard is: the instigation and conduct of disciplinary proceedings against prisoners will be appropriate, fair, reasonable and just, and in the interests of maintaining order, control and a safe environment in the establishment.[20]Relevant provisions of the Manual are set out in the Appendix to this judgment. Italics are in the original and indicate that the action is mandatory. The procedure is inquisitorial rather than adversarial (paragraph 1.2). The reporting officer, who may be regarded as the prosecutor, will normally be a witness (paragraph 2.1). Prisoners are entitled to be given the names of any relevant witnesses (paragraph 2.23) and to copies of relevant statements (paragraph 2.20), and they may interview witnesses (paragraph 2.21). As has been seen, prisoners are entitled to legal representation.

R v Stow

[21]The decision of the strong Courts-Martial Appeal Court in Stow is the basis of the Claimant’s claim. The Court held that Article 6 requires the prosecutor of a criminal offence to have a substantial degree of independence. It is the only UK authority for that proposition; the potential impact of the decision is wide and important, yet it has passed unremarked in legal literature, including Archbold and Criminal Law Week. It has not been reported in any of the regular law reports, which is unfortunate in view both of its importance and the consequent lack of information as to the authorities cited to the Court. Mr Perry submitted that there is no Strasbourg authority for the proposition that Article 6 requires independence on the part of the prosecutor. Mr Perry mounted a formidable criticism of the judgment, in order to persuade me to restrict its effect, and at least to persuade me that it should not be extended to proceedings in prisons before Independent Adjudicators.[22]In Stow the appellant had been charged with two offences of drunkenness and using insubordinate language to a superior officer. On 23 February 2004 at a court-martial held at HMS Nelson before District Judge Cooper sitting as Judge Advocate he applied for a stay of the proceedings as an abuse of process, on the basis that the naval court-martial system breached Article 6. His application was rejected, whereupon he pleaded guilty to both offences. He was dismissed from the service, sentenced to be kept in detention for 42 days and to suffer the consequential penalties involved.[23]On appeal, it is to be noted that the appellant did not, and indeed could not in view of his plea, suggest that there had been any unfairness in the proceedings, the verdict or the sentence of the court-martial, other than his complaint as to the lack of independence of the prosecutor. He submitted that three matters considered cumulatively prevented compliance with Article 6. They were summarised by Keene LJ as follows:13. There are three matters relied on by the appellant in his argument that there was such a breach, because the Prosecuting Authority was not sufficiently impartial, when judged objectively, to exclude the fear of prejudice or bias. The first of those is that the Prosecuting Authority at the time of this trial, Commander Crozier, was reported upon within the service. He was in fact the subject of one report by the Chief of Staff to the Second Sea Lord. It is said that the report on him covered, amongst other things, his prosecuting duties and how he performed them, and that this meant that he could be put under pressure by his superiors. Mr Tregilgas-Davey, who appears for the appellant, submits that this undermined the Prosecuting Authority’s objective independence. His position is contrasted with that of the prosecuting authorities in the Army and Royal Air Force. In those services there is no reporting on the RAF and Army prosecuting authorities, in order to prevent any fear of the chain of command having a hand in decisions about the trial process or there being any appearance of such a possibility. It is submitted that the lack of such a clear break between the naval Prosecuting Authority and the chain of command was a significant failing in terms of his objective independence as required by Article 6. The point is made that, since the appellant’s trial, the practice of the Prosecuting Authority being reported on has ceased. This change, it is submitted, is an acknowledgment that the previous practice fell foul of objective independence.14. Secondly, the appellant points to the fact that Commander Crozier was not in his final posting, again unlike his Army and RAF counterparts. This could mean that he was susceptible to pressure by way of inducements, enticements or threats. He was actively pursuing career advancement and promotion within the navy. The lack of any such insulation against such potential pressure deprived the naval courts-martial of a valuable and much needed safeguard. Again, Mr Tregilgas-Davey places reliance on the fact that, since this trial, the naval practice has changed. The new Prosecuting Authority is in his final posting.15. Thirdly, the appellant points to the rank of Commander Crozier, significantly more junior than his Army or Air Force equivalents, where the post of Prosecuting Authority is in both cases held by two star officers. This too, it is argued, makes the naval Prosecuting Authority less immune from pressure or influence.[24]The Court’s conclusions are contained in the following paragraphs of its judgment: 32. We are bound by section 2(1) of the Human Rights Act, 1998 to take into account decisions of the European Court of Human Rights and in any event our own jurisprudence recognises the importance of integrity on the part of the prosecutor. In his foreword to the 2002 guidelines for prosecution advocates, the Lord Chief Justice, Lord Woolf, refers to the prosecution advocate as “ a cornerstone of an open and fair criminal

justice system”, and the Code for Crown Prosecutors, paragraph 2.2 states:

“Crown Prosecutors must be fair independent and objective … They must not be affected by improper or undue pressure from any source.”
