King v Secretary of State for Justice

This is a judicial review, with the leave of the single judge, of decisions made by Mr Matthew Shepherd on 11^th April 2009 that the claimant, Ben King, while serving a sentence of detention at the Young Offender Institute at HMP Portland, was guilty of a disciplinary offence and should be confined in his cell for 3 days. The claim raises important issues concerning the nature of the regime for adjudication of disciplinary charges brought against inmates at HM prisons and young offender institutions. In Ezeh and Connors [2004] 39 EHRR 1, 9 October 2003, the European Court of Human Rights (“the European Court”) ruled that the nature of the “charges” in that case, and the prisoner’s liability to be sentenced at a disciplinary hearing to additional days in custody, rendered the proceedings “criminal” in nature. Accordingly, Article 6 ECHR applied to those proceedings and the applicant was entitled to legal representation. In this review the claimant asserts that, while his liability to a punishment of cellular confinement did not render the proceedings criminal in nature, the proceedings did amount to “the determination of a civil right” requiring the procedural guarantees of the civil limb of Article 6(1). The governor of the YOI or his delegate was not an independent tribunal within the meaning of Article 6(1) and the decisions should be quashed.

On 11 April 2009 Mr King, born 25 November 1990, appeared before the Governor Adjudicator, Matthew Shepherd, Deputy Head of Residence at Portland, to answer a disciplinary charge laid under Rule 55, paragraph 25 of the Young Offender Institute Rules 2000 (“YOI Rules”, made under section 47 Prison Act 1952), that he failed to comply with a lawful order. The notice of report submitted by Officer Paul read as follows:

“Sir, at approximately 20.45 hours on 10.4.09, GA8897 King, who is on an open ACCT document, was refusing to show himself to staff during role check/ACCT observations, and remained hidden in his shower/toilet cubicle. He refused to come out even when ordered to do so.”

The notice was issued to Mr King at 8.40 am on 11 April 2009 for hearing on the same day.

The record of adjudication shows that the charge was read to Mr King. The following exchange then took place between Mr Shepherd and Mr King:

“Q (Shepherd): Do you understand the charge?

A (King): Yes.

Q: Have you made a written reply?

A: No.

Q: Have you had enough time to think about what you want to tell me?

A: Yes.

Q: Do you wish to call witnesses?

A: No.

Q: Do you want legal representation?

A: No.

Q: Do you want legal assistance?

A: No.

Q: Do you want a McKenzie friend?

A: No.

Q: Do you understand the evidence?

A: Yes.

Q: Do you want to ask any questions regarding the evidence?

A: No.

Q: How do you plead?

A: Guilty.”

By way of explanation for his conduct, Mr King said: “I am in jail because I had a car accident. I was hearing voices. I heard [them] in the chapel and had problems with them. I started to lash out in the toilet. I wanted them to leave me alone. I was squashed against the wall. I am having a rough time at the moment”. Mr Shepherd asked: “Are you seeing the mental health in-reach team (“MHIT”)?” Mr King replied, “Yes, but the last time I saw someone I had to go to the hospital and I missed my appointment. They got someone to see me sooner. I am very disturbed”.

At the time of his adjudication Mr King was, as Officer Paul reported, the subject of an ACCT plan. ACCT is Assessment, Care in Custody and Teamwork. Those who are at risk from self-harm in custody are identified, assessed and supported. Mr King had been sentenced to 7 years detention for causing death by dangerous driving. The sentencing court had before it a psychiatric report prepared by Dr Susan Oxborrow, a staff grade psychiatrist in adolescent forensic psychiatry at Bluebird House, an adolescent secure unit in Southampton. Dr Oxborrow was reporting the conclusions, both of herself and Dr Paul Brodrick, who had carried out a psychological assessment of the claimant. Despite his young age, Mr King was diagnosed as suffering an anti-social personality disorder with prominent mood instability. He was also, in their opinion, suffering post-traumatic stress disorder with intrusive thoughts arising from the collision which he had caused. Mr King’s history of disturbed and irresponsible behaviour was sufficient to support the conclusion that his disorder was psychopathic. It is not suggested that Mr Shepherd had the psychiatric report before him at the disciplinary hearing.

By Rule 60 of the YOI Rules 2000, if he finds an inmate guilty of an offence against discipline, the Governor may, subject to exceptions which do not apply to Mr King’s case, impose certain punishments. They include a caution, forfeiture of privileges, removal from a particular activity or activities, extra work, stoppage of or deduction from earnings, and removal from the detainee’s wing or living unit. Further:

“60(1)(f) – in the case of an offence against discipline committed by an inmate who was aged 18 or over at the time of commission of the offence, other than an inmate who is serving a period of detention and training under a detention and training order pursuant to Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000, confinement to a cell or room for a period not exceeding ten days.”

By paragraph 7.27A of the Prison Service Order (“PSO”) 2000:

“Before any punishment of cellular confinement, including a suspended punishment and a further punishment added to a previous punishment still being served, is imposed or activated, a medical practitioner or registered nurse must first complete an Initial Segregation Safety Screen, and the adjudicator must take account of any medical advice that the punishment is unsuitable when making his/her decision.”

Mr Shepherd obtained an assessment from Staff Nurse Doherty, called the Initial Segregation Algorithm, timed at 11.45 am on 11 April 2009. It indicated that with regular observations the prisoner could cope with a short period of segregation. At 12.00 noon Mr Shepherd imposed a punishment of three days cellular confinement. Mr King was returned to his normal routine at 8.30 am on 13 April 2009. His actual period of confinement was, therefore, less than two full days.

The conditions under which a detainee is to be kept in cellular confinement are provided by paragraphs 7.27 – 7.34 of the PSO 2000. They are summarised in the witness statement of Mr Roy Donno dated 16 October 2009. Mr Donno is policy lead for adjudications in the Safer Custody and Offender Policy Group of the National Offender Management Service (“NOMS”). Commencing at paragraph 61 of his statement, Mr Donno says:

“ 61. The punishment of cellular confinement is described in paragraphs 7.27 – 34 of chapter 7 of PSO 2000.

62.

Prisoners serving this punishment must be located in an ordinary prison cell set aside for the purpose. This is not necessarily a cell in the prison’s segregation unit. A bed and bedding, a table and chair or stool must be provided in the cell and must not be removed as a punishment. Other furnishings and fittings may be provided at the Governor’s discretion. The prisoner must have access to sanitary facilities at all times. In the case of a young offender, the cell or room must be certified as suitable for the purpose, i.e. its size, lighting, heating, ventilation and fittings, are adequate for health and it allows the prisoner to communicate with an officer at any time (YOI Rule 61 (2)).

63.

Prisoners in cellular confinement must be allowed all normal privileges other than those incompatible with the punishment, unless a further punishment or forfeiture of privileges has also been imposed. Privileges normally compatible with cellular confinement include access to a reasonable number of personal possessions, cell hobbies and activities, entering public competitions and wearing own clothes and footwear (where already allowed). The prisoner may use his or her private cash to purchase items from the prison shop (canteen) for direct delivery.

64.

The prisoner’s entitlements to correspond, exercise and make applications to the Governor, Seconded Probation Officer, Chaplain and Independent Monitoring Board are not affected by cellular confinement. They may attend the main service for their religion. The prisoner is allowed to have books and access to a telephone unless his or her behaviour or attitude make removal from cellular confinement impractical or undesirable. Visits should take place at a time or place away from other prisoners. The prisoner’s privilege level on the IEP scheme will not be affected until a review board has taken place.

65.

The main difference between a prisoner who is in cellular confinement and one who is not is that, in the case of prisoners serving the punishment in the segregation unit, apart from an hour in the exercise yard, showers, telephone calls, visits and meals (all of which take place without association with other prisoners), they remain locked in their cell. During this period, they do not attend work. The main part of the punishment is the prevention of association with other prisoners. Cellular confinement can also be served in the prisoner’s normal location on the wing. There may be more association with other prisoners, for example at meal times and on the exercise yard, but such interaction would remain a matter of local policy.”

Mr King served his period of cellular confinement in the segregation unit at HMP Portland.

Mr Donno’s reference to the IEP scheme requires explanation. Rule 8(1) of the Prison Rules 1999 and rule 6(1) of the YOI Rules 2000, respectively, established a system of privileges which applies to every prison and young offender institution. By rule 6 of the YOI Rules 2000:

“(1)

There shall be established at every young offender institution systems of privileges approved by the Secretary of State...

(2)

Systems of privileges approved under paragraph (1) may include arrangements under which inmates may be allowed time outside their cells and in association with one another, in excess of the minimum time, which subject to the other provisions of these Rules apart from this rule, is otherwise allowed to inmates at the Young Offender Institution for this purpose.

(3)

Systems of privileges approved under paragraph (1) may include arrangements under which privileges may be granted to inmates only in so far as they have met, and for so long as they continue to meet, specified standards in their behaviour and their performance in work or other activities.

(4)

Systems of privileges which include arrangements of the kind referred to in paragraph (3) shall include procedures to be followed in determining whether or not any of the privileges concerned shall be granted, or shall continue to be granted, to an inmate...

(5)

Nothing in this rule shall be taken to confer on an inmate any entitlement to any privilege or to affect any provision in these Rules other than this rule as a result of which any privilege may be forfeited or otherwise lost or an inmate deprived of association with other inmates.”

The minimum time referred to in rule 6(2) is not defined by the Rules.

Rule 37 requires that an inmate shall be occupied in a programme of activities which includes education, training courses, work and physical education. In practice it is during the programme of activities compulsorily provided that the inmate will engage in the ‘minimum’ level of association with other inmates contemplated by the Rules. There are under PSO no. 4000 three levels of privilege under the IEP scheme, basic, standard and enhanced. On the basic level, prisoners participate in normal regime activities provided under Rule 37. As Mr Donno explains at paragraphs 70-73 of his statement, the aim of the privileges scheme is to encourage responsible behaviour by prisoners and to create a more disciplined, better controlled and safer environment for prisoners and staff. By good behaviour and performance, the inmate is able to earn extra and improved visits, higher rates of pay, access to in-cell television, the opportunity to wear personal clothing, access to private cash and further time out of his cell for association. Privileges gained can be lost in the event of declining behaviour but the application of the IEP scheme is separate from loss of privileges imposed in consequence of a disciplinary adjudication. Temporary loss of privileges following an adjudication does not necessarily result in the loss of IEP status. The provisions of PSO 4000 were described in greater detail by Holman J in R on the application of KB v Secretary of State for Justice [2010] EWHC 15 (Admin).

By rule 58 a charge against discipline must be laid as soon as possible and, in any event, within 48 hours. The charge will be “inquired into” by the governor or an adjudicator. Rule 58A(1) requires the governor to determine whether the charge is so serious that “additional days” should be awarded for the offence if the inmate were to be found guilty. Where the governor does so determine, the charge will, under rule 58A(2), be referred to the adjudicator, who will be one of a panel of district and deputy district judges authorised for the purpose. Where the governor does not so determine he will proceed to inquire into the charge himself. By rule 58A(3) the governor may, after finding the inmate guilty of the offence, refer the charge to an adjudicator if he then considers that the offence is so serious that additional days should be awarded. An inquiry by an independent adjudicator shall, by rule 58(3) or 58A(3) commence not later than 28 days after referral by the governor.

An inmate charged with a disciplinary offence has the right, under rule 59 to be informed of the charge as soon as possible, to be given the opportunity for a hearing and to present his own case, and, in respect of a charge referred to an adjudicator, to be provided with legal representation. It will be noted that despite the restrictive terms of rule 59 Mr Shepherd asked the claimant whether he wanted legal or other representation.

The inmate has a right of review by a senior district judge, under rule 60B, against an adjudicator’s decision, but not against the decision of a governor. In the case of a decision of the governor, the Secretary of State may, under rule 64, quash the governor’s decision or reduce the punishment.

The appointment of independent adjudicators to hear disciplinary charges in respect of which additional days may be awarded was introduced to the Rules in 2002 in anticipation of the judgment of the Grand Chamber in Ezeh and Connors v United Kingdom [2004] 39 EHRR 1. The Court did not accept the argument for the Secretary of State that the loss of the governor’s power to award additional days would tend to undermine the prison disciplinary regime in prisons. At §88 the court said:

“...the Court notes that other sanctions were available to the governor at the relevant times (including forfeiture of privileges, exclusion from associated work and cellular confinement) and that the range and severity of sanctions other than additional days has been extended and increased since the applicants’ adjudication proceedings, most recently in August 2002...”

Apart from the removal of association by cellular confinement following an adjudication, rule 49 of the YOI Rules empowers the governor to remove the detainee from association “where it appears desirable, for the maintenance of good order or discipline, or in his own interests, that an inmate should not associate with other inmates either generally or for particular purposes”. The maximum period of removal without the authority of the Secretary of State is 72 hours. The Secretary of State may authorise removal for a period of up to 14 days and authorisation may be renewed. Under Rule 51 the governor may order an inmate who is “refractory or violent” to be confined temporarily in a cell or room, for no longer than 24 hours without the authorisation in writing of the Secretary of State, but the confinement shall not be used for punishment and shall not be maintained after the inmate has ceased to be refractory or violent.

Mr Shepherd has no specific recollection of the adjudication. In his witness statement of 23 October 2009 he reconstructs events from the contemporaneous record to which I have referred and deposes to his invariable practice. Mr Shepherd notes that Chapter 2 paragraph 26 of PSO 2000 provides:

“The adjudicator must adjourn a hearing for health assessment of the prisoner’s fitness if s/he considers this necessary before proceeding further. Particular care should be taken where a prisoner may have a mental health problem.”

In a case of mental health unfitness, Mr Shepherd’s practice was either to adjourn the adjudication or not to proceed with it at all. He asserts that he must have been satisfied that Mr King was fit to face the adjudication.

Mr Shepherd continued, “Had I thought that a prisoner was not responsible for his actions during the incident that gave rise to the charge, I would not have proceeded with the charge. If a prisoner pleads guilty, I will not simply accept the plea and make an award of punishment. I will always satisfy myself from the evidence that the plea is a genuine one. I am conscious that for a variety of reasons, some prisoners will plead guilty to charges which they are not guilty of. If I suspect that a prisoner is making a plea of guilty when it is clear that he is not guilty (for example if further information has come to light which indicates another prisoner committed the offence) I will not proceed with the adjudication despite the guilty plea” [emphasis added]. Mr Shepherd does not, however, explain what, if any, consideration he gave to the words used by the claimant immediately after he had pleaded guilty and, if he did consider them, to what effect.

Mr Shepherd noted that before sentencing he considered a conduct report from an officer having day to day dealings with the prisoner. The report considered in Mr King’s case read:

“King: Runs hot and cold. Quick to lose his temper if he does not get his own way. Constantly threatening to smash up his cell if he does not get his own way. All in all he needs to grow up and stop acting like a petulant child.”

Mr Shepherd commented that three days cellular confinement was a relatively lenient award for the type of offence committed. He regarded the offence of disobeying an order as a serious one. Mr King had hidden from an officer conducting the evening roll call, the purpose of which was to ensure that all prisoners in the prison were accounted for. If a prisoner cannot be seen in his cell the assumption made is that he has escaped or is at large within the prison at a time when he should be in his cell. Other possibilities are that the prisoner is harming himself or carrying out a prohibited activity.

At paragraphs 33-40 of his witness statement Mr Shepherd described what he saw as the advantages of the adjudicating governor. First, there is the benefit of the speed of an internal adjudication. Second, governors are uniquely placed to understand the inner workings of the custodial system, and how best to control and manage prisoners. Third, prison governors will be alive to trends in prison behaviour which require deterrence. Fourth, the governor will probably know the individual prisoner, his “quirks and interests”. Fifth, the adjudicating governor may be alerted to systemic problems of routine or procedure requiring change which only increases in disciplinary charges may reveal. Sixth, the imposition of punishments by the governor encourages confidence in the prison staff which might otherwise be lost. Seventh, it is important that the status of governors as the managers of their custodial institutions should be maintained.

The claimant’s case is that the proceedings which led to Mr King’s adjudication were held in breach of Article 6(1) ECHR in that Mr Shepherd was not an independent and impartial tribunal. While, it is common ground, the disciplinary proceedings held pursuant to rules 58A and 60 did not involve a criminal charge, the claimant asserts that Article 6 nevertheless applied in its “civil” aspect. The argument is developed in the following stages:

(1)

(a) The enjoyment by detainees of association with other inmates is a “civil right” given by the YOI Rules 2000; alternatively, (b) the adjudication engaged the claimant’s Art 8 rights and section 7 Human Rights Act 1998 bestowed them as private and, therefore, civil rights;

(2)

Liability to the imposition of a punishment which removes association means that the proceedings before the governor ‘determine’ that civil right;

(3)

By Article 6 (1) ECHR:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”;

(4)

Mr Shepherd, being governor of the establishment in which the charge was brought, was not an independent tribunal;

(5)

The availability of judicial review of the governor’s adjudication does not provide the Article 6(1) guarantee;

(6)

Accordingly, the adjudication should be quashed.

Discussion and my conclusions upon each stage of the argument commence at paragraph 102 below.

