Szuluk, R (on the application of) v Secretary of State for Home Department

MR JUSTICE WILSON: The claimant, Mr Szuluk, applies for judicial review of a decision of the defendant, the Secretary of State for the Home Department, dated 17 November 2003.

On 27 August 2003, in the exercise, or purported exercise, of his prison disciplinary functions, an adjudicator, Mr Nuttall, found the claimant, then a serving prisoner at HMP Full Sutton in York, guilty of an offence under the Prison Rules 1999; and, in respect thereof, the adjudicator imposed punishments upon him in the form of forfeiture for a period of time of specified privileges. The claimant thereupon exercised his right under Rule 61(1) of the Prison Rules to ask the defendant to quash the finding of guilt and thus to remit the punishments. The defendant's decision, dated 17 November 2003, was to decline to quash the finding. The claimant alleges that the defendant's decision was unlawful because the decision of the adjudicator had been unlawful and thus that the only lawful course open to the defendant was to quash it.

The claimant's allegation is that the decision of the adjudicator was unlawful because aspects of the hearing at which it was reached were unfair to him. Common law, of course, requires the hearing to have been fair. Whether the adjudicator was determining a criminal charge against the claimant for the purpose of engaging rights under Article 6 of the European Convention of 1950 is apparently no easy question: see the decision of Goldring J in R(Napier) v SSHD [2004] EWHC Admin 936. I am relieved that both counsel are content for me to conduct my inquiry into the lawfulness of the hearing before the adjudicator by reference only to the criterion of fairness at common law.

The charge against the claimant was that he had failed to comply with a lawful order contrary to Rule 51(22) of the Prison Rules. There is no doubt that, on 7 June 2003, he had been ordered to provide a sample of urine for drug testing; and there is very little doubt that he had refused to do so. Indeed, at the time of refusal, he wrote on a prison form "As instructed by my solicitor, I am not supplying a urine sample in case it incriminates me". It appears, however, that, even at the time of his refusal, he had orally questioned the lawfulness of the order.

Although there was one other issue, to which I need not refer, the main issue in the proceedings referable to the charge was whether the order had been lawful. It was and is agreed that, if the prison authorities had had reasonable suspicion that the claimant was misusing drugs, the order was lawful. The issue thus turned on whether there had been such reasonable suspicion.

From the time on 7 June 2003 when he was ordered to provide the sample, the claimant knew that the prison's contention that it had reasonable suspicion depended upon the account of one of its warders, Mr Harrison, about an incident which had occurred at about a 8.45pm on the previous day, 6 June. At that time the claimant had been in his cell with three other prisoners, namely Mr Levin, Mr Rooney and Mr Alexander; and Mr Harrison had either entered the cell or walked past its open door and, allegedly, seen something.

But what precisely was Mr Harrison's evidence about the incident going to be? The claimant needed to know the answer to that question in order to be able to address the issue of reasonable suspicion and thus of lawfulness. Indeed it was his right to know the answer by virtue of Rule 54(2) of the Prison Rules, which provides that a prisoner "shall be given a full opportunity of hearing what is alleged against him".

On the date when he was charged, namely 8 June 2003, the claimant made a written request for legal advice and assistance. He specified eight matters upon which he wanted to seek legal advice. The fourth was "Obtaining Warder Harrison's allegations that led to alleged reasonable suspicion".

On 9 June 2003 the inquiry into the charge against the claimant began before one of the prison governors. The claimant pleaded not guilty. The governor referred the charge to an adjudicator. In so doing he was performing his duty under rule 53A(1) of the Prison Rules. That rule requires the governor to determine at the outset whether the charge is so serious that, if the prisoner is found guilty, additional days in prison should be awarded for it; and, if he concludes that the charge is of that level of seriousness, it requires him to refer it to an adjudicator. Thus the governor must have concluded that the charge was at that level of seriousness.

On 12 June 2003 the adjudicator began the inquiry. He adjourned it until 11 July so that the claimant could obtain legal advice.