They are also required to act in the interests of justice. The reality is that a prosecutor has the ability to influence and even mislead the court. Consequently, we accept that his independence and impartiality are matters to be considered when assessing whether or not there has been proper compliance with Article 6(1). … 36. The main feature which has caused us concern is the reporting within the service on Commander Crozier’s performance as Prosecuting Authority. It is all very well to contend that he is answerable only to the Attorney-General. If the appraisal of him within the service comments upon his performance as the Prosecuting Authority and reflects the decisions he has made in that capacity, then an objective observer could be concerned that those decisions might influence his prospects of promotion. … 39. We have not found this an easy case to determine. There were undoubted safeguards in existence, as set out earlier in this judgment. Certainly the Prosecuting Authority should have acted independently and impartially and there is no evidence that he did not. But merely because he was under such an obligation is not enough. He has to be in such a position that an objective observer would regard him as free from potential pressure in his decision-making. Given the system of reporting on him which existed at that time within the Royal Navy, we have concluded that such an observer would not have seen him as sufficiently protected from such pressure. That then has to be combined with the other factors referred to, namely his rank and scope for further promotion within the service. When we put all those together, we are forced to conclude that the naval Prosecuting Authority at the time of this court-martial did not enjoy necessary safeguards of his independence and impartiality. We are glad to know that the shortcomings we have referred to have since been removed. 40. While the Prosecuting Authority may not enjoy such a pivotal role as the Judge Advocate, his independence and impartiality is of great importance to a fair trial. It seems to this court that the court-martial of the appellant cannot, in these circumstances, be held to have observed the appellant’s rights under Article 6(1). If his trial was not fair, then in our judgment his conviction cannot be regarded as safe. “Crown Prosecutors must be fair independent and objective … They must not be affected by improper or undue pressure from any source.”[25]Mr Perry submitted that the decision in Stow goes beyond any Strasbourg authority, and is the only authority, European or domestic, for the proposition that Article 6 requires independence on the part of a prosecutor. The only Strasbourg authorities referred to in the judgment of the Courts-Martial Appeal Court were the judgments of the European Court of Human Rights in Grieves v United Kingdom [2004] 39 EHRR 51, Cooperv.United Kingdom [2004] 39 EHRR 171 and the earlier case of Findlay v. United Kingdom [1997] 24 EHRR 221. Findlay was concerned only with the independence of the tribunal. In Cooper the Court referred to its earlier case judgment in Morris v United Kingdom (Application no. 38784/97), in which the only matter considered was the independence of the tribunal. In Cooper, the Court summarised the relevant principles as follows: 104 The Court recalls that in order to establish whether a tribunal can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence. In this latter respect, the Court also recalls that what is at stake is the confidence which such tribunals in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. In deciding whether there is a legitimate reason to fear that a particular court lacked independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified. It is further recalled that there are two aspects to the question of "impartiality": the tribunal must be subjectively free of personal prejudice or bias and must also be impartial from an objective viewpoint in that it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The Court notes that the present applicant did not suggest that anyone involved in his court-martial process was subjectively biased against him. Since the concepts of independence and objective impartiality are closely linked, the Court will consider them together in the present case. 105 In the Findlayjudgment, the Court concluded that the applicant's misgivings about the independence and impartiality of his army court-martial, convened prior to the entry into force of the 1996 Act, had been objectively justified. The Court was mainly concerned about the conflicting roles of the "convening officer" in the proceedings: he had a key prosecuting role but at the same time appointed the members of the court-martial who were subordinate in rank to him and fell within his chain of command. He also had the power to dissolve the court-martial before or during the trial and acted as "confirming officer" after the trial so that a court-martial's verdict and sentence were not effective until "confirmed" by that officer. 