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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Beggs, Re Judicial Review [2016] ScotCS CSOH_61 (20 May 2016)
URL: http://www.bailii.org/scot/cases/ScotCS/2016/[2016]CSOH61.html
Cite as: [2016] CSOH 61, [2016] ScotCS CSOH_61

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OUTER HOUSE, COURT OF SESSION

[2016] CSOH 61

 

P847/14

OPINION OF LADY WOLFFE

In the petition of

WILLIAM BEGGS

Petitioner;

for

Judicial Review

Petitioner:  Leighton;  Drummond Miller LLP

Respondent:  Byrne;  SGLD

26 April 2016

Introduction
[1]        In this petition for judicial review the petitioner, who is a convicted life prisoner detained within HM Prison in Edinburgh, challenges on a number of bases the procedure followed in relation to two charges for alleged breaches of discipline contrary to the Prisons and Young Offenders Institution Rules 2011 (“the Rules”).  In particular, the petitioner was charged with:

  1. a breach of discipline (under reference number ED/1230/14) said to have occurred on 7 August 2014 and said to have involved disrespectful conduct (“the first charge”);  and
  2. a further breach of discipline (under reference ED/1236/14) on 8 August 2014 and which was said to have occurred during a hearing in relation to the first charge and said to have concerned threatening conduct (“the second charge”).

The Scottish Prison Service (“the SPS”) determined that both charges had been established.  

[2]        The petitioner challenges certain features of the procedure followed and which are said to be unfair in a number of respects.  Separately, he argues that a departure from the Rules in one respect constituted an irregularity and that that irregularity vitiates the determination of the charges.  He challenges the vires of one of the Rules.  In addition to these procedural challenges, he also challenges the determination of the second charge.  

[3]        There were subsidiary challenges to other matters, but it is necessary first to set out the factual background.  The conduct which was the subject-matter of the first charge occurred on 7 August 2014 and in the context of a complaints procedure initiated by the petitioner.  As a consequence, the petitioner was served with a complaint setting out the first charge (of disrespect).  It was at the disciplinary hearing convened on 8 August 2014 in respect of the first charge that the petitioner’s conduct on that occasion resulted in a second charge and a fresh disciplinary procedure in relation to the second charge.  The disciplinary procedures for the first and second charges ran in tandem.  For the sake of clarity, however, I will set out separately the procedure in respect of the first charge and the second charge, before turning to the Rules and the legal challenges made. 

 

The factual background
The pre-history:  the petitioner’s prior complaint to the Scottish Public Service Ombudsman (“SPSO”)
[4]        The petitioner’s counsel did not attempt either in his written or oral pleadings to set out the relevant or full chronology and which must form the necessary context in which to assess a challenge of procedural unfairness.  As will be seen, most of the relevant material was not placed before me until the start of the respondent’s submissions, late on the afternoon of the third day of this continued first hearing lasting four days.  In the quotations in this opinion from the productions, pleadings or notes of argument I do not correct the grammatical or other infelicities found in those documents.

[5]        The petitioner’s counsel did begin with the “pre-history”, as it were, and which was said to relate to the petitioner’s prior complaint to the SPSO in respect of a female member of staff, a Miss K B (“KB”).  Part of that complaint alleged a failure on the part of the SPS properly to consider the petitioner’s complaint to it in respect of KB (“the original complaint”).  The tenor of the original complaint included (i) that in an email communication KB had been disparaging about something said by the petitioner, (ii) that she should be required to apologise personally to the petitioner;  (iii) that the minutes of an internal complaints committee (“ICC”) meeting were inaccurate;  and (iv) that the petitioner insisted that KB not be allowed to participate in ICC matters concerning the petitioner. 

[6]        By its decision dated 28 July 2014 (no 6/1 of process), the SPSO upheld the petitioner’s complaint in part.  So far as relevant to what was said to be the background of this petition, the SPSO recommended that the SPS (i) apologise for certain failings identified in the investigation of the petitioner’s complaint;  and (ii) it remind staff involved in complaints handling to avoid using language that could be misinterpreted.  The date for implementation of the recommendations was 25 August 2014.  The second charge had been determined before this date.  The first charge was determined on this date.  I now require to set out the relevant context in which the petitioner’s legal challenges fall to be assessed.

 

The first charge
            The conduct of the petitioner at the ICC hearing
[7]        The petitioner attended an ICC hearing on 7 August 2014.  The subject-matter of the petitioner’s complaint being dealt with at that ICC hearing is, for present purposes, irrelevant.  KB was present at that ICC hearing.  She was not the decision-taker, but had responsibility for taking notes of meetings.  There were two employees of the SPSO sitting in at the hearing as part of their training (“the two SPSO employees”).  They had no active role to play in those proceedings.  As will be seen, one of the issues that arises is the absence of the two SPSO employees at the subsequent disciplinary hearing into the first charge. 

[8]        The finding in the first charge, as set out in the record of inquiry of the hearing into the first charge (no 7/3 of process) (“the record of inquiry into the first charge”), was that on entering the ICC hearing the petitioner stated that he was unhappy with the fact that no assurances about the supervision of KB had been received and he questioned her ability to be impartial.  The petitioner was described as speaking loudly and about KB in her presence.  The adjudicator presiding at the ICC hearing described the petitioner’s entry as “ranting” and “unacceptable”, given KB’s presence in the room.  The petitioner had attended that ICC meeting with a letter addressed to Andrea Frost with the intention of reading it out.  That letter (no 6/2 of process) was in the following terms:

“Dear Ms Frost

               

ICC MEETING 7 August 2014:  Ms [KB] (SPS Notetaker)

 

You may recall that I have previously raised with you in the context of your ICC chairmanship, issues surrounding the involvement in ICC meetings of Ms [KB].

 

Standing that successive ICC Chairs were not prepared to deal themselves with the issues surrounding Ms [KB]’s involvement in ICC business (falsification of ICC narrative, offensive e-mail remarks, &c), I pursued a PCF2 complaint about [KB]’s conduct and ultimately receiced a wholly unacceptable response from the Governor, apparently composed by her Deputy.  I pursued the matter to the Scottish Public Services Ombudsman (‘SPSO’).

 

By letter of 28 July 2014 the Ombudsman has confirmed having upheld my complaint in terms that Ms [KB]’s email remarks were suggestive of bias on her part, recommending that the Governor apologise for her failings in responding to my complaint, recommending that staff involved in complaint handling be reminded to use appropriate language, and recommending that a proper explanation be provided vis a vis the falsification of the ICC narrative relative to PCF1 ref:  EH/140204/1607.

 

In the absence of confirmation of any of Ombudsman’s recommendations having been action or of any specific assurances in relation to the future conduct and supervision of Ms [KB]  in the handling of this present complaint, I wish to place on record my dissatisfaction at her involvement and thank you for your attention to this matter.”

 

 

            The first charge and its supporting statement
[9]        As a consequence of the petitioner’s conduct the ICC hearing did not proceed and the petitioner was served later that day with a notice of a charge of breach of discipline (“the first charge sheet”).  The first charge sheet, produced at no 7/1 of process, alleged that contrary to paragraph 10 of Schedule 1 to the Rules the petitioner had: 

“whilst attending the ICC today, subject Miss [KB] to remarks and behaviour from yourself that she and the committee felt was disrespectful”.

 

Immediately below this is a pre‑printed Note for there to be “enough detail to ensure that the prisoner is fully aware of the circumstances leading to this charge” and two lines further down there is space to provide details of “Other witnesses who may speak to the charge”.  The names of three persons were then provided who might speak to the first charge.  These included Andrea Frost (the person presiding over the ICC hearing, and referred to variously as a unit manager or adjudicator), and KB.  The first charge sheet stated that the first charge would be enquired into the next day, on 8 August 2014, at a time to be advised.  The two SPSO employees were not listed on the charge sheet for the first charge. 

[10]      The first charge sheet is contained on a pro forma the second page of which contains the following passage:

“You will be allowed to hear all the evidence against you, to receive copies of any written statements being submitted in evidence, to question witnesses against you, and to call witnesses on your own behalf (unless the adjudicator is satisfied that a proposed witness would not have relevant evidence to give).  If you wish to call witnesses yourself, it will assist if you would advise your gallery officer as soon as possible.  Please note that prisoner and non-SPS witnesses cannot be compelled to give evidence.  You are also entitled to access to such reference materials as you may need to help you prepare your defence, such a copy of the Prison Rules, and to have writing materials for use in taking notes during the hearing.

 

The adjudicator may also, in exceptional circumstances, allow you to be represented at the hearing by a legal adviser (Rule 113(9)).  If you wish this to be considered in your case, please inform your gallery officer as soon as possible.

 

NOTES:

 

1.         You do not have to make requests for witnesses etc at this stage.  It will, however, help matters to be dealt with as quickly as possible if you do.

 

2.         You may, if you wish, make a written reply to this charge.  Ask your gallery officer for paper/writing materials.”

 

[11]      As after noted, it appears to be the practice for written statements to be supplied in support of a charge and, if that written statement is accepted by the prisoner, then there is no need for the author of the statement to attend.  There was a written statement submitted in support of the first charge and this was produced at no 7/2 of process.  The substance of this was as follows:

STATEMENT BY REPORTING OFFICER:

 

Whilst attending the ICC this afternoon as a committee member, I witnessed 66067 Mr William Beggs being disrespectful to note taker Miss [KB].  Miss [KB] was very upset with these remarks and requested Mr Beggs be placed on report.

 

Miss [KB] believe’s this behaviour, in her opinion, to be disrespectful for the following reasons:

 

  1. It is unclear what procedure is envisaged by the Prison Rule. The prisoner requests a witness to be called and the Governor grants that request. The contention for the prisoner is that the Governor having granted the request that a witness be called it is incumbent upon the Governor to procure the attendance of that witness.