Shortly before the hearing on 11 July, in his own handwriting, the claimant completed a printed form and delivered it to the prison authorities. In the form he was asked to state the name of any witness whom he wished to call before the adjudicator; and on the form it was pointed out to him that:

At the hearing before the adjudicator on 11 July 2003 a solicitor appeared for the claimant and obtained an adjournment until 27 August on the basis that, partly because the claimant had been in hospital, she had been unable to meet him until the previous day and was unready to represent him. She informed the adjudicator that, along with two other possible issues, she intended to challenge the lawfulness of the order on the basis that the authorities had no reasonable suspicion that the claimant was misusing drugs. She persuaded the adjudicator to make an important direction, namely that the prison authorities should serve her, on behalf of the claimant, with all relevant documents, in particular every such document as related to reasonable suspicion. The solicitor indicated to the adjudicator that, if such documentation had not been served by the time of the next hearing, she would not be in a position to proceed and would apply for the case to be dismissed. The adjudicator commented that, in that event, he would indeed expect such an application to be made.

Unfortunately the adjudicator included no reference to his direction in his handwritten notes of the hearing, made upon a form entitled "RECORD OF HEARING AND ADJUDICATION". The officer who was presenting the case on behalf of the prison authorities at that hearing did however make a note of it in his own records. In the box headed "REASON FOR REMAND" he wrote not only "For Legal Reps and Advice" but also "Info Justification for the test to be sent to solicitors"; and, in the box referable to action to be taken, he noted that the Mandatory Drugs Testing Unit was to "provide ... requested info so we can forward to solicitors".

On 21 July 2003, not having received disclosure of any documents, the claimant's solicitors wrote to the prison governor as follows:

In response to that letter the prison authorities disclosed certain documents relating to the previous hearings, albeit not their internal notes of the direction to which I have referred. But they disclosed no document relating to the incident on 6 June 2003, which was said to give rise to the reasonable suspicion. Centrally there was no disclosure of any document setting out Mr Harrison's account of the incident.

At the outset of the hearing on 27 August 2003 the claimant's solicitor asked the adjudicator to dismiss the case on the basis that the prison authorities had not made disclosure of any document relating to reasonable suspicion. She sought to remind the adjudicator that on 11 July he had directed the authorities to make such disclosure. Thereupon, however, there was a highly unfortunate sequence of events. For the adjudicator had forgotten that he had made the direction and he pointed out that, as was the case, he had made no note of any such direction. Then he asked the presenting officer in attendance on that occasion whether he had any recollection of the making of any such direction. Notwithstanding the annotation in the prison's records relating to the hearings, the officer, for a reason which remains unexplained, said that, like the adjudicator, he had no recollection of any such direction. Thereupon the adjudicator ruled upon the application to dismiss the case. He ruled that it should be refused and indeed that there would be no adjournment to a later date. But the ruling was on a false premise, namely that there had been no direction for disclosure and thus that the prison authorities were not in breach of any direction.

Thus the hearing on 27 August 2003 proceeded. At an early stage one of the officers produced to the adjudicator the crucial document written by Mr Harrison on 6 or 7 June in relation to the incident on 6 June. No complaint is made of the fact that, apparently for reasons of confidentiality, the adjudicator decided to read the statement aloud, rather than to provide the claimant's solicitor with a copy of it. In the statement Mr Harrison wrote:

After that statement was read, there was a short adjournment in order that the claimant's solicitor could take instructions from him. When the hearing resumed, the solicitor indicated that she wished to cross-examine Mr Harrison; and she, in effect, reiterated the notice which the claimant had given shortly before the hearing on 11 July to the effect that, in addition to the claimant himself, she wished to call Mr Levin, Mr Rooney and Mr Alexander to give evidence on his behalf. The presenting officer then stated that the authorities could arrange for Mr Harrison, Mr Levin and Mr Rooney to attend but that Mr Alexander was not available. Mr Kovats, who appears in these proceedings on behalf of the defendant, accepts that I must proceed on the basis of the claimant's assertion that, notwithstanding the statement of the presenting officer, Mr Alexander was in his cell; was able and willing to attend the hearing; and was never asked to do so.

Thereupon the hearing resumed. Mr Harrison gave oral evidence and slightly amplified his written statement. The claimant's solicitor put to him the claimant's case, namely that there had been a sweet wrapper in an ashtray in his cell; that when, after lighting a cigarette, Mr Levin had thrown a match into the ashtray, it had lit part of the wrapper; that Mr Levin had grabbed an edge of the wrapper in order quickly to extinguish the fire; and that that was what Mr Harrison had seen. Mr Harrison rejected this account. He insisted that what he had seen was foil and that underneath the foil a match was heating it up. He accepted that he had seen no other paraphernalia relating to drugs in the cell. He also accepted that it was possible, as is now indeed established, that in the past the claimant had made formal complaints about his alleged harassment of him.