106 In the subsequent Morris case, a Chamber of the Court examined concerns expressed about the structural independence and objective impartiality of an army court-martial convened following the entry into force of the 1996 Act. The Court found that service tribunals could in principle determine criminal charges against service personnel consistently with Art. 6(1) of the Convention, although such tribunals would only be tolerated as long as sufficient safeguards were in place to guarantee their independence and impartiality. It was also found that the 1996 Act had gone a long way towards meeting the concerns expressed in the Findlayjudgment, abolishing as it did the posts of "convening officer" and "confirming officer" and separating the prosecution, convening and adjudication elements of the court-martial process. The Court further found that the independence of the court-martial was not undermined by the manner of appointment of its members. However, and while considering the PPCM (Permanent Presidents of Courts-Martial) to be a "significant guarantee of independence" and the presence of the Judge Advocate to be an "important guarantee", these and other safeguards (rules on eligibility for selection and the oath taken by members) were considered insufficient by the Court to exclude the risk of outside pressure being brought to bear on the ordinary officer members. Further, the Court found the principle that a tribunal's binding decision should be unalterable by a non-judicial authority had been breached by the role of the Reviewing Authority, a principle which had been considered in the above-cited Findlay case to be a component of the "independence" guarantee of Art. 6(1) of the Convention.[26]There is nothing here about the independence of the prosecution. In Cooper the applicant had, however, alleged that the Prosecuting Authority lacked independence: see paragraph 86 of the judgment. The Court rejected this complaint on the facts at paragraph 113, and summarised its conclusion as follows: 115 For these reasons, the Grand Chamber finds that the applicant's submissions concerning these three bodies do not cast any doubt on the Chamber's findings in the Morris case as to the genuineness of the separation of the prosecuting, convening and adjudicating roles in the court-martial process under the 1996 Act. The Grand Chamber further considers that there is no reason to doubt the independence of the decision-making of those bodies from chain of command, rank or other service influence.[27]Thus the Court did not have to decide, and did not decide, whether a lack of independence on the part of the prosecution would of itself be inconsistent with the fairness of a criminal trial.[28]The judgment in Grieves was given on the same date and by a Court with the same constitution as Cooper. The Court’s judgment is concerned only with the independence of the tribunal from the prosecution, and did not suggest that the independence of the prosecution as such is a requirement of Article 6.[29]I have found nothing in the Strasbourg authorities on the question whether prison disciplinary proceedings in this country complied with Article 6 to indicate that the prosecutor in those proceedings is required to be independent. In Campbell and Fell v UK (1985) 7 EHRR 165, the Court described the proceedings as follows: 14. Before the Board of Visitors, a plea of not guilty on each charge was entered on behalf of the applicant, who did not submit any written defence. According to the record of the proceedings - which apparently in neither case lasted longer than fifteen minutes -, one prison officer gave evidence on the mutiny charge, reading a statement describing the part allegedly played by Mr. Campbell and the other prisoners in the incident, and another gave evidence on the personal violence charge, to the effect that he had been struck by Mr. Campbell. The evidence of the first witness was accepted by the Board and its chairman put certain questions to the second. Two prison officers gave evidence in that case instead of the one in the case of Mr Haase, and the tribunal consisted of the Board of Visitors rather than an Independent Adjudicator, but I see no reason to infer that these proceedings were materially different from those in the present case. Yet the Court did not suggest that the lack of an independent prosecutor affected compliance with Article 6.[30]I accept, therefore, Mr Perry’s submission that, with the possible exception of Cooper, none of these authorities support the proposition accepted and applied by the Courts-Martial Appeal Court.[31]In Al-Skeini and others v. Secretary of State for Defence [2007] UKHL 26, Lord Brown of Eaton-under-Heywood, in a judgment with which the majority agreed, said: 105. The ultimate decision upon this question, of course, must necessarily be for the European Court of Human Rights. As Lord Bingham of Cornhill observed in R (Ullah) v Special Adjudicator [2004] 2 AC 323, 350 (para 20), "the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court." In the same paragraph Lord Bingham made two further points: first, that a national court "should not without strong reason dilute or weaken the effect of the Strasbourg case law"; secondly that, whilst member States can of course legislate so as to provide for rights more generous than those guaranteed by the Convention, national courts should not interpret the Convention to achieve this: the Convention must bear the same meaning for all states party to it. Para 20 ends:
"The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less." 106. I would respectfully suggest that last sentence could as well have ended: "no less, but certainly no more."