The implication of these submissions is recognised on behalf of the claimant. In 2008 there were some 190,192 punishments imposed for disciplinary offences in prisons and young offender institutions in England and Wales. Of these, 22,693 were awards of cellular confinement. Of those, more than a quarter were for offences of disobeying lawful orders. If the claimant’s cumulative argument is correct in law the punishment of cellular confinement will not be available to a governor inquiring into a disciplinary charge and the system of independent adjudication will require very considerable extension.

Ms Phillippa Kaufmann, on behalf of the claimant, submitted that Mr Shepherd should not have accepted Mr King’s plea of guilty to a disciplinary offence. By reason of Mr King’s psychiatric condition, she submits, an issue arose whether, at the time of his alleged “offence”, he was mentally responsible for his actions, in particular whether his state of mind was such that he could properly be found to have disobeyed an order. Mr Shepherd should have treated the plea as “equivocal”. There was at least a prospect that upon a proper consideration of the evidence Mr King would have been found not guilty because his mind did not go with his actions. Alternatively, upon a finding that the failure to respond to the order was wilful, there were mitigating circumstances such that cellular confinement amounted to a disproportionate punishment.

However, Ms Kaufman does not seek from the Court an order quashing the governor’s decision based upon the narrow ground that it was of itself unreasonable or unlawful. Such a conclusion would have been available to this court on the usual Wednesbury grounds (see also paragraph 124 below). We have been asked to decide this review solely upon an application of Article 6(1), which requires us to resolve whether or not Article 6(1) applied to the proceedings before the governor. Since the issue is one of general importance we have acceded to the claimant’s request.

Mr Grodzinski argued that there was no domestic law right of association for prisoners capable of amounting to a ‘civil right’ within the meaning of Article 6(1). The European Court had not decided that association was, of itself, a right enjoyed by citizens under the domestic law of Italy, Turkey or Greece (see paragraphs 33-51 below), still less under the domestic law of the United Kingdom. While, for the purposes of the present case (and below the level of the Supreme Court) only, the Secretary of State was prepared to concede that proceedings to determine a claim for breach of a Convention right would (by virtue of section 7 HRA 1998) involve the determination of a dispute about a “private” right for the purposes of Article 6 it was argued that the disciplinary proceeding before the governor did not involve the ‘determination’ of the claimant’s Article 3 or Article 8 rights or indeed the determination of any ‘civil right’. Alternatively, while it was conceded that the governor was not an independent tribunal for the purposes of Article 6(1), the claimant’s right of access to the High Court to challenge the governor’s decision was sufficient to render the proceedings as a whole Article 6(1) compliant.

Both parties recognise the disciplinary nature of the proceedings before the governor. Such proceedings will not attract the Article 6(1) guarantee unless what is at stake is the determination of a criminal charge (see Ezeh and Connors v. United Kingdom, paragraphs 1 and 13 above) or the determination of a civil right or obligation. The claimant relies upon the recent statement of principle in Orsus v Croatia [2009] 49 EHRR 26 in the European Court. The applicants claimed that they had suffered discrimination on the grounds of race in the provision of education to the Roma community. By Article 14 of the Constitution of the Republic of Croatia;

“Everyone in the Republic of Croatia shall enjoy rights and freedom, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.”

By Section 62 of the Constitutional Court Act 2002 the applicants were entitled to lodge a complaint with the constitutional court for violation of human rights or fundamental freedoms. In domestic proceedings the applicants complained, inter alia, that the state had discriminated against them in the provision of education to which they had a right under Article 2 of Protocol 1 to the Convention. In the European Court, the applicants complained that their treatment within the Croatian education system constituted inhuman and degrading treatment (Article 3). Relying upon Article 6(1) they also complained that proceedings before the domestic courts were unfair and took an excessive length of time to resolve.

The European Court held that since Article 6(1) applied to proceedings which concerned the right not to be discriminated against on the grounds of religious belief or political opinion there was no reason to take a different approach in cases concerning discrimination on the grounds of race. Furthermore, the applicants’ right not to be discriminated against on the basis of race was guaranteed by the constitution and, as such, was enforceable before civil courts in Croatia. It followed that Article 6(1) was applicable (§§ 42 and 43). In considering the admissibility of the applicants’ claim under Article 6(1), the court made the following statement of principle:

“41.

The court notes that according to the principles enunciated in its case law [including Pudas v. Sweden – see below], a dispute over a “right” which can be said at least on arguable grounds to be recognised under domestic law, must be genuine and serious; it may relate not only to the actual existence of the right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question. Furthermore, whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right – and not only its legal classification – under the domestic law of the state concerned. Accordingly, in ascertaining whether the present case concerns the determination of a civil right, only the character of the right at issue is of relevance.” [reference in square brackets inserted]

The court found that the complaint of unfairness in the proceedings was not established, but that there had been a violation of Article 6(1) in that a period of over four years elapsed before proceedings in the constitutional court were resolved.

As to the requirement for a “contestation” (dispute) concerning the existence, scope or manner of exercise of a civil right, the Court in a footnote at §41 referred to and relied upon the judgment of the Court in Pudas v Sweden [1988] 10 EHRR 380:

“ 30. According to the Court’s established case law, Article 6.1 extends only to “contestations” (disputes) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for “civil rights and obligations” in the substantive law of the contracting states (see, as the most recent authority, the W v United Kingdom judgment of 8 July 1987, series Ano. 121, pp. 32-33, paragraph 73);

31.

As to whether there was a “contestation” within the meaning of Article 6.1, regard should be had to the principles enunciated in the court’s case law summarised in the Benthem judgment of 23 October 1985 (series Ano. 97, pp. 14-15, paragraph 32):

(a)

conformity with the spirit of the Convention requires that the word “contestation” (dispute) should not be construed too technically and should be given a substantive rather than a formal meaning.

(b)

The “contestation” (dispute) may relate not only to the actual existence of the right, but also to its scope or the manner in which it may be exercised. It may concern both questions of fact and questions of law.

(c)

It must be genuine and of a serious nature.

(d)

The expression “contestations sur des droits et obligations de caractère civil” (disputes over civil rights and obligations) covers all proceedings the result of which is decisive for such rights and obligations. However, a tenuous connection or remote consequences do not suffice for Article 6.1; civil rights and obligations must be the object – or one of the objects – of the “contestation” (dispute); the result of the proceedings must be directly decisive for such a right”.”

The establishment of these principles in the field of disciplinary control over medical practice had been the subject of sharp disagreement between members of the European Court in Le Compte, Van Leuven and DeMeyere v Belgium [1981] 4 EHRR 1 and Albert and Le Compte v Belgium [1983] 5 EHRR 533. Medical practitioners in Belgium were suspended by a disciplinary tribunal, the Provincial Council of the Ordre des médicins. The issue before the European Court was whether the disciplinary proceedings involved the determination of civil rights. The court recognised, at §42, that “disciplinary proceedings do not normally lead to a contestation (dispute) over “civil rights and obligations” (Engel and Others v NetherlandsNo. 1 [1976] 1 EHRR 647 at §87). However, the Court in Le Compte, following Ringeisen v Austria (No 1) [1971] 1 EHRR 455 and König v Germany [1978] 2 EHRR 214, said:

“44.

... The phrase in question covers “all proceedings the result of which is decisive for private rights and obligations”, even if the proceedings concern a dispute between an individual and a public authority acting in its sovereign capacity; the character “of the legislation which governs how the matter is to be determined” and of the “authority” which is invested with jurisdiction in the matter are of little consequence. The very notion of “civil rights and obligations” lay at the heart of the König case. The rights at issue included the right “to continue his professional activities” as a medical practitioner “for which he had obtained the necessary authorisations”. In the light of the circumstances of that case, the court classified this right as private and hence as civil for the purposes of Article 6.1.”

The Court posed the question whether it could be said that the disciplinary proceedings against the doctors amounted to a “contestation” in the sense of “two conflicting claims or applications”. The Court concluded that the proceedings before the medical tribunals involved an accusation of professional misconduct rendering the applicants liable to sanctions. The misconduct alleged was denied. At §45 the Court said:

“45.... even if the use of the French word “contestation” implies the existence of a disagreement, the evidence clearly shows that there was one in this case. The Ordre des médecins alleged that the applicants had committed professional misconduct rendering them liable to sanctions and they denied those allegations. After the competent Provincial Council had found them guilty of that misconduct and ordered their suspension from practice – decisions that were taken in absentia in the case of Dr Le Compte ... and after hearing submissions on his issues of fact and of law from Dr Van Leuven and Dr De Meyere in their cases ... – the applicants appealed to the Appeals Council. They all appeared before that Council, with the assistance of lawyers, they pleaded amongst other things Articles 6(1) and 11. In most respects their appeals proved unsuccessful whereupon they turned to the Court of Cassation relying once more, inter alia, on the Convention ...”.

Belgium argued that the dispute concerned alleged breaches of the rules of professional conduct. The issue whether the doctors should be suspended from the practise of medicine arose at a later stage as an indirect consequence of the “contestation”. At §47, the Court recognised that “a tenuous connection or remote consequences do not suffice for Article 6.1...The result of the proceedings must be directly decisive for such a right”. However, it found that the suspensions ordered by the Provincial Council put the doctors’ right to practise directly in issue before the Appeals Council and Court of Cassation, “which bodies had to examine the applicant’s complaints against the decisions affecting them”. Medical practise concerned private relationships between doctors and their patients. A private right was at issue which was, accordingly, civil in nature. A striking example of the application in the United Kingdom of the principle that the proceedings must be “decisive” of the right in issue is to be found in the decision of the Court of Appeal in R (G) v Governors of X School [2010] EWCA Civ 1 (see paragraph 99 below).

The majority did not agree with the minority opinion of two members of the Commission that a suspension for relatively short periods, three months in one case and fifteen days in the others, did not involve a determination of the civil right. At §49 the Court said:

“Unlike certain other disciplinary sanctions that might have been imposed on the applicants (warning, censure and reprimand...) the suspension of which they complained undoubtedly constituted a direct and material interference with the right to continue to exercise the medical profession. The fact that the suspension was temporary did not prevent its impairing that right (Golder v United Kingdom [1975] 1 EHRR 524, note 8 at p. 531, §26); in the “contestation” (dispute) contemplated by Article 6.1 the actual existence of a “civil” right may, of course, be at stake, but so may the scope of such a right or the manner in which the beneficiary may avail himself thereof.

Since the dispute over the decisions taken against the applicants has to be regarded as a dispute relating to “civil rights and obligations” it follows that they were entitled to have their case (in French: “cause”) heard by “a tribunal” satisfying the conditions laid down in Article 6.1 (Golder at p. 536, §36).”

At §51 the Court observed:

“51...(a)...Whilst Article 6(1) embodies the ‘right to a court’ (see para. 44 above) it nevertheless does not oblige the Contracting States to submit ‘contestations’ (disputes) over ‘civil rights and obligations’ to a procedure conducted at each of it stages before ‘tribunals’ meeting the Article’s various requirements. Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect; the legal tradition of many member States of the Council of Europe may be invoked in support of such a system. To this extent the Court accepts that the arguments of the Government...are correct....

(b)

Once the Provincial Council had imposed on Dr Le Compte, Dr Van Leuven and Dr De Meyere a temporary ban on the exercise of their profession, they appealed to the Appeals Council which thus had to determine the dispute over the right in question. According to the Government, the Appeals Council nevertheless did not have to meet the conditions contained in Article 6(1) since an appeal on a point of law against its decision lay to the Court of Cassation and that court’s procedure certainly did satisfy those conditions.

The Court does not agree. For civil cases, just as for criminal charges, Article 6(1) draws no distinction between questions of fact and questions of law. Both categories of question are equally crucial for the outcome of proceedings relating to ‘civil rights and obligations’. Hence, the ‘right to a court’ (see Golder v. United Kingdom (1975) 1 EHRR 524, note 8, page 536 at para. 36) and the right to a judicial determination of the dispute cover questions of fact just as much as questions of law. Yet the Court of Cassation does not have the jurisdiction to rectify factual errors or to examine whether the sanction is proportionate to the fault...It follows that Article 6(1) was not satisfied unless its requirements were met by the Appeals Council itself.”

The Appeals Council did not sit in public. Accordingly, the Court found, at §61, that the applicant’s case “was not heard publicly by a tribunal competent to determine all aspects of the matter”. For this reason there was a breach of Art 6(1).

As to the need for a dispute, and the observation of the court in Le Comte that the denial of professional misconduct constituted that dispute, Ms Kaufmann submits that the claimant’s acknowledgement of guilt did not remove the quality of “determination” from his disciplinary hearing. It is submitted that his plea of guilty was arguably equivocal; it was therefore necessary for the governor to reach a decision whether he was guilty of a disciplinary offence or not. In any event, the governor’s selection of penalty directly affected the claimant’s civil right of association. In this connection, a resolution of the facts was required to determine the level of culpability and, therefore, penalty. Miss Kaufmann argues that it cannot be said that the connection between removal of the right to association and the resolution of the dispute was tenuous or remote.

Mr Grodzinski submitted that the critical decision for this court was the moment when the ‘contestation’ arose in the domestic proceedings. In Le Compte (§51(b)) the Court found that the “contestation” did not arise during the purely disciplinary phase of the process but in the Appeals Council and Court of Cassation. There was before the governor, he said, no dispute over an arguable private right of association or the right to exercise that right. The proceedings before the governor were administrative and disciplinary in nature, the equivalent of the proceedings before the professional tribunal in Le Compte. Those proceedings were solely directed to the questions whether the claimant was guilty of a disciplinary offence and, if so, what was the appropriate penalty. The ‘contestation’ upon the issue of suspension of a ‘civil right’, if any, arose only upon the challenge by the claimant by way of judicial review to the penalty of cellular confinement, either because he was innocent of the disciplinary offence or because the penalty was disproportionate to that offence. The High Court is, without question, an independent judicial tribunal.

Miss Kaufmann submits that the European Court now regards the ability of a serving prisoner to enjoy association with his fellow inmates as a civil right for the purposes of Article 6. Our attention was drawn to a series of recent cases in the European Court involving restrictions imposed upon prisoners over and above the normal prison regime. They require examination with some care. In Ganci v Italy [2005] 41 EHRR 16, the applicant was serving two life sentences. Under an executive power the Minister of Justice issued decrees whose effect was to impose limits on visits by family members and others, prohibited meetings with “third parties”, limited communication by telephone, restricted the receiving or sending of sums of money, reduced laundry facilities, removed cultural, recreational, handicraft and sports activities, and the right to vote for or stand as a prisoners’ representative, and imposed a reduction in outdoor exercise. The executive power was given, subject to judicial review, for reasons of public order and security, and was exercisable only when the prisoner had been convicted of certain offences. The applicant complained that he had been deprived of a meaningful remedy in the domestic courts because he was unable to obtain a decision upon the lawfulness of the decrees made by the Minister of Justice before each of them lapsed and was replaced by its successor.

The Government of Italy successfully argued that the judicial proceedings did not concern the determination of a criminal charge so as to attract the criminal aspects of Article 6. However, the Court said at §23 and following:

“23...the Court must consider whether the civil head of Art. 6 is applicable since the case did concern the “determination of civil rights and obligations”.

The Court notes that, in appealing, the applicant was contesting the lawfulness of restrictions imposed on a series of rights commonly recognised to prisoners. The issue of the applicability of Article 6(1) therefore arises under two heads: whether there was a dispute(contestation) over an arguable right under domestic law and whether or not the said right was a “civil” one.

24.

As to the first condition, the Court reiterates that, in accordance with its established case-law, Article 6(1) of the Convention is applicable only if there is a genuine and serious “dispute” (see Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 30, § 81) over “civil rights and obligations”. The dispute may relate not only to the existence of a right but also to its scope and the manner of its exercise (see, inter alia, Zander v. Sweden, judgment of 25 November 1993, Series A no. 279-B, p. 38, § 22), and the outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6(1) into play (see, inter alia,Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327-A, p.  § 44, and Fayed v. the United Kingdom, judgment of 21 September 1994, Series A no. 294-B, pp. 45-46, § 56). Furthermore, “Article 6(1) extends to “contestations” (disputes) over (civil) “rights” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention” (see, inter alia, Editions Périscope v. France, judgment of 26 March 1992, Series A no. 234-B, § 35, and Zander, cited above).

The Court notes that, when examining the appeals against decrees nos. 2 and 8 (see paragraph 13 above), the courts allowed the applicant's requests in part. In its judgment no. 26 of 1999 (see paragraph 18 above), the Constitutional Court ruled on the need to ensure judicial protection against the restrictions imposed on prisoners.

25.

With regard to the second condition, the Court notes that at least some of the serious restrictions laid down by the decrees of the Minister of Justice in respect of the applicant – such as the one restricting his contact with his family and the ones affecting his finances – certainly fell within the sphere of personal rights and were therefore civil in nature.

26.

Consequently, the Court observes that Article 6 is applicable in the instant case.”

The Court found that the applicant was contesting the lawfulness of restrictions imposed by the Minister of Justice on a series of rights “commonly recognised to prisoners”. On two occasions, in respect of decrees numbered 2 and 8, the domestic courts had allowed the applicant’s appeal in part. There was on appeal a “contestation” relating to rights claimed by the applicant. The restrictions imposed by the Minister of Justice concerned contact with the prisoner’s family and the ability to handle his own money. The Court concluded that these were personal rights, civil in nature. Article 6 therefore applied to the proceedings before the domestic courts.

