O'Neil, R (on the application of) v Independent Adjudicator & Anor [2008] EWHC 1371 (Admin)

Case No CO/3220/2007[2008] EWHC 1371 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 3rd June 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF ANTHONY O'NEILClaimantv
Between
AN INDEPENDENT ADJUDICATORDefendantSECRETARY OF STATE FOR JUSTICEInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr H Southey (instructed by Messrs Coninghams) appeared for ClaimantMr V Sachdeva (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: The claimant is, and was in January 2007, a serving prisoner. On 23rd January 2007 he shared a cell with Alan Collins at HMP Wandsworth. Prison officers searched his cell and claimed to have found on a table a mobile telephone aerial. They also undoubtedly found a device which they believed was a mobile phone battery charger. I say they undoubtedly found it because the claimant admitted that the device was his but asserted that it was not used for the purpose of charging batteries, merely for storing old ones. The prison officers said that they showed both occupants of the cell the items that they had found. They also said, as was demonstrated by the documents, that on the following day each prisoner had served upon him, as was required by prison rules, a report of the alleged disciplinary offences, represented by the claimant's possession of the two items in the cell.[2]Rule 51 of the Prison Discipline Rules provides that:
"A prison is guilty of an offence against discipline if he -- ... (12) Has in his possession - (a) any unauthorised article."
Components of or for use in connection with a mobile telephone are unauthorised. Possession of them is therefore an offence under prison disciplinary rules.[3]Where commission of the disciplinary offence may result in the award of additional days, it is determined by an independent adjudicator. Both the claimant and Alan Collins disputed that they were guilty of the offences with which they were respectively charged: in the claimant's case possession of the battery charger and the aerial; in Alan Collins' case, possession of the aerial only.[4]An adjudication hearing was held on 7th February 2007, when District Judge Wright, sitting as an independent adjudicator, heard evidence from the prison officer and from the two prisoners. She noted in terms, that may be ambiguous, "O'Neil admitted ownership of items" (plural). She noted that it was claimed that he made that admission to a prison officer. She also noted the prison officer's evidence that the aerial was shown to the claimant and to Alan Collins on the day. Both disputed it.[5]The claimant gave evidence. He admitted, as he had always done, that he was in possession of the item described as a charger. He admitted possession of R20 Duracell batteries. He explained that the charger was used by him to keep old batteries apart from new ones. He asserted that the officer did not show him the aerial and that he did not have an aerial in his cell. He said that he was first informed about the aerial in the cell when, as he put it, "I got a nicked sheet - perhaps 2 days later".[6]A feature of the hearing was that the aerial was not produced. A mandatory requirement of the disciplinary manual for adjudications is at 5.7:
"It is important that physical evidence, including photographs, is retained and produced at the hearing."
The prison officer, not the one who found it but the one who was responsible for bagging and retaining it, said to the Adjudicator that it looked like a mobile phone aerial for a Sony Ericsson phone, which fitted into the top of the phone. He said he actually saw it. It was three quarters of an inch in length, light green in colour and had two small pins at the bottom and two pieces of copper wire to connect it into the phone. He was, according to the Adjudicator's note, cross-examined about that evidence by the solicitor who represented the claimant. It is apparent from the note that he was asked what had happened to the mobile phone aerial and said that he had bagged and tagged them but had not brought them across to the hearing that morning because he could not find them now.[7]The Adjudicator expressed her conclusions in trenchant terms. She said, on the basis of the prison officer Malloy's evidence that she had no doubt that the so called charger was intended as a mobile phone charger and no doubt that a mobile phone aerial was found on the table inside the cell. She noted the claimant's admission that he possessed the mobile phone charger but dismissed his explanation as the reason for constructing it as "ridiculous". She did not believe him and was sure beyond reasonable doubt that he was in possession of it. As regards the aerial, she noted that both prisoners were charged. She said that it was regrettable that it was not available but heard officer Malloy, whom she believed when he said that he had found it in the cell "clearly in view on a table". She accepted his evidence that he showed it to the prisoners and stated that both had lied, as they had lied about the time at which they had been notified of the allegation of the disciplinary offence. Her conclusion was:
"I am sure both knew that the aerial was present, both had control of it and both are guilty."
She awarded 21 days additional days in relation to each offence committed by each prisoner, in the case of the claimant concurrently.[8]Both prisoners brought judicial review claims in the same proceedings. Alan Collins' claim was resolved without a hearing by the consensual quashing of the decision. I do not know what happened thereafter. Mr Sachdeva, who appears for the Secretary of State today, submits that that must have been a pragmatic decision because, on the evidence and the findings of the independent adjudicator, her decision that he was guilty of possession of that item was supportable.[9]Mr Southey submits that what happened in relation to Collins demonstrates that the independent adjudicator either must have or may well have fallen into error in her approach to possession of the aerial. He does so essentially for two reasons. The first is of some little general importance. It is, as I have noted, a mandatory requirement that physical evidence is retained and produced at the hearing. That is one of a number of mandatory requirements bearing on evidence at a hearing contained in Chapter 5 of the manual. Other mandatory requirements include a requirement that the adjudicator must not consider anything relevant to the alleged offence not brought out in the course of the hearing (5.3); a requirement that where there is any doubt about hearsay evidence it must be disregarded (5.9); that, where an adjudicator refuses a prisoner's request to call a witness, the Adjudicator must give reasons and they must be noted on the record of the hearing (5.14); and, finally, that the Adjudicator must ensure that he or she is not influenced by any matters arising out of the investigation of which he or she may become aware which is not presented as evidence (5.31). It is notable that paragraph 5.7, although it requires that physical evidence is retained and produced at the hearing, does not stipulate what can happen or what should happen if it is not.[10]Mr Southey makes the point, which I accept, that the requirements of the Prison Discipline Manual have, as a very significant purpose, the protection of prisoners who are not ideally placed to defend themselves against accusations of breaches of prison discipline. Although, as was the case here, they have access to legal support if they require it, and this claimant did take advantage of that, nevertheless they are not in the same position as someone at liberty to defend themselves against such charges. Adjudicators must be astute to guard against slippage in standards and in particular slippage in standards which might tempt prison officers to cut corners in the presentation of evidence, or even worse, to present evidence which they knew to be false. Accordingly, compliance with requirements such as 5.7, the retention of physical evidence, is an important safeguard for prisoners. But it does not follow that in every case where physical evidence is not retained and so cannot be produced no reliance may be placed upon it at all. All that does follow is that an adjudicator must look with some care as to why the evidence has not been retained and produced. It is evident that this adjudicator did just that. The claimant's solicitor was, it seems to me from the adjudicator's notes, alert to the point, asked sensible questions of the officers about it and the Adjudicator reached a decision which was open to her about the existence of the article and its nature.[11]It is a striking feature of the case that possession of the battery charger, an item also claimed to have been found by the prison officers, was admitted. This was not, accordingly, a case in which it either could be, or was in fact suggested, that the officers had invented a claim that they had found the aerial in the cell. Mr Southey makes the perfectly sensible point that the failure to produce the aerial deprived the prisoners of the opportunity of contending by reference to the object in front of the adjudicator that it was not a mobile telephone aerial; but again the Adjudicator had clear evidence on that and it seems to me gave some thought to it and reached a conclusion which was open to her about it. Accordingly, although Mr Southey is quite right to draw attention to the importance of compliance with paragraph 5.7 of the manual and to the dangers of not doing so, on the facts of the case I am satisfied that no injustice occurred as a result of failure to comply with it and that the Adjudicator was accordingly entitled to reach the findings of fact that she did about the aerial.[12]That leads on to Mr Southey's second point, that the success of the judicial review proceedings brought by Alan Collins demonstrates indirectly that the Adjudicator must have misdirected herself as to the requirements of proof of possession of the aerial on the part of this claimant. Her words demonstrate no error of approach. She said that she was sure that the aerial was present and that "both had control of it". That finding contains implicitly an accurate self direction as to the requirements to prove possession. I do not know why the Secretary of State conceded Alan Collins' claim. If it was for pragmatic reasons, then no significance is to be read into the concession. I cannot exclude the fact that it was for pragmatic reasons. The material is simply not there for me to say that the Adjudicator must have misdirected herself because a concession has been made in relation to Collins.[13]If I stand back from the particular criticisms and look at the totality of the material deployed before the Adjudicator and her findings, it seems to me to be self evident that there was abundant material upon which she could conclude that this claimant had in his possession components of a mobile telephone or components required in connection with its use, namely the battery charger and the aerial.[14]Given that there is no obvious misdirection contained in her notes, it seems to me that those considerations preclude a finding of error of law or irrationality on the part of the Adjudicator in reaching the conclusion that she did. There is no basis upon which I could properly conclude that she had fallen into the error, for example, of deciding that merely because the aerial was found in the cell so those in the cell must have been in possession of it. Accordingly, I reject the challenge to her findings on that ground.[15]MR SOUTHEY: My Lord, firstly, a minor correction, if I may.

