Gifford v The Governor of HMP Bure & Ors [2014] EWHC 911 (Admin)

[2014] EWHC 911 (Admin)Case No CO/1333/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 March 2014
Before
THE HONOURABLE MR. JUSTICE COULSON
Between
NATHAN GIFFORDClaimant
Mr Stephen Field (instructed by Gullands) for ClaimantMr David Manknell (instructed by Treasury Solicitor) for DefendantsMr Jeremy Hyam (instructed by Treasury Solicitor) for Interested PartyHearing Hearing date: 11 March 2014
JudgmentThe Hon. Mr Justice Coulson:
[1]INTRODUCTION This is a claim for judicial review of the decision of the second defendant, the Secretary of State for Justice (“SoS”), dated 8 November 2012, refusing to quash findings of guilt against the claimant arising out of two internal adjudications at HMP Bure in September and October 2012. The principal complaint raised by the original claim was that the claimant had been found guilty in circumstances where he had been denied access to legal advice as a result of the secure PIN-phone system in operation at HMP Bure. This was a system which required the first defendant’s prior approval of all numbers that may be rung by a serving prisoner. In response to the claim, the defendants took the threshold point that permission to bring judicial review should be refused because there was an alternative remedy, namely a reference or application to the Interested Party (“PPO”).[2]On 4 June 2013, Singh J ordered a rolled up hearing to deal with both permission and the substantive claim. His reasons for so doing were that, although he thought that the points in respect of the PIN-phone system raised what might be important issues, both of law and procedure, he could also see that, if the defendants were right and there was an adequate alternative remedy to judicial review, permission should be refused. At the hearing itself, having invited contributions from all counsel, it was agreed that I would hear them on all of the issues, and it was then left up to me as to how I sequenced the relevant matters in this Judgment.[3]Also at the hearing, it became apparent (and the claimant expressly conceded) that no criticism could properly be made of the PIN-phone system in operation at HMP Bure, let alone any wider criticism (which had been hinted at in the original grounds) of the operation of this system across the country. This meant that the remaining claim was of very narrow compass, and criticised just one aspect of the procedure adopted in the two adjudications. That narrowing of the issues also had an important consequence for the arguments about the alternative remedy, because it was conceded by Mr Hyam for the PPO that the remaining claim fell “slap bang in the middle of what the PPO would regularly deal with as a matter of complaint”. Mr Manknell for the defendants was in complete agreement with that conclusion, although there were differences of approach between the SoS and the PPO which are explored in Section 5 below.[4]In the light of the submissions, I have decided that it would be most efficient to deal first with the substantive claims arising out of adjudications 1 and 2 first (see Sections 2 and 3 below) and then, having commented briefly on the now-abandoned claim in respect of the PIN-phone system (Section 4), go on to deal with the alternative remedy issue in Section 5. There is a short summary of my conclusions in Section 6. I hope the reasons why I have approached the issues in this way will quickly become apparent.[2]THE SUBSTANTIVE CLAIM: ADJUDICATION 1 2.1. The Prohibition[5]At HMP Maidstone, the claimant, who is serving an 8 year sentence for rape, was made the subject of certain Safeguarding Children Regulations, and prohibited from having any direct contact with any person under the age of 18. When he was transferred to HMP Bure on 31 August 2012, the claimant received and signed a written notice informing him that this restriction would continue to apply. A copy of that notice was provided to him personally. Subsequently on 4 September 2012, the claimant was again notified of this restriction and signed to confirm that he wished to apply for child contact, and the following day he signed a further form indicating that he understood the meaning of “contact with children”. 2.2. The First Hearing[6]The allegation against the claimant was that on 13 September 2012 he attempted to contact a child under 18 by means of a letter. The claimant was informed of the adjudication on 14 September 2012 and a hearing commenced the following day, 15 September 2012. At that hearing, the claimant said that he had not had sufficient time to prepare for the hearing and he asked for legal assistance. The hearing was adjourned in order to allow that to happen.[7]Although there is no statement from the claimant, and although the relevant letters were not produced until I asked for them at the hearing, it appears that, following the adjournment, the claimant spoke to his existing solicitors, Alan Balneaves and Co, about the forthcoming hearing. Their letter of 24 September indicated that he wanted Ms Bond, of Gullands, to represent him in connection with that hearing and, once she had been alerted by Balneaves, Ms Bond wrote to the claimant, also on 24 September 2012, saying that she would be happy to assist. She asked him to obtain an adjournment of two weeks. 2.3. The Second Hearing[8]Both the first and the second hearings in adjudication 1 were dealt with by the same Governor at HMP Bure, Mr Colin Kerr. He provided a statement dated 15 August 2013 dealing with those hearings. As I have already noted, there is no material to gainsay what Mr Kerr says.[9]When the second hearing recommenced on 1 October 2012, there was an exchange between Mr Kerr and the claimant which resulted in Mr Kerr noting on the pro forma that “[the] offender does not need to contact his solicitors anymore”. Mr Kerr recalls that that is what the claimant said in answer to his question as to whether he needed any further legal advice.[10]The hearing then proceeded and the evidence of the claimant’s letter to the person under 18 was read out. When the claimant indicated that he agreed with the evidence, Mr Kerr (not unnaturally) asked him why, if that was the case, he thought he was not guilty. The claimant said:
“Because I did not think that I could not write to them.”
