Mr Grandison argued that the judge was wrong to have concluded that IA Wright did not have jurisdiction to proceed with an adjudication and should therefore have dismissed the charges. He relied on four factors.

Firstly he submitted that the judge was wrong to criticise the lack of detailed reasons provided by Governor Butler when making the referral to the IA, and that, in the words of John Howell QC when refusing permission, the seriousness test “was unarguably what the Governor intended to indicate by stating that the reference was made due to the nature of the charge”. Mr Grandison referred us to observations of the Court of Appeal (Criminal Division) in R. v. Veysey [2019] 4 WLR 137 at [35], albeit in relation to referrals by governors to the police

Mr Grandison submits that in the present case the facts of the allegations spoke for themselves; their seriousness would have been “beyond obvious” to a governor of a prison in the high security estate, who would have possessed expertise in assessing the sort of conduct that would pose a risk to good order and discipline. Ordinarily, the court would be slow to interfere with such an assessment where there is material to support such a decision.

Mr Grandison cited Sullivan J in R. (on the application of Bannatyne) v. The Secretary of State for the Home Department [2004] EWHC 1921 (Admin), at [20] “It is trite law that the adequacy of a judge's reasons should not be considered in the abstract but in the light of the particular issues on which he or she is called to adjudicate.” Here, the reasons were provided by a prison governor (as opposed to a lawyer or judge) who was not asked to justify his decision at the time. In a system that prioritises a speedy and summary procedure, the reasons provided need not have been detailed in a case such as the present.

Mr Grandison’s second “factor” was a submission that an IA’s power to dismiss a referral (other than on finding the charge or charges not proved) is not provided for by either the Act or Rules, and is limited to referrals that are “unlawful” (see paragraph 2.33 of the PSI). It is not an opportunity to argue the finer points of what would amount to mitigation of the sentence. Given that the alternative to proceeding with a referral was (under the 2018 PSI) to dismiss it, the threshold was necessarily a high one.

Thirdly, the judge appears, at [30], to have erred in viewing the Respondent’s conduct through the prism of the criminal law, as opposed to prison discipline, when assessing seriousness. While it is true that assaults are “many and various”, the fact is that the Respondent was accused of having assaulted a governor in the high security estate with a piece of wood. Such an assault on a very senior member of staff clearly posed “a very serious risk to order and control of the establishment,” irrespective of the lack of physical injury occasioned.

Fourthly, the judge failed to appreciate the relevance of the fact that the matter had been referred to the police. Paragraph 2.23 of Annex A to the 2018 PSI notes that, save for requests by the victim, this should occur where “the relevant internal disciplinary processes are insufficient to deal with the offence and where circumstances indicate that referral to the police is appropriate…”, which Mr Grandison submits is where the referring governor considers that the maximum penalty of 42 additional days that could be imposed by an IA would be insufficient. Consequently, the fact that Governor Butler and IA Wright both mention the referral to the police was relevant to the consideration of “seriousness”.

Mr Grandison, quite rightly, did not seek to rely on the witness statement of the IA, and we were not referred to it in argument.

For the Respondent Mr Bimmler argued that the judge was right to find at paragraphs 15-16 of his judgment that the duty to assess the seriousness of a charge, and whether it meets the threshold for referral to an IA or should be adjudicated internally by a governor, is unequivocally given by Rule 53A to the prison governor. It is immaterial whether the IA considers a case to meet the referral threshold, and it is equally not for the Senior District Judge’s nominee, the Administrative Court or indeed the Appellant to substitute their own views.

Accordingly, he submits, it is correct and logical that the Question F of the proforma asks “Is the IA satisfied that the Governor gave proper consideration to whether the charge is so serious that added days should be awarded if the prisoner is guilty (i.e. the offence poses a very serious risk to order and control of the establishment, or the safety of those within it)” (emphasis added) rather than, for instance, “Is the IA satisfied that the charge is so serious that added days should be awarded…”.

The IA was required to assure herself that her jurisdiction has been properly established, that is, whether a charge has been properly (or validly) referred. This is so because the IA’s only jurisdiction is statutory, and IAs only have jurisdiction on a charge when there has been a valid, lawful referral to them.

