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Cite as: [2001] EWHC Admin 129

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GREENFIELD v. SECRETARY OF STATE FOR HOME DEPARTMENT [2001] EWHC Admin 129 (22nd February, 2001)

Neutral Citation Number: [2001] EWHC Admin 129 Case No: CO/248/2001

IN THE SUPREME COURT OF JUDICATURE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 22nd February 2001

B e f o r e :

LORD JUSTICE LATHAM

and

MR JUSTICE POTTS

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RICHARD GREENFIELD

Claimant


- and -



THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Defendant

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Richard Clayton & Phillippa Kaufmann (instructed by Howells of Sheffield for the Claimant)

Philip Sales & Cecilia Ivimy (instructed by The Treasury Solicitors for the Defendant)

- - - - - - - - - - - - - - - - - - - - -

Judgment

As Approved by the Court

Crown Copyright ©

LORD JUSTICE LATHAM:

1. The claimant is a serving prisoner, who but for an award of 21 additional days to his sentence would have been released on the 16th February 2001. The additional days were awarded as a result of a finding at an adjudication on the 21st December 2000 that as a result of a mandatory drugs test which showed the presence of opiates, he had committed the offence of administering a controlled drug to himself or failing to prevent the administration of a controlled drug to him by another person contrary to Rule 51(9) of the Prison Rules 1999. In these proceedings, the claimant seeks an order quashing the decision on the ground that he is the victim of breaches of Article 6(1) and (3) and Article 5(4) of the European Convention on Human Rights (ECHR), in that he was deprived of a hearing before an independent tribunal and denied legal representation, and further on the ground of procedural unfairness.

2. The factual background in more detail is as follows. The claimant, now aged 21, was at the relevant time serving a 2 year sentence. Whilst he was detained at HMP Doncaster, he was subjected to mandatory drug testing. He was required to provide a sample of urine on the 16th October, which proved positive, as I have already said, for opiates. He was therefore charged with an offence under Rule 51(9). HMP Doncaster is a private prison. Disciplinary proceedings in such prisons are conducted by a Controller or Deputy Controller appointed for the purpose by the defendant, instead of a Governor as at a prison run by the Prison Service. The offender, if the charge is found proved, has the right to ask for a review of the decision by an area manager.

3. On the 20th October 2000 the adjudication opened before the Deputy Controller, Mr Parry, at which the claimant pleaded not guilty. The hearing was adjourned for seven days for a confirmation test and for the claimant to seek legal advice. The confirmation test proved positive. On the 27th October 2000, the adjudication resumed but was further adjourned. On the 2nd November 2000, solicitors on behalf of the claimant wrote to the Controller, Mr Jones, seeking an adjournment so that an independent analysis could be conducted on the sample. The hearing was resumed on the 10th November 2000 but adjourned to the 24th November. On that day the independent test results were not yet known; accordingly the hearing was yet again adjourned. However the Mr Parry on that occasion completed what is known as the Tarrant Stamp. This is a proforma series of questions which a Controller or Governor has to ask him or herself in order to decide whether or not the prisoner requires legal advice, or any form of representation at the hearing of the adjudication. The questions are intended to cover the matters which this court said an adjudicating governor should have in mind in the case of R -v- Secretary of State for the Home Department ex parte Tarrant [1985] 1 QB 251. In effect, Mr Parry concluded that the claimant was capable of presenting his own case, that there were no unusual difficulties, that he was entitled to legal advice but not to legal representation.

4. There is a dispute between the claimant and Mr Parry as to whether or not the claimant himself requested legal representation. There is no doubt that his solicitors did so in a letter of the 7th December 2000, and again in a letter of the 14th December 2000. Although no direct response was received to those requests, it is clear by implication that Mr Parry intended to adhere to the conclusion he reached on the 24th November, because on the two subsequent hearings that is on the 14th December 2000 and the 21st December 2000, the claimant was unrepresented. It is not necessary to resolve the difference in recollection between the claimant and Mr Parry. If Article 6(3) of the European Convention on Human Rights applies, and required that he be represented, there has been a breach of that Article. If not the Claimant accepts that Mr Parry's conclusion was not unlawful or irrational.