     

  2. As a matter of practicality prisoners are likely to be unable to secure the attendance of witnesses. In the present case the issue involved witnesses from the SPSO but what about the more common situation when prisoners and prison officers are involved? The SPS can clearly procure their attendance but the prisoner may be hard-pressed to do so. The proper interpretation of the scheme of the Rules is that it is for the Governor to procure the attendance – or at least to make efforts to procure the attendance – of witnesses that he has permitted. That did not happen in the present case – so that was a procedural irregularity. (Emphasis added.)

     

  3. It is important to note that it is only witnesses who have relevant evidence to give that are permitted to be called. It is clear that the adjudicator was of the view that the SPSO witnesses were likely to give relevant evidence to give as otherwise he would not have permitted them to be called. The petitioner cannot state with certainty what the SPSO witnesses would say – they have not been precognosed on his behalf. They were however present when the petitioner is alleged to have acted disrespectfully. As the petitioner denies acting disrespectfully it can reasonably be surmised that they will be in position to give evidence supporting that contention.

     

  4. The respondents took no steps to facilitate the attendance of the SPSO witnesses and they restricted the petitioner’s ability to call those persons as witnesses through the punishment imposed for the breach of discipline ref ED/1236/14. (Emphasis added.)

     

  5. The petitioners agents had sought to precognose and secure the attendance of the SPSO witnesses and they were initially reluctant to do so (letters to SPSO of 17 August 2014 and from of 21 August 2014). The expectation however would have been that those witnesses would have co-operated when the position was explained to them (as per HMA v Monson (1893) 21R(J) 5 at 11). Those efforts were ended by the disciplinary hearing taking place.” (Emphasis added.)

 

The focus in the petitioner’s revised note of argument was on the asserted failure of the SPS to secure the attendance of the SPSO witnesses.

 

Respondents’ reply
[75]      In relation to how matters were put in the petition, the respondents argued that there was no specification of how the petitioner’s agents “could and would” have secured the attendance of these two witnesses.  It was never explained in oral submissions how this would have been done, or how these non‑SPS witnesses could have been compelled to attend.  There was no mention of an affidavit in any of the documentation placed before the court or in oral submissions.  No argument was advanced to the court in support of this aspect of the petitioner’s pleadings.  No statements from these witnesses was produced to this court, as they might have done, to demonstrate for example, some material variance between their account and the findings of fact in the determination of the first charge by the adjudicating officer.  Again, this is consistent with the petitioner’s approach that no prejudice need be shown.  In the absence of this material, the prospect of any prejudice is only hypothetical.

[76]      The respondents also criticised the efforts made by the petitioner’s agents.  The terms of the letters from the petitioner and his agents are set out in paragraphs [16] and [21] above.  The SPSO were not told of the urgency of the request or any timescale within which this was needed.  The respondents noted that the petitioner’s agents contented themselves with asking for the two SPSO witnesses to attend.  They did not explore any other form in which their evidence might more readily have been secured, e.g. by statement, and which would accord with what is envisaged in terms of the Rules.  For whatever reason, the petitioner’s agents demanded what was, as it were, the most onerous means to secure this evidence:  by requiring the attendance of the two SPSO witnesses at a disciplinary hearing on an unspecified date.  They did not explore less onerous means by which the evidence of these witnesses could be obtained:  by precognition over the phone or, indeed, simply by asking each witness to provide a short statement of what they observed and for their comments on the charge in question or on the supporting statement produced.  These other means by which the evidence of the two SPSO witnesses could have been secured would have been the least burdensome for these two individuals and would have entailed minimal legal expense on the part of the petitioner.  The production of a statement from these witnesses would have been entirely commensurate with the manner of proceeding envisaged within the Rules.  The case advanced by the petitioner sought to impose an obligation on the SPS but against a background that the alternative and straightforward measures the petitioner might have taken were not pursued.

 

Decision on non-attendance of the SPSO witnesses
[77]      The submission on behalf of the petitioner has to be assessed against the full background, not acknowledged in the petition and not addressed by the petitioner’s counsel in his oral submissions, that the petitioner had secured an adjournment of some 12 days (between 13 and 25 August 2014) specifically so that he could obtain the evidence of the SPSO witnesses.  Accordingly, the challenge focused on the asserted failure of the adjudicator further to adjourn the disciplinary hearing is predicated on an incomplete factual basis.  As noted above, at paragraph [19], the petitioner was granted an adjournment in order to seek the attendance of the two SPSO witnesses.  The petitioner himself wrote to the SPSO on 9 August and mentioned that his agents would be in touch and might wish to precognose the two witnesses.  The petitioner’s agents thereafter wrote to the SPSO.  The SPSO’s reply, unhelpful to the petitioner, is noted above at paragraph [23].

[78]      It must also be noted that the assertion in paragraph 29 of the petitioner’s revised note of argument (the first passage highlighted in bold) is factually incorrect.  So far as appears from the documentation placed before the court, the petitioner’s agents did not seek to precognosce the SPSO witnesses.  They confined themselves to requesting that these witnesses attend, no doubt with a view to minimising the legal fees that the petitioner might incur to his agents for their involvement. It should also be noted that no basis was offered to the court at the first hearing to support the “expectation” referred to at the end of paragraph 29 of the revised note of argument (nor was the case there referred to placed before the court).  It is surprising that in the 15 months between the events referred to and the first hearing in this petition no steps appear to have been taken to ascertain from the two SPSO witnesses whether they would have been prepared to attend or to provide statements and, if so, what their evidence would have been.  The manner in which it is set out at the end of paragraph [29] in the note of argument is speculative, at best.

[79]      What then of this newly-contended for obligation on the part of the SPS to ask for or to “facilitate” or “procure” attendance of non-SPS witnesses, as asserted in paragraphs 26 and 28 of the revised note of argument?  The petitioner’s counsel did not offer any analysis of the Rules, or of any particular provision of them, to support the assertion made at the end of paragraph 26 of his revised note of argument (and which I have highlighted above).  Having regard to the character of the disciplinary procedure and the purpose and terms of the Rules, discussed at paragraph [46] above, there is no discernible basis for the petitioner’s legal argument that the Rules must be interpreted as requiring the SPS to procure or facilitate the attendance of non‑SPS witnesses.  Turning to the specific context, as noted in the commentary on the charge forms, and as is apparent from the Rules, the SPS have no power to compel the attendance at an internal disciplinary hearing of a witness who is not their employee.  This is stated in terms in the ADJ2 form, quoted above at paragraph [10].  Accordingly, there can be no legitimate expectation to support this contention.  Furthermore, the SPSO having refused the request from the petitioner’s agents, it was not explained how a request from the SPS would have been treated differently.  The only material before the court, therefore, is suggestive that any request would have been refused in like manner.  For the purposes of this argument, the petitioner is not in a position to establish the basic factual basis on which any legal duty might be predicated.  So far as the material discloses, the petitioner never disclosed to the SPS that his agents had requested the attendance of the two SPSO witnesses or that the SPSO had refused this.  It is symptomatic of the approach taken by the petitioner’s counsel to contend for imposition of certain general legal duties in the abstract but without relating them to the actual facts in the case.  As a matter of the facts in this case, once they are considered, it would appear that the petitioner never asked the SPS to assist in the manner in which it is now contended they were under a legal duty to do.  In the circumstances of this case, this is an untenable ground of complaint and one which the pleader appears to have been content to advance in disregard of the complete or correct (and readily ascertainable) factual position.  

[80]      This argument might be tested in another way:  did fairness require nothing less than the attendance of two SPSO witnesses in person (the implicit basis of this aspect of the petitioner’s case), or would statements from the two SPSO witnesses have sufficed?  In answering this question it may be relevant to consider by whom or for what purpose a witness is called.  It may well be the case, if there is a dispute as to what happened or there were to be challenges to credibility, that a prisoner would wish to have the witnesses against him give their evidence orally at the disciplinary hearing so that they could be challenged and cross‑examined.  However, that form of challenge is unlikely to be made in respect of witnesses called by the prisoner.  This is by reason of the semi-inquisitorial character of the disciplinary hearings.  There is no “prosecutor” who would have an interest in challenging the evidence of witnesses called by a prisoner.  The role of the adjudicator is more inquisitorial, and is to receive and consider this evidence, together with all other relevant evidence.  Even had the SPS been aware at the material time of the SPSO’s refusal of the petitioner’s request, fairness did not require the SPS to do more in relation to the attendance of the two SPSO witnesses.  

[81]      In the whole circumstances, I refuse to find as a matter of law that any obligation such as contended for in oral submissions arose, and where, on the facts, the petitioner never advised the SPS of the SPSO’s response and, more fundamentally, where other more pragmatic and achievable steps were possible but were not pursued.  This ground of challenge fails.  

 

(iii)       non-adjournment
[82]      At several points the SPS are criticised for failing to grant adjournments (or more properly, having regard to the chronology set out above, further adjournments).  For example, at paragraph 30 of the revised note of argument it is argued (albeit not readily foreshadowed in the petition itself) that:

“In the circumstances of [the first charge] no reasonable Governor could have been satisfied that the petitioner had ‘… had sufficient time to prepare his or her case before commencing the disciplinary hearing’ (the test within rule 113(3)).  There had been a very limited amount of time available to the petitioner since permission to call the SPSO witnesses had been granted.  This petition for judicial review had been presented on the Friday before the Monday hearing, highlighting the difficulties that existed.”

 

Decision on non‑adjournment
[83]      This bears to relate to the first charge.  However, the petitioner was granted an adjournment on 13 August 2014 for the purpose of obtaining the evidence of the two SPSO witnesses.  He was told by letter the next day that he would have until 25 August to do so.  Accordingly, the contention in the second sentence of this paragraph of the petitioner’s revised note of argument does not accord with the facts, insofar as these may be taken from the documents placed before the court.  It is difficult to make any sense of the final sentence.  Implicit in this whole passage is the assumption that there was some further irregularity or unfairness on the part of the respondents in not further adjourning the disciplinary hearing of 25 August.  However, an adjournment is not granted for its own sake or simply because a prisoner requests this.  By this point in time the petitioner had had a total of 12 days to consider securing the evidence of the two SPSO witnesses.  He had known by 13 August that he had 9 days in which to seek this evidence in one form or another.  Having regard to the expedition with which disciplinary proceedings are to be conducted, this was a more than adequate period to enable the petitioner to seek to secure the evidence of the two SPSO witnesses by one means or another.  