Then Mr Levin, Mr Rooney and the claimant gave evidence. Mr Rooney said that he could not remember the incident. But Mr Levin and the claimant gave evidence in accordance with the version which had been put to Mr Harrison. In her final submissions the claimant's solicitor seems to have accepted that, if Mr Harrison's account was true, he would have had reasonable suspicion. But she submitted that the adjudicator should not find beyond reasonable doubt that his account was true and that, upon the basis of the account given by Mr Levin and the claimant, Mr Harrison could have had no reasonable suspicion of drug misuse.

Thereupon the adjudicator gave his reasons for finding the claimant guilty and he went on to impose the punishments.

Following the hearing, and in accordance with normal practice, the prison authorities sent to the claimant's solicitors copies of their internal documents, presumably so that they could advise in relation to appeal. Among the documents sent was the presenting officer's note of the direction which had been given by the adjudicator at the hearing on 11 July 2003.

On 8 October 2003 the claimant's solicitors wrote a five-page letter, by way of appeal, to the Directorate of High Security on behalf of the defendant. In the letter they carefully set out the forensic history. It is true that they raised various points. But a careful reading of the letter leads me to the conclusion that, in particular, they were stressing two points, namely that the adjudicator had been misled into believing that he had not made a previous direction for disclosure and that the claimant had wished to call Mr Alexander to give evidence but had been incorrectly told that he was unavailable.

By letter dated 17 November 2003 the Directorate answered the letter dated 8 October as follows:

On 12 December 2003 the claimant's solicitors replied as follows:

On 15 January 2004 the Directorate wrote another short letter in response. It did not address in any way the complaint about Mr Alexander's availability. It did purport to address the complaint about disclosure. But it did so in these terms:

So the claimant's solicitors wrote a letter before action dated 29 January 2004. They said:

The response of the Directorate, dated 3 February 2004, was that it had nothing further to add.

After issue of the present proceedings the defendant agreed further to review the adjudication. The result of the further review, set out in a letter by the Directorate dated 31 March 2004, was to decline to quash the adjudicator's finding. In the following sentences the Directorate purported to address the disclosure argument:

Making every allowance for the pressures under which it no doubt operates, I have to say that I find it extraordinary that, even in this fourth letter, written within the pendency of these proceedings, the Directorate should still have failed to grapple with the claimant's complaint that the adjudicator was misled about the existence of the direction for disclosure. Furthermore, notwithstanding the comments in relation to Mr Alexander, the defendant in the present proceedings no longer challenges the assertion by the claimant's solicitor that she requested his attendance at the hearing.

Mr Southey, on behalf of the claimant, does not, as others might, begin his argument with a general complaint that the prison's case as to reasonable suspicion was communicated to the claimant only in the course of the hearing on 27 August 2003. The claimant had always known that the case would be based upon the evidence of Mr Harrison in relation to an incident on 6 June when the other three prisoners were in his cell. True it is that fairness demanded that, in advance of responding to it, the claimant should know precisely what Mr Harrison said about the incident. But Mr Harrison's account, when ultimately revealed, was extremely brief; and the claimant's solicitor must have been reasonably able to take instructions upon it during the short adjournment, which was all that the adjudicator was prepared to grant; must have been able also to prepare cross-examination of Mr Harrison; and able to finalise the choice of witnesses to be called on behalf of the claimant. Although such circumstances were far from ideal, they were by themselves perhaps not such as to invalidate the resulting decision.

So Mr Southey moves straight to what he submits to be a strong, if related, point, namely the presenting officer's failure, born (so we all assume) of ignorance or, at worst, incompetence, to inform the adjudicator in response to his specific inquiry that on 11 July 2003 he had made a direction for pre-hearing disclosure of Mr Harrison's statement.

In this regard one potential line of argument can be excluded immediately. For Mr Kovats accepts that he cannot save the validity of the adjudication by arguing that, insofar as there was relevant error, it was error on the part of the presenting officer rather than that of the adjudicator. Thus, in R v Blundeston Prison Board of Visitors, ex parte Fox-Taylor [1982] 1 All ER 646, Phillips J (as he then was) held that the finding of a prisoner's guilt by a Board of Visitors was invalidated by the failure of the prison authorities to reveal the existence of a relevant witness to the claimant or to the board.

It is not very promising for Mr Kovats, ingenious advocate though he is, that, when given four opportunities to address Mr Southey's argument, the Directorate had failed to take advantage of any of them. In the end, Mr Kovats is driven to paint the canvas with a broad brush: to argue that this was a defence patently without merit, that the claimant's expressed reason for declining to provide a sample speaks volumes and that the other three prisoners obeyed orders to provide samples (which proved negative) and so by inference did not challenge the lawfulness of the orders against them and thus the existence of reasonable suspicion.