5. The matter came back before the Deputy Controller on the 12th December, by then, solicitors acting for the claimant had informed the Controller that the independent test confirmed the presence of opiates. The claimant, however, applied for an adjournment because he believed that some cigarettes that he smoked had been spiked by another prisoner. He was not prepared to name him at the hearing. Nevertheless the matter was adjourned for two days. At the resumed hearing on the 14th December, the claimant asked Mr Gleeson, a fellow prisoner, to give evidence. Mr Gleeson said that he had given the claimant "a roll-up" in which there had been heroin. He was asked whether he himself had ever tested positive for drugs. He said that he had not, and was on the Frequency Test programme. The hearing was once again adjourned.

6. On the 15th December 2000, the Controller wrote to the claimant's solicitors in reply to the letters to which I have already referred. The solicitors were informed that the claimant had not asked for legal representation, but had been allowed to seek legal advice. The letter concluded:

"The hearing was adjourned for seven days to enable enquiries regarding the witnesses background and connections to be made."

7. When the matter came back before Mr Parry on the 21st December 2000, he said nothing about what enquiries he had made or their results. He simply said that he disbelieved Mr Gleeson, and found the charged proved. He then made the award of 21 additional days.

8. In the second statement which he made for the purpose of the hearing before us, Mr Parry said that the enquiries that he made were simply to determine whether Mr Gleeson had ever tested positive for drugs and whether or not he was on the Frequency Test Programme. His enquiries established that Mr Gleeson had been telling the truth in this respect. Mr Parry accordingly did not consider it necessary to raise the matter at the final hearing, as the results of the inquiries had been to the claimant's advantage.

9. To complete the story, the claimant asked for a review of the decision by the appropriate Prison Services Manager, who concluded on the 16th January 2001 that the adjudication was properly and fairly conducted and the punishment awarded should stand.

10. Mr Clayton, on behalf of the claimant, submits that the charge that the claimant faced under Rule 51(9) of the Prison Rules was a criminal charge within the meaning of Article 6 of the ECHR. As a result, the claimant was entitled to a fair hearing by an independent and impartial tribunal, and to defend himself through legal assistance. He submits that neither Mr Parry nor the Area Manager who reviewed Mr Parry's decision could properly be described as independent or impartial, and that the decision of Mr Parry not to allow him legal representation denied him the right to defend himself through legal assistance. His alternative argument under Article 6 is that the decision to award 21 additional days amounted to a determination of the claimant's civil rights which equally required an independent and impartial tribunal. As to Article 5(4) he submits that the claimant has been deprived of his liberty by an order for detention entitling him to take proceedings by which the lawfulness of the detention can be decided speedily by a court. He submits that the area manager when conducting the review does not constitute a court for the purposes of this article. Underpinning his submissions in respect of both Article 5 and 6, is his submission that the decision to award 21 additional days is a separate and distinct decision in relation to his detention from the original sentence, which he accepts could not be the subject of challenge under the ECHR. He further submits that the failure of Mr Parry to disclose to the claimant the results of the enquiries that he made after the hearing of the 14th December 2000 amounts to procedural unfairness which would in itself justify judicial review by this court.

11. Mr Sales, on behalf of the defendant, submits that the charge which the claimant faced was a disciplinary, not a criminal charge, and did not involve any determination of the claimant's civil rights. The claimant was, at all material times, subject to a sentence of 2 years imprisonment. That remained the legal justification for his detention and cannot be a breach of any provision of the ECHR. He submits that if he is right in this submission, this disposes of the argument under Article 5(4) and Article 6. As to procedural unfairness, he submits that there was no obligation on Mr Parry to inform the claimant of the result of his enquiries, as they had merely confirmed Mr Gleeson's evidence in relation to the matters about which he had enquired, so there was no further benefit which the claimant could have obtained had he been made aware of the results of the enquiries.