When the various prison documents that he had signed were put to him, which demonstrated that he knew that he was not allowed to contact any person under the age of 18, the claimant said:
“I now realise that I should not have done this, I’ll have to change my plea to guilty.”
[11]Mr Kerr made sure that this was what the claimant wanted to do. When he again confirmed that it was, Mr Kerr accepted the changed plea of guilty. It was only at that point that the claimant then produced the letter from Ms Bond to which I have referred at paragraph 7 above. Mr Kerr said:
“I’m not going to allow the two week adjournment as you have already had a week to contact the solicitor which you confirmed that you have done and you have also changed your plea to guilty, therefore I will not adjourn the hearing and it will be completed today.”
At paragraph 12 of his statement, Mr Kerr confirmed his recollection that he had asked the claimant if he had received his legal advice and the claimant said that he had. Mr Kerr also recalled asking the claimant to confirm that he did not wish further legal advice as he had previously indicated that he did not wish to do so and that the claimant repeated that he had had legal advice.[12]In consequence of the guilty plea, the sanction that was imposed was seven days stoppage of 50% of his earnings and seven days forfeiture of canteen facilities. 2.4. The Criticism[13]On behalf of the claimant, Mr Field relied on the defendants’ document PSI 47/2011 which set out Prisoner Discipline Procedures. In dealing with adjudications, at paragraph 2.8, the document provides that the adjudicator will:
“…ask whether the prisoner wants to obtain legal advice before proceeding further, and if so, what steps have been taken to contact an adviser. If the prisoner requests more time to obtain legal advice the adjudicator should adjourn the hearing to allow this (it is for the adjudicator to decide how long the adjournment should be for, but two weeks will normally be enough)”
[14]Although Mr Field accepted that the adjudicator, Mr Kerr, complied with this instruction at the first hearing, he said that he ought to have asked the same questions again at the start of the second hearing. Mr Field said that Mr Kerr should have referred to the previous adjournment and asked whether steps had been taken by the claimant to contact his advisors. Mr Field said that, if that had happened, the claimant would have produced the letter seeking an adjournment at the outset, and the adjournment would have been granted. In this way, he submitted that the decision was procedurally flawed and/or irrational.[15]It seems to me that this criticism fails at every level. First, the evidence is clear that, at the start of the hearing, Mr Kerr did raise the question of legal representation, and that the claimant said that he did not want to have further legal advice. That is why it was noted on the form that “the offender does not need to contact his solicitors anymore”. On this uncontroverted evidence therefore, the adjudicator did precisely what the claimant says he should have done.[16]Secondly, even if there had been no discussion about legal advice at the start of the hearing, the claimant had the letter from Ms Bond in his possession. He was the only one who did. If, on the basis of that letter, the claimant had wanted to seek a further adjournment at the outset, then he could and should have done so. There was nothing to stop him producing the letter. I regard it as a nonsense to say that, in some way, it was for Mr Kerr to ask questions of the claimant so as to discover that the claimant had a letter from his solicitors referring to a two week adjournment.[17]Thirdly, it is impossible to get away from the fact that an adjournment would have served no purpose. The claimant knew about the prohibition and admitted sending the letter. The claimant was therefore in breach of the prohibition, which is why he pleaded guilty. In those circumstances, the claimant waived any entitlement he may have had to further legal advice and/or the adjudicator was entitled to proceed without it. There was no meaningful alternative. 2.5. Summary[18]For these reasons, therefore, the substantive claim in respect of adjudication 1, which is now put on a very narrow basis, is hopeless. It is contrary to the facts and to commonsense. The decision was plainly not irrational. Accordingly, even if I granted permission to seek judicial review of the decision to uphold that adjudication, I would have refused the substantive claim on its merits.[3]THE SUBSTANTIVE CLAIM: ADJUDICATION 2 3.1. The Prohibition[19]The prohibition is the same as that set out in paragraph 5 above. 