Lashley, R (on the application of) v An Independent Adjudicator & Anor [2008] EWHC 1853 (Admin)

[2008] EWHC 1853 (Admin)Case No CO/6254/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 18th July 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BEAN
Between
THE QUEEN ON THE APPLICATION OF SEAN LASHLEYClaimantv
Between
AN INDEPENDENT ADJUDICATORDefendantSECRETARY OF STATE FOR JUSTICEDefendant
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)
Leonie Hirst (instructed by Swain & Co) appeared for Claimant for The First Defendant was not represented and did not attendBen Watson (instructed by the Treasury Solicitor) appeared for Second Defendant
J U D G M E N T
[1]MR JUSTICE BEAN: This is an application for judicial review of a finding of guilt made against the claimant by District Judge Grant sitting as an independent adjudicator at HMP Wandsworth on 2nd April 2008. The adjudicator awarded 25 additional days to be served by the claimant, and thus to be added on to the custodial element of the sentence he is serving and delaying his release on licence from 7th August 2008 to 3rd September 2008.[2]In view of the compressed timescale, when the case came before Cranston J on the papers on 3rd July 2008 he ordered a one-hour inter partes hearing on an expedited basis. It comes before me today, 18th July 2008. I began by granting permission, not as an expression of view on the merits but simply because the matter must be finally determined in this court one way or another by the end of July if the litigation is to serve any purpose.[3]The allegation on which the judge was adjudicating was that the claimant, in the course of a visit from his brother, knowingly received an article without permission. Rule 51(24) of the Prison Rules provides that:
"51. A prisoner is guilty of an offence against discipline if he... (24) receives any controlled drug, or, without the consent of an officer, any other article, during the course of a visit..."
[4]The principal evidence against the claimant was CCTV footage. The District Judge viewed it and found that it clearly showed the claimant receiving something from his brother, although it could not be seen what, and then immediately placing his hand down his trousers. In his findings, recorded on the appropriate form, the judge stated that "The CCTV evidence couldn't be clearer." He therefore found the case proved.[5]He rejected the claimant's evidence, which was that he had shaken hands with his brother towards the end of the visit, leaned over to say good-bye but did not receive any article.[6]The claimant, who was represented before the independent adjudicator by a trainee solicitor inexperienced in adjudications, but has been represented before me by Ms Hirst of counsel, argued that he had been searched before the end of the visit and no article was found, either then or subsequently.[7]The grounds on which I am asked to quash the adjudicator's decision are firstly the substantive ground that he could not reasonably have found all the elements of the charge proved to the criminal standard and, secondly, what I will call the "adjournment issue", that he wrongly refused a request by the trainee solicitor who attended on 2nd April 2008 to adjourn the hearing so that a more experienced representative could appear.[8]Dealing with the substantive point first, the elements of the charge, as Ms Hirst rightly submits, are that it must be shown that the claimant received an article during the visit, that he knew the article existed, and that he knew that he did not have permission to have that article. Ms Hirst submits that the fact that nothing was found on the search means that we cannot know, even now, what the supposed article was, that it might be something entirely innocuous (such as a letter or a boiled sweet) and it might be that the claimant thought he had permission to have it.[9]This seems, with respect, a somewhat theoretical approach. The District Judge was entitled, on viewing the CCTV footage, to find that it showed clearly that the claimant received something from his brother. His evidence, as confirmed by his statement in these proceedings dated 22nd June 2008, was that he did not receive anything from his brother. If his evidence had been, for example, that he did receive a letter from his brother (or a boiled sweet or something of that kind) then the question of whether he knew he did not have permission to have the article might come into play. Strictly speaking, in any event, as a matter of law, it is an offence against the prison rules to receive anything during a visit without permission.[10]An interesting case might arise if, for example, a prisoner received a letter during a visit, and on a previous occasion he had asked a prison officer whether it was all right to receive a letter during a visit and had been told that it was. But this is not the present case. The question of fact was really a very simple one: did the claimant receive something, as shown on the CCTV? Since his case was he had received nothing, and since the receipt of anything without permission is an offence, the District Judge was entitled to approach the matter on that simple basis.[11]I turn to the adjournment issue. The adjudication had first been due to be heard in front of a governor 2 days after the incident, that is to say on 15th March 2008. That hearing was adjourned due to the absence of the reporting officer. A more substantial adjudication hearing took place in front of a different governor on 17th March 2008. According to the claimant, the CCTV evidence was viewed at that hearing, the matter was adjourned again and referred to the independent adjudicator. He goes on:
"It was after this hearing that I instructed Swain & Co."
[12]The external adjudication took place 16 days later. I do not know on what date Swain & Co received instructions, but I am inclined to agree with Ms Hirst's suggestion that they may have been given by post rather than by telephone, and that a letter might take 2 or 3 days to reach the solicitors in Havant. Even so, they had, in round figures, a fortnight in which to arrange for someone to attend. They arranged for a trainee solicitor to attend.[13]One is not talking about a hearing in the Crown Court where rights of audience issues might arise; this was a very straightforward prison adjudication before an experienced District Judge. It did not require the skills of a Marshall-Hall to conduct the hearing. According to the District Judge, the CCTV provided extremely clear evidence. I do not think that the lack of experience of the trainee solicitor required the matter to be adjourned yet again.[14]I understand from Ms Hirst that the trainee solicitor had the opportunity to confer with his client somewhat briefly before the hearing took place. It may be that he did not seek a short adjournment on the day after the showing of the CCTV footage, and that a more experienced solicitor might have done, but if the CCTV evidence really is clear it may be that a more experienced representative would have had no questions to ask his client during such an adjournment, except to enquire whether his instructions still were that he was not guilty of the charge.[15]The Prison Service Orders emphasise that adjudicators must always consider requests for adjournments carefully in order to ensure that prisoners are given a fair chance to prepare their case before a hearing. It is not clear what further preparation for the hearing might have been of any assistance, except perhaps the obtaining of a statement from the brother, but the possibility of doing that must surely have been alive to the fee earner at Swain & Co who received the claimant's instructions quite shortly after 17th March 2008.[16]While adjudicators must consider requests for adjournments carefully in order to ensure that prisoners are given a fair chance to prepare their case for a hearing, it is also important that if a request for an adjournment is not justified, the adjudicator should press on with the case, as indeed paragraph 4.27 of the 2000 edition of the Prison Service Orders correctly says.[17]I do not consider that District Judge Grant erred either substantively or procedurally in his conduct of the matter. Therefore, I refuse the application for judicial review.[18]Thank you very much. Ms Hirst, do you need an order for public funding assessment?[19]MS HIRST: I do not believe so, my Lord.[20]MR JUSTICE BEAN: All right. If you do, you may have one, but if you do not --[21]MS HIRST: I do not need one.[22]MR JUSTICE BEAN: You do not need one. Right. Thank you. No need to wait, thank you.[23]MR WATSON: Thank you very much.