[84]      Against the background I have set out, I find that there was no irregularity or procedural unfairness, as contended for by the petitioner, in refusing to grant a further adjournment for the purpose of securing the attendance of the SPSO witnesses.  I address the argument about a further failure to adjourn for legal representation below, at paragraph [105], and which is the subject of the fourth ground of challenge.

 

Ground 2:  Was there any procedurally irregularity by reason of requiring the petitioner’s questions in cross to be put through the adjudicating officer (statement 28)

 

            The petitioner’s counsel’s presentation of this issue

 

[85]      Statement 29 of the petition is in the following terms. (I have highlighted in bold those passages that relate to this ground of challenge.): 

“That the procedure adopted at the disciplinary hearing, reference ED/1230/14, dated 25 August 2014 was irregular.  Prison Rule 113(3) states that a ‘…Governor must be satisfied that the prisoner has had sufficient time to prepare his or her case before commencing the disciplinary hearing’.  Prison Rule 113(7) provides that the adjudicating officer ‘… must … (b) allow the prisoner the opportunity to present his or her case; (c) allow the prisoner the opportunity to call witnesses where permitted to do so under paragraph (8); and (d) … allow the prisoner to cross-examine any other witnesses.’  Prison Rule 113(8) provides ‘… the prisoner may request that a witness be called and this request must be granted by the Governor where the Governor is reasonably satisfied that the evidence the witness is likely to give will be relevant to the determination of the charge.’  The petitioner was not permitted to cross-examine the witnesses at the disciplinary hearing.  Rather his questions were put to witnesses through the adjudicating officer.  That procedure did not satisfy the terms of Prison Rule 113(7).  Separatim, the petitioner requested that witnesses from the SPSO be called as condescended upon above.  The adjudicating officer purported to allow that request but attached conditions to it.  There is no provision for an officer to attach conditions to calling a witness.  In terms of the scheme of the Rules the petitioner requested those witnesses to be called and the Governor granted the request for those witnesses to be called.  It was the responsibility of the Governor at the hearing to call witnesses that had been permitted by him to be called.  Esto it was not the responsibility of the Governor in any event took no steps to facilitate their attendance.  Separatim, as condescended upon above, the respondents restricted the petitioner’s ability to call those persons as witnesses through the punishment imposed for the breach of discipline ref ED/1236/14.  In circumstances no reasonable Governor could have been satisfied that the petitioner had ‘… had sufficient time to prepare his or her case before commencing the disciplinary hearing’.  In all the circumstances the procedure adopted at the hearing was irregular.  In all the circumstances the procedure adopted at the hearing was unfair.  Admitted that the case was adjourned until the 12th August 2014 at the petitioner’s request.  Admitted that the hearing was reconvened on the 12th August 2014, that the matter was allocated to be determined by Mr Marshall and that it was adjourned to the following day.  Admitted that the petitioner had sent written submission to Scottish Prison Service Headquarters and the hearing on 13 the August 2014 was adjourned to obtain a copy from Headquarters.  Admitted that the hearing was reconvened and then adjourned.  Admitted that on the 14th August 2014 the petitioner was written to by the respondents giving him 6 working days to arrange for his witnesses to attend and 4 working days to provide reasons for further witnesses.  Admitted that on the 25th August 2014 the hearing was reconvened at 10.25 hours.  Admitted that the petitioner requested a further adjournment to precognosce and call as witnesses staff from the SPSO.  Admitted that that request was refused.  Admitted that at each hearing the petitioner requested that the hearing be videotaped and these requests were refused. Admitted that the petitioner had access to his wages account from which he could have purchased stamps”. 

 

This issue is also referred to at paragraphs [22] and [23] in the petitioner’s revised note of argument, as follows:

“[22]    Prison Rule 113(7) provides:

 

‘At the disciplinary hearing, the Governor must—

 

(c) allow the prisoner the opportunity to call witnesses where permitted to do so... and

 

(d) subject to (provisions that are not relevant), allow the prisoner to cross-examine any other (other witnesses.’

 

[23] In both disciplinary hearings the petitioner was not permitted to ask witnesses questions. Questions were conveyed to the adjudicator who then asked questions. That is not the procedure provided for in the Rules”

 

[86]      It was argued before me that, as there was no express provision in the Rules enabling the adjudicator to ask that questions by a prisoner be put through him, the procedure adopted was irregular.  For that reason, it was argued, it was also unfair.  No separate argument or factor was identified as to why any irregularity (as asserted) resulted in unfairness.  Again, this may be because the petitioner’s contention was that the irregularity was such that “there is no need to go on to consider the separate issue of fairness”:  paragraph 19 of the petitioner’s revised note of argument.  

 

            Clarification of the procedure actually followed for questions put by the petitioner

[87]      In response to a question from the court, the petitioner’s counsel accepted that the petitioner was able to put every question he wished to put.  He had not been stopped from asking any question.  The impression left was of the petitioner asking a question, and the adjudicating officer repeating this to the witness, with the answer being repeated back in reverse order.  While cumbersome, it might well be that such a procedure minimises confrontational aspects of questions or might be of assistance to less articulate prisoners.  Such a procedure might have the potential to become problematic if that process resulted in the evidence elicited being materially influenced or diluted.  However, that was not the case here.  In respect of this matter, the respondents clarified what had taken place.  The impression given by the petitioner’s counsel’s submissions was not correct.  No question had been restated by the adjudicator:  As it was explained by the respondents:

“The petitioner did cross-examine witnesses, he did so by directing – as requested – his questions in cross examination through the chair. In particular the petitioner directed his questions to the chair, those questions were heard by the witness, answered by them, were not repeated by the chair and thus not subject to dilution, modification or interpretation.”

 

The petitioner’s counsel did not contradict or challenge this as factually incorrect or incomplete in any respect.

 

            Respondents’ reply

[88]      The respondents argued that the procedure followed was consistent with the Guidance and which was available to prisoners before taking part in any disciplinary hearing:  see the Guidance quoted at paragraph [53] above.  Rule 113 should not be read in isolation but alongside the policy giving it practical content within a prison disciplinary environment.  This is because, it was argued, “in matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance”: per Lord Mance in Bloomsbury International Limited v Department for Environment, Food and Rural Affairs [2011] UKSC 25 at 10.  What was provided for in the Guidance did not run contrary to the requirement of rule 113 which has, as its purpose, a substantive safeguard to permit prisoners accused of infractions to challenge witnesses against them.  The ability of the petitioner to do so was unaffected by the procedure adopted.  The procedure adopted did not run contrary to the rule as a matter of substance or form.  In any event, an adjudicator presiding over a disciplinary hearing was entitled to regulate the procedure before him or her in this way. 

[89]      As a fall‑back the respondents argued that if prison rule 113(7) had not been strictly or formally complied with, there had been substantive compliance having regard to the context.  The court should not reduce a decision if there has been a failure to follow a rule that makes no substantive difference.  In support of this reference was made to the observation of Lord Justice Hughes in R (on the application of Garland) v Secretary of State for Justice [2011] EWCA Civ 1335 [2012] WLR 1879 at paragraph [25], where he said: 

“I conclude that Parliament did not intend that any non-compliance with this rule, however minimal and however devoid of prejudicial effect, should render invalid everything which follows. That is not to say that the prison authorities are able to treat the rule as an empty vessel. If a charge is laid outside the 48-hour period it is at peril of being struck down, by means of the Governor or adjudicator dismissing it, or, in the last resort, by the court quashing any adjudication. Those consequences should certainly follow if the prisoner has been occasioned any prejudice by the delay. They may also follow if there is simply no excuse for unwarranted delay. These are intended to be summary and largely inquisitorial proceedings, and it is clearly intended that they should be concluded speedily.”

 

[90]      The question the court is required to answer in addressing a breach of procedure (though none was conceded here) is whether the breach is material and whether failure to comply with the rule should vitiate the entirety of the decision having regard to the aim of the process and the purpose of the provision:  R v Soneji [2006] 1 AC 340.  It was plain, it was argued, that the purpose of the provision had been achieved and the alleged failure did not justify reduction of the determination of the charges.  The application of prison rule 113(7), by channeling questions through the adjudicating officer, did not give rise to prejudice or unfairness.

 

Decision on ground 2
[91]      I do not accept that the procedure followed in the manner of questioning was irregular or was in breach of rule 113(7), as contended by the petitioner.  It was accepted by the petitioner’s counsel that the petitioner had not been precluded in any way from asking any questions in cross‑examination.  On the facts, once clarified, there was no question of dilution or modification of the evidence the petitioner sought to be elicited.  There is no evidence to suggest that the petitioner was deflected in any way in his cross‑examination. The petitioner’s counsel conceded that this ground of challenge was “formal”.  He nonetheless did not seek to demonstrate that this “formal” breach, so his argument went, resulted in any unfairness or would have had led to any practical difference at the hearing.  I have no hesitation in preferring the arguments advanced by the respondents.   

[92]      This ground of challenge fails.

 

Ground 3:  Whether rule 113(9) of the Rules was ultra vires

The petitioner’s argument
[93]      Rule 113(9) provides as follows:

“The Governor may, on the application of a prisoner, permit the prisoner to be represented at the hearing by a legal adviser where in exceptional circumstances the Governor considers such representation is necessary or desirable.