3.2. The First Hearing[20]The allegation was that on 14 September 2012, the claimant spoke on the telephone to a child under the age of 16. The claimant was informed of the pending adjudication on 16 September 2012. The adjudication was initially heard on 17 September 2012 by another Governor at HMP Bure, Governor Wood. It too was adjourned to permit the claimant to obtain legal advice. 3.3. The Second Hearing[21]The second hearing took place on 26 September and was heard by a third Governor at HMP Bure, Mr Gordon Hampson. There is a witness statement from Mr Hampson, again dated 15 August 2013, which is not controverted by the claimant. That deals with the second hearing in adjudication 2 on 26 September 2012.[22]It appears from paragraph 11 of the witness statement, and the contemporaneous documents, that at the outset of the second hearing, Mr Hampson asked the claimant whether he wanted any legal help. The claimant answered in the negative. Mr Hampson expressly confirmed that the claimant did not request any legal advice during that opening exchange, and he filled in the formal record accordingly.[23]The second hearing in adjudication 2 took a very similar course to the second hearing in the adjudication 1. Initially, the claimant denied liability, saying that, when he rang the number, a minor answered the phone and, as he put it, “I didn’t know I couldn’t speak to them”. However, once the phone call was played, it was apparent that this explanation was false and that the conversation occurred at the instigation of the claimant. Accordingly, once the call had been played, the claimant said:
“On hearing this I now wish to change my plea to guilty. I admit that the minor did not answer the phone and I did know that I couldn’t speak to any children.”
[24]It was at that point having changed his plea to guilty, that the claimant referred to the letter from Ms Bond at paragraph 7 above. Mr Hampson made plain that, because the claimant had now pleaded guilty, he did not see any merit in any further delay. The claimant said:
“Yes I can see that and agree.”
A sanction of similar kind to that imposed after adjudication 1 was recorded. 3.4. The Criticism[25]The criticism made of Mr Hampson is precisely the same as that made of Mr Kerr, namely that, at the start of the hearing, he should have teased out of the claimant what the claimant already knew but the adjudicator did not, namely that there was the letter from the solicitors referring to an adjournment. Again, there are three complete answers to that. First, the allegation is incorrect on the facts: the question of legal advice was raised by the adjudicator at the outset of the second hearing and the claimant said he did not want such legal advice. Secondly, if the claimant had really wanted an adjournment, he could have asked for one at the outset, and he chose not to do so. And thirdly, for the same reasons as apply to the adjudication 1, an adjournment would have made no difference given the nature of the evidence and the claimant’s clear and unequivocal change of his plea to guilty. 3.5. Summary[26]Accordingly, for the reasons given, the claim that the decision in the second adjudication was in some way irrational is hopeless. It was the right decision reached for the right reasons. If I had granted permission to bring judicial review in respect of that decision, I would have refused the claim on its merits.[4]THE PIN-PHONE SYSTEM[27]As previously noted, the original claim was brought on the basis that the PIN-phone system in operation at HMP Bure (and/or in operation in most prisons across the United Kingdom), was in some way unfair and a breach of the claimant’s Article 6 rights. It was that aspect of the case which was described by Singh J as a potentially important point of principle, although I note that in R(Taylor) v Governor of HMP Risley [2004] EWHC 2654 (Admin), McCombe J (as he then was) had refused an application for judicial review in connection with a complaint about a PIN-phone system which had some similarities with this claim (at least as originally formulated).[28]In his thoughtful skeleton submissions, at paragraph 74, Mr Manknell had this to say about the issue on the facts of this case:
“Even if the Defendants were incorrect in all the previous submissions, and the Claimant was unlawfully deprived of a right to obtain further advice from his solicitors in this claim, then that deprivation arises due to the Governor’s decision (in each instance) to refuse to grant a further adjournment. It does not arise due to the operation of an entirely lawful and proportionate policy to control prisoners’ access to telephone calls.”