There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg. … "The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."[32]For his part, Mr Southey did not cite any Strasbourg authority for the proposition accepted and applied in Stow. Mr Perry submitted that Lord Brown’s admonition was not observed by the Courts-Martial Appeal Court in Stow. On the basis of the authorities cited to me, this would seem to be correct.[33]Secondly, Mr Perry pointed out that, surprisingly, the Court in Stow did not refer to, and therefore it appears did not appreciate or consider, the impact of its decision on private prosecutions. The right to bring a private prosecution has traditionally been regarded as an important constitutional right, although more recently its value has been less highly regarded. In R v DPP ex parte Hallas (1988) 87 Cr App R 340, Lloyd LJ said: The importance of the citizen's right to bring a private prosecution was emphasised prior to the 1985 Act in the case of Gouriet v. Union of Post Office Workers [1977] 3 All E.R. 70, where Lord Wilberforce at p.79 said:
"The individual, in such situations, who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences, and though ultimately liable to be controlled by the Attorney-General (by taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or partiality on the part of authority."
I would not want to be party to any decision restricting or inhibiting the right to bring a private prosecution, rare though it is nowadays in the case of individuals. "The individual, in such situations, who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences, and though ultimately liable to be controlled by the Attorney-General (by taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or partiality on the part of authority."[34]It would be difficult to see how an individual could bring a private prosecution if the prosecutor is required to be independent. At the very least, he would have to instruct counsel or a solicitor; and instructing a solicitor from a firm whom he instructed on other matters would presumably result in a lack of the necessary independence, since the solicitor might be concerned that his conduct of the prosecution would affect his or his firm’s instructions in other matters. The position of organisations such as the NSPCC and the RSPCA, who are entitled to and do bring prosecutions, would also be difficult. What of an inspector of either of those organisations who had witnessed child or animal abuse, and who might otherwise act as prosecuting officer in a magistrates’ court? How can his (or her) position be distinguished from that of the prosecutor in Stow? It is, I think, no answer to suggest that the distinction is that only public authorities are subject to the provisions of the Human Rights Act 1998 and Convention duties. The duty to ensure that trials of criminal proceedings are fair is that of the State, and cannot depend on the identity of a particular prosecutor, any more than it can be said that there is no such duty in civil proceedings between private parties.[35]There are public authorities too whose prosecutions would be affected by the requirement of independence on the part of the prosecutor: local authorities, whose inspectors may also act as prosecutors in fair trading cases, and whose planning officers may do so in planning enforcement cases. The factors referred to by the Courts-Martial Appeal Court may also be relevant to staff of the CPS and other bodies charged with enforcing the criminal law, who may act as advocates in criminal proceedings.[36]Mr Perry also criticised the importance placed by the Courts-Martial Appeal Court on the fact that the prosecutor was the subject of appraisal. Appraisals are now commonplace. It is hard to believe that prosecuting counsel are not appraised by the CPS and the DPP before they are instructed to prosecute important criminal cases. An appraisal of competence is not necessarily an incentive to unfairness or lack of objectivity. Notwithstanding Mr Southey’s submissions, were it not for the judgment in Stow I would not accept that appraisals of performance as a prosecutor are necessarily inconsistent with the fairness of a trial.[37]Lastly, Mr Perry submitted that the decision in Stow is inconsistent with the judgment of the Privy Council in Brown v Stott [2003] 1 AC 681, on the basis that the latter decision establishes that “What a fair trial requires cannot be the subject of a single, unvarying rule or collection of rules” (Lord Bingham at 693E), whereas the decision in Stow is that there is an unvarying requirement of an independent prosecution. I do not think that Stow is to be so interpreted, but in any case at this level I could not refuse to follow Stow as having been decided per incuriam, even if I thought that the members of the Court were unaware of or had forgotten such a well-known and important authority as Brown v Stott, which I do not.[38]Mr Perry’s criticisms could not entitle me to refuse to follow Stow. On the other hand, they do not encourage me to extend its ambit more than is necessary.