 

[94]      This aspect of the petitioner’s case is set out in statements 26 and 27 of the petition, which are in the following terms:

“26.  That fairness in terms of the ECHR may require a prisoner be legally represented at a disciplinary hearing.  As condescended upon above, articles 6, 8 and article 1, protocol 1 of the ECHR require a fair procedure.  Accordingly the Prison Rules should be interpreted as permitting legal representation if that is required for a fair hearing notwithstanding the requirement for exceptional circumstances in the Prison Rules.  Esto the test of exceptional circumstances cannot be read to permit legal representation when necessary for a fair hearing then the Prison Rules are to that extent a breach of the petitioners rights and so unlawful.  As they are unlawful they should be reduced to the extent necessary to remedy that unfairness.

 

27.  That the test for legal representation at disciplinary hearing is unlawful.  A test of exceptional circumstances in the present case is an interference with the petitioners convention rights.  Such a test does not permit the necessary proportionality assessment to be undertaken and is so unlawful.  ‘Exceptionality’ is too high a test to afford a proper balanceto be struck between the competing rights involved.  Dickson v. the United Kingdom (2008) 46 EHRR 41, paragraph 82.  Moreover, ‘exceptional circumstances’ is not a proper legal test.  (G v Mental Health Tribunal for Scotland 2014 SLT 247, paragraph 54).  Without reference to a criterion to gauge exceptionality the test is lacking legal precision or certainty.  The provision does not indicate with sufficient clarity the scope of the discretion conferred on the respondents and the manner of its exercise.  It does not provide sufficient safeguards against arbitrariness.  In the absence of legal precision or certainty the interference with the petitioner’s rights lacks the necessary quality of law required by the ECHR and so it unlawful (Reference is made to Gillan v the United Kingdom (2010) 50 EHRR 45, paragraphs 76-87).  The Prison Rules are secondary legislation signed by a member of the Scottish Ministers.  On the hypothesis that the Prison Rules are a breach of the petitioner’s convention rights they are ultra vires the Scottish Ministers.  If the Rules are ultra vires they are not law.  If the Rules are not law they should be reduced to the extent necessary to remedy the breach of the convention.” (Emphasis added.)

 

[95]      This was amplified in the petitioner’s revised note of argument, as follows:

“12.      Legal representation requires to be granted if fairness requires it - as much can be seen in R (Tarrant) v Secretary of State for the Home Department 1985 QB 581.

 

Prison Rule

 

13.       The test for legal representation set out in the Rules at orderly room hearings is:

 

‘113 (9) The Governor may, on the application of a prisoner, permit the prisoner to be represented at the hearing by a legal adviser where in exceptional circumstances the Governor considers such representation is necessary or desirable.’

 

Prison Rule: fairness

 

14.       As a matter of law that should be interpreted to mean that representation will be permitted if fairness requires it. The test that is provided for in the Prison Rules is not the same as one of fairness but it should be and the Rules should be interpreted in that way (a declarator to that effect is sought). Fairness requires that as a matter both of domestic and ECHR law.

 

15.       If the test cannot be interpreted to be a test of fairness then the Prison Rule is fundamentally flawed and should be partially reduced either at common law (as in R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219) or in terms of the ECHR (as being incompatible with the petitioner's convention rights that mandate fairness).”

 

[96]      Trying to put the matter shortly, the petitioner argued that the test for legal representation in rule 113(9) was that of “exceptionality”.  Under reference to G v Mental Health Tribunal for Scotland 2014 SLT 247 (at paragraph [54]), it was argued that ”exceptional circumstances” is not a proper legal test.  In that case, Lord Reed had stated that “…’exceptional circumstances’ cannot be a legal test: circumstances can be described as exceptional only by reference to a criterion, rather than exceptionality being a criterion in itself”.  Accordingly, rule 113(9) was contrary to law and, to that extent, should be reduced.  It was also contended that a test of exceptional circumstances in the present case was an interference with the petitioner’s Convention Rights.  Such a test, it was argued, did not permit the necessary proportionality assessment to be undertaken and so is unlawful.  “Exceptionality” was said to be too high a test to afford a proper balance to be struck between the competing rights involved:  Dickson v the United Kingdom (2008) 46 EHRR 41, paragraph 82.  

[97]      Further, it was argued that in the absence of a criterion to gauge “exceptionality”, the test in rule 113(9) was lacking in legal precision or certainty.  Rule 113(9) did not indicate with sufficient clarity the scope of the discretion conferred on the respondents and the manner of its exercise.  It did not provide sufficient safeguards against arbitrariness.  In the absence of legal precision or certainty the interference with the petitioner's rights lacks the necessary quality of law required by the ECHR and so is unlawful:  Gillan v the United Kingdom (2010) 50 EHRR 45, at paragraphs 76‑87.  It was also argued that the qualification that the Governor should consider it “necessary or desirable” provided no greater precision or certainty.

[98]      If an exceptionality test is objectionable in terms of the ECHR, then the prison rule should be partially reduced in order to remedy that difficulty. 

 

            The respondents’ reply

[99]      In responding to this argument the respondents pointed out that, the test in rule 113(9) was whether it is “necessary or desirable” to allow legal representation at a disciplinary hearing.  Looking at the matter generally, it was argued that the rule is not unlawful.  Reference was made to G v Mental Health Tribunal 2014 SLT 247 at 54.  In relation to the petitioner’s reliance on Dickson, it appeared that the petitioner sought to establish the applicability of article 6 in order to establish a narrow proposition ‑ said to arise from Dickson ‑ that a test of exceptionality is inimical to conducting a proportionality exercise.  However, it was argued that Dickson did not establish such a proposition.  It had to be read in its context:  see paragraph [13] thereof.

[100]    Having regard to the overall scheme of prison discipline (and notably the absence of a punishment that involves an extension of detention), it was argued that it will be the exception that representation will be necessary or desirable:  see Lord Goff in Reg v Maze Visitors Ex. P. Hone (House of Lords) [1988] 1 AC 379 (“Hone”) at 392.  Having observed that the jurisdiction of a prison Governor was of a “summary nature, and should properly be exercised with great expedition”, Lord Goff stated that: ‘In the nature of things, it is difficult to imagine that the Rules of natural justice would ever require legal representation before the Governor.”  The petitioner was therefore misconceived in his proposition that the test in rule 113(9) is one of “exceptionality”.  

[101]    In any event, whether legal representation was “necessary or desirable” was plainly the test that was actually applied in the resolution of the petitioner’s case having regard to the lack of legal or other complexity inherent in the charge:  see the record of inquiry into the second charge (no 7/6 of process at continuation sheet page 3, quoted above at paragraph [34]).  It is apparent from a fair reading of that passage that the decision of the adjudicating officer was not periled on a test of exceptionality.  In these circumstances, it was argued, the petitioner’s vires argument was academic and had no bearing on the actual determination about legal representation made in this case.  

 

Decision on ground 3
[102]    On the material before me, I accept that the respondents did not apply a test of “exceptionality”.  I begin by noting that the commentary to question 6 of the “due process” form (ADJ2, quoted above, at paragraph [12]) states that the Governor must be satisfied that representation by a legal advisor is “necessary or desirable”.  This directs the decision-taker to this test, not one of “exceptionality”.  Furthermore, on a fair reading of the exchange between the petitioner and the adjudicator conducting the reconvened hearing on 11 August 2014 on the second charge, it is also clear that the refusal of the petitioner’s request for legal representation was not based on any test of “exceptionality”.  Nor was this done peremptorily.  The adjudicator asked the petitioner a number of times his reasons for this request and, in particular, whether there was any point of law or complexity in question.  Apart from the petitioner stating that the outcome could impact on his management and provision, which the adjudicator accepted, the petitioner was unable to state any point of law or complexity.  In the light of those exchanges, and in the context where the commentary to the “due process” questions gone through on each occasion directed the adjudicator to the correct test, I reject the contention that the SPS applied a test of exceptionality in their determination of this request.

[103]    In the light of that finding, the argument that rule 113(9) of the Rules contained a test of “exceptionality” and was ultra vires or contravened any unspecified Convention Right of the petitioner is academic.  On the facts of the case, that was not the approach applied.  In any event, I accept the respondents’ submissions as to the proper interpretation of rule 113(9). 

[104]    Rule 113(9) provides that:

“The Governor may, on the application of a prisoner, permit the prisoner to be represented at the hearing by a legal adviser where in exceptional circumstances the Governor considers such representation is necessary or desirable.”

 

I start by considering the language of rule 113(9): it expressly directs legal representation may be permitted upon a consideration of whether “such representation is necessary or desirable”.  It does not impose a test of exceptionality.  Construing this rule in the context of the Rules, the phrase “in exceptional circumstances” is to be read as a reference to the likelihood of the circumstances occurring and making representation “necessary or desirable”.  As noted above, the Rules are designed for the expeditious determination of charges of indiscipline.  The procedure the Rules set out enables the practical participation of the prisoner.  The prisoner’s effective participation is further facilitated by the “due process” questions gone through at each hearing.  In the vast majority of cases, any determination of a factual matter is likely to be a short, sharp issue.  This is the import of the observation by Lord Goff in Hone, cited above, at paragraph [100].  The age of that case does not diminish the force of those observations.  These features may well mean that it will only be in the rare or exceptional case that legal representation will be either necessary or desirable.  This is not the same as imposing a test of “exceptionality”.  As the petitioner’s further arguments based on the Strasbourg jurisprudence were predicated on an interpretation of rule 113(9) that I have rejected, it is not necessary to address those cases.  In any event, the petitioner has not advanced a relevant basis to engage any Convention Right.  For these reasons, the petitioner’s vires argument is misconceived.  This ground of the petitioner’s challenge fails. 