The applicant had appealed against eight of the nine decrees issued. In four of those cases no decision was given during the period of validity of the decrees. The result was that in those four cases the appeal court had ruled the appeals inadmissible because the appellant no longer had an interest in having them heard. This was a violation of Article 6(1).

Mr Grodzinski observed that insofar as the Court was identifying a ‘civil right’ in dispute it was not dealing with a right of association between prisoners. Furthermore, it was not contended that Article 6 applied to the executive decision making process, but only to the court proceedings to which the applicant had access by way of appeal.

In Gulmez v Turkey [2008] ECHR 16330/02, the European Court was examining prison disciplinary proceedings. The prisoner was charged with damaging prison property. The evidence and the prisoner’s submissions in his own defence were considered by the Disciplinary Board in writing. The charge was found proved and the prisoner was prohibited from receiving visitors for a period of three months. That decision was reviewed by the “state security court”, again in writing, and the decision was upheld. Further disciplinary offences led to an extension of the penalty, later upheld by the state security court and by “Enforcement Judges”. The applicant complained to the European Court that he had been deprived of the right to defend himself in person before the domestic authorities, and that for a period of about one year there had been a violation of his right to respect for private and family life under Article 8 of the Convention.

At §27 the Court noted that the prisoner had been deprived of his visiting rights for nearly a year and resolved that it should examine first whether there was a dispute over an arguable right under domestic law, and whether or not such a right was civil in nature. In terms almost identical to §24 of Ganci the Court stated the principles applicable to its decision. Without further analysis, the court concluded as follows:

“29.

It is observed that the domestic law provided judicial remedies against disciplinary sanctions imposed on prisoners. As a result, the applicant had a right to challenge the disciplinary sanctions before the domestic courts (see, mutatis mutandis, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, §§ 62 63, ECHR 2007 ...).

30.

With regard to the second condition, the Court notes that the restriction of the applicant's visiting rights clearly fell within the sphere of his personal rights and was therefore civil in nature (see Ganci v. Italy, no. 41576/98, § 25, ECHR 2003 XI).

31.

In view of the above, the Court finds that Article 6 is applicable in the instant case.”

In describing the relevant law the Court referred to the recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec (2006)2, adopted on 11 January 2006 at the 952^nd meeting of the Ministers' Deputies), which contained, amongst others, the following recommended provisions:

“Discipline and punishment

56.1

Disciplinary procedures shall be mechanisms of last resort. ...

57.2

National law shall determine:

a.

the acts or omissions by prisoners that constitute disciplinary offences;

b.

the procedures to be followed at disciplinary hearings;

c.

the types and duration of punishment that may be imposed;

d.

the authority competent to impose such punishment; and

e.

access to and the authority of the appellate process.

58.

Any allegation of infringement of the disciplinary rules by a prisoner shall be reported promptly to the competent authority, which shall investigate it without undue delay.

59.

Prisoners charged with disciplinary offences shall:

a.

be informed promptly, in a language which they understand and in detail, of the nature of the accusations against them;

b.

have adequate time and facilities for the preparation of their defence;

c.

be allowed to defend themselves in person or through legal assistance when the interests of justice so require;

d.

be allowed to request the attendance of witnesses and to examine them or to have them examined on their behalf; and

e.

have the free assistance of an interpreter if they cannot understand or speak the language used at the hearing.

60.1

Any punishment imposed after conviction of a disciplinary offence shall be in accordance with national law.

60.2

The severity of any punishment shall be proportionate to the offence. ...

60.4

Punishment shall not include a total prohibition on family contact. ...

61.

A prisoner who is found guilty of a disciplinary offence shall be able to appeal to a competent and independent higher authority.”

The applicant complained that he did not have a fair disciplinary hearing because the domestic courts had delivered their decisions from a case file without holding a hearing. The Court found as follows:

“34.

The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6§1. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6§1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, among other authorities, Szücs v. Austria, judgment of 24 November 1997, Reports of Judgments and Decisions 1997 VII, p. 2481, § 42; Diennet v. France, judgment of 26 September 1995, Series A no. 325-A, pp. 14 15, § 33).

35.

The Court further recalls that, under Article 6§1, holding a public hearing is not an absolute right. A hearing may not be necessary in the particular circumstances of a case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties' written observations (see Döry v. Sweden, no. 28394/95, § 37, 12 November 2002). It is also recalled that the right of access to court, by its very nature, calls for regulation by the State, which may vary in time and in place according to the needs and resources of the community and individuals (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, § 38). The State has a margin of appreciation in making such regulations but the limitations applied must not restrict or reduce the access left to the individual in such a way as to impair the essence of this right (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, § 57).

36.

At this point, the Court refers to Article 59(c) of the European Prison Rules which stipulates that prisoners charged with disciplinary offences shall be allowed to defend themselves in person or through legal assistance when the interests of justice so require (paragraph 16 above).

37.

Turning to the facts of the present case, the Court observes in the first place that, at the material time, Article 163 of the Regulations (paragraph 13 above) stated that no disciplinary sanction could be imposed on a prisoner before his or her submissions in defence were taken. However, according to Article 6 of Law no. 4675, prisoners' appeals against disciplinary sanctions imposed on them were examined on the basis of the case file by the Enforcement Judge and subsequently by the nearest Assize Court. As a result, no public hearing was held during the proceedings relating to the present applicant. Both the Enforcement Judge and the Assize Court, who examined the applicant's cases, took their decisions on the basis of the documents in the case file. The applicant's defence submissions had only been taken into account just before the Disciplinary Board imposed the various sanctions. The applicant was also not given the opportunity to defend himself through a lawyer before the domestic courts who determined his disciplinary appeals.

38.

In view of the foregoing, the Court concludes that the applicant could not effectively follow the proceedings against him.

39.

Accordingly, there has been a violation of Article 6§1 of the Convention.”

Judge Mularoni and Judge Tsotsoria expressed concern in their concurring opinion. Judge Mularoni accepted that the deprivation of visiting rights for a period of a year engaged Article 6 under its civil head, presumably on the ground that the applicant had, for a prolonged period, been deprived of effective access to a court to challenge the administrative decisions. However, he was uneasy about the court’s willingness to apply the decision of the court in Vilho Eskeline to the disciplinary hearings themselves. He said:

“That case concerns access to court for civil servants and has absolutely nothing to do with the issue of disciplinary sanctions imposed on prisoners. I am very much afraid that said reference serves the purpose of introducing the principle that, from now on, a presumption exists that Article 6 applies to any disciplinary sanction imposed on prisoners when domestic law provides judicial remedies. I am of the opinion that the chambers of the court should not engage in judicial hyper-activism, moving rapidly, in the absence of clear Grand Chamber guidelines, from a case law under which Article 6 of the Convention was not applicable at all to disciplinary proceedings to a case law according to which Article 6 should always apply, regardless of the nature and gravity of the disciplinary sanction imposed, whenever judicial protection is offered at domestic level.... May I add that imposing on domestic courts to hold public hearings [sic] in all procedures concerning disciplinary sanctions, regardless of their gravity, would to my mind represent a disproportionate burden and risk undermining the court’s ability to deal with cases within a reasonable time. The Grand Chamber having recently found that there was no such obligation in a case concerned with “criminal” issues (see Jussila v Finland [2006] ECHR 73053/01) I do not believe that it is appropriate for a Chamber of the Court to impose such an obligation in cases involving disciplinary sanctions where the “civil limb” of Article 6 is at stake. For this reason, I come to the conclusion that there has been a violation of Article 6 in this case for one reason only: that the applicant was not given the opportunity to defend himself through a lawyer before the domestic courts which determined his disciplinary appeals. The severity of the total sanction imposed on him cannot justify any derogation from the principle of legal representation before domestic courts.”

Judge Mularoni therefore favoured the conclusion that the proceedings at stake were disciplinary in nature. Accordingly, Article 6 did not apply to the administrative process by which the disciplinary charge and consequential penalty were judged. It applied only to the court proceedings by which domestic law provided a right of challenge, and only after the penalty had been in place for a considerable period. Gulmez was a decision of the Second Chamber.

In Enea v Italy (17 September 2009 Application No. 74912/01) the Grand Chamber again examined the Italian domestic procedure for restricting the prison regime imposed by way of sentence upon a prisoner. By 19 successive decrees the Minister of Justice suspended the application of the ordinary prison regime to be applied to the applicant for reasons of public order and safety. The decrees included restrictions on the prisoner’s ability to receive family visits and a ban on visits from non-family members, a prohibition on using the telephone, restrictions on receiving or sending money, restrictions on receiving parcels, a ban on organising cultural, recreational, or sports activities, the removal of the right to vote for prisoners’ representatives, or to stand for election, a ban on craft activities or purchase of food for cooking, limited daily exercise and monitoring of all correspondence. The Court found that since the reviewing domestic court had failed to reach a decision on the applicant’s appeal against decree no. 12 the application to that court was deprived of effect. Accordingly, there had been a breach of Article 6.1.

The Court referred to its previous decision in Ganci and noted that the Court of Cassation in Italy had since held that “prisoners had an interest in obtaining a decision even if the period of validity of the impugned decree had expired, as the decision had direct impact on decrees subsequent to the one in question”. At section III of its judgment (§48) the European Court again noted the recommendation (REC(2006)2) of the Committee of Ministers to member states on the European Prison Rules adopted on 11 January 2006. Member states were advised to be guided in their legislation, policies and practice by rules contained in the appendix. The appendix to the recommendation stated in part:

“Basic principles

1.

All persons deprived of their liberty shall be treated with respect for their human rights.

2.

Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.

3.

Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective to which they are imposed. ...

Contact with the outside world

24.1

Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.

24.2

Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by the judicial authority, shall nevertheless allow for an acceptable minimum level of contact. ...

24.4

The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible. ...

24.10

Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers, periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case. ....

Prison regime

25.2

This regime shall allow all prisoners to spend as many hours a day outside of their cells as are necessary for an adequate level of human and social interaction. ...

Exercise and recreation

27.1

Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. ...

27.3

Properly organised activity to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral party of prison regimes. ...

Freedom of thought, conscience and religion

29.2

The prison regime shall be organised so far as practicable to allow prisoners to practice their religion and follow their beliefs. ...

Security

51.1

The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. ...

Safety

52.1

As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison, or whether they are likely to harm themselves. ...”

The Government of Italy, in line with the Court’s decision in Ganci, does not appear to have challenged the application of Article 6 to the process of appeal against the decrees made by the Minister of Justice. However, the applicant had, secondly, been assigned to an E.I.V. unit whose regime, it was further contended, affected the applicant’s civil rights. The Grand Chamber therefore considered whether the applicant should have been provided with access to a court for a ruling upon his placement in the E.I.V. unit. It was suggested on behalf of the Government (§§87-88) that the Court had lost its focus upon “civil” as opposed to non-civil rights. It was now difficult to identify any individual rights which were not “civil” in nature. The Government submitted that the fact the State was acting as a legitimate brake on the manifestation of individual interests was decisive in a finding that Article 6 was not applicable:

“ 90. The choice of institution in which a prisoner served his or her sentence fell exclusively within the scope of the administrative authorities’ discretionary powers and was based on considerations falling wholly within the sphere of public law. These included order and security and the need to prevent possible acts of violence or escape attempts by prisoners. In the presence of such extensive powers the subjective situation of the prisoner and his or her aspirations and claims were the subject of purely residual protection which cannot have the same ranking in the legal system as the protection afforded to “rights”.

91.

Consequently, the applicant could not claim a “right” and hence could not demand to have access to a “court”, for the purposes of the Convention, in order to challenge the decision of the prison authorities to assign him to an E.I.V. unit.

At §101 the Court noted that most of the restrictions to which the applicant was allegedly subjected were the subject of “prisoner’s rights” which the Council of Europe had recognised in the European Prison Rules adopted by the Committee of Ministers 1987, and were the subject of the further recommendation on 11 January 2006. The Court continued:

“Although the recommendation is not legally binding on the member states, the great majority of them recognise that prisoners enjoy most of the rights to which it refers and provide for avenues of appeal against measures restricting those rights.”

The Court concluded:

“102.

It follows that a “dispute (contestation) over a right” for the purposes of Article 6.1 can be said to have existed in the instant case.”

The Court continued that in respect of the second question, whether the dispute involved civil rights:

“103.

As to the second aspect, the Court reiterates that “Article 6 § 1 extends to 'contestations' (disputes) over civil 'rights' which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention” (see, inter alia, Editions Périscope v. France, 26 March 1992, § 35, Series A no. 234 B, and Zander, cited above).

The Court notes that some of the restrictions alleged by the applicant – such as those restricting his contact with his family and those affecting his pecuniary rights – clearly fell within the sphere of personal rights and were therefore civil in nature (see Ganci, cited above, § 25).

104.

Against this background the Court reiterates that in Golder v. the United Kingdom (21 February 1975, § 36, Series A no. 18), it held as follows:

“... the right of access [to a court] constitutes an element which is inherent in the right stated by Article 6 § 1. This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6 § 1 read in its context and having regard to the object and purpose of the Convention, a lawmaking treaty (see the Wemhoff judgment of 27 June 1968, Series A no. 7, p. 23, § 8), and to general principles of law”.

As to the nature of the executive act which removed such rights the Court observed:

“105.

The Court is well aware that it is essential for States to retain a wide discretion with regard to the means of ensuring security and order in the difficult context of prison. However, it reiterates that “Justice cannot stop at the prison gate and there is ... no warrant for depriving inmates of the safeguards of Article 6” (see Ezeh and Connors v The United Kingdom (GC), no. 39665/98 and 40086/98 at §83, ECHR 2003 – X).

106.

Any restriction affecting these individual civil rights must be open to challenge in judicial proceedings, on account of the nature of the restrictions (for instance – a prohibition on receiving more than a certain number of visits from family members each month, or the ongoing monitoring of correspondence and telephone calls) and of their possible repercussions (for instance – difficulty in maintaining family ties or relationships with non-family members, exclusion from outdoor exercise). By this means it is possible to achieve the fair balance which must be struck between the constraints facing the state in the prison context on the one hand, and the protection of prisoners’ rights on the other.

107.

In conclusion, the Court considers that the complaint concerning the restrictions to which the applicant was allegedly subjected as a result of his being placed in an E.I.V. unit is compatible ratione materiae with the provision of the convention since it relates to Article 6 under its civil head. ... ”

The Court rejected the complaint relating to the E.I.V. unit on the factual ground that individual restrictions within the E.I.V. regime could be challenged before the domestic court. Placement in an E.I.V. unit did not, of itself, entail further restrictions which could not be challenged.

The European Court was again adopting the approach that since domestic law granted the right to appeal an executive decision restricting a prisoner’s enjoyment of conditions which applied to the prison population in general, some of which were ‘personal in nature’, those rights were civil for the purposes of Art 6(1); the “contestation” (dispute) arose in the court to which the appeal was addressed. Furthermore, at §106 the Court required member states to provide inmates with the right in judicial proceedings to challenge restrictions imposed on personal rights, such as family visits and correspondence. Mr Grodzinski noted that here too the Court was not examining a right to association.

The final European decision on “prisoners’ rights” to which we were referred was Stegarescu and Bahrin v Portugal (6 April 2010 Application no. 46194/06, Second Section). An official translation from the French is as yet unavailable. We are informed by Mr Grodzinski that none is intended and that the defendant is content that we should rely on the translation provided. The particular significance of the decision to the present claim is, in Ms Kaufmann’s submission, its finding that a right of association is a civil right for the purposes of Article 6. The applicants were serving prison sentences. On 7^th May 2006 they were informed that the Deputy Director General of the Prison Service had ordered that they should be placed in secure cells where they would remain in solitary confinement save for one hour of outdoor exercise per day. The applicants sought to challenge the decision by complaint to the Ministry of Justice. Article 115 of Portugese Decree No 265/79 enabled the transfer of a prisoner to “a prison appropriate for incarceration in special high-security conditions where there is a real danger of escape or where his behaviour constitutes a danger to the security or order of the prison”. No provision was made for any right of appeal against such a decision. The prisoners’ remedy was an application in writing to the Governor, to the Inspectors of the Prison Service, and to the Enforcement Court judge.

In assessing the admissibility of the applicant’s claim under Article 6, the Court noted the development of its jurisprudence in Ezeh and Connors v United Kingdom (criminal charge), Ganzi v Italy, Gulmez v Turkey and Enea v Italy (civil rights). At §37 and following the Court said:

“ 37. Examining the circumstances of the case, the Court notes first of all that the placement of the applicants in high security cells led in particular, in addition to solitary confinement in itself and according to the information provided by the applicants and unchallenged by the Government to the restriction of visits to one hour a week – with prisoner and visitor separated by a glass panel – the restriction of exercise to one hour a day and the impossibility, for the first applicant, of continuing with his studies and sitting exams.

38.

In the eyes of the Court these are restrictions on “individual civil rights”. Such restrictions on the prisoner’s rights as well as the repercussions that they may have, must therefore be analysed in terms of “civil rights” (see Enea cited above §106).

39.

Article 6.1 of the Convention must therefore be applied under its civil limb and the Government’s objection must therefore be rejected.”

The Government of Portugal had specifically submitted (§32) that “the measures challenged by the applicants, which were necessary to maintain order and security within the prison, were an exercise of its powers and authority and do not come within the scope of application of Article 6.1”. Furthermore, the Government had argued that the applicants had failed to specify which domestically recognised rights they had been denied. By this means it sought to distinguish the instant case from Ganci v Italy.