[29]I am bound to say that that passage neatly encapsulated my initial impression of the argument: that it went nowhere on the facts, so the point of principle was irrelevant. I was therefore unsurprised when, at the start of his oral submissions, Mr Field conceded that he took no issue in relation to the PIN-phone system and that he too accepted Mr Manknell’s analysis.[30]For what it is worth, I consider that this point should always have been apparent to the claimant’s advisors: if (which I do not accept, for the reasons that I have given) something went wrong with these adjudications, it was in the refusal to grant a second adjournment, rather than anything to do with the PIN-phone system. That seems to me to have been plain, even on a quick canter through the documents.[31]Furthermore Mr Kerr, in his statement at paragraph 17, made plain that the application to have Gullands added to the relevant telephone account was made to the first defendant on 28 September 2012 and allowed on 2 October 2012. Two points arise from that. Firstly, no possible complaint could arise out of that efficient response. Secondly, it means that adjudication 2 had been completed before the claimant had even made an application to add Gullands to the system, meaning that the PIN-Phone system was irrelevant to the outcome of adjudication 2 in any event.[32]I regard it as extremely unfortunate that, although this information was provided in Mr Kerr’s statement dated 15 August 2013, and although this was the information which Mr Field said had given rise to his concession at the hearing before me that there was nothing in this point, that concession was seven months late. Because the point may matter when considering the question of alternative remedy, I reiterate that, in my view, the claim for judicial review based on the operation of the PIN-phone system (which was the principal basis on which the claim was originally put) was always unsustainable.[5]ALTERNATIVE REMEDY 5.1. The Issues[33]The defendants have always argued that these judicial review proceedings should never have been brought, and that the claimant always had an alternative remedy by way of application to the PPO. Originally, the PPO himself was equivocal on the point but, as noted above, following the claimant’s concession in respect of the PIN-phone system claim, the PPO now accepts that the narrow disputes arising out of the two adjudications would have been entirely suitable for reference to the PPO. The claimant however denies that a reference to the PPO was an effective alternative remedy: as we shall see, this opposition really turned on the suggested difference between the power of this court to quash the convictions arising out of the adjudications, and the PPO’s power to make a recommendation to the SoS to quash the convictions.[34]There is, however, a wider difference of opinion between the SoS and the PPO in connection with the proper approach that this court should take if it concludes that the claimant did have an alternative remedy. The SoS has asked me to give detailed and wide-ranging guidance as to the sorts of cases which are suitable for reference to the PPO and the sorts of cases that may not be suitable. This appears to stem from a desire on the part of the SoS to have at least the bulk of these sorts of prisoners’ claims dealt with by the PPO, not the Administrative Court. On the other hand, Mr Hyam, on behalf of the PPO, strenuously seeks to limit that guidance. His argument is put in two ways. First, as a matter of principle, he warns the court against setting down guidance which may be a long way removed from the specific dispute with which it is dealing. Secondly, as a matter of practicality, he raises the PPO’s concerns about the lack of funding and resources available to him, and the potentially catastrophic effect of any judgment which indicated that many more cases of this type should be referred to the PPO, rather than brought to the Administrative Court.[35]I propose to deal first with the law as to alternative remedy (Section 5.2 below), and then go on to deal with the PPO’s terms of reference and experience (Section 5.3). Thereafter, I set out my specific answer to the alternative remedy argument in this case (Section 5.4) and provide such wider guidance as I consider to be appropriate in all the circumstances (Section 5.5). 5.2.

(a) Alternative Remedy Generally

[36]In R v Huntingdon District Council ex parte Cowan [1984] 1 WLR 501, Glidewell J (as he then was) said:
“Where there is an alternative remedy available but judicial review is sought, then in my judgment the court should always ask itself whether the remedy that is sought in the court, or the alternative remedy which is available to the applicant by way of appeal, is the most effective and convenient, in other words, which of them will prove to be the most effective and convenient in all the circumstances, not merely for the applicant, but in the public interest.”