 

Ground of challenge 4:  Whether refusal of adjournment for legal representation was unfair
[105]    As noted above, to the extent that the Rules apply a test of “exceptionality” the petitioner challenges the vires of the Rules.  I have already determined that issue.  While the petitioner appears separately to argue that it was procedurally unfair not to be afforded legal representation (or, more accurately, not to be afforded a further adjournment for that purpose), the averments of these are bound up with the vires challenge.  Statements 26 and 27 of the petition have been set out above.  In statement 25 of the petition the following is advanced: 

That fairness in terms of the domestic law may require a prisoner be legally represented at a disciplinary hearing.  If legal representation is required for a fair hearing then it should be permitted notwithstanding the requirement for exceptional circumstances in the Prison Rules.  The Prison Rules should be so interpreted as a matter of domestic law.  Esto the test of exceptional circumstances cannot be read to permit legal representation when necessary for a fair hearing then the Prison Rules are inherently flawed.  In those circumstances the Prison Rules embody a procedural unfairness and should be reduced to the extent necessary to remedy that unfairness.  In those circumstances there would be a systemic risk of unfairness.  Reference is made to R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219.  Admitted that there is no right to representation in terms of the prison rules.  The authorities referred to by the respondents are referred to for their full terms beyond which no admission is made.  Quoad ultra the respondents’ answers are denied save insofar as coinciding herewith.” (Emphasis added.)

 

[106]    In the revised note of argument this argument was first framed in terms of several arguments available under the ECHR, though it is accepted that this “may not add a great deal ultimately”:  paragraph 8 of the revised note of argument.  There then follows the vires challenge to rule 113(9) of the Rules on the basis that it entails an “exceptionality” test.  At a later point, the petitioner returns to the unfairness argument in his revised note of argument. In particular, at paragraphs 45ff the following is set out:

Legal representation: disrespectful conduct charge (ref ED/1230/14)

 

45.       The proper extent of the charge against the petitioner and any defence he may have was not clear.

 

46.       It was not clear what the mens rea of the offence was.

 

47.       It was not clear what amounted to ‘disrespect’.

 

48.       It was not clear if a defence based upon qualified privilege, article 10 of the ECHR or some other basis is available to the petitioner. It would clearly have a ‘chilling’ effect on the prisons complaints process if prisoners were to be liable for disrespectful conduct for statements made within that process.

 

49.       The petitioner was entitled to fair notice of the conduct alleged against him. The charge was lacking in specification (production 7/1). The charge against the petitioner did not specify the manner in which the petitioner was disrespectful. The degree of specification necessary in a disciplinary charge will vary depending upon the circumstances of the case.

 

50.       In the present case the petitioner was entitled to express concern about [KB]. He sought to draw the ICC’s attention to the recent decision from the SPSO.

 

51.       The respondents were called upon to produce any ‘standards of behaviour’ documents that have been promulgated by them and have failed to do so. (Paragraph 32 of the petition)

 

52.       The issues involved were complex and merited the involvement of a legal representative.

 

Legal representation: threatening conduct charge (ref ED/1236/14)

 

53.       The petitioner was entitled to fair notice of the conduct alleged against him. The charge was lacking in specification (production 7/4).

 

54.       There was a clear personal involvement between the petitioner and the prison officers involved. Such personal involvement would impair the petitioner’s ability to effectively present his case.

 

55.       The content of the allegations and defence were such that legal representation was appropriate – as in Airey v Ireland (1980) 2 EHRR 305, paragraph 24

 

56.       A finding of breach of discipline for threatening conduct is likely to impact in a particularly adverse manner upon the petitioner as the crime for which he is presently serving a sentence is murder”.

 

[107]    In respect of the first charge, it is contended that the issues were “complex”.  The petitioner’s counsel was content to leave this as a matter of assertion.  He did not seek to develop this point, or to give any explanation as to what, precisely, in the first charge was “complex”.  (At the first hearing, nothing was made of the non-production of any “standards” as referred to in paragraph 51 of the note of argument.)

[108]    While reference was made in the petition to the case of R (Refuge Legal Centre) that case was not referred to in submissions.  The only other case the petitioner’s counsel referred to was that of Airey v Ireland (1980) 2 EHRR 305.  While Airey v Ireland was referred to in oral submissions, it was not for those passages in which the Strasbourg court explained why (in the circumstances of that case) the absence of legal representation was a breach of article 6.  The only reference was to an observation of the court, at paragraph 24, regarding the stress that a party litigant in a divorce matter might face and the “emotional involvement” between the parties that might hamper a party’s objectivity.  When pressed as to whether this actually was the petitioner’s position, that he had felt impaired by reason of the “personal involvement” between him and the prison officer (KB), the petitioner’s counsel accepted that he had no precognition from the petitioner to that effect and was not aware of any such concern on the part of the petitioner.  At best, this was a hypothetical concern but not one for which there was any factual basis available to the pleader. 

[109]    In his oral submissions the petitioner’s counsel did not really expand upon the arguments contained in his revised note of argument, and which I have quoted above.  He cited no other cases in support of this ground of challenge.  

 

Reply for respondents
[110]    In reply, the respondents contended that the petitioner’s claim that denial of legal representation was unfair is misconceived.  The petitioner’s argument failed to have regard to the context.  The context was the conduct of summary administrative disciplinary hearings in prisons, and which eschewed the formalities of a court.  Further, the disciplinary charges could only give rise to the limited and minor punishments described in prison rule 114.  Correspondingly with the relatively minor character of the punishments, discipline should be resolved expeditiously. Reference was made to the observation of Lord Goff in Reg v Maze Visitors ex. p. Hone (House of Lords) [1988] 1 AC 379 at 392 B, and which I have set out above at paragraph [100], above.

[111]    Turning to the Rules, it was argued under reference to rule 112(2)(b) (namely, that a charge must be brought within 48 hours of the discovery of the charge) and to rule 133 (that the charge must be heard the next day), that there was built into the system of disciplinary procedure a clear desire that the process will be resolved very quickly and within two to three days.  The desirability for expeditious resolution of disciplinary matters was recognised in domestic cases (see, e.g., Tangney v Governor of HMP Elmley [2005] HRLR 36 at paragraph 15) and by the Strasbourg court (see, e.g.  Campbell and Fell v UK (1985) 7 EHRR 165 at paragraph 69).  The disciplinary process brought into focus in this petition should be considered in this context. 

[112]    The respondents acknowledged that there may be circumstances where legal representation may be necessary or desirable.  Reference was made to the observations of Lord Woolf CJ at paragraph 56 in R (on the application of Al-Hasan) v Secretary of State for the Home Department [2002] 1WLR 545, and quoted with approval by Lord Justice Scott Baker in Tangney v The Governor of HMP Elmley and Others [2005] HRLR 1220 at paragraph 43: 

“…56 It is recognised that a prisoner can required to be legally advised and in a limited category of cases to be represented ( Ex p Tarrant [1985] QB 251 ). The degree of protection which the courts will require for the prisoner increases with the gravity of the offence and the complexity of the proceedings. However, the court has to recognise the need within a prison environment to maintain discipline by having a reasonably expeditious process for dealing with disciplinary offences. In the case of both sets of the appeals we have the impression that the proceedings were being conducted generally in a fair manner and if the court is to interfere with the decisions which were reached on the grounds of fairness, this will depend on the specific criticisms made of the adjudication process as applied to the facts of the particular appeal.”

 

However, subject to rule 113(9), there was no right to representation before an adjudicator.  Reference was made to R v Secretary of State for the Home Department ex parte Tarrant [1984] 2 WLR 613 at 285.  In Tarrant the court considered factors that may inform the discretionary decision to allow representation in the English context.  It identified the expedition of proceedings and legal complexity to be important factors to be weighed when determining whether representation was appropriate.  This aspect of Tarrant had been the subject of subsequent favourable judicial comment in R v Maze Visitors ex p Hone, cit. supra. 

[113]    In the context of summary disciplinary charges that cannot give rise to an extension of detention, it was argued that it was difficult to imagine that fairness, or the rules of natural justice, would ever require legal representation.  For that reason, it was accurate to describe the provision of representation for prisoners before a disciplinary hearing as the exception, having regard to the range of disposals available to the adjudicator.  In support of this, reference was made to Lord Goff in Hone (at page 392B-G), where he stated:   

“Each, both Governor and board of visitors, is exercising a disciplinary jurisdiction; and, as the Rules of 1982 clearly demonstrate, each may do so in respect of offences against discipline which could in law constitute criminal offences. Each must also be bound by the Rules of natural justice. The difference between them is not so much a legal as a practical difference. The jurisdiction exercised by the Governor is of a more summary nature, and should properly be exercised with great expedition; furthermore the punishments which he can award are limited to those set out in rule 32 of the Rules of 1982, though he can refer the matter to the Secretary of State (and, through him, to a board of visitors) under rule 33(1)(e) if he considers that it may be desirable that a more severe punishment should be awarded. In the nature of things, it is difficult to imagine that the Rules of natural justice would ever require legal representation before the Governor. But though the Rules of natural justice may require legal representation before a board of visitors, I can see no basis for Mr. Hill's submission that they should do so in every case as of right. Everything must depend on the circumstances of the particular case, as is amply demonstrated by the circumstances so carefully listed by Webster J. in Reg. v. Secretary of State for the Home Department, Ex parte Tarrant [1985] Q.B. 251 as matters which boards of visitors should take into account. But it is easy to envisage circumstances in which the Rules of natural justice do not call for representation, even though the disciplinary charge relates to a matter which constitutes in law a crime, as may well happen in the case of a simple assault where no question of law arises, and where the prisoner charged is capable of presenting his own case. To hold otherwise would result in wholly unnecessary delays in many cases, to the detriment of all concerned including the prisoner charged, and to wholly unnecessary waste of time and money, contrary to the public interest. Indeed, to hold otherwise would not only cause injustice to prisoners; it would also lead to an adventitious distinction being drawn between disciplinary offences which happen also to be crimes and those which happen not to be so, for the punishments liable to be imposed do not depend upon any such distinction.”