The present case

[39]Article 6.1 is as follows: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.[40]Whereas the right to an independent and impartial tribunal is expressly provided for in Article 6, the requirements of a fair trial are not. It is, of course, significant that the independence of the tribunal is expressly stipulated, but the independence of the prosecution not mentioned. If there is a requirement that the prosecution in a criminal trial have a degree of independence, it can only be on the basis that that requirement is implicit or comprised in the requirement of fairness.[41]As I have already mentioned, the requirements of a fair trial depend on the circumstances. As Lord Bingham put it in Brown v Stott at 693E: It is proper to take account of the facts and circumstances of particular cases, as the European court has consistently done.[42]The European court has accepted that disciplinary proceedings in prisons are subject to special requirements. In Campbell and Fell it distinguished between military disciplinary and prison disciplinary proceedings: 69. The Court was careful in the Engel and Others 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. Later in its judgment, the Court said:87. It is true that ordinary criminal proceedings - which may well concern 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 para. 1 (art. 6-1) in this respect.[43]Mr Perry’s submissions have led me to conclude that caution is required before applying to other proceedings the principle applied in Stow to courts-martial.[44]The offences considered by Independent Adjudicators are at the less serious end of the spectrum of gravity. More serious offences, which may involve greater punishment than 42 additional days, are referred to the ordinary criminal courts. Courts-martial may determine far more serious offences. Disciplinary offences should be dealt with speedily. Prison officers are expected to act fairly and with integrity, and their duty to do so in the context of proceedings before Independent Adjudicators is required by the Prison Disciplinary Manual Adjudications. Prisoners are entitled to legal representation. The Independent Adjudicator himself is under an express duty to act fairly and justly, and to conduct an impartial inquiry. The proceedings are inquisitorial rather than adversarial. There is provision for disclosure of the identity of witnesses and of statements. If a prisoner defendant or his legal representative considers that there is other documentation that should be disclosed, they can seek a direction from the Independent Adjudicator. These considerations, together with those referred to by the European Court, distinguish this case from the court-martial considered in Stow, andlead me to conclude that fairness does not require an independent prosecutor in such cases, and that the proceedings in the present case were fair.[45]It follows that I reject the concerns expressed by Mr Southey that the need for disclosure of relevant evidence or information requires a degree of independence on the part of the prosecutor. The kind of cases dealt with by Independent Adjudicators is unlikely to involve wide-ranging inquiry by police or by the Prison Service of a kind and extent that renders disclosure important. Prisoners are likely to know what evidence is available, and, to the extent that they do not, the Manual requires disclosure in terms of both witnesses and statements. Where appropriate, the Independent Adjudicator can make enquiry of the presenting officer as to any evidence that is suggested has not been disclosed and may be relevant. Furthermore, even the independence of the prosecutor cannot preclude deliberate suppression or concealment of the existence of relevant evidence. Furthermore, it is in my judgment inappropriate to assume that presenting officers do not appreciate what evidence may be relevant for disclosure in such relatively straightforward cases, or that in general they may not be relied upon to act honestly. Lastly, there is nothing before me to suggest that the prospects of promotion of a prison officer depend materially on his success in persuading Independent Adjudicators that his allegations against prisoners are well-founded. Even if there were such evidence, I should have to discount the possibility that his success in such proceedings was not due to the honesty and reliability of his evidence.[46]I have some sympathy with Mr Southey’s suggestion that there should be an independent corps of trained prosecuting prison officers. But it is one thing to say that it may be desirable, particularly in cases at the less simple or more serious end of the spectrum, and a different thing to say that it is mandatory. In my judgment, it has not been shown to be a requirement of a fair trial of prison disciplinary offences by Independent Adjudicators.[47]For the reasons set out above, the application for judicial review will be dismissed.

Cited in 1 later judgment