At §46 the Court acknowledged that right of access to a court is not absolute. Contracting states “enjoy a certain margin of appreciation” but the Court “must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way, or to such an extent, that the very essence of the right is impaired”. The Court continued:

“46....Furthermore, a limitation will not be compatible with Article 6(1) (art. 6-1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see among many others the decision of Fayed v. United Kingdom of 21 September 1994, series A, no. 294-B, pp. 49-50, §65). In addition, ‘for the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights’ (Bellet v. France decision of 4 December 1995, series A, no. 333-B, §36).

47.

The Court must first examine whether the special administrative action mentioned by the Government could constitute a right of access to the courts, since it relates to the civil rights of the applicants which were affected by their placement in a high-security cell.

48.

It notes in this respect that the Government was only able to provide two decisions – both from before the period in question in this case – from the Court of Conflicts confirming the jurisdiction of the Administrative courts in situations comparable to that of [this] case, whereas the applicable legislation at the time of the facts had been in force for almost 30 years. The court also notes that at no point during the period in question were the applicants given copies of the orders of the deputy director general of the prison service by which they were placed in high-security cells; they were only informed that the measure had been taken due to the existence of indications leading to the belief that escape plans were under way...

49.

In these conditions, it is obvious that the special administrative action in question – as well as the possibility of requesting interim orders regarding such action – did not offer the applicants a clear, practical opportunity of challenging the measures instituted against them, even if the jurisdiction of the Adminstrative Courts in this issue had been sufficiently established by case law at the time. As the Court has constantly repeated, the Convention is intended to guarantee not rights that are theoretical or illusory but right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (Airey v. Ireland, 9 October 1979, series A, no. 32, §24).

50.

The Court also notes that the Government has not submitted any argument to justify such restrictions on the right of access to the courts. It notes that in any case a judicial procedure making it possible to challenge acts having significant repercussions on the civil rights of prisoners must exist in order to achieve a fair balance between the constraints facing the state in the prison context on the one hand, and the protection of prisoners’ rights on the other (see §36 above and Enea cited above, §106).

51.

Lastly, the court notes that the Government has reformed the legislation relating to the enforcement of sentences and that it intends to strengthen prisoners’ rights. Nonetheless, the applicants were unable to benefit from this reform, which does not in any case seem to provide a prisoner with any personal right to appeal against a decision to place him under a high-security regime....”

Miss Kaufmann submits that having applied the judgment of the Grand Chamber in Enea, the Second Section came to the explicit conclusion that a right of association is a civil right, at least in Portugal, for the purpose of Article 6.1. Mr Grodzinski argued that this interpretation of the Court’s judgment depends upon a particular construction of §37 which, in the absence of an authorised English translation is capable of two meanings. The first accords with Ms Kaufmannn’s submission; the second possibility is that the Court was identifying not the fact of solitary confinement but the other restrictions upon the prisoners’ regime (such as visits and exercise) as ‘civil rights’.

Ms Kaufmann noted that while the European Court historically had confined the civil aspect of Article 6 to disputations upon “private” rights, the jurisprudence had extended the concept to private rights affected by administrative decisions. Lord Hoffman explained this development in R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at §§ 78 – 84. He said:

“ 78. As a matter of history it seems likely that the phrase “civil rights and obligations” was intended by the framers of the convention to refer to rights created by private rather than by public law. In other words, it excluded even the right to a decision as to whether a public body had acted lawfully, which English law, with that lack of a clear distinction between public and private law which was noted by Dicey, would treat as part of the civil rights of the individual. ... The framers extended [the] concept to cases which, according to the systems of the majority of contracting states, fell within the jurisdiction of the ordinary courts of civil law. But there was no intention to apply Article 6 (1) to public law which was on the continent a matter for the administrative courts.

79.

These views of the meaning of “civil rights and obligations” are only of historical interest, because, as we shall see, the European court has not restricted Article 6(1) to the determination of rights in private law. The probable original meaning, which Judge Wiardi said in König’s case, at page 205, was the “classical meaning” of the term “civil rights” in a civilian system of law, is nevertheless important. It explains the process of reasoning, unfamiliar to an English lawyer, by which the European court has arrived at the conclusion that Article 6(1) can have application to administrative decisions. The court has not simply said, as I have suggested one might say in English law, that one can have a “civil right” to a lawful decision by an administrator. Instead, the court has accepted that “civil rights” means only rights in private law and has applied Article 6(1) to administrative decision on the ground that they can determine or affect rights in private law.”

Furthermore, a private right may be conferred by the State, for example by giving an entitlement to social security benefits (see R (Ali) v Birmingham City Council [2010] 2 WLR 471, per Lord Hope at §§ 34-36, with whom Lord Brown and Baroness Hale agreed). In order, however, to constitute a private right, the award must be an entitlement and not dependent upon the exercise of a discretion or the making of an evaluative judgment (Ali at §49 and R (A) v Croydon London Borough Council [2009] 1 WLR 2557 at §59).

Ms Kaufmann argues that not only has the European Court recognised a right to association as a civil right but it is a right acknowledged as such in domestic law. Under Rules 37, 38 and 40, the YOI Rules 2000 require provision of work, regime activities, recreation, exercise and education in circumstances which provide the prisoners’ basic right of association with fellow inmates. While the Rules do not explicitly establish the minimum (or basic) level of association to which an inmate is entitled, it is understood that these activities are undertaken in association and may not be removed save as a consequence of a disciplinary offence or under rules 49 or 51. The system of privileges which applies to young offender institutions and prisons enables the individual to earn a level of association which exceeds the basic. Ms Kaufmann submits that since all prisoners enjoy a basic ability to associate with their fellows, which can only be removed by the finding of a disciplinary offence, or under rule 49 or rule 51, the basic standard of association is a “right” enjoyed by the inmate. The Grand Chamber’s extensive citation of the European prison rules serves to demonstrate its belief that minimum requirements under member states’ domestic regimes amount to individual civil rights for the purposes of Article 6. The right to receive visits, for example, is one aspect of the right to personal development and the expression of a person’s social identity; so also, Ms Kaufmann submits, is the right to association with others.

Mr Grodzinski challenged the assertion that a prisoner enjoyed a right of association in domestic law. The issue to what extent private rights may be created by statute in the welfare field was considered by the Supreme Court in R (A) v Croydon London Borough Council [2009] 1 WLR 2557, [2009] UKSC 8. Under section 20(1) of the Children Act 1989 Croydon had responsibility for accommodating “any child in need within their area who appears to them to require accommodation”. Two questions arose. The first was whether the obligation to the claimants created by section 20(1) bestowed upon the claimants a “civil right”. The second was whether the process of judicial review of a decision that the claimant was not a child, and therefore did not qualify under the section, was sufficient compliance with the requirement for a fair and independent tribunal under Article 6. The Supreme Court found that in a judicial review of the local authority’s decision, the High Court must reach its own decision upon the qualifying age of the claimant. In those circumstances, judicial review provided sufficient compliance with Article 6(1). It was, therefore, unnecessary to decide whether section 20(1) conferred a “civil right” to accommodation.

Nevertheless, after hearing full argument the Supreme Court considered the issue. To Baroness Hale it was clear that once the qualifying criteria were established, the local authority had no discretion under section 20(1). The existence of these criteria was a matter of judgement rather than discretion. That, however, was not enough to answer the question whether the claimant had a “civil right” to accommodation. The concept of a ‘civil right’ had, in Strasbourg, been extended. It was no longer confined to private rights but the concept of the determination of a civil right could extend to many questions arising in public law. They included cases in which the determination of a public law question was also decisive of the existence of private law rights. Secondly, the European Court had held that contributory state benefits, and later non-contributory state benefits, could be recognised as rights of property for the purpose of Article 1 of the First Protocol to the Convention. Turning to the question whether a claim to be provided with welfare services by the State amounted to a civil right, it was argued on behalf of one of the claimants that some of the decisions of the European Court appeared to assume the existence of a civil right, for example, in Russia where the complaint was about delay in enforcing court judgments in favour of an applicant held entitled to be provided with a flat of a certain size (Teteriny v Russia (application no. 11931/03), unreported, 30 June 2005, and Sypchenko v Russia (application no. 38368/04), unreported, 1 March 2007). Furthermore in Salesi v Italy 26 EHRR 187, the Court held that the applicant had suffered an interference with her means of subsistence. She was claiming “an individual, economical right flowing from specific rules laid down in a statute”. It had, accordingly, been submitted on behalf of the claimant in R (A) v Croydon London Borough Council that rights derived from statute do not have to be a commodity capable of trade in order to amount to a “civil right”.

At §40 of her judgment, Baroness Hale expressed reservation whether these decisions were reliable on the issue of the existence of a civil right. She said:

“40.

On the other hand, it does not appear that there was any argument upon the point in the Russian cases and it is easy to slip into the assumption that once a right has been crystallized in the court judgment against a public authority, it must amount to a civil right. In the admissibility decision of Loiseau v France (application no. 46809/99) (unreported, 18 November 2003) which concerned a freedom of information request for sight of the applicant teacher’s personnel file, the Court considered this a right of a private nature, firstly because “it concerns an individual right of which the applicant may consider himself the holder”, and secondly because the documents requested “related directly and exclusively to his personal situation” (para 7). Any entitlement under section 20 (1) does not depend upon discretion, but it does depend upon an evaluation of some “soft” criteria rather than specific rules, and it is difficult to say at what point the applicant may consider himself to be the holder of such a right. Hence, as Lord Walker of Gestingthorpe observed in Runa Begum [2003] 2 AC 430 para 115, if a right such as this is a “civil right” at all, it must lie close to the boundary of the concept not at the core of what it entails. If so, this may have consequences for the second question which is what Article 6 requires”.

Baroness Hale did not go so far as to exclude the possibility that section 20(1) conferred a civil right, but she did make some important observations upon the consequences if section 20(1) did have that effect. At §§43-45 she said:

The majority of the Court followed the view of Baroness Hale. The same question was, however, examined by Lord Hope, commencing at §57. Lord Hope concluded that where the award of a benefit is dependent upon a series of evaluative judgments, as to whether statutory criteria are satisfied and, if so, how, once the need has been assessed, it ought to be met, the process does not meet the Strasbourg test, enunciated in several of the cases, that:

“The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question.”

Lord Hope concluded:

“64.

The exact limits of the autonomous concept remain elusive. One can be confident that cases where the relationship between the beneficiary and the public authority is of a public law character, as in Woodbron Volkshuisvestingsgroep v The Netherlands 18 June 2002, where the role of the applicant associations in regard to the construction and maintenance of public housing was of a typically general interest character, fall outside its scope. Mr Howell QC submitted that there is no distinction to be drawn between the forms in which welfare benefits may be provided. But none of the Strasbourg authorities go that far and the carefully worded passages from Louiseau v France and Stec v United Kingdom 41 EHRR (SE) 295 to which I have referred seem to me to contradict his proposition. The series of cases about the enforcement of judgments made by the courts about social housing in Russia ... offer no assistance as the question whether a duty to provide social housing gives rise to a “civil right” was not argued.

65.

For these reasons I think it can now be asserted with reasonable confidence that the duty of the Local Authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the fact as mentioned in that sub-section does not give rise to a “civil right” within the meaning of Article 6(1) of the Convention.”

Mr Grodzinski pointed out that none of rules 37 – 40 of the YOI Rules 2000 bestows upon the inmate any right of association. The Rules require prison governors to make provision for education, either in classes or privately, for training courses, and for work. It may be a consequence of such provision that the inmate will in fact enjoy association with other prisoners but the rules do not require it. The system of privileges established by rule 6 enables the inmate to earn longer periods of association depending upon his behaviour. The grant of privileges is in the discretion of the governor. The “basic” level of association will, on the evidence, depend upon local factors and is ultimately in the discretion of the governor of the establishment. Still less can it be asserted that the inmate enjoys a right of association with the prison population in general. Mr Grodzinski argued that none of the Strasbourg cases cited by the claimant involving the prison regimes in Italy, Turkey and Portugal could or did decide that United Kingdom domestic law conferred on the individual a “civil right” according to the autonomous meaning of that term. None of the applicants made a complaint founded upon a right of association. Their cases were concerned with access to visitors and communication.

Mr Grodzinski argued that, in any event, the European Court was not deciding that any restriction upon the exercise of “prisoner’s rights” was capable of engaging Article 6(1). In each of the prison cases decided in Strasbourg the Court was looking at the extent of the restriction before holding that a civil right was engaged. This approach, it was submitted, is consistent with the Grand Chamber’s decision in Micallef v Malta (application no. 17056/06, 15 October 2009). The Court was examining the application of Article 6(1) in the taking of interim measures affecting civil rights or obligations. The Court recognised that it had in the past held that interim decisions were not protected by Article 6(1). However, a change of approach was necessary having regard to delays experienced by applicants in member states seeking to challenge interim measures. At §§85 and 86 the Court said:

“85.

... the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is enforced, Article 6 will be applicable.

86.

However the Court accepts that in exceptional cases – where, for example, the effectiveness of the measure sought depends upon a rapid decision-making process – it may not be possible immediately to comply with all the requirements of Article 6. Thus, in such specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensable and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In any subsequent proceedings before the Court, it will fall to the Government to establish that, in view of the purpose of the proceedings at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objectives sought by the interim measures in question.”

Mr Grodzinski submits that the Court was acknowledging in §85 that it is not every temporary measure which affects the enjoyment of individual rights which will be held to determine that right. Whether it does or not will depend on the nature and duration of the interference. On the other hand, the length of time for which the interim measure is imposed will not necessarily determine whether Article 6 will be applicable, if otherwise the interim measure amounts to the determination of a civil right or obligation. He submitted that this approach had been recognised by Smith LJ in Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789 at §§64 and 65. Smith LJ drew a distinction between proceedings in which an employee may be deprived of a particular employment and those in which the right to work was removed altogether. At paragraph 65 she said:

“65.

It appears to me that the distinction which the Court [in Le Compte v Belgium] was drawing was that, in ordinary disciplinary proceedings, where all that could be at stake was the loss of a specific job, Article 6 would not be engaged. However, where the effect of the proceedings could be far more serious and could, as in that case, deprive the employee of the right to practice his or her profession, the Article would be engaged.”

As Smith LJ observed, the difficulty lay in knowing where to draw the line.

Mr Grodzinski argued that a disciplinary deprivation of association with fellow inmates for a period up to ten days in respect of any one disciplinary offence (and up to a maximum of sixteen days for penalties imposed consecutively) did not constitute such an interference with a “right of association” as to amount to a ‘determination’ of the right.

The impact of Article 6 upon disciplinary proceedings within prisons was considered by Moses J (as he then was) in R (Francis and Tangney) v Governor of HMP Elmley [2004] EWHC 2888 (admin). He said commencing at §29:

“29.

The European Court of Human Rights has consistently accepted the need to draw a boundary between criminal and disciplinary charges, both for practical and policy reasons (see paragraph 83 in Ezeh. The Court identified significant factors in Campbell v Fell [1984] 7 EHRR 165 (at §69) as reasons for establishing and maintaining a special disciplinary regime consistent with the object and purpose of Article 6. The factors identified were: security, public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor-made sanctions, not available to ordinary courts, and importantly in the instant cases, the desire of the prison authorities to retain ultimate responsibility for discipline with their establishments. ...

31.

... The fact that these disciplinary charges concern inmates in the prison community cannot entitle the State to disregard the right to an independent tribunal enshrined in Article 6. But those factors are relevant in determining where the boundary between criminal and disciplinary charges lies. They are relevant, in short, in determining whether Article 6 has any application at all. Once it is decided that Article 6 does apply, then the prison background and context provides no further assistance.”

Moses J held that the disciplinary proceedings (charges of assault and threatening behaviour leading to 7 days cellular confinement) did not involve a “criminal charge” and, accordingly, Article 6 did not apply. The claimant was not advancing an argument that the imposition of cellular confinement determined his civil right. This decision was upheld by the Court of Appeal. The Court made no adverse reference to the passages from Moses J’s judgment cited above. At paragraph 19 of [2005] EWCA Civ 1009 Scott Baker LJ in considering the application of the criteria for identification of a criminal charge referred to the observation of the European Court in Engel v The Netherlands [1979-80] I EHRR 647 at para 69:

“(The Court) is well aware that in the prison context there are practical reasons and reasons of policy for establishing a special disciplinary regime, for example, security considerations and the interests of public order, the need to deal with misconduct by inmates as expediously as possible, the availability of tailor-made sanctions which may not be at the disposal of the ordinary courts and the desire of the prison authorities to retain ultimate responsibility for discipline within their establishments.”

Scott-Baker LJ continued:

“But it went on that the guarantee of a fair hearing, which is the aim of Article 6, is one of the fundamental principles of any democratic society and justice cannot stop at the prison gate. It followed that the principles in Engel were relevant mutatis mutandis in a custodial setting and that a dividing line between “criminal” and “disciplinary” has to be maintained just as much in a prison context.”