In order for a governor’s referral to be valid, it must comply both with the legal framework and with the relevant published policy in the PSI (which binds governors). Governors do not have a discretion to refer cases to IAs as they deem fit. Rather, Rule 53A of the Prison Rules foresees a two-step process: by rule 53A(1) the governor must first make a determination whether either of the criteria in rule 53A(1)(i) or (ii) applies. If the governor has made such a determination, then by Rule 53A(2)(a) the governor shall refer the case to the IA (and conversely, where the governor has determined that neither of the criteria are met, the governor shall proceed to inquire into the charge: rule 53A(2)(b)).

The IA has the power to review whether the referring governor had acted in accordance with Rule 53A and the requirements of the PSI binding the governor, that is to say whether the governor had applied his or her mind to the applicable test and given consideration to the seriousness of the individual allegation(s). This definition of whether a referral is lawful is also found in paragraph 2.33 of Annex A to the PSI. Indeed, Mr Bimmler argued that where the point is expressly taken on behalf of a prisoner, the IA has not only a power but a duty to review the lawfulness of the referral.

The judge focussed correctly on the adequacy of the IA’s decision and rationale, rather than on the referring governor’s decision as such. The judge was entitled to find that the evidence before the IA was not capable of supporting her decision that the referring governor had properly followed the Prison Rules, and had evaluated the seriousness of the charges in light of the definition and guidance given in the PSI.

Mr Bimmler takes issue with the submission that the judge erred in viewing the Respondent’s conduct through the prism of criminal as opposed to prison discipline. He submits that no “prism of the criminal law” was employed by the judge, who made neither reference to any criminal case law nor Sentencing Guidelines or similar. Rather, the judge (properly) reflected factors which would affect the seriousness of a disciplinary charge in a custodial setting and could be taken into account by referring governors.

Mr Bimmler submitted that the judge was right to hold the threshold for a referral to the police is lower than the threshold for a referral to the IA and that a prior decision to refer to the police thus cannot be evidence that proper consideration had been given to the Rule 53A threshold. As set out above, there is no statutory or common law seriousness (or similar) threshold for a referral to the police; governors have the power to refer instances of suspected crime to the police.

However, in practical recognition of the fact that many incidents regularly dealt with by the prison adjudication system could if proven also amount to a crime, Her Majesty’s Prison and Probation Service (HMPPS), the National Police Chiefs Council (NPCC) and the Crown Prosecution Service on 7 May 2019 entered into a (non-binding) “Crime in Prison Referral Agreement” about the referral of crime in prison, which includes referral criteria and guidance. The judge was entitled to interpret this agreement, at paragraph 29 of the judgment, as indicating that “a referral to the police for assaults on staff is to be made, save for a few exceptional cases”. Insofar as there is a difference between the wording in paragraph 2.23 and the Crime in Prison Referral Agreement, it is the latter which set out the referral threshold which fell to be applied when the Respondent’s case was referred to the police by Governor Mallon. The judge was right in holding that the fact that the first governor had assessed the charge to merit referral to the police, which the second governor relied upon, could not demonstrate that the second governor had properly applied Rule 53A as interpreted by the PSI.

Accordingly, Mr Bimmler submitted, none of the four factors elaborated by the Appellant identify an error in the judge’s findings and analysis at first instance. He argued that the “reason” (other than the previous reference to the police) given by the referring governor, did not amount to a properly reasoned decision. He referred to R v Birmingham City Council ex p B [1999] ELR 305.

Since the system of IAs was established following the decision of the European Court of Human Rights in Ezeh and Connors v UK (2003) 39 EHRR 1, there have been three ways in which an offence against prison discipline can be dealt with. The first is by a governor who, if the charge is found proved, may impose some penalties but may not award additional days in custody. The second is by referral to an IA, in practice a District Judge or Deputy District Judge (Magistrates Courts), who may award up to 42 additional days if the charge is found proved. The third is a reference to the police, who may in turn involve the Crown Prosecution Service, leading potentially to a prosecution in the criminal courts. A governor’s decision as to which of these three courses to follow seems to me analogous to a decision by a magistrates’ court whether or not to send a case triable either way to the Crown Court.

If Prison Rule 53A stood alone, the Claimant’s case would be hopeless. The Rule requires the governor to refer a case to an IA if either of two tests is satisfied. The first (which I will call a “so serious” case) is where the governor determines that the charge is so serious that additional days would be awarded if the case was proved. The second is that it is necessary or expedient “for some other reason” for the charge to be enquired into by an IA. We are not concerned with the second type of case, and if referring a charge to an IA for “some other reason” the governor should no doubt be required to set out what that reason is. But Rule 53A gives no indication of a requirement for a governor to give reasons in every case for determining that the charge is so serious that additional days might be awarded.

