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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wynter, R (on the application of) v HM Prison Swaleside [1998] EWHC Admin 535 (13th May, 1998) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/535.html Cite as: [1998] EWHC Admin 535 |
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1. This case has come before this court in the following way. An application for judicial review by the applicant came before Sedley J on 6 April 1998. Upon the respondent’s undertaking through counsel not to seek an order for costs in any event it was ordered that the matter be listed in a Divisional court and decided on the basis of the facts as signed by counsel for both parties. It was further ordered that the matter be expedited and listed for the 30th April 1998 and that skeleton arguments be lodged by close of business on 24th April 1998. All that has been done.
2. The case is concerned with the mandatory drug testing of prisoners. The particular facts of this application for judicial review are sought to be used in order to obtain the decision of this court about the manner in which scientific evidence is received at adjudications for disciplinary offences, following a positive mandatory drug test (MDT). This particular case has been the subject of correspondence between the applicant’s solicitor and the prisons’ ombudsman Sir Peter Woodhead. In correspondence his view is:
4. It is appropriate to set out briefly the agreed facts of this case. This applicant served a prison sentence of 15 years. His release date from prison was 16th April 1998. On 29th October 1997 he was required to provide a sample of urine for the purpose of randomly testing for the presence of controlled drugs pursuant to S16A of the Prison Act 1952. On 5th November 1997 he was issued with a screening certificate prepared on behalf of the respondent stating that his urine had tested positive for opiates and cannabinoids and with a notice of a report of two disciplinary offences concerning each drug contrary to Prison rule 47 paragraph 8A.
5. On 7th November 1997 the disciplinary hearing was commenced. The applicant requested legal representation and the attendance of the examining scientist. Rule 6.99 of the Prison Discipline Manual reads as follows:
6. The adjudicator therefore adjourned the hearing to enable a confirmation test to be carried out on the sample. The confirmation certificate dated 19 November 1997 certified that there were traces of opiates and cannabinoids in the applicant’s urine consistent with the abuse of controlled drugs. On 21st November 1997 the hearing was resumed. The applicant handed a written statement to the adjudicator stating that he had not knowingly taken cannabis or opiates. He requested the laboratory scientist to be called to give evidence on four matters namely:
7. Rule 6.99 had to be re-considered by the adjudicator in respect of this request. The relevant part reads:
8. The adjudicator refused the request. It should be noted that the applicant did not indicate that he had arranged for an independent analysis of his sample. The applicant was found guilty on both charges. He received 7 additional days for the presence of cannabis and 21 additional days for the presence of opiates.
9. On 19th December 1997 the applicant submitted a request for the adjudication to be reviewed by the area manager for Swaleside prison, on the basis that the adjudication was flawed.
10. As a result on 10th March 1998 the applicant was informed that the charge concerning the cannabis had been upheld but the charge concerning the opiates had been quashed “because of a procedural flaw and not for the reason outlined in your request/complaint”.
11. On 25th March 1998 the applicant’s solicitor was informed the second adjudication (the cannabis adjudication) had also been quashed. That was based upon a recognition that the adjudicator may have failed properly to appreciate the evidential status of the confirmation certificate namely that, although considered in the context of the prison rules, it is a hearsay document. Consequently his consideration of the issues and principles to be followed in assessing the merits of the application to have the scientist called may have been conducted under a false premise.
12. It can thus be seen that as both the charges which were initially found proved against this applicant have been quashed this applicant is no longer in jeopardy. Further we have been informed that he has now been released from prison. Nevertheless the possibility remains that he may again be convicted of an offence and sentenced to a term of imprisonment and that during that term of imprisonment may be selected for a random test for the presence of controlled drugs pursuant to S16A of the Prison Act 1952. It is only to that extent that this particular applicant has an interest in this case.
13. It is obvious that if this court does not take the opportunity of dealing with these matters today another similar case will be brought before another division of this court. In all these circumstances the court has decided that it is appropriate to accede to the request of both parties and to treat the applicant as having a sufficient interest to enable the case to proceed.
15. Section 47 of the Prison Act 1952 allows the Secretary of State for the Home Department to make “rules and regulations for the management of prisons”. S.47(2) states:
17. Prison rule 46A permits prison authorities to take samples from prisoners for the purpose of testing for controlled drugs.
18. Prison rule 47 paragraph 8A makes it a disciplinary offence for a prisoner to administer a controlled drug to himself or to fail to prevent the administration of a controlled drug to him by another person.
19. Prison rule 47A states that it shall be a defence for a prisoner charged with an offence under rule 47(A) paragraph 8(A) to show that:
20. Prison Rule 49 is headed “Rights of prisoners charged.” Under paragraph (2) of that rule it is stated:
21. Prison Rule 50 states that the maximum punishment for an offence under Rule 47 paragraph 8(A) is an award of 42 additional days.