In R v Devon County Council ex parte Baker [1995] 1 All ER 73, Simon Brown LJ (as he then was) put the point in this way:
“Which of two available remedies, or perhaps more accurately, avenues of redress, is to be preferred will depend ultimately upon which is the more convenient, expeditious and effective. Where ministers have default powers, application to them will generally be the better remedy, particularly where, as so often, the central complaint is in reality about the substantive merits of the decision. The minister brings his department's expertise to bear upon the problem. He has the means to conduct an appropriate factual enquiry. Unlike the court, moreover, he can direct a solution rather than merely leave the authority to re-determine the question. Where, on the other hand, as here, what is required is the authoritative resolution of a legal issue… then in common with Dillon L.J., I would regard judicial review as the more convenient alternative remedy.”
[37]More recently, the courts have stressed that judicial review is generally a last resort. In Kay and Others v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465, Lord Bingham of Cornhill said at paragraph 30 that “ if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review.” Judicial review is not a power to be used “where a satisfactory alternative remedy has been provided by Parliament” (see paragraph 71 of the judgment of Lord Phillips of Worth Matravers in R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663).

(b) The Role Of An Ombudsman

[38]There are a number of cases which make the point that, in particular situations, a reference to an ombudsman or similar body will be an alternative remedy to judicial review. In R v Lambeth London Borough Council ex parte Crookes [1997] 29 H.L.R 28, Sir Louis Blom-Cooper QC set out, towards the end of his judgment, the reasons why “any complaint of injustice resulting from maladministration…ought initially to be directed to the local government ombudsman”. He concluded that for many reasons, and in many cases, the local government ombudsman would be the more effective and more efficient remedy than an application for judicial review. In similar vein, Beatson J (as he then was) in R (on the application of Scholarstica Umo) v Commissioner for Local Administration in England [2003] EWHC 3202 (Admin) said that:
“…those advising individuals regarding matters potentially giving rise to both local ombudsman investigations and to judicial review should first seek an investigation by a local ombudsman. To commence proceedings by judicial review will, as a result of the statutory structure, deprive the ombudsman of jurisdiction thereafter to investigate.”
He refused the application for judicial review in those circumstances.

(c) Cases Involving the PPO

[39]My attention was drawn to two decisions involving the PPO and the possibility that he provided an alternative remedy to an application for judicial review in a case of this kind. Coincidentally, they were both handed down on 4 December 2013. In R (on the application of Green) v SoS for Justice[2013]EWHC 3491 (Admin), HHJ Richardson QC dealt with and resolved by way of judicial review a dispute over the rights of a transgender prisoner because, although he expressly noted that he did not have the powers of the PPO, the issue before him was one of policy. Of more direct assistance was the decision of Mr Phillip Mott QC, sitting as a Deputy High Court Judge, in R (on the application of Jude Odigie) v Serco and SoS for Justice [2013] EWHC 3795 (Admin). In that case, which was concerned with prisoner allocation, the judge said that, not only would a complaint to the PPO have been just as effective as a remedy, it would have had a number of specific advantages. These included the PPO’s experience and knowledge of the operation of the Prison Service “and what could reasonably be expected, which might be more than the minimum required and enforceable on judicial review.” 5.3. Jurisdiction and Experience[40]I have been referred to a document entitled “PPO Terms of Reference”. This sets out in some detail the PPO’s role and jurisdiction. It makes clear that:(a) The PPO’s remit includes “prisoners who have failed to obtain satisfaction from the prison complaints system and whose complaints are eligible in other respects” (paragraph 10(i));(b) The PPO will be able to investigate “decisions and actions (including failures or refusals to act) relating to the management, supervision, care and treatment of prisoners in custody, by prison staff, people acting as agents or contractors of NOMS…”(paragraph 12(i));(c) The PPO “will be able to consider the merits of matters complained of as well as the procedures involved” (paragraph 13);(d) It is open to the PPO in the course of a compliant “to seek to resolve the matter in whatever way the PPO sees most fit, including by mediation” (paragraph 24);(e) The PPO “may make recommendations to the authorities within remit, the Secretary of State for Justice, the Home Secretary…or to any other body or individual that the PPO considers appropriate given their role common duties and powers” (paragraph 27);(f) The PPO may not investigate complaints about policy decisions, or the merits of decisions taken by Ministers, or cases currently the subject of civil litigation or criminal proceedings (paragraph 14).[41]The evidence before me was that complaints arising out of prisoner adjudications are one of the most common types of complaint dealt with by the PPO. There were over 1,000 such complaints between April 2009 and March 2012. In the last year for which there are records, between April 2011 and March 2012, 269 eligible adjudication complaints were received by the PPO. This was the second most common type of complaint.