 

[114]    Turning to the facts of this case, it was pointed out that the petitioner was given an opportunity to obtain legal advice.  That was a benefit extended to him.  The petitioner did not, even with the benefit of that legal advice, identify any legal complexity requiring legal representation.  The charges were not legally complex.  The petitioner was familiar and deft at the process of internal complaints.  He was literate and authored detailed and complex written submissions:  reference was made to his submissions at 6/2, 6/3, 6/4 and 6/5 of process (set out in paragraphs [8], [16], [18] and [33], above).  He had the ability to understand the charges and to respond to them.  Both charges related to minor incidents of prison discipline and were straightforward.  They fall within the category identified by Lord Goff (such as a simple assault) not requiring legal representation. 

 

Decision on ground 4

[115]    At heart, on this issue, the principal proposition advanced on behalf of the petitioner was as follows:  if fairness required it, legal representation should be allowed.  There was no development of that proposition by reference to the case-law or to the circumstances obtaining (as disclosed in the documentation).  The argument on behalf of the petitioner never extended beyond an assertion that certain features were “unfair”.  There was no attempt to relate that in any meaningful way to the circumstances of the case or to explain what features rendered it “unfair” for legal representation to be denied. Indeed, the principal proposition was expressed at such a level of generality as to be without real content.  It was also advanced in apparent disregard of the many observations in the case-law that any assessment of unfairness is fact sensitive.  For example, in Hone, a case which specifically addressed whether there had been a breach of natural justice arising from the denial of legal representation to prisoners appearing before a board of visitors on a disciplinary charge, Lord Goff stated that:  

“Everything must depend on the circumstances of the particular case, as is amply demonstrated by the circumstances so carefully listed by Webster J in Reg. v Secretary of State for the Home Department, Ex. p. Tarrant [1985 QB 215”.

 

In Tarrant, one of the arguments Webster J considered was whether the prison authorities had a discretion to allow legal representation.  In holding that they did, he listed, non‑exhaustively, the factors that would be likely to inform this discretion.  These factors (“the Tarrant factors”) included:  (1) the seriousness of the charge and the potential penalty;  (2) whether any points of law are likely to arise;  (3) the capacity of a particular prisoner to present his own case;  (4) procedural difficulties (one instance was the possible ineffectiveness of cross‑examination);  (5)  the need for reasonable speed in making an adjudication;  and (6)  the need for fairness as between prisoners and as between prisoners and prison officers.  Given Lord Goff’s commendation of the Tarrant factors, I turn to consider the application of those factors to the circumstances of this case.

[116]    In relation to (1) of the Tarrant factors, the charges were at the lowest level of conduct constituting misconduct and the penalties imposed were minor.  The petitioner’s counsel did not engage with the Tarrant factors or frame his argument in relation to them.   However, there is one matter that might nonetheless be relevant to this factor.  This concerned what is stated toward the end of statement 13 of the petition.  The substance of this is also repeated at paragraphs 38 to 40 of the revised note of argument.  It is explained that any disciplinary finding will be recorded in the petitioner’s prison record.  Regard could be had to such a finding by the Parole Board or in any psychological risk assessment.  This could affect the petitioner’s progression through the prison estate. While this might be the case in respect of any prisoner whose detention might be susceptible to consideration by the Parole Board, it was also explained that the petitioner was subject to Integrated Case Management (“ICM”) ‑ as, indeed, were all life prisoners.  At an ICM case conference on 17 June 2014, it was concluded that the petitioner should remain “report free”. 

[117]    In their reply, the respondents explained that the stipulation was that the petitioner remain report free for the three months prior to the ICM meeting at which the petitioner might be considered for progression to less secure conditions.  The petitioner was not eligible to be considered before December 2015.  Accordingly, he simply required to be “report free” between September and December 2015.  The determinations of the charges would be of little significance by the time the petitioner was eligible for progression.  More fundamentally, however, the respondents argued that the prospects for progression were limited having regard to the fact that the petitioner refuses to admit his guilt for the index offences, he does not co‑operate by taking part in courses designed to prepare him for progression and he does not participate in ICM meetings.  Accordingly, any finding in respect of the two charges pales into insignificance. 

[118]    I accept the respondents’ explanation of how the petitioner might progress through the prison system.  The petitioner’s counsel did not demur from this further explanation.  Notwithstanding the petitioner’s concern about the apprehended impact of the findings of breaches of discipline in terms of the charges, I accept the respondents’ argument that these are insignificant in their potential impact, having regard to the other matters to which the prison authorities will have regard when they come to consider the petitioner’s progress.  The outcome of the two charges does not, in my view, weigh heavily for the purposes of the first of the Tarrant factors. 

[119]    In relation to (2) of the Tarrant factors, the charges were straightforward and no issue of law arose.  In any event, by the time of the adjourned discipline hearing of the 18 August on the second charge, the petitioner had already been granted an adjournment (at the disciplinary hearing on 11 August) in order to take legal advice.  No complaint about lack of legal representation is made in relation to the first charge.  In any event, at the time when those proceedings were adjourned (on 13 August, for 12 days) the petitioner had just secured an adjournment of the proceedings in the second charge.  While that was ostensibly in the context of one charge, nothing would have precluded the petitioner from using that opportunity to take any further advice in relation to the other charge.  As noted above, the petitioner’s counsel confirmed that the petitioner did take legal advice when afforded the opportunity to do so.  Having done so, the petitioner did not at the reconvened disciplinary hearing identify any legal complexity arising in relation to the charges.  (Nor, indeed, did the petitioner’s counsel.)  In relation to number (3) of the Tarrant factors, I accept the respondents’ submission that the petitioner is intelligent and articulate.  The petitioner does author cogent submissions, as is apparent from those quoted in this opinion.  All of these features militate in favour of factor (5), being the need for expedition in the disposal of disciplinary charges. 

[120]    It is in the context of factor (4), being procedural difficulties, that any inadequate specification of the charges might fall to be considered.  In respect of both charges, it was again asserted that these charges lacked adequate specification but this was now prayed in aid in support of the argument about the need for legal representation.  (See paragraphs 47 and 49 of the petitioner’s revised note of argument in respect of the first charge and paragraphs 53 in respect of the second, set out in paragraph [106] above).  As I have held that the charges (especially read together with the supporting statements) provided more than adequate specification, the services of a lawyer would not be needed to assist on that issue.  In the event I am wrong on that point, concern about the lack of adequate specification is something that the petitioner was well able to articulate - and indeed, did, in his written submission - and to have asked for further clarification at the hearing.  Indeed, a consideration of the submissions drafted by the petitioner, and which I have set out at paragraph [17] above, discloses that the petitioner is articulate and well able to identify the points he wishes to advance, and to advance them concisely and cogently.  Certainly, there was no telling augmentation of this ground of challenge (of inadequate specification) in the petition, in the revised note of argument or by counsel in the oral submissions before me. 

[121]    Another matter potentially relevant to factor (4) of the Tarrant factors is the issue about cross-examination.  In Tarrant, the manner in which the chairman presiding over the disciplinary hearing controlled the cross examination by the prisoner caused concern.  In that case it was found that the chairman intervened to such an extent that he did not allow the prisoner concerned a fair opportunity to question the officer.  For the reasons already explained, in determining ground 2, on the facts of this case there is no substance to this complaint considered as a free-standing complaint.  Accordingly, it adds little as part of any argument that fairness required that the petitioner be afforded legal representation at either or both of the hearings on the first and second charges. 

[122]    The reference to “qualified privilege” at paragraph 48 of the petitioner’s revised note of argument is inexplicable and was advanced on the basis that the petitioner’s freedom of expression was being curtailed in defence to a charge in a disciplinary hearing.  However, as noted above, the events that become the subject-matter of the first charge are alleged to have occurred in the context of an ICC hearing to hear the petitioner’s complaint.  They were not disciplinary proceedings against him.  The reference to qualified privilege is irrelevant.  In respect of the assertion at paragraph [50] of the note of argument, that the petitioner was entitled to “express concerns about [KB]” this appears to disregard the finding of the adjudicator.  It was principally the manner in which the petitioner conducted himself that was the gravamen of the finding against him.

[123]    Having regard to the relatively minor nature of each of the charges (even assuming regard may be had to the findings of indiscipline as part of the petitioner’s prison record), the straightforward character of the subject-matter of the allegations, the provision to the petitioner of the supporting material in advance of the hearings, and to the prolonged procedure that preceded the hearings at which each disciplinary charge was determined (and which included adjournments during which the petitioner could and did take legal advice), I do not regard the decision not to grant a further adjournment for the purpose of the petitioner seeking legal representation as constituting unfairness in any relevant sense. There was no unfairness arising from the fact that the petitioner had no legal representation at the disciplinary hearings into the two charges.  This ground of challenge fails.

 

Ground of challenge 5: the disciplinary finding of guilt relating to the second charge is wrong in law; the petitioner’s behaviour not constituting threatening conduct

            The petitioner’s position

 

[124]    This ground of challenge is directed only to the second charge.  In contrast to the other grounds, which relate to procedural matters or raises an issue of vires, this ground seeks to challenge the merits of the determination.  In particular, in statement 39 of the petition it is contended that the SPS erred in law in determining that the charge had been established beyond reasonable doubt.  Statement 39 is in the following terms:  

“39.   That the disciplinary hearing on 18 August 2014, reference ED/1236/14, erred in law in determining that the charge against the petitioner had been established beyond reasonable doubt.  The reasons for that decision disclose that the petitioner ‘threw or slid papers across the table’.  Even if the petitioner had been told not to do so, sliding papers across a table is not threatening conduct.  The reasons further indicate that in taking into account whether the A threat to take legal action is not ‘threatening’ conduct within the terms of the Prison Rules.  The adjudicating officer indicates that the petitioner ‘…acted in a threatening way by rising from his chair (without permission)…’ Rising from a chair, even without permission does not amount to threatening behaviour.  The allegation that the petitioner rose from his seat was not one that was within the charging officer’s report and was not one spoken to by any other witness.  There was no indication prior to the hearing that it was alleged that the petitioner had risen from his seat.  There was no suggestion prior to the hearing that the petitioner had lunged at anyone.  The facts apparently accepted by the hearing were insufficient in law to justify a finding.  The respondents averments in answer are denied save insofar as coinciding herewith.”  (Emphasis added).