I reject Mr Kovats' arguments. They are not good enough. The innocent suppression of the existence of the direction occurred in the course of the solicitor's preliminary application to dismiss. On 11 July she had indicated to the adjudicator that, if the direction was not complied with, she would be making the application; and the adjudicator had observed that he would expect her to do so. In that the adjudicator did not accept on 27 August that he had made the alleged direction, dismissal of the application was almost inevitable. But what decision would the adjudicator have reached upon it if he had known the true facts? I find myself unable to answer that question. I am far from persuaded that he would nevertheless have dismissed the application. It was unfair to the claimant that his application was dismissed upon a materially false premise.

In relation to the non-attendance of Mr Alexander, Mr Kovats concedes that the erroneous statement that he was unavailable is regrettable. He points out, however, that the claimant's solicitors never took a written statement from Mr Alexander and have never sought to explain what evidence he would have given. But, as they explained in their appeal letter dated 8 October 2003, the claimant's solicitors decided that it was premature to take witness statements in advance of compliance by the prison authorities with the direction for disclosure. So, as at 27 August 2003, they were constrained to rely upon the claimant's judgment that Mr Alexander's evidence would be helpful to him. Indeed the claimant had indicated to the prison authorities prior to 11 July that he wished to call Mr Alexander; and Mr Kovats concedes that such was a request for Mr Alexander's production before the adjudicator which should be regarded as having continuing effect, unless countermanded on behalf of the claimant, in relation to the hearing on 27 August.

Mr Kovats also seeks to mount an argument that, even on the version of the incident put forward by the claimant and Mr Levin, Mr Harrison had reasonable suspicion that the claimant was misusing drugs; and thus that, even if Mr Alexander had given an analogous version of the incident, it would have carried the claimant's case nowhere. I disagree. If what Mr Harrison sought was only a burning sweet wrapper, it would in my view have been impossible for the prison authorities to have established reasonable suspicion.

I am of the view that, if the effect of Mr Alexander's evidence would have been to raise any reasonable doubt in the mind of the adjudicator as to the truth of Mr Harrison's account, he would have found the claimant not guilty. Would Mr Alexander's evidence have had that effect? We will never know. We will never know because the prison authorities incorrectly described him as unavailable to give evidence. That was unfair to the claimant.

For each of these two reasons the only lawful course open to the defendant was to quash the adjudicator's finding of guilt. Accordingly I hereby quash his refusal to do so.

Yes, Mr Southey?

MR SOUTHEY: My Lord, I think the only orders I would seek are an order for the claimant's costs to be paid by the Secretary of State, to be assessed if not agreed, and I also seek an order that the claimant's costs be assessed for the purposes of the Legal Services Commission.

MR JUSTICE WILSON: Mr Kovats?

MR KOVATS: My Lord, I do not oppose an order for costs. I hope it is not unduly pedantic but in terms of relief, what the claimant has sought is the quashing of the Secretary of State's decision. I quite accept that. He has not sought a quashing of the adjudicator's decision, but in the circumstances, as I think I hinted yesterday, the Prison Service have not been able to come up with any further evidence about what did or did not happen or why. So the ultimate outcome is beyond argument. In those circumstances, in my submission, the proper order is to quash the decision of the Secretary of State and to make a mandatory order requiring the Secretary of State to quash the adjudication. Technically, I do not think it was a quashing of a refusal to quash the adjudicator. But it comes to the same thing.

MR JUSTICE WILSON: Thank you, Mr Kovats. Do you agree with that?

MR SOUTHEY: My Lord, certainly from our point of view it is in our interests to seek a mandatory order.

MR JUSTICE WILSON: So I quash the decision of the defendant and I make a mandatory order against him that he should quash the decision of the adjudicator.

MR SOUTHEY: Yes.

MR JUSTICE WILSON: I grant you an order for costs against the defendant, to be assessed on the standard basis, and, in any event, I grant you a public funding detailed assessment.

MR SOUTHEY: Thank you, my Lord.

MR JUSTICE WILSON: Any other matters, Mr Kovats?

MR KOVATS: My Lord, only to thank your Lordship and the staff for sitting at this hour.

MR JUSTICE WILSON: It is I who should thank them because it is I who chose this ungodly hour. But I explained why I did so yesterday. Thank you, very much.