[42]In 2012, 21% of eligible adjudication complaints were upheld. One particular area of concern related specifically to legal support and adjournments. In 80% of the cases where complaints were upheld, a recommendation was made. In addition, the evidence was that the recommendations made by the PPO were followed in almost every case. The PPO made a total of 256 formal recommendations following complaints investigations of all kinds in 2012-2013. In only one case, relating not to an adjudication complaint but a work and pay issue, was the recommendation rejected. 5.4. The Answer In This Case[43]There can be no doubt that, in the present case, a reference to the PPO was the most effective and convenient remedy for the claimant. My reasons for that view are set out below. As I have said, both the defendants and the PPO were agreed that, on the narrow basis on which this claim was now put, the claim fell fairly and squarely within the remit of the PPO.[44]On behalf of the claimant, Mr Field’s principal submission was that he would not be able to get the appropriate relief from the PPO because the latter could only make recommendations, and, unlike the court, could not quash the decisions in the two adjudications. But I do not consider that that is a legitimate distinction. First, if it were, then none of the cases referred to above, in which the ombudsman was identified as being a proper alternative remedy, would be correctly decided, since an ombudsman can only ever make recommendations. Secondly, the claimant’s argument must proceed on the premise that it is a realistic possibility that an ombudsman’s recommendation may be ignored by the SoS. There is simply no basis for such a conclusion: as I have indicated, the evidence points the other way.[45]At one point, Mr Field sought to argue that the PPO’s procedures may lead to delay, particularly if there were many more cases being dealt with by the PPO as opposed to by way of judicial review. I am bound to say that such a claim rings hollow in circumstances such as these, where it has taken over a year for these proceedings to come on before a judge. And it might justifiably be said that the delays in the Administrative Court are a direct function of the fact that, wherever possible, parties seek judicial review rather than consider the availability of alternative remedies. By contrast, the average time for the completion of a matter referred to the PPO is currently 19 weeks, albeit against a target time of 12 weeks.[46]Properly, Mr Field did not suggest that the PPO would be incapable of dealing with adjudication disputes on their merits or that, in some way, the court was a better place for such disputes. The opposite is plainly the case. The PPO has a detailed understanding of the prison service and the way in which it works, and is just as well placed as the court, if not better placed, to deal with disputes arising out of adjudications. Furthermore, as noted, the PPO can deal with the merits of decisions as well as their procedural aspects. That is of particular relevance to these sorts of disputes. Very often, as Simon Brown LJ noted in Baker, judicial review claims are claims on the merits dressed up as procedural complaints, a ruse usually designed to keep the case within the confines of the Administrative Court. No such intellectual dishonesty would be required in references to the PPO, because he can deal with both merits and process.[47]In my view, this conclusion is also in accordance with the public interest. I was told that, if the PPO dealt with a dispute of this kind, arising out of an adjudication, the average cost would be about £1,000. By contrast, the cost of these judicial review proceedings, involving as they have done three different High Court Judges, the Administrative Court Office, and solicitors and counsel for all three parties, must be ten times that amount.[48]Accordingly, I am in no doubt that a reference to the PPO was the best, most convenient and most cost effective route for the claimant’s claim to follow. It follows therefore, that in my view these judicial review proceedings should never have been issued.[49]Furthermore, for completeness, I should say that the claimant cannot now seek to avoid that conclusion by arguing that, at the time that the claim was commenced, it was more complicated because it involved a potential challenge to the policy of the PIN-phone system. For the reasons set out in Section 4 above, I am in no doubt that that claim was always misconceived and should never have been made. It is all too common for parties seeking the assistance of the Administrative Court to include a claim which, although ultimately unarguable, is then used to justify commencing in the Administrative Court rather than elsewhere. The addition of a spurious claim for wrongful detention in immigration cases is a good example of that practice. Since the PIN-phone system claim was always going to fail, the claimant cannot rely on its inclusion at the outset in order to argue that, in some way, the commencement of judicial review proceedings in this case was justified. 5.5. Wider Guidance[50]I am wary of providing wider guidance on the issue as to which claims might be commenced before the PPO, and which claims might be a proper matter for judicial review. My reluctance is based on my concern that this court should endeavour to deal with the dispute before it, and resist the temptation to lay down principles which may be applicable in other, different cases. I should stress that my reluctance does not stem from the dispute between the SoS and the PPO as to the question of resources.