12. It is common ground that the Human Rights Act 1998 requires both the defendant and this court to act in uniformity with the ECHR. The relevant provisions are as follows:

"Article 5

Right to Liberty and Security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure described by law.

(a) The lawful detention of a person after conviction by a competent court ......

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.......

Article 6

Right to a fair trial

1. 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....... by an independent and impartial tribunal established by law........

3. Everyone charged with a criminal offence has the following minimum rights:

..........

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ....."

13. Critical to a proper understanding of the issues in this case are the relevant provisions of the Criminal Justice Act 1991. Part II of this Act is headed "The Early Release of Prisoners". Section 33 provides:

"(1) As soon as a short term prisoner" (the claimant was a short term prisoner) "has served one half of his sentence, it shall be the duty of the Secretary of State ....

(b) to release him on licence if that sentence is for a term of 12 months or more."

14. Section 42 of this Act provides:

"(1) Prison Rules, that is to say, rules made under s. 47 of the 1952 Act, may include provision for the award of additional days:

(a) to short term or long term prisoners; or

(b) Conditionally on their subsequently becoming such persons, on remand, ......

who (in either case) are guilty of disciplinary offences.

(2) Where additional days are awarded to a short term or long term prisoner, or to a person on remand who subsequently becomes such a prisoner and are not remitted in accordance with prison rules:

(a) Any period which he must serve before becoming entitled to or eligible for release under this Part .....

shall be extended by the aggregate of those additional days."

15. The relevant Rules for the purposes of this latter section are the Prison Rules 1999 which set out in Rule 51 a list of 25 offences "against discipline". The relevant rule as far as the claimant is concerned, is sub-rule 9 which provides that a prisoner is guilty of an offence if he administers a controlled drug to himself or fails to prevent the administration of a controlled drug to him by another person, subject to Rule 52 which provides a defence if the controlled drug was administered by him or to him in circumstances in which he did not know and had no reason to suspect that such a drug was being administered.

16. In relation to all the offences, Rule 55(1) provides:

"If he finds a prisoner guilty of an offence against discipline the governors may .... impose one or more of the following punishments:

..........

(f) In the case of a short term or long term prisoner an award of additional days not exceeding 42 days......"

17. Although in one sense, as will be seen, the ultimate question is whether or not the award of additional days provides a separate jurisdictional basis for the claimant's detention from his original sentence, it is necessary to start by considering whether or not the disciplinary proceedings amounted to a criminal charge for the purposes of Article 6(1) and (3). As we understand it, Mr Sales on behalf of the defendant, accepts that if they can be so categorised, he cannot argue that the requirements of the Article have been met.

18. The phrase "criminal charge" has what is called an "autonomous" meaning for the purpose of the Convention. Because of the disparate jurisdictions of the countries who are parties to the Convention, there are a wide variety of actions by the State effecting individuals which are differently described in different jurisdictions. What may be described as an administrative penalty in one jurisdiction may be described as a criminal sanction in another. In order to achieve a uniform application of Article 6 in all Convention countries, it is therefore necessary for the phrase to be given a meaning which can be applied consistently. The most relevant exposition of this principle is contained in a judgment of the European Court of Human Rights (ECtHR) in Engel and Others -v- The Netherlands (No 1) [1976] 1 EHRR 647. This case was concerned with offences against Military discipline. In dealing with the question of whether or not these amounted to criminal charges, the court said:

"80. All the Contracting States make a distinction of long standing, albeit in different forms and degrees, between disciplinary proceedings, and criminal proceedings. For the individuals affected, the former usually offer substantial advantages in comparison with the latter, for example as concerns the sentences passed. Disciplinary sentences, in general less severe, do not appear in the person's criminal record and have more limited consequences. It may nevertheless be otherwise; moreover criminal proceedings are ordinarily accompanied by fuller guarantees.........