22. It is now necessary to consider the relevant parts of the Prison Discipline Manual issued by the Prison Service in 1995.
28. Mandatory drug tests were started in 1995. As a result there were additions made to this disciplinary manual. The relevant document is IG 30/1996. Paragraphs 6.95 to 6.99 deal with drug use offences in particular. Paragraph 6.96 states that prisoners are to be charged under Prison Rule 47 paragraph 8A only as a result of samples taken under mandatory drug testing provisions.
30. We then come to paragraph 6.99 which I have set out earlier in this judgement when dealing with the specific facts of this case.
31. It is now convenient to consider the documentation served on a prisoner who is selected for a mandatory drug test and who thereafter is tested positive.
32. Initially he is served with a “mandatory drug test authorisation form” which sets out a variety of reasons why he is required to provide a sample of urine. In this case it was a “random test”. That form at paragraph 6 states:
33. After the urine sample has been given it is sent by the prison authorities for analysis. Once that analysis has been undertaken if it proves negative that is an end of the matter. If it proves positive the authorising scientist issues a “screening certificate”. In the body of that certificate is stated the result of the analysis. Here it states “drugs tested. Cannabinoids positive. Opiates positive.”
34. The prisoner receives a copy of the screening certificate, together with a piece of paper stating that there are no matters that bring this case within Rule 47A which provides a prisoner with a defence. The prisoner at the same time is provided with a document that proves the chain of custody of the sample. No point arises on this in this case. If the prisoner does not unequivocally plead guilty the sample is re-analysed and a confirmation certificate is issued by the authorising scientist. This certificate also sets out that the sample has been tested and has been found positive.
36. The respondent has filed three affidavits two from Mr Parsons and one from Mr Derby who are both higher executive officers in the prison service.
37. Mr Parsons states in his first affidavit that he has been responsible since December 1995 for the day to day management of the prison service MDT programme. After describing the initial screening of samples he sets out that the confirmatory tests were carried out using a two stage process known as gas chromatography/mass spectrometry.
39. Finally Mr Parsons stated that in 1997 there were 16,324 adjudications on charges arising from MDTs.
40. Mr Derby stated that in those 195 requests for independent analysis legal aid has been issued in 65 cases. He also exhibited to his affidavit the relevant pages of the Prison Service mandatory drug testing Manual, to which I will refer later.
41. The applicant has referred us to an affidavit by Mr Hamish Arnott his solicitor. That affidavit exhibits a statement from Dr Ronald C Denney. Dr Denney is a forensic scientist and a consultant who has worked in various areas of drugs synthesis and analysis for more than 30 years. He is now visiting lecturerer in forensic science at King’s College London and at the Univeristy of Greenwich and is external examiner at the University of the West of England.
42. In his statement Dr Denney says that the screening test certificate does not give sufficient information to a prisoner and he fears that that certificate might persuade a prisoner effectively to plead guilty. He would like to see the level of the drug shown on the screening certificate. A second affidavit from Mr Parsons on behalf of the Secretary of State, however, makes it clear that the nature of the screening test is such that it cannot quantify the level of drugs detected.
43. Dr Denney considers that the confirmatory certificate needs re-designing, or at least needs to have more information upon it. He considers that it is not clear that the findings are as a result of the confirmatory test and not simply repeating the result of the screening test. His further criticism is that this certificate does not provide anyone with sufficient data to be able to check the accuracy of the results. He is also concerned that the certificate does not indicate that the tests have been carried out by properly qualified personnel. Further he is concerned that in the case of cannabis metabolites the result may be influenced by passive smoking. He says that there is no indication on either certificate of the level of drugs. He also says that in the case of passive smoking cannabis metabolites can be found in the order of 20 ng/ml compared with say 200 ng/ml for an actual smoker. Mr Parsons in his second affidavit says that, at present, the level of positive drugs found in the confirmation testing are left off the certificate as a safeguard for the prisoner. This is done because the amounts are exceedingly small and if they were put on the certificate it might be that the adjudicator would give too much weight to them and that the punishment given to the prisoner would be greater. Mr Parsons also explains that no test for cannabinoids is shown as “positive” unless the reading is in excess of 50 ng/ml, to guard against the possibility of passive smoking of cannabis.
44. I now turn to the applicant’s submissions. It is recognised by the applicant that, in the present case, there is no relief that can be given by this court. The applicant therefore wishes this court to give indications as to what type of further information should be given to a prisoner who undergoes a mandatory drug test which is found to be positive. He does not submit that there should be a confirmation test in every case. Nor is it his submission that a prisoner has an absolute right to require the attendance of a scientific witness. But he submits that there should be more information provided to the prisoner either by way of a statement from the scientist or by way of information attached to the papers that are served upon him. He would like to see more information on the screening certificate and on the confirmation certificate. He stresses that the scheme as set out in the prison rules and the Prison Discipline Manual should be followed. In particular he points to paragraph 5.7 of the Prison Discipline Manual which says:
45. The applicantt submits that by accepting the confirmatory certificate and refusing permission to the prisoner for the scientific witness to attend and be cross examined the prisoner is convicted wholly on hearsay evidence.
