Anderson v Independent Adjudicator & Anor

This is a rolled up hearing of an application for judicial review made by Mr Malachi Anderson in relation to a finding made by an independent adjudicator in relation to a prison disciplinary offence

The hearing took place on 30 April 2010. Mr Anderson, who was a serving prisoner, was charged under rule 51.12 with possession of a number of unauthorised articles. He was adjudicated to be guilty and as a result he received an additional penalty of an extra 35 days.

There has been some delay in this application. The significance of the delay is simply that the date of this hearing is within the 35-day period which was added on to Mr Anderson's sentence, so that if this application succeeds he will in any event serve part of the 35 days to which he was sentenced. It was because of that delay that on 28 July 2010 Langstaff J made an order for an urgent rolled up hearing

It will, of course, be necessary for me to set out the facts in a little detail, but I say at once that I have not found this case easy. My mind has wavered during the course of the submissions and that, to my mind, is sufficient for me to say that it is plainly a case that is arguable. I therefore propose to grant permission at this stage of the judgment and to continue on the basis that this is a full hearing of the application.

Mr Anderson is a serving prisoner. The incident with which this case is concerned took place at 6.15 p.m on Monday, 8 March 2010. On that day, according to Prison Officer Meek, she saw a person, whom she identified as Mr Anderson, put a white plastic bag through the window of Room 120 whilst he was outside the window. She then went into Room 120 and found another prisoner, a gentleman called Brown, in possession of the white plastic bag. The bag contained, according to Prison Officer Meek, a small clear plastic bag with a green leafy substance inside, two Nokia phones, two bottles of Stella lager, one bottle of French Cognac with cranberry juice. With the exception of the plastic bag itself those items including the clear plastic bag containing the green leafy substance are all unauthorised items and neither Mr Anderson nor Mr Brown was entitled to be in possession of any of them.

Following the incident, Officer Meek took Mr Brown and also Mr Anderson, who had gone to the association to the office. It is alleged that in that office Mr Anderson dived between Officer Meek and another officer and ate the plastic clear bag and the green leafy substance. In the result, of course, only the other items in the bag remained in the possession of Officer Meek and the prison authorities.

Within 48 hours of the incident Mr Anderson was charged in accordance with the prison rules by being served with a F1127B, a notice of report. The report duly alleged what Officer Meek had seen. However it makes no reference to what happened in the office. The document refers to rule 51.12 and makes it plain that Mr Anderson was accused of passing the bag through the window. Prior to his passing the bag through the window it was in his possession and thus contained unauthorised substances including the plastic bag with the green leafy substance.

As this offence gave rise to the potential for additional days to be added to Mr Anderson's sentence the complaint was not dealt with internally but by the Independent Adjudicator, a serving District Judge.

There were in fact three hearings, although only one was effective. The first hearing was on 10 March 2010 when Mr Anderson made it clear that he understood the charge, had not made a written reply and had had enough time to think about what he wanted to say. He said he wanted the hearing adjourned so that he could be properly represented. The hearing was further adjourned on the second occasion, 6 April 2010,

Eventually there was an effective hearing on 30 April 2010 before District Judge Bennett, sitting as an independent arbitrator. District Judge Bennett had the benefit of the witness statements that had been made prior to the hearing. She heard oral evidence from Officer Meek ,Mr Anderson and two other witnesses called by Mr Anderson. She also read the witness statement from Mr Brown. Mr Brown was by that time in a different establishment and therefore was not called. There was a request that the other officer present in the office give evidence so that she could be cross-examined. She was apparently off duty and was not called.

Officer Meek gave evidence in relation to the incident and she was cross-examined both in relation to what happened in the office where she alleged that Mr Anderson swallowed a green leafy substance (but she did not know where it was placed when he came) and she was cross-examined on her identification of Mr Anderson. She said that she could identify Mr Anderson because she saw the side of his face for a number of seconds. He was outside the window and she was inside, but she had an unrestricted view through the glass window. She said the bag was open in the presence of both herself and the other officer and that Mr Anderson swallowed the green leafy substance.

Mr Anderson's case was that this was mistaken identity. Throughout the time that the incident occurred, he was in the association room, either playing pool or on the telephone. Mr Anderson's evidence was supported by two other prisoners who gave evidence. Their evidence was consistent with their witness statements. Mr Anderson also denied the incident in the office when he is said to have eaten the plastic bag. His evidence on this point is to some extent corroborated by the two witnesses that he called, none of whom saw him move, although they were, so they say, outside the office when the incident is said to have occurred. It is, however, not completely clear how good a view they had. Mr Brown, who was of course a co-accused, has provided a witness statement. He says in clear terms in relation to the office:

A number of submissions were made to the Independent Adjudicator, some of which are not pursued before me. One submission which is not pursued before me was that the absence of the green leafy substance meant that this claim was bound to fail. That was a submission which, in my view, was misconceived, and I say no more about it.