81. .........The Convention without any doubt allows the States, in the performance of their functions as guardians of the public interest to maintain or establish a distinction between criminal law and disciplinary law and to draw the dividing line, but only subject to certain conditions ......

If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Article 6 and 7 would be subordinated to their sovereign role. The latitude extending thus far might lead to results incompatible with the purpose and object of the convention. The court therefore has jurisdiction under Article 6 .... to satisfy itself that the disciplinary does not improperly encroach upon the criminal ......

82. Hence, the court must specify, limiting itself to the sphere of military service, how it will determine whether a given "charge" vested by the state in question - as in the present case - with a disciplinary character nonetheless counts as criminal" within the meaning of Article 6.

In this connection it is first necessary to know whether the provisions defining the offence charged belong according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however, provides no more than a starting point. The indications so afforded have only a formal and relative value must be examined in the light of the common denominator in respect of the legislation in the various Contracting States.

The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government.

However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belongs to the "Criminal" sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental."

19. The court clearly recognised that there was a proper distinction to be made between disciplinary and criminal offences. The three fold test there set out, namely consideration of the domestic classification of the proceedings, the nature of the proceedings, and the severity of the penalty has been consistently applied since then. It has applied it in the context of prisons in England and Wales in the case of Campbell and Fell -v- United Kingdom [1984] 7 EHHR 165. In this case the issue arose as to whether or not disciplinary offence of mutiny and striking a police officer, which resulted in an award of 570 days loss of remission amounted to criminal charges for the purpose of Article 6. The Government argued that the legal justification for Mr Campbell's continued detention remained his original sentence and that the loss of remission was only awarded for a disciplinary offence. The Court held:

"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 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 the discipline within their establishments.

However, the guarantee of a fair hearing, which is the aim of Article 6 is one of the fundamental principles of any democratic society, within the meaning of the Convention. As the Golder judgment showed, justice cannot stop at the prison gates and there, is, in appropriate cases, no warrant for depriving inmates of the safeguards of Article 6.

It follows that the principle set forth in the Engel and Others judgment are also relevant mutatis mutandis in a custodial setting, and the reasons mention above cannot override the necessity of maintaining, there too, a dividing line between the "criminal" and "disciplinary" that is consistent with the object and purpose of Article 6. It therefore has to be determined whether the proceedings against Mr Campbell have to be regarded as coming within the criminal sphere for Convention purposes. To this end, the court considers it right to apply, making due allowance for the different context, the criteria stated in that judgment."

20. The court then noted that in English law the cases were considered to be disciplinary. It went on to say, however, that the nature of the offence was a factor of greater importance. It concluded that the offences of mutiny and assault committed by Mr Campbell were "especially grave"; and could have founded serious criminal charges. It went on:

"71. The court considers that these factors, are whilst not in themselves sufficiently lead to the conclusion that the offences with which the applicant was charged have to be regarded as "criminal" for Convention purposes, do give them a certain colouring which does not entirely coincide with that of a purely disciplinary matter.

72. It is therefore necessary to turn to the last criterion stated in the above mention Engel and Others judgment .... namely the nature and degree of severity of the penalty that Mr Campbell risked incurring. The maximum penalties which could have been imposed on him included forfeiture of all the remission of sentence available to him at the time of the Board's award (slightly less than three years), forfeiture of certain privileges for an limited time and for each offence, exclusion from associated work, stoppage of earnings, and solitary confinement for a maximum of 56 days. He was in fact awarded a total of 570 days loss of remission and subjected to the other penalties mentioned for a total of 91 days."