 

[125]    Beyond an assertion that the specific actions could never amount to threatening conduct (highlighted in bold), the submission was not further developed and no reference was made to any cases.

 

            The respondents’ reply

[126]    The respondents’ began by pointing out that an adjudicator’s decision, that the petitioner’s behaviour was threatening for the purpose of rule 110 and paragraph 1(3) of the schedule, is primarily a matter of judgment, within the exclusive province of the decision -maker who saw and heard the witnesses.  Such an assessment is challengeable on rationality grounds.  Reference was made to the observation of Lord Hoffman in  Pigloswa v Piglowska 1999 1 WLR 1360, where he stated (at page 1372):  

“First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc. v. Medeva Plc. [1997] RPC 1 , 45:

 

‘The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.’

 

The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself. The reason why I have taken some time to deal with the Court of Appeal's assertion that the judge did not realise that she was entitled to exercise her own discretion is that I think it illustrates the dangers of this approach. The same is true of the claim that the district judge ‘wholly failed’ to carry out the statutory exercise of ascertaining the husband's needs.”

 

[127]    The petitioner’s challenge was essentially a complaint about the weight or assessment of the evidence.  However, the grounds for judicial review of that form of decision-taking are limited.  Subject to irrationality or Wednesbury grounds (where it can be shown that no reasonable adjudicator properly directing himself could have reached such a decision), the court is not entitled to revisit the kind of qualitative assessment under challenge.  It cannot substitute its own view.  This was trite law, as was clear, for example,  from the judicial observations that “…The question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision maker” (per Lord Mance in R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2011] 1 AC 437 (Supreme Court) at 70) or to the effect that:  “The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision maker – subject only to a challenge for irrationality.” (per Lord Brown in SSHD v AP (no. 1) [2010] UKSC 24)

[128]    Turning to the facts in this case, it was argued that each of the two adjudicators was entitled to reach the view that, in maintaining prison discipline in a prison environment, the petitioner’s conduct was contrary to the Rules in the ways specified.  The petitioner’s remarks anent Ms KB and the manner in which they were made were not analogous to questions or submissions in the course of litigation where the petitioner argues special latitude is desirable:  the petitioner’s conduct toward Ms KB arose in the course of a hearing into a complaint made by him.  Ms KB was not a witness in that process, she was not an opponent or contradictor, she was a note-taker and a member of the administrative staff.  The Rules are clearly applicable throughout the prison estate without exception.  The petitioner should be aware of the Rules regarding conduct; they are made available throughout the prison.  It was further argued that it would be undesirable for the Rules to be suspended or subject to modification during the course of an appeal against a prisoner’s complaint, which appeared to be the logic of the petitioner’s argument.  Such an approach would give rise to confusion and would compromise the purpose and effectiveness of the Rules.  It would create a deregulated area within the prison estate where discipline could not be maintained.  It is for the SPS to determine and enforce a system of internal discipline.  Their judgment should only be impugned on rationality grounds.  Further, there is nothing “chilling” about the uniform application of the Rules requiring the maintenance of discipline at an appeal against a prisoner’s complaint.  The requirement that the petitioner refrain from causing offence arose in the context of pursuing his own complaint in contrast to a disciplinary hearing where he is potentially subject to punishment.  He was not defending himself against a charge.  To reverse the position, as the petitioner invites the court to do, would be to sanction threatening and disrespectful conduct in the difficult circumstances prevailing in a prison environment and would be detriment of good order.  The court should reject this argument.

 

Decision on ground 5

[129]    I accept the correctness of the respondents’ submissions on this ground.

[130]    Leaving aside the apparently incomplete fourth sentence of statement 39 in the petition, three circumstances (sliding papers across a table, threatening legal action and rising from a chair without permission) are asserted (in effect) to be incapable of amounting to threatening conduct even in the more controlled context of a prison.  That this is the argument being made is reinforced by the penultimate sentence of that statement in the petition: that the facts accepted were ”insufficient in law” to justify a finding.  This is again an instance where the factual contentions in the petition are not consistent with the information produced to the court.  Having regard to the terms of the adjudicator’s finding on charge 2, it is clear that while there was reference in the evidence to a threat to take legal advice, that did not form part of the finding by the adjudicator as to what he found constituted threatening behaviour on the part of the petitioner. 

[131]    More fundamentally, no authority was advanced for the proposition that the two other actions could not ever, in any context, amount to threatening behaviour.  It is in my view inept simply to assert that a set of factual circumstances is incapable in law to amounting to conduct that may be covered within the Rules.  It is not suggested that there was no basis for any finding by the adjudicator of what occurred on the occasions that became the subject-matter of the first and second charge.  While presented as an “error of law”, in substance this challenge is to the adjudicator’s assessment of the material before him, and the determination that on that material it had been demonstrated that the petitioner engaged in threatening conduct.  I accept the respondents’ analysis that this really is a challenge to the qualitative assessment made by the adjudicator and that the relevant ground to challenge such a finding is on Wednesbury or irrationality grounds.  It cannot be said that the adjudicator’s determination was perverse or irrational, or without a proper factual basis.  Having regard to the character of the assessment and the context in which it was being made, it is not an available ground to invite the court to substitute its own assessment, or as here, the petitioner’s counsel’s ipse dixit, of what finding was not open to the adjudicator.

 

Ground of challenge 6:  the ICC hearing
Sequelea to the determinations of the first and second charges: ICC procedure
[132]    At statements 40 and 41 of the petition there is also recorded a challenge to an ICC hearing on 11 September 2014 and which appears to have followed the petitioner’s request for review of, or appeal against, the determinations of the first and second charges.  In the course of his submissions on this, when the first hearing resumed before me for a third day, I reminded the petitioner’s counsel that the court had to be taken to any relevant documents that had been produced.  Notwithstanding this, the petitioner’s counsel did not take me to any productions that might have related to the ICC hearing of 11 September 2014.  The petitioner did not refer to any part of the pleadings on this chapter.  Accordingly, the court was left uninformed as to what actually transpired.  The petitioner’s counsel did not refer to the Rules at all in respect of this aspect of the petitioner’s case.  There was, therefore, no submission as to (i) what the procedure was, or (ii) what the form of review or reconsideration was, and against which a submission of procedural unfairness might relevantly be assessed.  The petitioner’s counsel contented himself with reading through parts of his further revised note of argument.  In effect, what the court was treated to were several free-floating assertions of unfairness made in the abstract and without any submission either as to what happened or what should have happened. 

 

            The petitioner’s argument

[133]    Put shortly, the submission was that (i) the ICC decision was flawed because it approved the unfair and unlawful determinations of the first and second charges, and (ii) that legal representation was required at the ICC hearing on 11 September “at least to the same extent” as at the disciplinary hearings.  There is a further suggestion that the appearance of KB at that ICC hearing (regardless of the capacity in which she was present) “undermined the appearance of impartiality”.  

[134]    While I have endeavoured to set out in the first part of this opinion a full account of the procedure constituting the initiation and determination of the first and second charges (at paragraphs [4] to [38]), by reason of the manner in which this ground was advanced it is not possible to do so in relation to this aspect of the petitioner’s case.  As presented, the case was fundamentally irrelevant. 

[135]    The petitioner dealt with this in his note of argument at paragraphs 77 to 86:

“ICC decisions (Production 7/7)

 

  1. The ICC decisions essentially flow from the original hearings.

 

  1. The ICC hearing purportedly approved the unfair and unlawful original disciplinary hearing. As such it was equally unlawful and open to reduction.

 

  1. Fairness required legal representation at that hearings to at least the same extent as to the original hearing. Moreover, the hearing required to deal with the issue that there was an insufficiency in the facts apparently found against the petitioner in relation to the threatening conduct charge (7/7, page 10) – a fairly legally sophisticated issue.

 

  1. The same hearing dealt with complaints with references ED/1230/14 and ED/1236/14.

 

  1. Criticisms of [KB] were what had lead to the whole disciplinary proceedings in the first place.

 

  1. In the particular circumstances, the presence and participation of [KB] at the ICC undermined the appearance of impartiality necessary for the proceedings to be fair. It was suggested by those representing the petitioner that in the circumstances Ms [KB]  should not have any involvement in the hearing (6/14). The respondents declined and indicated that [KB] was an integral part of that process (per their letter of 2 September 2014) (6/16).

 

  1. It should be borne in mind, as appears to be repeatedly emphasized by the respondents, that this is a comparatively informal process and the usual protections that one might expect to guard against bias are absent. There is no judicial oath, there is no legal qualification, there is no right for the public to be present, there is no independent record of the proceedings, there was no legal representation for the petitioner, the whole episode had started with an allegation of disrespectful conduct against [KB] at an ICC hearing, the appeal against the petitioners conviction in relation to that allegation was going to be determined at another ICC hearing, the petitioners agents had suggested that she not take part at that hearing and were told that she was integral to the process.

 

  1. A fair minded and informed observer would know that the ICC process does not cease if Ms [KB]  does not take part (if she is on holiday, for example) and therefore the statement that she was integral to the process would raise a real concern of partiality as between Ms [KB]  and Mr Beggs.

 

  1. In all these circumstances a fair minded and informed observer would conclude that there was a real possibility that the tribunal was biased – which is the relevant test as in Helow v Secretary of State for the Home Department 2009 SC (HL) 1. While the fair minded observer is not unduly sensitive or suspicious, he is not complacent either.

 

  1. It is not an answer to say that [KB] was not part of the decision-making process. She was the complainer against Mr Beggs and did not need to be present at the ICC hearing. Notwithstanding that fact the ICC continued to have her present. The presence of [KB] was a risk to the fairness of proceedings that did not need to be taken.