Mr Grodzinski argued that the same policy considerations apply in a judgement whether the proceedings concerned determine a civil right for the purposes of Article 6. In the present case, as in Tangney, there is evidence submitted on behalf of the Secretary of State describing the benefits of retaining disciplinary proceedings before the prison governor. It was submitted there was no reason in principle why, if cellular confinement attracted the provisions of Article 6(1) in its civil limb, other forms of disciplinary sanction should not also attract Article 6(1). Mr Grodzinski drew attention to the sanction of removal under Rule 60(1)(g) from the prisoner’s wing or living unit for a period not exceeding 21 days, or the removal under rule 60(b) of any privilege earned. Other punishments available to the governor under rule 60(1) are (a) caution, (c) removal from an activity other than education, training, work or physical education (maximum 21 days), (d) extra work outside the normal working week (maximum 2 hours per day over 21 days), and (e) stoppage of or deduction from earnings.

The claimant’s principal case is that the right of association is a civil right either at common law or granted by the YOI Rules 2000. Alternatively, Ms Kaufmann argues that the effect of Section 7 of the Human Rights Act 1998 was to render human rights enforceable in our civil courts as private rights for the purposes of Article 6.

Sections 6 and 7 of the Human Rights Act 1998, in their relevant parts read as follows:

“6(1) It is unlawful for a public authority to act in a way which is incompatible with the convention right.

(2)

Sub-section (1) does not apply to an act if –

(a)

as the result of one or more provisions of primary legislation, the Authority could not have acted differently; or

(b)

in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the convention rights, the authority was acting so as to give effect to or enforce the provisions.

(3)

In this section “public authority” includes -

(a)

A court or tribunal, and

(b)

Any person certain of whose functions are functions of a public nature ...

(5)

In relation to a particular act, a person is not a public authority by virtue only of sub-section (3) (b) if the nature of the act is private ...

7(1) A person who claims that a public authority has acted or proposes to act in a way which is made unlawful by Section 6 (1) may –

(a)

bring proceedings against the authority under this action in the appropriate court of tribunal or

(b)

rely on the convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act ....”

Article 3 of the Convention provides:

“No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 of the Convention provides:

“ 8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests in national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Art 11 of the Convention provides:

“11.1

Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

11.2

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”

In Orsus v Croatia the Court noted that the convention guarantee against discrimination on the grounds of race was enshrined in the constitution of the state of Croatia. It was thus enforceable as such before the regular civil courts in the national legal system. For that reason Art 6 applied.

In Secretary of State for the Home Department v BC and BB [2009] EWHC 2927 (Admin) Collins J examined the question whether Article 6 safeguards applied to the review of a control order under section 3(10) of the Prevention of Terrorism Act 2005. It was argued on behalf of the Secretary of State that the orders made were insufficiently restrictive to amount to a deprivation of liberty to which Art 5 would apply. Furthermore, their terms could not be said to amount to a determination of the controlled person’s ‘civil rights’. The question for the judge was whether Article 6 applied to a proceeding in which the controlled person’s Article 8 and Article 11 rights would arguably be determined. Collins J carried out an analysis of the developing jurisprudence in the UK on the question whether the creation of the right to bring proceedings against a public authority or to rely on convention rights in the course of existing legal proceedings converted convention rights to private rights in the hands of the individual in domestic law. It is to be noted that the Act itself creates the means by which the individual’s convention rights are to be protected in judicial proceedings. The question which arises here is whether proceedings in which such rights are being determined are protected by Article 6.

Collins J commenced his analysis with a decision of the House of Lords in Re: S (Minors) [2002] AC 291, [2002] UKHL 10. Lord Nicholls gave the leading speech with which Lord Browne- Wilkinson, Lord Mustill, Lord Hutton and Lord MacKay agreed. Commencing at §69, Lord Nicholls said:

“69.

When considering the application of Article 6(1) to children in care, the European Court of Human Rights focuses on the rights under domestic law which are then enjoyed by the parents or the child. If the impugned decision significantly affects rights retained by the parents or the child after the child has been taken into care, Article 6(1) may well be relevant. It is otherwise if the decision has no such effect.

70.

I pause to note one consequence of this limitation on the scope of Article 6(1). Since Article 6(1) is concerned only with the protection of rights found in domestic law, a right conferred by the convention itself does not, as such, qualify. Under the convention, Article 13 is the guarantee of an effective remedy for breach of a convention right, not Article 6(1). Article 6(1) is concerned with the protection of other rights of individuals. Thus, a right guaranteed by Article 8 is not in itself a civil right within the meaning of Article 6(1).

71.

Although a right guaranteed by Article 8 is not in itself a civil right within the meaning of Article 6(1), the Human Rights Act has now transformed the position in this country by virtue of the Human Rights Act. Article 8 rights are now part of the civil rights of parents and children for the purposes of Article 6(1). This is because now, under Section 6 of the Act, it is unlawful for a public authority to act inconsistently with Article 8.”

As Collins J observed, if this part of Lord Nicholl’s speech is to be regarded as obiter, “it is the strongest possible obiter that one can imagine”.

In R (McCann) v Manchester Crown Court [2003] 1 AC 787, [2002] UKHL 39, the House of Lords was considering the application of Article 6 to proceedings leading to the imposition of an anti-social behaviour order (“ASBO”). While the question whether a convention right was a civil right in the United Kingdom was not necessary to the decision, Lord Hope said at §79:

“At first sight, an order which prohibits a person from behaving in an anti-social manner has nothing to do with his civil rights and obligations. He has no right in domestic private law to use or engage in abusive, insulting, offensive, threatening language or behaviour or to threaten or engage in violence or damage against an person or property, which are among the acts which the defendant’s have been prohibited from doing in the McCann case. But as Lord Nicholls of Birkenhead said in Re: S (Minors) Care Order Implementation of Care Plan [2002] 2AC 291, 320, §71, by virtue of the Human Rights Act 1998 the right to respect for private and family life which is guaranteed by Article 8 of the Convention is now part of a person’s civil rights in domestic law for the purposes of Article 6(1). In my opinion, the same can be said of the rights to freedom of expression and of assembly and of association which are guaranteed by Articles 10 and 11. A majority of their Lordships agreed with the speech of Lord Hope. Lord Hutton, however, reserved his view upon this passage of Lord Hope’s speech.”

In RB (Algeria) v Secretary of State for the Home Department [2009] 2 WLR 512, [2009] UKHL 10, the House of Lords was examining proceedings before the Special Immigration Appeals Commission (“SIAC”) which had led to deportation orders. At §255 Lord Brown drew a distinction between the application of Article 6 to proceedings affecting a controlled person’s rights and freedoms and proceedings leading to the expulsion of aliens to which Article 6 did not apply. He said this:

“What is critical for present purposes is to understand the all important difference between control orders, such as were in issue there, and deportation orders with which your Lordships are here concerned. The former, although falling short of constituting Article 5 detention, in almost every other respect are highly restrictive of the controllees’ ordinary rights and freedoms. Moreover such orders are made domestically and can be (and are) made against UK citizens no less than against aliens. ... Inevitably, therefore, such orders engage Article 6 of the Convention. In contrast, the expulsion of aliens involves no determination of civil rights and is therefore beyond the reach of Article 6 – see the Grand Chamber’s judgment in Maaouia v France 33 EHRR 1037. The only exception to this (see Chahal v UK 23 EHRR 413) is where the alien is detained pending expulsion, not a problem now arising in either of these appeals. None of that, of course, is to deny any alien such rights as the convention may give him not to be deported, whether such rights arise under Article 3 or under any other convention provision. As Chahal makes clear, however, the independent scrutiny of any such claim which is required to give aliens an effective remedy in this regard need not even be by way of a judicial hearing. ...”

At §178 of RB, Lord Hoffmann said:

“It was suggested that the effect of the Human Rights Act 1998 (giving a domestic civil remedy for violation of convention rights) was to convert all claims of infringement of convention rights into civil rights within the meaning of Article 6. If the proceedings had been an action in tort for a breach or threatened breach of Article 3, they would certainly be asserting a civil right and Article 6 would be engaged: compare Tomasi v France [1993] 15 EHRR 1 at §§ 120-122. Similarly for actions for violations of Article 8. But these proceedings are not of that nature. They are to challenge the validity of deportation orders. As I have said it is the nature of proceedings which decides whether Article 6 is engaged or not.”

Mr Grodzinski submitted that Lord Hoffmann and Lord Browne were drawing the distinction between domestic proceedings in which civil rights aredetermined, and those in which the human rights of an alien may be affected by expulsion.

Collins J went on to find that Article 6 was engaged in the section 3(10) proceedings and that the standard of disclosure required was the same whether the controlled person’s liberty was at stake, or only his Article 8 rights. We were informed by Mr Grodzinski that the Secretary of State chose not to appeal that finding. For the purposes of this stage of the claim, the Secretary of State is prepared to assume that a civil right not to be treated in breach of Article 3 and Article 8 of the European Convention on Human Rights may be derived from section 7 Human Rights Act 1998, but the Secretary of State’s position was reserved at any appeal from the decision of this court.

Ms Kaufmann submits that Art 3 and Art 8 are in play. She did not, on reflection, rely upon Art 11. In Ramirez Sanchez v Portugal [2007] 45 EHRR 49, the applicant sought relief from the European Court having been kept in solitary confinement for a period of eight years. A domestic remedy had been unavailable to him until July 30 2003 when the Conseil d’État resolved to change its jurisprudence and rule that an application for judicial review was available. The court rejected the claim under Article 3 but upheld the violation of Article 13 for the lack of remedy (before 2003) in domestic law. Ms Kaufmann argues that while the fact of detention is justified as a punishment for the commission of a criminal offence, the further deprivation of association must be justified as necessary to attain the legitimate aim pursued, namely, good order in prisons. She submits that both the legitimate objective and the circumstances of the individual must be considered when assessing the justification offered (Keenan v United Kingdom [2001] 33 EHRR 38 at §§110 – 115; R (C) v Secretary of State for Justice [2008] EWCA Civ 882 at §58).

As to Article 8, the Grand Chamber in Dickson v United Kingdom [2008] 46 EHRR 41 at §68 confirmed that a person retained his convention rights upon imprisonment. Any further restriction must be justified in each individual case. In McFeeley v UK [1981] 3 EHRR 161 (concerning the regime at HMP The Maze during the “dirty protest”) the Commission stated that even within prison the individual’s private life embraced the right to establish and to develop relationships with other human beings. Accordingly, Ms Kaufmann submits, removal from association constitutes an interference with the right to privacy.

In R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC148, the House of Lords was prepared to treat seclusion of a mental patient if improperly used as a violation of a patient’s Article 8 rights.

These decisions were applied by this court in R (Bary and Others) v Secretary of State for Justice [2010] EWHC 587 (Admin) when reviewing the decision of the governor of HMP Long Lartin to detain the claimants in restricted conditions while awaiting extradition or deportation. Aikens LJ at §43, said:

“43.

The interference with a right which has been held to be within the scope of Article 8(1) has to have reached a “certain level of seriousness” before it brings the operation of the convention into play, however. Moreover, before Article 8(1) can be invoked, the claimant must demonstrate that, on the facts, he enjoys a “reasonable expectation of privacy” with regard to a relevant sense of privacy. If those tests are satisfied so that there is a prima face interference with an Article 8(1) right, then a court will look to the state or public authority concerned for a justification of what would otherwise amount to a violation. There will be a violation unless the interference is in accordance with the law; and the interference is “necessary in a democratic society” for one of the matters listed in Article 8(2). That means that the interference has to be proportionate to the legitimate aim pursued. Furthermore, the national authority concerned must provide reasons that are relevant and sufficient. In deciding whether the interference with the Article 8(1) rights is necessary in a democratic society for a legitimate aim and so is proportionate, the court must have regard to (a) the right in issue; (b) its importance to the individual; (c) the nature of the interference; and (d) the object of the interference. Whether an interference with the convention right is proportionate is a fact sensitive question. In the present case it is clear that we must consider the impact of the interference of the rights on the individuals concerned, i.e. the detainees.”

Ms Kaufmann submits that two issues arose in the determination of Mr King’s rights under Articles 3 and 8, namely, (a) an evaluation of the evidence on which to base a finding of guilt, and (b) an assessment whether the penalty of cellular confinement was proportionate to those facts. In this sense, the disciplinary proceedings were determinative of the claimant’s civil rights under Article 8. Mr King does not pursue a claim that his Article 3 rights were breached, but the possible engagement of his Article 3 and Article 8 rights rendered the proceedings, it is submitted, a determination of those rights.

The Secretary of State argues that the object of the proceedings before Governor Shepherd was not to determine the claimant’s civil rights but to decide whether the claimant had disobeyed an order. The fact that one consequence of the governor’s adjudication may be a penalty which engaged the claimant’s convention rights did not convert the proceedings to a trial of the claimant’s civil rights and obligations. Mr Grodzinski submitted that Ms Kaufmann’s identification of Article 6 “no-go” areas (such as tax and deportation of aliens) was too simplistic an analysis. The reason why Article 6 does not apply to certain proceedings is that they do not determine civil rights. Thus, while civil rights may be engaged in the decision whether to deport a non-national, the proceedings in which the decision for deportation is made, do not involve a determination of civil rights. In Maaouia v France [2001] 33 EHRR 42, the European Court observed:

“35.

The Court has not previously examined the issue of the applicability of Article 6(1) to procedures for the expulsion of aliens. The Commission has been called upon to do so, however, and has consistently expressed the opinion that the decision whether or not to authorise an alien to stay in a country of which he is not a national does not entail any determination of his civil rights or obligations or of any criminal charge against him within the meaning of Article 6 (1) of the Convention.”

France had ratified Article 1 of Protocol No 7, adopted 22 November 1984, containing procedural guarantees for aliens the subject of expulsion. That was because member states recognised that Article 6(1) did not apply to such procedures. The Court explained:

“38.

... the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a “civil right” for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant’s private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention.”

This was the distinction recognised by the House of Lords in RB (Algeria) v Secretary of State for the Home Department (see paragraph 85 above). Mr Grodzinski submitted that the proceedings before Governor Shepherd did not determine whether the penalty of cellular confinement was lawful. That determination took place in any subsequent judicial review proceedings challenging its lawfulness.

Ms Kaufmann’s reasoning was that the Governor’s adjudication may amount to a determination of the prisoner’s rights under Article 3. A wrongful finding of disobedience to an order leading to a penalty of cellular confinement would constitute that determination. Mr Grodzinski argued that if Ms Kaufmann was right every wrongful conviction would constitute a determination of a prisoner’s Article 3 rights. At §119 of the judgment in Ramirez Sanchez v France the European Court distinguished between that treatment which was inherent in the punishment of imprisonment and further suffering or humiliation imposed. The Court said:

“119.

... Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and wellbeing are adequately secured. The Court would add that the measures taken must also be necessary to attain the legitimate aim pursued. Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions as well as the specific allegations made by the applicant.”

Mr Grodzinski submitted that the correct approach to the engagement of Article 3 is that the penalty of cellular confinement will be legitimate, even if it is based on an erroneous finding of guilt, unless it can be said that the penalty was resorted to for illegitimate reasons. That question will not be decided during the disciplinary proceedings but on a challenge, if any, by way of judicial review.

Even if a judgement of Article 3 treatment is affected by the state of the prisoner’s mental health, the threshold remains high. In Rohde v Denmark [2006] 43 EHRR 17, the claimant was arrested on suspicion of drug trafficking. He was detained after charge on remand in solitary confinement. He suffered claustrophobia and in consequence had been placed in an observation cell. He remained in solitary confinement for over eleven months and was eventually acquitted of the drugs offences with which he had been charged. The Court found no violation of Article 3. Solitary confinement was not in itself a breach of Article 3 but “whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued, and its effects on the person concerned” (§93).

The Secretary of State submits that ten days cellular confinement does not constitute a sufficient interference with private life to engage Article 8(1). In R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, [2005] UK HL 58, the House of Lords considered the engagement of Article 8 in the application of policy for the supervised confinement of a mental patient in a locked room for the purpose of protecting others from significant harm. The issue was whether the policy adopted by the defendant Trust was capable of interfering with the patient’s Article 8 rights. The House held that seclusion could not be said to involve an interference with a person’s right to respect for his private and family life, his home and correspondence within Article 8(1) if it was properly used as the only means of protecting others from violence or intimidation and for no longer than necessary. Furthermore, the Trust’s policy would be justified under Article 8(2) as being “in accordance with the law”. At paragraph 32 of his speech, Lord Bingham said:

“32.

It is obvious that seclusion, improperly used, may violate a patient’s Article 8 right in a serious and damaging way and may found a claim for relief. This appeal, however, is directed to the compatibility of the Ashworth Policy with the Convention, assuming it to be followed. I have, for my part, some difficulty in appreciating how seclusion can be said to show any lack of respect for a patient’s private and family life, home or correspondence, if it is used as the only means of protecting others from violence or intimidation and for the shortest period necessary to that end. A detained patient, when in his right mind or during lucid intervals, would not wish to be free to act in such a way and would recognise that his best interests were served by his being prevented from doing so.”

To similar effect was the opinion of Lord Hope at paragraph 88:

“88.