21. Having then concluded that the loss of remission amounted to a deprivation of liberty the court concluded as follows:

"72. In its above mention Engel and Other judgment, the court stated that deprivation of liberty liable to be imposed as a punishment was, in general, a penalty that belonged to the "criminal" sphere. It is true that in the present case the legal basis for the detention remained, even after the Board's award, the original sentence of imprisonment and that nothing was added thereto. However, the court is of the opinion that the forfeiture of remission which Mr Campbell risked incurring and the forfeiture actually awarded involved such serious consequences in regards the length of his detention that these penalties have to be regarded for Convention purposes as "criminal". By causing detention to continue for substantially longer than would otherwise be the case the sanction came close to, even if it did not technically constitute, deprivation of liberty and the object and purpose of the Convention require that the imposition of a measure of such gravity should be accompanied by the guarantees of Article 6. This conclusion is not altered by the fact that a considerable number of days remission were subsequently restored to the applicant.

73. Taking into account, therefore both the especially grave character of the offences with which Mr Campbell was charged, and the nature and severity of the penalty that he risked incurring - and that he did in fact incur - the Court finds that Article 6 is applicable to the Board of Visitors adjudication in this case ......."

22. It can be seen that the court was particularly influenced by the seriousness of the offences which Mr Campbell faced, and the severity not only of the actual punishment, but also the potential punishment, that is the loss of all remission. Mr Clayton submits that we should come to the same conclusion in the present case because the offence, was, in essence, possession of a class A drug, which is always considered a serious offence, and the fact that the number of additional days which could have been imposed were 42, that is six weeks, which can be equated to a sentence of three months imprisonment. He points to the fact, in the latter context, that the court has held that 30 days imprisonment for refusing to pay a community charge, carrying with it a risk of three months imprisonment, was sufficient to categorise the proceedings as criminal: Benham -v- The United Kingdom [1996] 22 EHRR 293. He also provided a schedule showing a number of occasions on which the ECtHR has held that significantly less periods than even 30 days have been held sufficient to justify the conclusion that the proceedings were criminal.

23. However, none of these cases involved a disciplinary context. They were all cases in which the sanction could potentially effect the whole population. The ECtHR has made clear that this is a material distinction in Weber -v- Switzerland [1990] 12 EHHR. The only two cases dealing with discipline in prisons to which we have been referred, other than Campbell and Fell were McFeeley -v- United Kingdom [1980] 3 EHRR 161 and Pelle -v- France [1986] 50 DR 263 which are both decisions of the Commission.

24. In McFeeley the issue arose, amongst many other, as to whether or not disciplinary charges of assault on prison officers which resulted in the loss of remission of a total of four months amounted to criminal charges. The Commission noted that these offences belong to both the disciplinary and criminal law. However, it concluded that the penalty, imposed for what it described as "essentially disciplinary offences" was not such as to indicate that they amounted to criminal charges for which the safeguards contained in Article 6 ought to have been observed. It accordingly held inadmissible the complaint made by McFeeley in this respect.

25. In Pelle the Commission held inadmissible a complaint by a prisoner who was subject to a disciplinary charge of making a death threat to a prison warder, and received 18 days loss of remission. In coming to this conclusion, the Commission noted that as in McFeeley the offence was capable of being a criminal offence as well as a disciplinary offence, and that the total loss of remission which was at risk was 67 days. It concluded that the loss of remission of that amount could not be regarded as a sanction of such nature and severity as to require the protection of Article 6.

26. We take fully into account that both cases were decisions of the Commission and not of the ECtHR. We also take into account the fact, that as far as we understand it, the ECtHR has been prepared to consider a complaint based on the imposition of addition days in a case currently before it. Nevertheless it seems to us that they provide some indication of the way in which we should approach the problem in the present case. In particular, it seems to us that the Commission was affected, in determining whether an offence which was both disciplinary and criminal in character could be characterised disciplinary, by the extent to which the punishment could be described as proportionate to an offence against discipline as opposed to a crime.