 

  1. The petitioner chose not to attend as he was apprehensive that his position might be inaccurately recorded in an oral process, his position was clear from the written documentation, he was not to be permitted legal representation, his witnesses were not to be called, Ms [KB]  was going to be present and the prison rules and forms indicate that prisoners need not attend.”

 

[136]    While there was reference to 7/7 and 6/16 in his revised note of argument, the petitioner’s counsel did not take the court to these documents.

[137]    Approaching the issue in the manner in which it was advanced, if the challenges to the two discipline charges fails, so too do the similar criticisms levelled at the ICC in respect of its upholding those charges.

[138]    That leaves the issue of bias.  

 

            The respondents’ reply
[139]    The respondents’ reply was as follows.  In respect of the petitioner’s argument that
the hearing before the ICC of 11 September 2014 was vitiated by apparent bias resulting from the presence of KB, it was pointed out that KB was present as a note-taker.  She was not the adjudicator.  She had no decision‑making role.  She was an administrative member of staff charged with taking the notes of the hearing.  The effect of the petitioner’s argument was to judicialise the disciplinary process relating to minor disciplinary infractions and which gave rise only to minor punishment under rule 114 and the appeal process under rule 118.  This was undesirable.  The summary process of determining charges against indiscipline should be dealt with quickly and efficiently.  Any punishment under prison rule 114 amounted to only temporary deprivation of privileges, such as withdrawal of TV privilege.  The procedural safeguards required by this court in that process should respect the summary aspects of this internal procedure dealing with relatively minor infractions of prison discipline.

[140]    Reference was made to the recent case of The Congregation of the Poor Sisters of Nazareth and another v Scottish Ministers 2015 SLT 445, and in which Lord Woolman extracted the following propositions in relation to bias after a thorough review of the cases:

“[30] A number of more recent cases have considered the question of apparent bias: Davidson v Scottish Ministers (No.2) 2005 1 SC (HL) 7; Gillies v Secretary of State for Work and Pensions, [2006] 1 WLR 781; Prince Jefri Bolkiah v Brunei [2007] UKPC 62; and Belize Bank v AG Belize & Ors [2011] UKPC 36. From them, I draw the following key propositions:

a. Each case is intensively fact sensitive.

b. The threshold for establishing a case of apparent bias is a high one.

c. The fair-minded and informed observer takes a balanced approach.

 d. He expects that

(a) the decision-maker will not be chosen to suit one party; and

(b) any doubt will be based on objective grounds.

[31] Kirby J outlined the knowledge and approach of the fair-minded and informed observer in his well-known judgment in Johnson v Johnson 2000 CLR 201:

‘The attributes of the fictitious bystander to whom courts defer have … been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality.’”  (para 53)

 

[141]    In the light of these observations, it was argued that the petitioner’s submission failed to have regard to the safeguard presented by the adjudicator as decision-maker at the ICC hearing of 11 September 2014.  KB had not been present at the adjudication of those charges and was present at the appeal as a note taker alone.  The adjudicator at the ICC is not criticised by the petitioner.  He is therefore assumed to be a fair minded and professional decision‑maker exercising his function in good faith.  The petitioner does not describe how the adjudicator’s decision would be unduly influenced by the alleged apparent bias of KB so as to render his decision vitiated by apparent bias.  The petitioner fails to describe the causal connection between KB and the decision of the adjudicator that would be required to make out such a case.  A fair minded bystander (presumed to have full knowledge of the material facts and fair-mindedness:  Belize Bank Ltd v AG for Belize [2011] UKPC at 36) would regard it as important that the adjudicator is not said to be biased, such a bystander would conclude the adjudicator would exercise his judgment fairly and responsibly.  A fair-minded observer would regard it as important that KB is an administrative member of staff whose influence in the outcome of the proceedings is extremely limited, and who played no role in the decision-making process.  A fair minded observer would have regard to the fact she has previously indicated that she has not attempted to sway a decision-maker and that staff had been spoken to ensure the neutrality of internal correspondence, lest it give rise to misunderstanding.  Reference was made to the letters at nos. 7/ 13 and 7/14 of process, and which were in part the SPS’s implementation of the outcome of the petitioner’s original complaint to the SPSO.  The independent and fair-minded by‑stander would not regard KB’s involvement as a note-taker, as opposed to decision-maker determining an appeal, as giving rise to a perception of bias in the decision-making of the ICC.  A fair-minded observer would have regard to the proven ability of the system (the SPS and SPSO) to correct clerical errors and remedy misunderstandings.  A fair-minded observer would reasonably conclude that the views of administrative staff would not affect the judgment of a responsible decision‑maker, and so would not give rise to a real possibility the tribunal was biased.

 

Decision

[142]    I accept the respondents’ submissions.  Applying the factors from the case‑law summarised by Lord Woolman, in my view the fair-minded observer would understand that KB was present in her capacity as an employee, and whose function was confined to taking notes in administrative capacity.  She was not the decision‑taker.  It was not suggested that the decision‑taker would be influenced by her presence or that this would lead to one conclusion over another.  In the whole circumstances, in my view the fair-minded observer would not conclude that the presence of KB for these purposes at the ICC hearing resulted in a real possibility of bias.  This ground of challenge also fails.

 

Miscellaneous grounds of criticism

[143]    I have dealt with the substantive grounds of criticism that were argued during the 4 days of this first hearing.  Some stray arguments were also advanced.

CCTV recordings

[144]    At paragraph 30 of the petition, the recording of proceedings by the use of CCTV is desiderated to “guard against irregularity”.  It is asserted that this is justified because:  “Fairness may require safeguards to be put in place to defend against irregular procedure”.  This contention is repeated at paragraph 71ff in the petitioner’s revised note of argument, under the heading “Other issues bearing on fairness”.  It is there asserted that “there is no good reason for not recording disciplinary hearings or appeals. Recording hearings and appeals would reduce the scope for irregularity that exists within the present system”A little later on it is suggested that, if implemented, such measures “would serve to increase the overall fairness and protection afforded by the system in general.  They would have in the present case as well.”  The revised note then continues that the foregoing “are not specific criticisms but had they been implemented the balance of fairness could legitimately be struck differently”.  It is difficult to understand what is meant by this last sentence.  Certain matters of fact are simply asserted (“…there is no good reason for not recording…., or that the use of CCTV ‘would have’ increased overall fairness in the present case).  Leaving aside the issue of whether there is any basis in fact to support the several assertions made, no relevant ground for judicial review of the absence of CCTV is discernible in these submissions.  There is no associated order or plea-in-law directed at this matter. 

 

Institutional reluctance
[145]    The petition also contains a statement in which it is asserted that “there is an institutional reluctance to permit prisoners to have legal representation”.  After a sentence whose meaning is unclear (“Such reluctance gives rise to a danger that even in cases that require legal representation to be determined fairly legal representation is not permitted.”) there is a reference to Smith v Parole Board [2005] 1 WLR 350.  During the first two days allocated to the first hearing, the petitioner’s counsel referred to the case of Smith in support of this ground.  Under reference to certain passages in that case, he contended that a like institutional reluctance permeated the SPS.  I suggested that the observations in Smith referred to features found as a matter of fact established in earlier stages of that case.  By contrast, here there was no factual basis set out in the petition to support such a case.  By the time of the continued first hearing, for its third and fourth days, the petitioner’s counsel had produced the revised note of argument, and which sought to expand on this chapter:  paragraphs 42 to 44.  In particular, paragraph 43 begins as follows:

“The information from the SPS discloses that there were 48 requests for legal representation at HMP Edinburgh over a three year period (production 6/10, pages 10-11) and that, separately, there were 10 grants of legal representation (when not requested) (page 12).”

Lodged at 6/10 are the “recoveries under specification”.  They total 646 pages.  Page 12 of this contains a table showing that in 10 instances over a 3‑year period in HMP Edinburgh legal representation was granted to a prisoner even though no request had been made for legal representation.  That information is suggestive (I put it no higher) that the SPS have not operated a policy of blanket refusals of requests for legal representation or fettered its discretion when considering such requests.  Rather, that information is suggestive that individual adjudicators themselves determined that legal representation was necessary, even where the prisoner had not requested it.  Whatever conclusion might tentatively be drawn from this information, it does not support the assertion of institutional reluctance.  (In any event, the facts of this case would not support a conclusion that that was the basis for refusal here.)  The only other information of a factual character was the reference in the latter part of paragraph 43 of the revised note of argument to the pleader’s estimate of the overall number of disciplinary charges:  “It appears that there might be something in the region of 6,400 charges in that period (pages 23-497)”.  The revised note of argument goes on to explain how this figure was extrapolated:  “That figure was arrived at creating an average for the pages 24 to 35 inclusive (which 12 pages had 162 charges on them) of 13.5 charges per page. Multiplying that up for 475 pages gives a figure of 6,412.5”  In response to a question, the petitioner’s counsel confirmed that he had not troubled to examine this material beyond the pages mentioned, and that only for the purpose of carrying out the estimate of total charges.  Accordingly, there has been no meaningful analysis, for example, as to the nature of these charges or even to consider this material in the light of the Tarrant factors.  This was the totality of the basis for the assertion of institutional reluctance.

[146]    As presented, there is no proper or adequate basis in the material (such as it was) to support the assertion in the petition, even as augmented in the revised note of argument, of institutional reluctance on the part of the SPS.  Had a specific order or plea been directed to these matters, I would have refused it.

[147]    After I issued this Opinion to parties, I put the matter out By Order to be addressed in relation to parties’ pleas and the terms of the court’s interlocutor.  It was agreed that the petitioner’s first, ninth and tenth pleas be refused as unnecessary and that his second to eighth pleas, inclusive, be repelled.  It was also agreed that I sustain the respondents’ first and second pleas, as amended at the bar.  It was also agreed that the respondents were entitled to their expenses, but that the petitioner’s liability be modified to nil. I shall pronounce an interlocutor in these terms.

 


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