The European jurisprudence tells us that not all interferences with respect for private and family life during lawful detention will engage Article 8. What it describes as normal restrictions and limitations consequent on prison life and discipline in these circumstances will not constitute in principle a violation of this Article; Nowicka v Poland [2003] 1 FLR 417, 426, para 71. So long as it does not amount to ill-treatment in violation of Article 3, seclusion will not as a general rule result in an interference with the patient’s rights under Article 8(1): Herczegfalvy v Austria [1992] 15 EHRR 437, 484, para 82-84 and 86, and Raninen v Finland [1997] 26 EHRR 563, 588-590, para 56-59 and 64. ...

89.

Clearly, there is a risk of violation if this form of intervention is resorted to improperly or for longer periods than the patient’s mental condition justifies. But there is no evidence that this is what has been happening at Ashworth. The whole purpose of the policy, which is written down and published within the hospital, is to define the standards that must be followed and prevent abuse and arbitrariness. It is designed to minimise the risk of a violation. It is hard to see why, in these circumstances, the policy should itself be thought to be incompatible with Article 8 (1).”

Mr Grodzinski seeks to derive from these passages a principle that cellular confinement will not engage Article 8(1) unless imposed for an “improper” purpose. By analogy, he submits that a teacher’s requirement for a pupil to remain in detention for a comparatively short period of time will not engage Article 8. It should be noted that Lord Brown disagreed upon the application of Article 8(1) (§118) and preferred to concur with the rest of the House upon the application of Article 8(2). Mr Grodzinski argues that there can be no doubt that the application of a penalty of cellular confinement was legitimate in pursuit of disciplinary measures within the Young Offender Institution.

In contrast to the decision in Munjaz, the Administrative Court, in R (Bary) v The Secretary of State for Justice [2010] EWHC 587 (Admin) held that detention in a detainee unit of a high security prison which changed the living and working regime of the detainees was capable of engaging Article 8. The DU was a self-contained unit within the prison capable of accommodating up to 19 men. The six claimants were awaiting extradition or deportation from the United Kingdom being suspected of involvement in terrorism. Conditions were however “extremely isolated” and constituted a “confined environment for an indefinite period”. As observed above, the Court accepted, at §43, that to engage Article 8(1) the interference with a right has to reach a “certain level of seriousness”. At paragraph 130, Aikens LJ said:

“130.

It must follow from our analysis of the law on Article 8 rights that an interference with rights to develop relationships with other human beings and an interference with the right to mental stability in the broadest sense can amount to breaches of Article 8(1) if the interference reaches a sufficient level of seriousness, and if the claimant enjoys a reasonable expectation of those senses of privacy. We are satisfied, on the facts of this case, that, in the circumstances in which the detainees had become detained, they were still entitled to retain reasonable expectations of privacy as regard to the right to develop relationships and the right to stability of mental health.

131.

We are prepared to accept that in the case of all the detainees, the imposition of the new regime on them by Mr Parker, acting as Governor of the prison, did interfere with their rights to develop relationships and that it did interfere with their right to mental stability in the broadest sense. We are also satisfied that the affect of the imposition of the new regime and the consequent restrictions imposed on the detainees was of a sufficient level of seriousness so as to bring into play (or “engage) the operation of Article 8.”

As Mr Grodzinski observed the restrictions to which the Court was referring were in place for over a year. This is to be distinguished from the maximum periods of cellular confinement to which prisoners may be subjected under Rule 60.

Mr Grodzinski makes a further comparison between the conditions to which the claimant was subjected and those the subject of examination by the European Commission in McFeeley v United Kingdom [1981] re: EHRR 161. R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, [2001] UK HL 26 concerned the rights of a prisoner to maintain the confidentiality of his communications with his legal advisors. The issue was whether the policy of the Secretary of State interfered with his common law right and/or Article 8(1). At §5 of his speech, Lord Bingham set the context for the dispute as follows:

“5.

Any custodial order inevitability curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both, but the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order and it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three rights, closely related but free standing, each of them calling for appropriate legal protection; the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal advisor under the seal of legal professional privilege. Such rights may be curtailed only by clear and expressed words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment.”

Thus, Mr Grodzinski submits, a minimal interference with an ability to associate with other prisoners does not amount to an interference which is capable of engaging Article 8(1). Assuming Article 8(1) to be engaged at all, it is conceded that the Governor would be required to act proportionately in accordance with Article 8(2), but that requirement is not capable of converting the proceedings to a resolution of a dispute concerning prisoner’s civil rights. If that were so, any executive act would require the intervention of an Article 6 compliant decision-maker if, by reason of the decision, Article 8 was engaged. The review of such a decision is to be distinguished from the process of decision-making itself.

In Bryan v United Kingdom Application No. 19178/91, 22 November 1995, ([1995] 21 EHRR 342) at §44-47, in which the European Court considered the sufficiency of judicial review on appeal against the decisions of a planning inspector, the Court said:

“44.

The Court notes that the appeal to the High Court, being on “points of law”, was not capable of embracing all aspects of the inspector’s decision concerning the enforcement notice served on Mr Bryan. In particular, as is not infrequently the case in relation to administrative law appeals in the Council of Europe member states, there was no re-hearing as such of the original complaints submitted to the inspector; the High Court could not substitute its own decision on the merits for that of the inspector; and its jurisdiction over the facts was limited. However, apart from the classical grounds of unlawfulness under English law (going to such issues as fairness, procedural propriety, independence and impartiality) the inspector’s decision would have been quashed by the High Court if it had been made by reference to irrelevant factors or without regard to relevant factors; or if the evidence relied on by the inspector was not capable of supporting a finding of fact; or if the decision was based on an inference from facts which was perverse or irrational in a sense that no inspector properly directing himself would have drawn such an inference.

45.

Furthermore, in assessing the sufficiency of the review available to Mr Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.

46.

In this connection the Court would once more refer to the uncontested safeguards attending the procedure before the inspector; the quasi-judicial character of the decision making process; the duty incumbent on each inspector to exercise independent judgement; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness and impartiality. Further, any alleged shortcomings in relation to these safeguards could have been subject to review by the High Court.

47.

In the present case there was no dispute as to the primary facts. Nor was any challenge made at the hearing in the High Court to the factual inferences drawn by the inspector, following the abandonment by the applicant of his objection to the inspector’s reasoning under ground (b) [whether the development contravened planning control]... Furthermore, even if the applicant had sought to pursue his appeal under ground (b), the Court notes that, while the High Court could not have substituted its own findings of fact for those of the inspector, it would have had the power to satisfy itself that the inspector’s findings of fact or the inferences based on them were neither perverse nor irrational. Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by Article 6(1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe Member States. Indeed, in the instant case, the subject matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgment in the regulation of citizens’ conduct in the sphere of town and country planning. The scope of review of the High Court was therefore sufficient to comply with Article 6(1).”

Bryan v United Kingdom was considered and applied in the House of Lords in the leading UK cases of R (Alconbury Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 and Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 AC 430. In R (Alconbury Ltd) v Environment Secretary at §85, Lord Hoffmann noted that in Le Compte the European Court had drawn no distinction between questions of fact and law. The Court of Cassation did not have jurisdiction to rectify factual errors or to examine whether the sanction was proportionate to the fault. It followed that Article 6(1) was not satisfied. In the later case of Albert and LeCompte v The Belgium [1983] 5 EHRR 533, the Court accepted that disciplinary jurisdiction could be conferred upon professional non-judicial bodies which did not meet the requirements of Article 6(1) but:

“Nonetheless, in such circumstances the convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6 (1), or they do not so comply, but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 (1).”

At §§87 and 88 Lord Hoffmann examined what was meant by the term “full jurisdiction”. He said:

“87.

The reference to “full jurisdiction” has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with Article 6 (1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel for the respondents in these appeals but subsequent European authority shows that “full jurisdiction” does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.

88.

This emerges most clearly from the decisions on the English planning cases, which I shall analyse later in some detail. But the leading European Authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v Austria [1993] 17 EHRR 116. The Zumtobel Partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austria Vorarlberg. The appropriate Government committee heard their objections but confirmed the order. They appealed to an administrative court which said that the Government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission of the European Court that, as the administrative court could not “independently assess the merits of the facts of the case”, it did not have “full jurisdiction” within the meaning of the Albert and Le Compte formula. The European Court said at §32 that its jurisdiction was sufficient in the circumstances of the case, “regard being had to the respect which must be accorded to decisions taken by the administrative authorities on the ground of expediency and to the nature of the complaints made by the Zumtobel partnership.”

Bryan v United Kingdom is the prime example of the application of these principles.

In Tsfayo v United Kingdom [2009] 48 EHRR 18 the European Court revisited the issue of judicial review of administrative decisions in the light of developments in the UK jurisprudence. The applicant was resident in the United Kingdom and seeking political asylum. She was granted housing and council tax benefits which lapsed after a period of one year in the absence of a timely renewal of her application. She made both a claim for prospective benefit and a back-dated claim. Her claim for back-dated benefit was refused by the local authority because she had failed to show “good cause” why she had not claimed benefits earlier. The court carried out a review of the UK cases, including Alconbury, Runa Begum and R (Bewry) v Norwich City Council [2001] EWHC (Admin) 657 (Moses J, as he then was). It was noted that by regulation 82 of the Housing Benefit (General) Regulations 1987 guarantees of procedural fairness before the ‘tribunal’ (as in Bryan v United Kingdom) were provided. Nevertheless, distinguishing its reasoning in earlier cases as to the “sufficiency of review”, the Court said at §§ 46 – 48:

“46.

The Court considers that the decision making process in the present case was significantly different. In Bryan, Runa Begum and the other cases cited at (43) above, the issues to be determined required a measure of professional knowledge or experience, and the exercise of administrative discretion pursuant to wider policy aims. In contrast in the instant case, the HBRB was deciding a simple question of fact, namely whether there was “good cause” for the applicant’s delay in making a claim. On this question, the applicant had given evidence to the HBRB that the first that she knew that anything was amiss with her claim for housing benefit was the receipt of a notice from her landlord – the Housing Association – seeking to repossess her flat because her rent was in arrears. The HBRB found her explanation to be unconvincing and rejected her claim for back-payment of benefit essentially on the basis of an assessment of her credibility. No specialist expertise was required to determine this issue which is, under the new system, determined by a non-specialist tribunal. Nor, unlike the cases referred to, can the factual findings in the present case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.

47.

Secondly, in contrast to the previous domestic Strasburg cases referred to above, the HBRB was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute, since it included five councillors from the local authority which would be required to pay the benefit if awarded. As Moses J observed in Bewry, this connection of the councillors to the party resisting entitlement to housing benefit might infect the independence of judgement in relation to the finding of primary fact in a manner which could not be adequately scrutinised or rectified by judicial review. The safeguards built into the HBRB procedure were not adequate to overcome this fundamental lack of objective impartiality.

48.

The applicant had her claim refused because the HBRB did not find her a credible witness. Whilst the High Court had the power to quash the decision if it considered, inter alia, that there was no evidence to support the HBRB’s factual findings, or that its findings were plainly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to re-hear the evidence or substitute its own views as to the applicant’s credibility. Thus, in this case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute.”

Ms Kaufmann submits that in the present case the governor was engaged in an identical exercise, namely the resolution of simple questions of fact requiring no professional or policy expertise. The question for the governor was whether the claimant had disobeyed an order; if so, the governor was required to make an assessment of the claimant’s culpability for his disobedience, and therefore, the appropriate penalty. It is clear from the evidence of Mr Shepherd himself (paragraph 19 above) that he was unqualified to decide such questions as an independent tribunal. He deposed to the fact that there is a value to the prison service of having governors deciding disciplinary hearings. Their connection to the institution provides reassurance to prison officers. The governor can take into account his knowledge of the prisoner subject to the adjudication procedure. These factors serve to illustrate, it is submitted, that the governor is not an independent tribunal, particularly when he has to choose between the evidence of a prison officer and a prisoner.

A judicial review will not amount to a re-examination of the evidence for the purpose of deciding whether the governor made the right decision of fact but for the purpose of deciding whether there was material upon which the decision made by the governor was reasonably open. In any case, cellular confinement for a short period of time, while determining a civil right, cannot be reviewed before the punishment has been served. If, on the other hand, there are particular concerns with disciplinary problems at a particular prison, there is no reason why the prison service should not make such concerns known to an independent adjudicator before reaching a decision on the appropriate penalty. Of relevance to the conduct of the adjudication in the present case is the fact that prison disciplinary proceedings are inquisitorial in nature (see R (Haase) v Secretary of State [2008] 1 WLR 1401 at §20). It was the responsibility of the governor to ensure that possible defences were investigated. This implies a need for an open and impartial state of mind. This is particularly important when legal representation is unlikely to be present. Prior knowledge of the parties to disciplinary proceedings, the prison officer on the one hand and the prisoner on the other, is unlikely to assist the conduct of an open minded disciplinary proceeding.

In the present case, it is submitted that the governor was faced with a man who, while purporting to admit his guilt, revealed information which suggested that at the time the order was given he was actively psychotic. Arguably, his psychosis caused his failure to respond to the order and his mind did not accompany his act. In those circumstances, there was evidence before the governor which should have led him to decline to accept the prisoner’s admission. Had he declined, Mr Shepherd is unlikely to have made a finding of guilt and no penalty would have been imposed. Alternatively, if Mr Shepherd had decided that there was some residual mental responsibility for the claimant’s failure to act in response to the order, it is most improbable that he would have found a penalty of cellular confinement to have been proportionate to the “disobedience”.

Mr Grodzinski submitted that if Article 6(1) applied to proceedings before the governor, they nevertheless took place in the context of maintaining discipline in prisons. The tension between the objectives of an administrative process and the rights of the individual were highlighted by Lord Bingham in Runa Begum at paragraph 5:

“5.

The importance of this case is that it exposes, more clearly than any of earlier cases have done, the inter-relation between the Article 6(1) concept of “civil rights” on the one hand, and the Article 6(1) requirement of “an independent and impartial tribunal” on the other. The narrower the interpretation given to “civil rights”, the greater the need to insist on review by a judicial tribunal exercising full powers. Conversely, the more elastic the interpretation given to “civil rights”, the more flexible must be the approach to the requirement of independent and impartial review if the emasculation (by over-judicialisation) of administrative welfare schemes is to be avoided. Once it is accepted that “full jurisdiction” means “full jurisdiction to deal with the case as the nature of the decision requires” (per Lord Hoffman, R (AlconburyDevelopments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, 330, para 87), it must also be accepted that the decisions whether a right recognised in domestic law is also a “civil right” and whether the procedure provided to determine that right meets the requirements of Article 6 are very closely bound up with each other. It is not entirely easy, in a case such as the present, to apply clear rules derived from the Strasbourg case law since, in a way that any common lawyer would recognise and respect, the case law has developed and evolved as new cases have fallen for decision, testing the bounds set by those already decided.”

These views were echoed by Baroness Hale in R (A) v Croydon London Borough Council [2009] 1 WLR 2557, [2009] UK SC8, §40 (at paragraph 57 above).

In R (Hammond) v Secretary of State for the Home Department [2006] 1 AC 603, [2005] UK HL 69, the House of Lords was considering the requirement for an oral hearing in reviews of the minimum period to be served under a sentence of life imprisonment. Their Lordships held that the question whether an oral hearing was necessary to ensure compliance with Article 6(1) should be the subject of a judicial decision in each case. Lord Bingham noted at §11 of his speech that the European Court “has chosen to give the expression [“civil rights and obligations”] a broad meaning so as to embrace some administrative and disciplinary decisions”. He noted that the consequence was that decisions in such fields were routinely made in the first instance “by bodies that do not have and are not intended to have the independent and impartiality be expected of a judicial tribunal as required by Article 6(1)”. The European Court had not held that the making of a decision by a body which does not meet Convention standards of independence and impartiality necessarily taints or invalidates the further stages of decision-making, such as the decisions of the Appeals Council and Court of Cassation in Le Compte.

In Stefan v United Kingdom [application no. 29419/95, 9 December 1997, First Chamber) a doctor had been found by the General Medical Council, which considered relevant medical evidence, to be medically unfit to practise. The European Commission was considering the admissibility of a complaint that the supervisory jurisdiction of the Privy Council over the decisions of the General Medical Council was insufficient for Article 6(1) compliance. The Commission applied the observation of the Court in Bryan v United Kingdom at §49 that:

“No violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1).”

The Commission noted that:

“in the present case, the claimant was challenging the medical findings of the Health Committee in the context of a appeal on questions of law. In the event, the Privy Council simply made a statement that there was no doubt the Health Committee’s direction fell within its competence.”

It went on to hold that having regard to the particular issues arising in the case the fact that the Privy Council did not re-determine the facts of the case could not be seen to conflict with the requirements of Article 6.

In Wickramsinghe v United Kingdom [application no. 31503/96, 9 December 1997, First Chamber), another decision of the Commission, however, a doctor was found by the Professional Conduct Committee of the GMC to have been guilty of misconduct by sexual assault of his patient, a health care assistant. The GMC had preferred the evidence of the health care assistant that the applicant had touched parts of his patient’s body, under the pretext of examining her for pain in her neck, in ways which, the applicant accepted, would have been seriously improper if true. It rejected the applicant’s denial and removed the doctor’s name from the register. The applicant appealed unsuccessfully to the Privy Council. Before the Commission the applicant challenged the decision of the GMC on the ground that he had not received a fair hearing before the Conduct Committee. As to the availability of review before the Privy Council he sought to distinguish Bryan on the ground that the hearing in his case involved only “a simple conflict of evidence relating to the behaviour of the applicant on a certain occasion”. The Privy Council did not remedy the defects of the hearing before the Conduct Committee because it reached no decision on the evidence.