MR JUSTICE MITTING: Certainly.

[17]MR SOUTHEY: I think your Lordship said words along the lines of -- or words that suggested that it was effectively an automatic reference to an adjudicator. In fact, prison disciplinary proceedings only go to an adjudicator if there is a risk of additional days, essentially. So, more minor --[18]MR JUSTICE MITTING: Thank you. I will correct that. Thank you very much for pointing that out. I am grateful.[19]MR SACHDEVA: I think the prisoner has to ask, do they not?[20]MR SOUTHEY: No. If there is a risk of additional days, it is automatic, it has to go, because a governor --[21]MR SACHDEVA: If he does not accept it. If he does not accept it is proved, I think it goes.[22]MR SOUTHEY: No, it still has to go. A governor does not have the power to impose additional days, so even if it is just a sentence --[23]MR JUSTICE MITTING: Well, I will correct the language of my judgment, if and when a transcript is produced to correct.[24]MR SOUTHEY: My Lord, more substantively, two matters I raise. One I would hope is not controversial, which is Legal Services Commission assessment.[25]MR JUSTICE MITTING: Public funding assessment of the claimant's costs. Certainly.[26]MR SOUTHEY: Secondly, given obviously the claimant is not present, partly to protect his interests, I think I ought to seek permission to appeal. Your Lordship indicated that clearly the issue of possession -- sorry, the issue of production of the aerial is potentially an important issue and on that basis I seek permission to appeal.[27]MR JUSTICE MITTING: I accept that compliance with the requirements of the manual is a significant protection for prisoners for the reasons that I explained but I do not think that this particular case gives rise to any issue of wider importance, nor, I am afraid, do I think that you have a realistic prospect of success on appeal.[28]MR SOUTHEY: My Lord, thank you.

MR JUSTICE MITTING: Anything else?

[30]MR SACHDEVA: My Lord, no.

MR JUSTICE MITTING: Thank you both.