27. Accordingly we take account of the fact that at the time of the imposition of additional days, the claimant was of necessity, a serving prisoner. He was therefore already subject to loss of liberty. We take into account that the facts on which the offence was based could have founded a criminal charge of possession of a class A drug. Nonetheless we observe that the offence itself was directly connected to the procedure of drug testing which is considered a necessary disciplinary tool for the purposes of controlling the use of drugs in prison. We also take into account the fact the maximum that could have been awarded of 42 additional days which although not an insignificant period of detention is nonetheless wholly different in kind from the penalty which would be imposed for the equivalent criminal charge. The question is whether or not, together with the nature of the offence, it is in the category of severity which requires the protection provided by Article 6. In doing so we also take into account the fact that it does not carry with it the stigma and other consequences of a criminal conviction. We are quite satisfied that this is a good example of a procedure properly described as disciplinary in the context of a prison. We have had the opportunity to consider the judgment of Newman J in The Queen -v- Carroll and Al-Hasan, in which judgment was handed down on the day on which we gave our decision in the instant case. In paragraph 48 of that judgment, the judge made the point that one matter which can properly be taken into account in determining this issue is the extent to which it can be said that the sentence is appropriate or proportionate as a disciplinary sanction. We agree, and come to the same conclusion as that to which he came, namely that disciplinary proceedings under Rules 52 and 55 at least so far as the offences in question are concerned do not amount to criminal charges, so as to require the protection provided by Article 6. A contrary conclusion would, in our judgment, produce serious difficulties for the prison service in maintaining a swift and effective discipline system.

28. The argument that Article 6 applies because the proceedings involved a determination of the claimant's civil rights is a novel one, in the sense that it has not previously been considered in the context of prisoners. Indeed, until the decision of the ECtHR in Aerts -v- Belgium [1998] 29 EHRR 51, it had generally been assumed that questions relating to the loss of liberty were matters to be dealt with under Article 5. In Aerts, however, the court held that a psychiatric patient, complaining of his detention in the hospital wing of a prison, who wished to be transferred to a social services unit, was making complaint about his right to liberty which was a civil right. It was pointed out that he had a potential claim for compensation for unlawful imprisonment. It is accordingly said that in the present case, the award of additional days involved loss of liberty entitling the claimant to the protection of Article 6, on the basis that if the additional days were not carefully imposed, he has a claim for damages for unlawful imprisonment if required to serve them.

29. It seems to us that the answer to this point is the same as the answer to the argument that Article 5(4) applies. This letter requires the State to provide a mechanism whereby the lawfulness of deprivation of liberty can be determined by a court. Article 5(1) sets out the circumstances in which deprivation of liberty is permitted. The only basis upon which the claimant's detention can be justified in Article 5 terms is under Article 5(1)(a). It follows his detention can only be lawful if it can properly be said that he is detained pursuant to the sentence of the court. If he is detained pursuant to the sentence of the court, no issue can arise as to his right to liberty, so as to engage the Aerts principle because he was not a person at any material time, who had any right to liberty. The answer therefore depends upon whether or not it can properly be said that detention for additional days requires a separate jurisdictional basis for detention which has to be justified separately from the lawfulness of the original sentence.

30. Mr Clayton's argument is that the Criminal Justice Act 1991 brought in a fundamentally different regime for the sentencing of prisoners. Prior to that Act, he accepts that the sentence of the court was effective for its whole period, subject to the administrative discretion of remission. Since 1991, he submits, there is a statutory obligation pursuant to s. 33(1) on the Secretary of State to release a prisoner once he has completed one half of his sentence. The power to detain further is, it is submitted, contained in s. 42, and is accordingly a separate power which accordingly has to be separately justified.

31. This argument, in our judgment, is misconceived. Section 42(2) clearly, from an ordinary reading of its provisions operates on s. 33 by extending the period before release by the appropriate number of days. As submitted by Mr Sales, this part of the Criminal Justice Act 1991 simply provides for the administrative mechanism for dealing with the detention of persons sentenced by the courts. Throughout the period of his detention, a prisoner is at risk of being awarded additional days. The additional days simply therefore form part of the period of the sentence that he has to serve before release; the jurisdictional justification for the detention always remains the original sentence. In these circumstances no issue as to the claimant's right to liberty arose out of the disciplinary proceedings; and his detention is clearly justified under Article 5 (1)(a). The claimant's right is the public law right to a proper application of sections 33 and 42 to his case. Newman J in the Carroll & Al-Hasan case came to the same conclusion in paragraph 46 of his judgment to which we have already referred.