The Commission found that the adjudication before the Conduct Committee was a determination of the applicant’s civil rights. Despite the existence of procedural guarantees before the Conduct Committee the Committee did not enjoy the required level of independence for compliance with Article 6(1). The Commission proceeded to examine the question whether the Privy Council constituted a judicial body with “full jurisdiction”, thus providing the guarantees of Article 6(1). It noted that the Privy Council’s jurisdiction was in practice confined to matters of law. The Privy Council had examined and rejected each of the applicant’s complaints of procedural unfairness:

“The Commission considers that, given the procedural guarantees before the Conduct Committee and the complaints the applicant was making, the scope of the review of the Privy Council was sufficient to comply with Article 5 para. 6 1 (art. 6-1) of the Convention.”

At first sight this decision may seem to be at odds with Bryan v United Kingdom because the matter in issue before the Conduct Committee had been purely the truthfulness of the complaint and the Privy Council had no jurisdiction to reconsider the merits of that complaint. However, the precise ground for the Commission’s ruling that the application was inadmissible was that the Privy Council had dealt, point by point, with the complaints of unfairness made and had resolved each of them against the applicant. Accordingly, this decision was founded on the narrow ground that the Privy Council did have jurisdiction to deal with each of the complaints raised before it.

In the present proceedings the claimant was provided with a hearing in private. There is no complaint on that account. He was offered representation. The proceedings were recorded in a pro-forma. The role and responsibilities of the adjudicator were set by the Prison Service Order 2000 which, at paragraphs 1.2-1.3 read:

“1.2

The role of the adjudicator is to inquire into a report of alleged events and to decide whether an offence under Prison Rule 51 or YOI Rule 55 has been established beyond reasonable doubt. The adjudicator must investigate the charge being prepared to question in a spirit of impartial inquiry the accused, the reporting officer and any witnesses. This inquisitorial role is therefore different from one of a magistrate or judge in criminal proceedings.

1.3

Adjudicators must act fairly and justly. They are responsible for the conduct of their hearings. The parts of this PSO that deal with proceedings during hearings are advisory unless indicated as mandatory. If adjudicators (PS) depart from the guidance and in doing so compromise fairness and justice, their decisions risk being overturned.”

At section 5 of the Prison Service Order is detailed and appropriate guidance to the adjudicator upon the assessment of evidence. In particular, it is the duty of the adjudicator to assist an unrepresented prisoner when appropriate and to give a full opportunity to challenge the evidence. The decision must be made upon evidence which has been disclosed to the prisoner. This is to be contrasted with the procedure adopted in R (Wright & Others) v Secretary of State for Health [2009] 2 WLR 267, [2009] UK HL 3. There, without receiving representations from the affected care workers, the Secretary of State placed those suspected of being unsuitable to work with children or other vulnerable people, on a suspensory list. The failure of the system lay in its inability to accommodate even representations upon the appropriateness of the interim measure pending a full hearing.

Mr Grodzinski submitted that the governor, while being the head of the establishment in which the claimant was serving his sentence, could not be said to constitute a tribunal with apparent or actual bias at common law. He relied upon the dictum of Lord Roger in R (Al-Hasan) v Home Secretary [2005] 1 WLR 688 at paragraph 11:

“Nor should it be supposed that only professional judges are capable of the necessary independence of approach. That would be to disregard the realities of life in many organisations today. For example, on a daily basis, head teachers do apply school rules which they have helped to frame. By virtue of their knowledge of the way the school works and of its problems, they will often be best placed to apply to rules sensitively and appropriately in any given situation. Again, it is not to be assumed that the head teacher’s mere involvement in shaping the rules means that a fair-minded observer who knew how schools worked would conclude that there was a real possibility that they would not be able to apply the rules fairly. The same goes for managers in businesses and for officers in the armed services who are committed to upholding the edifice of lawful orders on which the services rest. Equally, I have no doubt that an informed and fair-minded observer would regard the prison governors or their deputies as being quite capable of interpreting and applying the prison rules fairly and independently, even though they are obviously committed to upholding them. In all these situations, if things do go wrong, the decision can be judicially reviewed or challenged in an employment tribunal, as the case may be. The present case is an example of that safeguard in action.”

The issue in Al-Hasan was whether, at common law, it was permissible for an assistant governor to adjudicate upon the lawfulness of an order when he had been present when the governor had approved it. The common law test was whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased. The House of Lords held that on the facts there was such an appearance of bias and that the adjudication should have been made by a governor independent of the order.

Mr Grodzinski noted, and in argument Miss Kaufmann confirmed, that her challenge to the adjudication by Governor Shepherd was a challenge to his structural independence as required by Article 6(1). Accordingly, if she is right, what is required is not merely an adjudicator independent of the factual content of the adjudication but also of the institution. A different governor would not do.

The judgment of Dyson LJ (as he then was) in R (Wright) v Secretary of State for Health [2007] EWCA Civ 999, in the Court of Appeal, is instructive upon the evaluation of the sufficiency of judicial review of an administrative decision. Commencing at §102, Dyson LJ said:

“102.

It is clear from the Strasbourg jurisprudence that in deciding whether a breach of Article 6 at the first stage of the process can be cured by a later stage of the process, it is necessary to have regard to the nature of the first stage breached. A good illustration of this is to be found in Tsfayo v United Kingdom (application no. 608060/00, 14 November 2006). The applicant for housing and council tax benefit failed to submit her benefit renewal form in time. Her claim was rejected by counsel because she had failed to show “good cause” why she had not claimed benefits earlier. Her appeal to the Review Board was dismissed. She sought judicial review inter alia on the grounds that the Board was not an independent and impartial tribunal within the meaning of Article 6(1).

103.

The European Court of Human Rights reviewed the authorities. The Court gave two reasons for deciding that there had been a violation of Article 6(1) despite the availability of judicial review. First, the decision-making process was significantly different from that considered in cases such as X, Stefan, Kingsley, Bryan and Runa Bagum. In those cases, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion, pursuant to wider policy aims. In the instant case, the Board was deciding a simple question of fact, namely whether there was “good cause” for the applicant’s delay in making a claim. Unlike in other cases, the factual finding could not be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.

104.

The second reason was that the Board was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute, since it included five counsellors from the local authority which would be required to pay the benefit if it was awarded. The safeguards built into the Board’s procedure were “not adequate to overcome this fundamental lack of objective and impartiality” (§46). The Court contrasted the case with that of the department’s decision-making process in Alconbury which “offered a number of safeguards, such as an inspector’s enquiry with the opportunity for interested parties to be heard and these safeguards, together with the availability of judicial review ...was sufficiently to comply with the requirement for “an independent and impartial tribunal” in Article 6(1) (§27).

105.

The second reason is important because it shows that, in deciding whether the Court has full jurisdiction on a judicial review, it is relevant to have regard to the nature of the breach in the first stage of the process. The more serious the failure to accord a hearing by an individual and impartial tribunal, the more likely it is that a breach in the first stage of the process cannot be cured at the second stage. Thus, in Runa Bagum, Lord Bingham said at §9 that, although the reviewer was not independent of his or her employing authority, the statutory scheme provided safeguards that the review would be fairly conducted. These included that the reviewer had to be senior to the original decision-maker and must not be involved in the making of the original decision. In Alconbury, it was accepted that the planning inspector was not independent of the Secretary of State. But it was considered by the House of Lords to be relevant that the Inspector was an experienced professional whose report provided “an important filter before the Secretary of State takes his decision” (Lord Slynn §46). Lord Hoffman said (§11) that “in deciding the questions of primary fact, or fact and degree, which arose in enforcement notice appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact”. Thus, whether the lack of impartiality at the first stage was of a somewhat formal and technical nature, the breach of Article 6 was taken to be cured by the availability of judicial review. But if the lack of impartiality at the first stage had real practical content, then it infected the whole process and could not be cured by judicial review.”

Dyson LJ went on to find that the deficiencies in the first stage of the process of registration rendered judicial review an inadequate fulfilment of Article 6. The denial of the right to make representations was not a merely formal or technical breach. It was the denial of one of the fundamental elements of the right to a fair determination of a person’s civil rights, namely the right to be heard. Judicial review could not make good the consequences of that denial. Furthermore, the delay which would inevitably precede a judicial review would be unlikely to result in the restoration of a worker who had already lost her employment.

Mr Grodzinski argues that in determining whether the availability of judicial review will suffice, it is necessary to have regard to the following factors:

(1)

The subject matter of the decision challenged;

(2)

The manner in which the decision was reached at the first stage;

(3)

The content of the dispute on review.

This was the approach of the European Court in Crompton v United Kingdom [2010] 50 EHRR 36. The applicant had joined the Territorial Army in 1989. He was made redundant in February 1994. He sought compensation before the Army Board which made an award. The applicant sought judicial review of the award on the ground that it had been reached incorrectly. The applicant in the European Court challenged the delay in the ultimate award and the independence and impartiality of the tribunal determining the issues. The Court found proved the complaint of delay. As to the expertise of the tribunal the Court observed, at §77, that the nature of the decision made by the Army Board did not require any specialist knowledge offered by the members of the tribunal. There was, accordingly, “no compelling reason for the decision on the level of compensation to be made by the Army Board rather than by an independent and impartial tribunal”. However, the Court continued at §78:

“78.

...the dispute between the parties in the present application did not centre on a question of fact determined by the Army Board which the High Court had no jurisdiction to revisit. The central issue in the applicant’s case was whether the approach of the Army Board in assessing the level of the compensation order was appropriate.”

Thus, the Court found, that the High Court was a suitable tribunal in which the particular decision made by the Army Board should be reviewed.

In the R (G) v Governors of X School [2010] EWCA Civ 1, the Court of Appeal considered whether a statutory process which commenced with the decision of school governors to report their findings of the behaviour of a teacher to the Secretary of State for Children, Schools and Families and ended with a finding in disciplinary proceedings, subject to appeal to a tribunal, complied with Article 6 requirements. The respondent teacher complained that he had been denied legal representation at a disciplinary hearing before the school governors. The hearing, he argued, determined his civil right to employment as a teacher. The issue was whether the hearing before the governors engaged his civil right or his civil right was engaged only during the later “Children’s Barred List” procedure. If the former, the question was whether the appellate tribunal considering the teacher’s inclusion on the barred list compensated for the lack of an Article 6(1) compliant disciplinary hearing. Laws LJ, having considered the European decisions and the speech of Baroness Hale in Wright, said at §37:

“37.

In my view the effect of the learning ... is that where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding), and a “civil right or obligation” enjoyed or owed by him will be determined in one of them, he may (not necessarily will) by force of Article 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other will have a sufficient influence or effect on the determination of the civil right or obligation. I do not mean any influence or effect which is more than de minimis: it must play a major part in the civil right’s determination. I do not intend a hard and fast rule. Principles developed by the Strasbourg Court for the interpretation and application of the ECHR tend not to have sharp edges; as I have said, the jurisprudence is generally pragmatic and fact-sensitive. The nature of the right in question may make a difference. So may the relative authority of courts, tribunals or other bodies playing their respective parts in a case, such as the present, where connected processes touch a conventional right.”

He concluded:

“ 46. But Mr Bowers’ principal argument is that on the facts the barred list procedures provide a sufficient autonomous facility for the adjudication of the claimant’s civil right to practise his chosen profession. Accordingly that civil right should not be taken to have been at stake in the disciplinary process, which was only concerned with the different, and narrower, right to remain in his current employment at X school.

47.

I cannot accept this submission. It seems to me that there is every likelihood that the outcome of the disciplinary process in a case like this, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making proceedings make to the barred list. The governors’ conclusion comprised both a finding of fact and a judgment as to where the facts lay on the scale of severity that in the particular case failed to be applied. While the ISA (“independent safeguarding authority”) may bring an independent mind to bear, it is not I think suggested that it operates a procedure for oral hearings with cross-examination. The force of the disciplinary decision lies not only in the governors’ view of the primary facts, but especially in their judgment as to how those facts should be viewed. Without a de novo hearing and the possibility of oral evidence before the ISA, at the very least the flavour and the emphasis of those conclusions will remain important and influential.

48.

Accordingly, it is clear in my judgment that the outcome of the disciplinary proceedings, if (after the extant appeal) it remains unfavourable to the claimant, will have a substantial effect on the outcome of the barred list procedures which will then be applied to him. His right to practice his profession, which will be directly at stake in the barred list procedure, may (in the language of the Ocalan case) be irretrievably prejudiced by the disciplinary proceedings. I conclude that the answer to the first question which I posed is in the affirmative; the disciplinary proceedings are a determinant of the claimant’s right to practice his profession. Article 6 is accordingly engaged on the footing that that is the civil right in issue.

49.

This result cannot, I think, be dislodged by the existence of the upper tribunal’s appellate jurisdiction. Though it may entertain appeals on law or fact from the ISA, for the purposes of its jurisdiction “the question whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.” (section 4(3) of the [Safeguarding Vulnerable Groups] 2006 Act). The issue most likely to be critical in a case like the present, namely whether on the proved or admitted facts, the quality of the individual’s act should be judged severe enough to put him on the barred list, appears to lie beyond the upper tribunal’s jurisdiction.”

For these reasons, Laws LJ, with whom Wilson LJ and Goldring LJ agreed, found that the teacher should have been given the right of representation when the primary facts were assessed by the governors of the school before reporting to the Secretary of State. The conclusion in this case is to be compared with Kulkarni (paragraph 60 above).

Mr Grodzinski submitted that the mere fact that the first stage process involves the resolution of disputed facts is not conclusive of the question whether judicial review will be an adequate supervisory jurisdiction. He relied on a passage in the speech of Lord Hoffman in Runa Begum (in the context of the welfare scheme) at §§51-59. Lord Hoffman posed the question what were the specialised areas of decision making which could safely be left to administrators. He said at §56:

“56...It seems to me that what the [European] court had in mind [in Bryan and Kingsley] was those areas of the law such as regulatory and welfare schemes in which decision-making is customarily entrusted to administrators. And when the court in Kingsley spoke of the classic exercise of administrative discretion, it was referring to the ultimate decision as to whether Kingsley was a fit and proper person and not to the particular findings of fact which had to be made on the way to arriving at that decision. In the same way, the decision as to whether the accommodation was suitable for Runa Begum was a classic exercise of administrative discretion, even though it involved preliminary findings of fact.”

On this issue he concluded as follows:

“59.

... In my opinion the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact. The scheme for the provision of accommodation under part 3 of the National Assistance Act 1948, considered in Beeson’s case; for introductory tenancies under part V of the Housing Act 1996, considered in R (McLellan) the Bracknell Forest Borough Council [2002] 2 WLR 1448; and for granting planning permission considered in R (Adlard) v Secretary of State for the Environment, Transport and the Regions [2002] 1 WLR 2515, all fall within recognised categories of administrative decision-making. Finally, I entirely endorse what Laws LJ said in Beeson’s case at paras 21-23 about the courts being slow to conclude that Parliament has produced an administrative scheme which does not comply with constitutional principles.”

It is appropriate to observe that these remarks should now be read subject to the reasoning and conclusions of the European Court in Tsfayo.

Finally, as to Ms Kaufmann’s argument that judicial review comes too late in the process to save the breach caused by lack of institutional independence, Mr Grodzinski responded that there is a significant difference between lack of structural independence and actual or perceived bias. In either event, he submits that judicial review is an adequate remedy. While it is accepted that judicial review will not prevent the imposition of a penalty under Rule 60, the remedy itself is a useful corrective having regard to the powers of the Court to make a declaration or to quash a decision based upon the unfairness of the particular proceedings at adjudication.

It is the responsibility of the prison governor or his delegate to act fairly, proportionately and in accordance with the rules of natural justice when adjudicating upon a disciplinary charge. His decisions are amenable to challenge in proceedings for judicial review in the High Court (Leech v Deputy Governor of Parkhurst Prison [1988] AC 533). Before the judgment of the European Court in Ezeh and Connors v United Kingdom was published the status of disciplinary hearings leading to the award of additional days was considered by the High Court in three separate cases Al-Hasan, Carroll and Greenfield, later heard together on appeal. In R (Greenfield) v Secretary of State for the Home Department [2001] 1 WLR 1731, [2001] EWHC (Admin) Latham LJ and Potts J, applying the Engel criteria, held that the adjudication of a charge for failing a mandatory drugs test leading to an award of an additional 21 days to serve did not constitute the trial of a criminal charge for the purposes of Article 6. The proceedings were in domestic law disciplinary in nature and the claimant had been lawfully sentenced to a period of imprisonment the length of which, notwithstanding the one-half statutory remission to which he was entitled under section 33 Criminal Justice Act 1991, would be unaffected by the award. The alternative argument advanced, described by the court as a “novel” one, was that the proceedings determined the claimant’s “civil right” to liberty. Relying on Aerts v Belgium [1998] 29 EHRR, the claimant argued that the award of additional days involved loss of liberty. Unlawful detention would entitle the claimant to damages. His “civil rights” were therefore determined in the disciplinary proceedings. The High Court held (§§29-31) that since the award of additional days for disciplinary reasons was expressly permitted by section 42 Criminal Justice Act 1991 in the case of a person serving a sentence of imprisonment, no issue as to the lawfulness of the claimant’s detention arose at the disciplinary hearing. No civil right stood to be determined.