Moreover, I am not persuaded that justice and fairness require such reasons to be given in a “so serious” case. The governor’s view of the seriousness of the charge cannot be binding on the IA. If the IA finds the case not proven that is the end of the matter. If the IA finds the charge proven but considers that the imposition of additional days in custody would be inappropriate then they can impose no such penalty. This would not mean, on an ordinary reading of the rule, that the referral had been unlawful, any more than a committal for trial or sentence by a magistrates court is made retrospectively unlawful if the Crown Court considers that the justices could perfectly well have dealt with the matter within their own powers.

However, the terms of PSI 5/2018 made the position less simple. Paragraph 2.28 repeated the statutory test in Rule 53A, but paragraph 2.32 proceeded to gloss it by saying that the test for seriousness is whether the offence poses a very serious risk to order and control in the establishment or to the safety of those within it. The same paragraph says that each case will be assessed on its merits, but listed some categories of serious assaults which should always be referred. Paragraph 2.33 states that if the IA considers the referral to have been unlawful they may decide not to proceed and therefore the adjudication will be dismissed. It goes on to give an example of an unlawful referral as being one where the PSI has not been correctly followed, and the case should not have been referred in the first place, such as where a governor referred a charge of disobeying an officer with no other aggravating features.

It is significant that paragraph 2.33 of PSI 5/2018 conferred a power on IAs not to proceed if they consider that the case should not have been referred in the first place. At that stage, presumably, the evidence has not been heard. This may explain why paragraph 2.31 advised that the adjudicating governor should state the reasons for referral to the IA on the appropriate form, as “quoting ‘serious of the offence’ alone may not be sufficient in all cases”.

Sometimes it may not be apparent from the charge and the brief summary given on the charge sheet why the offence is said to pose a very serious risk to order in the prison or to the safety of those within it, or to justify the award of additional days. In such a case, if the referring governor does not give reasons for the view that the case was so serious as to justify referral, there is a risk that the IA will decide not to proceed with a case which would otherwise have justified a full hearing before the IA. But that creates no unfairness to the prisoner: on the contrary. Moreover, in some cases, it may be obvious from the nature of the charge or the particulars given on the charge sheet that the “so serious” test is satisfied. This is such a case, as demonstrated by the penalty imposed by IA Wright and upheld by DJMC Goezee.

Despite the wording of Question F on Form IA1, I do not accept that (at least in a “so serious” case) the IA is under a duty in law to enquire into the thought processes or reasoning of the referring governor. The IA is under a duty to form an independent view on whether to proceed; and then, of course, if the case does proceed, to form their own view on guilt or innocence and on penalty.

I do not consider that any assistance can be derived from the decision in R v Birmingham City Council ex p B. That was a school admissions appeal in which Scott Baker J held that a standard form letter which was “nothing more than an incantation” of the two stage procedure for deciding such appeals” and told the reader “absolutely nothing about the particular facts and circumstances of this applicant’s appeal” was deficient. It is too far removed from the context of the present case to be relevant. In public law, as Lord Steyn famously said, context is everything.

Prison discipline is meant to provide a simple, speedy and proportionate system of justice. The prisoner is at no risk of additional time in custody if the matter is dealt with internally and at risk of a maximum of 42 days if the case is referred to an IA. If the adequacy of reasons given by the referring governor can be the subject of judicial review, that raises the prospect of applications for permission on paper, renewal to an oral hearing and an application for permission to appeal to this court becoming routine. Speed and simplicity would be impossible to achieve and the cost to public funds would be considerable.

Despite the skill and eloquence with which Mr Bimmler put his case, I consider that the two experienced public lawyers (Mr Howell QC and Mr Lock QC) who refused permission in 2021 were entirely correct. The referring governor’s mention of the nature of the charge was a sufficient basis for referral to the IA. The facts of the charge spoke for themselves.

I would allow the Secretary of State’s appeal on Ground 1 and set aside the order of the judge. The decision of IA Wright was correct, although Mr Kane can no longer be required to serve the 18 additional days since the custodial period of the sentence which he was serving at the time of the incident has now expired. Ground 2 (the alternative argument based on s 31(2A) of the Senior Courts Act 1981) has become academic and no more need be said about it.