32. For these reasons, we do not consider that there has been any breach of the defendant's obligations under the Human Rights Act. We reach this conclusion with some regret. The Report of the Committee on the Prison Disciplinary System under the chairmanship of Peter Prior, reporting in October 1985, recommended that there should be an effective appeal process where issues of personal liberty were at stake and there should be a right of appeal to a manifestly independant tribunal where there was any significance forfeiture or remission. It has, of course, to be remembered that this recommendation was in the context of the system in place at the time of the Campbell & Fell case and was considering therefore the question "What rights of appeal a prisoner should have when subjected within the disciplinary system to such substantial deprivations of liberty". The present position, is that the awarding of 42 additional days is the maximum which can be awarded within the disciplinary system; if the offence is considered too grave to be dealt with in this way, it will be the subject of a criminal charge. However, in their report on Prison Disturbances April 1990, Lord Justice Woolf (as he then was) and Judge Tumim recommended, in the context of their recommendation that the maximum additional days should be 28 days, nonetheless considered that there needed to be some avenue of appeal which had an independant element to it: see paragraph 14.420. The solution that they proposed was that the initial decision should be taken by a governor with a right of review by an area manager (as was accepted by the Government and forms the basis as we have seen of the present disciplinary system), but that there should be a right of appeal to a person they described as the Complaints Adjudicator, who would be the body of final resort. They said:

"It is right, and consistent with the principles of justice, that independant element should be able to review and set aside findings which result in a prisoner staying in prison longer than would otherwise be the case."

33. As far as the discrete point as to the procedural unfairness is concerned, Mr Clayton, is, it seems to us, is in some difficulty. Whilst we can readily understand that the last sentence of the letter of the 15th December 2000 suggests that rather more wide ranging enquiries were going to be made as to Mr Gleeson, Mr Parry's witness statement makes it clear that those enquires were in fact restricted, and the results did not impose any obligation on him to inform the claimant. I have to say that it was a pity that the claimant was not informed. The letter was bound to raise a suspicion in the claimant's mind as to what might or might not have been said to Mr Parry about Mr Gleeson. Upon the basis of the evidence that we have, it is clear that the information obtained by Mr Parry was not in fact material which needed to be put to the claimant so that he could have an opportunity to comment on it.

34. In all these circumstances, we consider that this application must be refused.

LORD JUSTICE LATHAM: We hand down this morning the reasons for the decision which we gave last week that this application must be refused.

Yes, Mr Clayton.

MR CLAYTON: My Lords, I do have an application for permission. May I make clear at the outset that the basis for the application is that Newman J granted permission to appeal in the case of --

LORD JUSTICE LATHAM: I do not think you need suggest that there is a precedent for it. This is a case which seems to us to be one, subject to anything that Ms Ivimy has to say, which certainly carries with it points of public interest which really need clarifying, particularly in the light of the particular paragraph in our judgment in which we expressed our view as to the consequences.

MR CLAYTON: Yes. Well, my Lord, that is one application. Subject to that, then I have a very short second application.

MS IVIMY: My Lords, we do not resist permission to appeal.

LORD JUSTICE LATHAM: No, I did not think you would. Thank you very much, Ms Ivimy. Yes, Mr Clayton, your other matter?

MR CLAYTON: My Lords, we are in receipt of Community Service Funding and I would therefore ask for detailed assessment.

LORD JUSTICE LATHAM: Certainly. Is the appropriate certificate on file?

CLERK OF THE COURT: Yes, sir.

LORD JUSTICE LATHAM: That order is made, Mr Clayton.

Thank you very much to both sides for careful arguments which were very helpful.


© 2001 Crown Copyright


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