46. He cites Regina v Board of Visitors of Hull Prison, ex parte St Germain and others (No.2) [1979] 1 WLR 1401. The judgement of the court was given by Geoffrey Lane LJ, as he then was, at page 1404. E-G He refers to prison rule 49(2) and states that this rule reflects:
47. Mr Parker QC for the respondent in his submissions does not dispute the framework of MDT adjudications as set out by the applicant. At the outset of his submissions he accepted that more information could be given to the prisoners both on the screening certificate and generally. He drew attention to the comments in the statement of Dr Denney and submitted that the affidavits filed on behalf of the respondent dealt with these comments. He referred us to the “Mandatory drug testing for prisoners manual of policy and procedures”. The current version is version 5 issued on 10th January 1997. At the front of this manual are these words:
48. The relevant information contained in these pages has been summarised in the affidavits of Mr Parsons, to which I have already referred.
49. It was submitted on behalf of the respondent that the accuracy of both the screening and confirmation tests is fully demonstrated by the information in the affidavits. He accepted that a prisoner should be entitled to question a scientific witness if he had proper material on which to do so. He accepted that if the information contained in the mandatory drug testing for prisoners manual was made available to prisoners, in the appropriate form, it might substantially lessen the number of occasions on which a prisoner could properly ask for the scientific witness to attend for cross examination. But he submitted that the right of a prisoner to obtain his own independant analysis has already been and remains an important safeguard.
51. Mr Duffy QC in his skeleton argument made a submission based upon Article 6 of the European Convention on Human Rights. But in his oral submissions he did not place great reliance on this aspect of the case. He accepted that in order to come within Article 6 (1) it has to be shown that this offence was not simply a discipline offence but also a criminal offence. He recognised that as the potential penalty and that actually imposed have to be considered and as the potential maximum penalty was the imposition of an additional 42 days, it was not possible to submit that this offence was a criminal offence. See Pelle v France 1986 50 DR 263. He also recognised that the convention is not yet part of domestic law. Thirdly he accepted that the test set out by Geoffrey Lane LJ, as he then was, in ex parte St Germain and Others (No.2) which I have already set out, would be the test under European law in any event and therefore even if he could succeed under the Convention the test would be the same as under domestic law. Mr Parker submitted that the Convention did not apply in any event because not only is it not part of the domestic law but there is no relevant ambiguity in the Prison Act, the Prison Rules or the Prison Discipline Manual that the Convention could help to resolve. He also, in his skeleton argument, submitted that this offence was not a criminal offence. I conclude that the Convention does not apply for the reasons submitted by Mr Parker.
53. I accept that the confirmation test certificate is hearsay evidence. I recognise that paragraph 6.99, on the face of it, conflicts with paragraph 5.7. But paragraph 5.7 is not specifically considering scientific evidence of this type but evidence of non scientific facts. I consider that paragraph 6.99 is to be preferred when a discipline tribunal is dealing with a mandatory drug test adjudication.
55. LORD JUSTICE KENNEDY: For the reasons set out in the judgment which have been handed down, this decision will not give rise to any form of relief. The application for judicial review will, therefore, be formally dismissed.
56. MR DUFFY QC: Can I thank your Lordships for the speed in which you delivered the judgment? My Lords, there are two applications. Firstly, may I apply for legal aid taxation on behalf of the Applicant?
58. MR DUFFY QC: Secondly, my Lords, since we find ourselves in the position of being the party against whom the judgment was formally dismissed, it falls to me to make an application for leave to allow matters to go further. In this matter I recognise that there is a balance to be struck. This is obviously a matter of public importance, but equally your Lordships will have to weigh whether, in view of the fact that this is not concretely rooted on a particular case, it affords a sensible vehicle for the matter to go further to the Court of Appeal.
59. LORD JUSTICE KENNEDY: I have grave difficulties myself with that concept. Do you not, Mr Duffy? Perhaps, it is unfair to ask you.
61. LORD JUSTICE KENNEDY: We do not grant leave. Thank you for your attendance and thank you for the submissions that you made. We hope that the judgment which my Lord has prepared in fact covers the issues which were raised during the course of the submissions. In a sense it is almost advisory, but that was what we were seeking to do.
62. MR DUFFY QC: My Lord, may I say that we do appreciate the judgment which, I think, will give us assistance on this point.
63. MR JUSTICE BLOFELD: Mr Duffy, may I say that I am very grateful to you for drawing my attention to the notice under the new Practice Direction?
64. MR DUFFY QC: My Lords, should I say that the thanks is due to those behind me. Yesterday I was, in fact, in Luxembourg doing a case, and so it goes to my juniors.