The Independent Adjudicator found that the case was proved. There is no transcript of her judgment. On the Form F256A there are some notes in relation to her decision. She has recorded a submission that was made to her that the charge was not made out, but she made a number of notes under the heading "Decision":

Those are the only notes contained in the Form F256A as to her reasons. There is some additional help provided by the solicitor, Ms Hussain, who acted on behalf of Mr Anderson who made a note of the hearing, including a summary of the evidence given by Mr Anderson, a summary of the evidence given by Officer Meek, which includes her evidence that she was three yards away and she had a clear view of Mr Anderson. It also contains a note of her submissions which, I have already pointed out, included that a submission that the elements of the offence were not proved beyond reasonable doubt. She made the point that the evidence of Mr Brown should be accepted as read because he confirmed Mr Anderson's evidence that he did not swallow anything in the office. Mrs Hussein made a short note of the judgment, which reads as follows:

The application for judicial review is put on a number of grounds. I am taken first to the legal framework. Rule 51 of the prison visiting rules provides:

I was referred to the prison discipline manual on adjudication. I was referred to paragraph 1.1 which deals with the purpose of the adjudication. Two purposes are given. One is to help maintain order, control, discipline and a safe environment by investigating offences and punishing those responsible. The other is to ensure that the use of authority in the establishment is lawful, reasonable and fair.

I was referred to rule 7.1 and 7.4 under a chapter heading "Verdicts and Punishment", Rule 7.1 emphasises the point (which was plainly well in the Independent Adjudicator's mind) that she must be satisfied beyond reasonable doubt that the prisoner committed the offence with which he or she is charged; otherwise the charge must be dismissed regardless of how the prisoner has pleaded.

Rule 7.4 provides:

It is, I think, common ground between counsel that there is no internal right of appeal against the finding of guilt. There is an internal right of appeal against the sentence, but any challenge to the finding of guilt must be by way of judicial review proceedings. Mr Ponter, on behalf of the Secretary of State, accepted that the obligation to give reasons existed in a case such as this, both in respect of the verdict and of the sentence. Rule 7.4 makes it clear that there is the possibility of a challenge through the courts, and in order for that to be effectively used reasons must be given.

I was referred also to rule 13.13, which makes the point that independent adjudicators are responsible for their own procedure, subject to the following:

The first part of the challenge relates effectively to the finding of the adjudicator of guilt. It is said that there ought to have been some doubt on the identification. There ought to have been some concern as to how the clear plastic bag can have been swallowed. In effect, it is a challenge to the decision of the district judge on the merits.

This is a case where there were a number of witnesses. It is said that the District Judge ought to have found, that there was a reasonable doubt or a doubt such as to justify the dismissal of the charge. That is not a ground that has been pursued with vigour by Ms Plimmer, though it is not one that she has abandoned. Her principal challenge relates to the inadequacy of the reasons that were given by the District Judge.

It was a casewhere there were conflicts of evidence, where there were two alibi witnesses for Mr Anderson, where Mr Brown, whose evidence was not cross-examined, said that there was no swallowing of the plastic bag; and corroborated Mr Anderson's account; and where the other prison officer, who was present in the office at the time of this alleged incident, was not called, and so there was no opportunity to cross-examine him or her.

So, says Ms Plimmer, this is a case which called for at least clear reasoning as to why the evidence called by the defendant was being rejected. When one looks, as I have looked earlier in this judgment, at the written document F256A, it is impossible really to say, says Ms Plimmer, what it is that caused the Adjudicator to find against Mr Anderson. One thing that she submits with some force is that the Adjudicator is not allowed to prefer the evidence of Officer Meek simply because she is a prison officer and the other witnesses are prisoners, and therefore I prefer the evidence of Officer Meek. That would be a wholly wrong approach and, to be fair, Mr Ponter did not suggest otherwise.

All one can say reading the decision of the Adjudicator is that she has provided a template for the reasons for the judgment. She has effectively said what she has got to go through, but she has not really given much of a clue, certainly in her written decision, as to how she has arrived at her decision. The only clue lies in the word "strange thing to make up; who can comment on that?" which is in her notes, and the comment which I have already read in Ms Hussain's notes: "Bizarre for evidence to be made up. No-one else can account for the missing bag of evidence".

It is possible to infer from that note an analysis along the following lines. Because it is bizarre for the evidence of Officer Meek to have been made up in relation to the eating of the plastic bag, that evidence is true. That means that the District Judge preferred the evidence of Officer Meek in relation to that incident to the evidence both of Mr Anderson and Mr Brown, even though Mr Brown was not cross-examined on it. If she preferred the evidence of Officer Meek on that point, one can infer that she was entitled to prefer the evidence of Officer Meek on the crucial identification evidence. There is nothing in her reasoning which actually spells out that reasoning. I agree with Ms Plimmer's submission that it would be a step too far to infer from that comment a reason as to why she rejected the evidence of Mr Anderson, the alibi evidence that was provided by the two other witnesses and the partial alibi evidence also being provided by the other two witnesses. It may be right that it was bizarre for the evidence to be made up, but equally it follows, as Ms Plimmer points out, it is also bizarre for one to have jumped forward and eaten a plastic bag with a green leafy substance in it.

Although the Independent Adjudicator's template makes the point that the crucial issue is the ID evidence, she does not mention in her notes that the ID evidence has to be weighed against the alibi evidence. It seems to me that both of those are equally crucial. In order to determine whether the ID evidence is reliable she had to be sure that the alibi evidence was unreliable, because if there was a doubt about the alibi evidence then that also transferred into the ID evidence. None of that appears either in her note or in the note of Ms Hussain.

Thus I am not satisfied that sufficient reasons have been given for a finding of guilt in this case. To some extent I am fortified by some general principles set out in De Smith's Judicial Review on the standard of reasons where the author says in paragraph 7/105:

In my view the reasons that were given were inadequate. As Ms Plimmer points out, it was an important hearing so far as Mr Anderson is concerned, in that he risked the loss of up to 35 days' liberty, and indeed that is in fact the penalty that was imposed It follows that I would grant this application for judicial review on that ground.