[51]I have read, with some surprise, the conflicting statements of Ms Elizabeth Moody (the deputy PPO, funded by the Ministry of Justice) and Mr Daniel Webb (the Sponsor of Offender Management Arms Length Bodies, funded by the Ministry of Justice) on this issue. Since it is obviously cheaper for the SoS to see the majority of complaints arising out of prisoner adjudications resolved by the PPO, rather then by the Administrative Court, it is in the SoS’s interest for proper resources to be provided to the PPO to allow them to fulfil their remit. It is not appropriate for a judge of the Administrative Court to become further involved in a budget war between two parts of the same Government Department.[52]On the other hand, since the matter was argued fully before me, it seems sensible to give some limited guidance as to where the court sees the split between references to the PPO, on the one hand, and applications for judicial review, on the other. Whilst every case will turn on its own facts, some very general guidance – in order to save costs and to ensure that the relevant matters are carefully considered at the outset – is appropriate. My observations are, however, limited to disputes arising in connection with prisoner adjudications, since that is what this case is concerned with.[53]In my view, complaints made by prisoners arising in connection with adjudications are generally suitable for reference to the PPO. I say that for the reasons already given, namely the PPO’s experience of the prison service; the PPO’s ability to deal with both merits and procedure; the relative speed with which the PPO can act; and the cost effective nature of the PPO’s dispute resolution service. Furthermore, even if there is an increase in the number of complaints made to the PPO (which might affect timeliness to some extent), on the evidence before me, the PPO will still be able to address complaints much more quickly than the Administrative Court.[54]There will, however, be some complaints arising out of prisoner adjudications where a reference to the PPO will not provide a proper alternative remedy and where judicial review is the appropriate course. These will include cases where an injunction is sought and other cases where there is an urgent or emergency element. Secondly, it will include cases where there is a challenge with which the PPO cannot deal, such as complaints which are, on analysis, about the underlying conviction or sentence. Thirdly, it seems to me that, where the complaint arises out of a prisoner adjudication, but is properly concerned with matters of policy, an application for judicial review would be the appropriate course.[55]That last point is not, of course, to be taken as an invitation to the prisoners and their lawyers to identify some spurious policy dispute so as to avoid a reference to the PPO, and instead to seek relief by way of judicial review. As I have already pointed out, that is already much too common in other parts of the Administrative Court. The issues raised by the complaint need to be analysed at the outset by the prisoner’s lawyers. They need to decide whether, in reality, there is some form of policy challenge inherent in the complaint, or whether, on a proper analysis, the complaint arises solely out of the particular facts of the adjudication.[56]This claim is a very good example of this. For the reasons that I have given, on the face of the application for judicial review, this might have been construed as a policy challenge to the lawfulness of the PIN-phone system. But on analysis, it was almost immediately apparent that such a claim could not arise on the facts, and that the only issue that was raised was concerned with the conduct of the two adjudications and, in particular, whether a further adjournment ought to have been granted. There was no policy point at all.[57]Therefore, on this point, I agree with the procedure suggested by Mr Manknell. If, in future, a prisoner wishes to challenge by way of judicial review the outcome of an adjudication, he or she must explain in their claim form how and why the claim is not suitable for resolution by the PPO. Moreover, it will not be enough simply to say that it concerns a matter of policy: a proper explanation of how and why the challenge concerns a matter of policy will need to be provided. If that had happened here, the claimant’s advisors would have realised that this complaint was not a policy challenge at all. In that way, there is a better chance of ensuring that, where an application is made for judicial review, as opposed to a reference to the PPO, it will be because there is a genuine policy issue which will be a matter for the court, rather than for the PPO.[6]CONCLUSIONS[58]For the reasons set out in Section 5 above, I consider that this claim should never have been brought by way of judicial review. There was an alternative and more appropriate remedy by way of a reference to the Interested Party. Had that been the only issue, I would have refused permission to bring these judicial review proceedings on that ground.[59]However, so as to ensure that this matter does not take up any further time or expense, I have also considered the substance of the claims themselves (Section 3 above). There is nothing in them. Indeed I regard them as wholly without merit. Accordingly, if I had been wrong not to grant permission on the grounds of an alternative remedy, I would have refused the substantive application for judicial review on the ground that it is hopeless, for the reasons given.

Cited in 2 later judgments