Mr Greenfield’s appeal was one of three considered together by the Court of Appeal in R (Al-Hasan, Carroll and Greenfield) v Secretary of State for the Home Department [2002] 1 WLR 545, [2001] EWCA Civ 1224. The European Court’s judgment in Ezeh and Connors was still awaited. The High Court’s conclusion that no criminal charge had been involved was upheld by the Court of Appeal. The “civil right” argument was, as Lord Woolf CJ put it, “rightly no longer pursued before us”. This remark was relied upon in the Secretary of State’s detailed grounds of defence and, in passing, by Mr Grodzinski in argument, the implication being that if the Court of Appeal did not consider that the award of additional days could constitute the determination of a civil right, then an award of cellular confinement would not either. Meanwhile, on 9 October 2003, the European Court published its judgment in Ezeh and Connors reversing the effect of the decision in Greenfield that a criminal charge was not involved. By this time the Secretary of State had introduced the system of independent adjudication to deal with disciplinary cases in which additional days might be awarded.

It is my view that nothing of assistance to this case can be derived from Lord Woolf’s observation upon Mr Greenfield’s “civil right” argument in the Court of Appeal. First, there was no argument addressed to the Court of Appeal. Second, underlying and supporting both arguments was the contention that the disciplinary hearing resulted in the imposition of an additional custodial penalty, one which the prisoner would not have been liable to serve unless convicted of the disciplinary offence. If the appellant succeeded with this argument he would demonstrate that the disciplinary hearing amounted to the trial of a “criminal charge”. If he failed, then he must also fail to show that his “civil right” to liberty was at stake. There was, in other words, no additional force in the “civil right” argument which made it worthwhile pursuing in the Court of Appeal. The argument now placed before this court that a prisoner’s residual right to association, if established, is a civil right was not addressed in Greenfield either in the High Court or in the Court of Appeal.

The European Court treats as civil rights those rights which the individual is entitled to enforce in his private capacity. We are not in this case concerned with one of the well recognised exceptions such as tax matters or the immigration status of a foreign national or with the employment rights of state employees (whatever may have been the original rationale for those exceptions). The discretionary grant of a benefit, for example a welfare benefit, will not, however, bestow upon the individual a right to that benefit such that it can be enforced as a civil right. As the Supreme Court found in R (A) v Croydon London Borough Council (paragraphs 54-58 above) the margin between an entitlement and a discretionary award may be narrow indeed. In the series of prison cases examined at paragraphs 33-51 above the European Court recognised as personal, and therefore “civil”, those residual rights prisoners claimed to enjoy by virtue of the ‘normal’ prison regime subject to legitimate executive action to remove them. In the disciplinary case of Gulmez v Turkey (paragraphs 37-41 above) the sole justification for the finding of a civil right was the view that the applicant’s visiting rights (as enjoyed under the normal prison regime) “fell within the sphere of his personal rights”. The same conclusion was reached in Ganci (at §§23 and 25, paragraphs 33-36 above), Enea v Italy (at §101 and 103, at paragraph 42-47 above) and Stegarescu and Bahrin v Portugal (at §§37 and 38, paragraph 48-51 above).

Citizens of the United Kingdom enjoy freedom of movement and association. As Lord Bingham observed in Daly (paragraph 82 above), any custodial sentence inevitably curtails the enjoyment of those rights. The prisoner lawfully detained cannot move freely or choose his associates as the general population is entitled to do. But the order does not wholly deprive the prisoner of all rights enjoyed by other citizens and the importance of any surviving rights may be enhanced by the loss or partial loss of other rights. Shaw LJ observed in R v. Board of Visitors of Hull Prison, ex p St Germain and Others [1979] QB 425 at 455:

“Now the rights of a citizen, however circumscribed by a penal sentence or otherwise, must always be the concern of the courts unless their jurisdiction is clearly excluded by some statutory provision. The courts are in general the ultimate custodians of the rights and liberties of the subject whatever his status and however attenuated those rights and liberties may be as the result of some punitive or other process.”

Shaw LJ was concerned with the jurisdiction of the courts to intervene in the disciplinary process in Hull prison but his observation serves to emphasise that the prisoner is not without rights to the extent that they are compatible with the sentence lawfully imposed. When a person receives a custodial sentence he forfeits the freedom (and the right) to associate with whomever he wishes but he does not, in my view, thereby forfeit his right of association with all his fellow human beings. He does not, in other words, receive a sentence of solitary or cellular confinement. The YOI Rules and the system of privileges described by PSO 4000 implicitly recognise the basic right of the prisoner to associate with his fellows during certain activities which the YOI Rules require the Secretary of State to provide. I accept the Secretary of State’s submission that the extent of the ‘basic’ association to which the inmate will be entitled is, subject to the performance of his statutory duty, in the discretion of the governor of the institution; but, in my view, the existence of that discretion does not remove from association its quality as a personal right. It is a right which is subject to the lawful exercise of discretion by the governor. There can, it seems to me, be no doubt that a prisoner has a right of access to a court if he asserts that the governor has arbitrarily removed from him any association with those of his fellow inmates with whom he would normally enjoy joint activities. That right of access to the courts exists because association is one of those residual rights which the prisoner retains subject to the lawful exercise of disciplinary or other powers. This, I think, is the distinction between the case of a prisoner and the case of the discretionary recipient of a welfare or other benefit. When what is asserted as a “right” is in reality no more than an argument that discretion or evaluative judgement should be exercised in the citizen’s favour it cannot be classified as a civil right. The citizen’s “right” is only to have the claim to the benefit considered fairly. This claimant is not in such a position. He says that he had the same basic right of association with his fellow inmates as they enjoyed, subject to the lawful exercise of disciplinary power by the governor. I accept that within the autonomous meaning afforded to “civil rights” by the European Court a right of association, in the sense I have described it, is a civil right.

We are invited to assume that the determination of a claim for a breach of Article 3 and/or Article 8 rights would be the determination of private civil rights under Article 6.

Mr Grodzinski urged us to decide at what point during the disciplinary process, if any, the claimant’s civil right became “the object or one of the objects of the “contestation” (dispute)” (Pudas v Sweden §31, at paragraph 27 above). He drew attention to the fact that in each of the prison cases decided by the European Court, the Court had not been, save perhaps in the case of Gulmez, examining whether Article 6(1) applied to the procedure by which the normal prison regime was suspended but whether the applicant had been given effective access to a court to challenge the decision. In other words, the “contestation” arose at the time the applicant attempted to avail himself of the right of appeal. It does not seem to me that this distinction illuminates the problem facing this court. In Le Compte and Albert and Le Compte, Judge Matscher’s minority opinions were in part founded upon dissatisfaction with the conclusion that the “civil right” was in issue in the professional disciplinary proceedings. It was, in his opinion, obvious that the right was not in issue before the sanction of suspension from practise had been imposed. He continued:

“The Court’s judgment leaves out of account the proceedings before the Provincial Council, which had imposed a specific sanction on the applicants, and considers the contestation (dispute) to have “arisen” as a result of the fact that the applicants challenged the first-instance decision by appealing against it (see paragraph 34, first sub-paragraph). Such reasoning is based on a complete misconception of the purpose of appeal proceedings. In point of fact, the object and nature of a case (or a contestation/dispute) do not change the various levels of jurisdiction, independently of the arguments, grounds and claims put forward on appeal; if the proceedings before the Provincial Council did not have as their object the determination of a contestation (dispute) over civil rights and obligations, it could not be otherwise in regard to the proceedings before the Appeals Council and Court of Cassation. In other words, the “contestation” (dispute) formed the object of those proceedings, or was irrelevant thereto, from the very outset; it could not “arise”...on appeal or during the cassation proceedings.”

Judge Matscher’s view was that the effect of the disciplinary proceedings upon the applicants’ civil rights was at best indirect. The existence and exercise of a right of appeal to the Appeals Council and the Court of Cassation could not change the quality of the administrative proceedings to which Article 6(1) did not apply. If Article 6(1) did not apply to the administrative proceedings then there was no requirement for an Article 6(1) compliant judicial review of those proceedings. While powerful and persuasive, Judge Matscher’s opinion was rejected by the majority.

Le Compte and Albert and Le Compte have been regarded as authoritative in the field of disciplinary and administrative proceedings for many years. The current state of European jurisprudence is that if during the proceedings as a whole the claimant’s civil right is determined then he is entitled to the procedural guarantees of Article 6(1). The question whether the requirements of Article 6(1) have been met in any particular case will depend upon an examination of each stage of the process. It does not seem to me to assist the Secretary of State to establish that the “contestation” arises only when the claimant challenges his punishment in the High Court. If the grounds of his challenge include the assertion that, contrary to the evidence of the prison officer, he was not guilty of disobeying a lawful order, this court is bound to examine the procedural fairness of the proceedings before the governor for Article 6(1) compliance, since the proceedings in the High Court cannot include a re-hearing of the evidence.

The disciplinary hearing was held for the purpose of resolving whether the claimant had committed a disciplinary offence and, if so, what was the appropriate punishment; it was not held to resolve a question whether the claimant enjoyed a right of association with other inmates. However, as the European Court has consistently observed, the term “contestation” should not be too technically construed and should be given a substantive rather than a formal meaning. The European Court has in fact looked at the practical consequences of the dispute. In Le Compte (see paragraphs 28-30 above) and Albert and Le Compte (see paragraph 84 above) the Court applied Article 6(1) to proceedings before the Appeals Council and Court of Cassation, where a challenge to suspension undoubtedly arose, finding it unnecessary to decide whether the “contestation” arose in the Provincial Council which imposed the suspensions from practise. As the Court in Albert and Le Compte observed (at §29) the task of imposing disciplinary penalties interfering with “civil rights” may be assigned to non-judicial professional tribunals provided that either the disciplinary tribunal is Article 6(1) compliant or the disciplinary proceedings are subject to judicial control with “full” jurisdiction capable of rectifying the first instance deficiency.

While the purpose of the disciplinary proceedings before the governor was not to identify a civil right or to define its exercise, it is my view that the inmate’s punishment of cellular confinement did render the disciplinary proceedings a “contestation over civil rights and obligations”. As in the case of medical practitioners whose right to practise may, but will not necessarily, be suspended in the proceedings, it seems to me that the connection between the removal of the right of association and the “contestation” cannot be described as tenuous or remote.In her written reply Ms Kaufmann has drawn our attention to two further decisions of the European Court, Werner v Poland (Application no. 26760/95, 15 November 2001, Fourth Section) and Pocius v Lithuania (Application no. 35601/04, 6 July 2010, Second Section). They are examples, she submits, of the European Court concluding that Article 6(1) applies to administrative proceedings which do not themselves identify or remove a civil right but which have the effect of so doing. In Pocius the applicant’s firearms licence was revoked administratively for reasons undisclosed to him, and he was required to forfeit his firearms. The public suspicion was, in consequence, that the applicant had been involved in criminal activity. The European Court held that under Lithuanian domestic law the applicant was entitled to protect his reputation, the withdrawal of the firearms licence might deprive him of access to a range of employment, and he had a personal proprietory interest in his firearms. Each of these ‘rights’ was an arguable civil right affected by the administrative action of the State. The applicant was, accordingly, in the administrative proceedings, entitled to the protection of Article 6(1), there being no domestic right of appeal to a judicial tribunal. While of interest these decisions are not critical to my conclusion on the facts of the present case. The analysis of the European Court in Le Compte and Albert and Le Compte and of Laws LJ in R (G) v The Governors of X School (paragraph 99 above) persuades me of the correctness of Ms Kaufmann’s argument. If, on the contrary, the “contestation” would arise only upon challenge in the High Court, it is my view that the proceedings before the governor still require close examination for the purposes of deciding whether the proceedings as a whole are Article 6(1) compliant.

As to the limit (10/16 days cellular confinement) to the governor’s jurisdiction, it does not seem to me that this changes or removes the quality of determination of a civil right. The European Court in Le Compte (at §49, at paragraph 30 above) was concerned not with the length of suspension of the right to practise but with the issue whether there was an “impairment” which was “direct and material”. The interference may concern not merely the existence of the right but also its “scope and the manner in which the beneficiary may avail himself” of it. I do not think that a limited period of confinement can, subject to de minimis, justify the application of the Micaleff (see paragraph 60 above) criteria. The purpose of interim measures is to maintain the status quo pending determination. The duration of interim measures may have the effect of determining the issue. We are not here concerned with interim measures but with suspension of the “civil right”. Simply because an interim measure remaining in place for an extended period may have the effect of determining a civil right does not of itself require or invite the further conclusion that suspension for a short period does not. Neither do I think that Kulkarni (see paragraph 60 above) assists. The court held that a “civil right” was not involved in the mere loss of a job, as opposed to loss of the right to practise a chosen profession (compare R (G) v The Governors of X School - see paragraph 99 above – a disciplinary finding justifying the loss of a job had a determining effect upon loss of the right to work in a chosen profession). In each of these cases the Court of Appeal was examining what the “right” comprised, not whether the duration of the interference affected the judgement whether it was being determined.

I am un-persuaded by the Secretary of State’s argument that the disciplinary nature of the proceedings has a decisive influence on the issue whether they involve the determination of a civil right if the Bentham principles (see paragraph 27 above) are otherwise satisfied. This is, in my view, the effect of Le Compte and Albert and Le Compte in which the same argument was addressed to the European Court in different words. In those cases the Government was arguing that the proceedings were purely disciplinary and the effect of them upon the right to practise was incidental. The argument was rejected. I recognise the views of Moses J, as he then was, expressed in Francis and Tangney (paragraph 62 above) to the effect that the disciplinary purpose of the proceedings may assist in drawing the line between a disciplinary measure and a criminal charge. There are several disciplinary offences which may also, if pursued in a criminal court, result in a criminal conviction. Accordingly, the purpose to be pursued is of relevance to an assessment of the Engel criteria. It does not seem to me that the same considerations can serve to identify whether, in disciplinary proceedings, a civil right is engaged and determined. Either it is, on Benthem principles, or it is not. Furthermore, if the indirect and tenuous argument was rejected in Le Compte and Albert and Le Compte I can see no reason in principle why it should succeed here.

Rights under Article 3 and Article 8 will not, however, be engaged unless the punishment reaches a certain level of seriousness (R (Bary and Others) v Secretary of State for Justice at §43, see paragraph 81 above). In McFeeley v United Kingdom at §49 the Commission said:

“....The Commission would not normally consider that this form of segregation [removal from association for disciplinary reasons] from the prison community amounts to inhuman treatment or punishment. In making an assessment in a given case, regard must be had to the surrounding circumstances including the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.”

The Commission was examining the question whether particular conditions amounted to a breach of Article 3. These observations are, however, of assistance to the question whether the liability of the inmate to a punishment of cellular confinement is capable of engaging Article 3. It does not seem to me that the regime described in the evidence of Mr Donno (paragraph 7 above) for a period of 10 or 16 days is capable of engaging Article 3 even in the case of a person suffering a psychotic mental illness. The right of privacy implicit in Article 8(1) includes the right to establish and to develop relationships with other human beings, especially in the emotional field of the development of one’s own personality. The Commission found that this right survives a sentence of imprisonment or detention. Removal from association will constitute an interference with the right to privacy. After some hesitation, I am persuaded that the punishment of cellular confinement, even for the restricted periods of 10 or 16 days, may in some circumstances engage Article 8 and, therefore, the issue of proportionality under Article 8(2). It is not necessary for present purposes to spell out what those circumstances might be. In this case, however, the award was 3 days cellular confinement. I do not consider that the interference which took place reached a level sufficient to constitute interference with Mr King’s Article 8 rights.

Claims (3) and (4) Mr Shepherd Not an Independent and Impartial Tribunal

It is not suggested that Mr Shepherd was personally biased or had some connection with the facts of the case which disqualified him from hearing the claimant’s case. The complaint is that Mr Shepherd was not, by reason of his employment, institutionally and therefore objectively an independent tribunal. The same criticism could be made of any other prison governor.It is, as I understand it, common ground between the claimant and the Secretary of State that the governor was not an objectively independent tribunal for the purposes of Article 6(1).

The trial of a criminal charge requires full or almost full compliance with Article 6(1) or a second stage hearing which fully compensates for the failure at first instance. In De Cubber v Belgium [1984] ECHR 14 the chairman of the court of first instance hearing criminal charges was not practically or institutionally independent of the investigation. The tribunal was not therefore independent and impartial. Relying on the Court’s statement of principle in Le Compte and Albert and Le Compte the Government of Belgium argued that the fairness of the proceedings was guaranteed by the availability of review in the Ghent Court of Appeal. The Government submitted that the Le Compte and Albert and Le Compte principle applied equally to “criminal charges” as it did to the determination of “civil rights”. The European Court rejected this argument, saying at §32:

“Article 6 para. 1 (art. 6-1) concerns primarily courts of first instance; it does not require the existence of courts of further instance. It is true that its fundamental guarantees, including impartiality, must also be provided by any courts of appeal or courts of cassation which a Contracting State may choose to set up...However, even when this is the case it does not follow that the lower courts do not have to provide the required guarantees. Such a result would be at variance with the intention underlying the creation of several levels of courts, namely to reinforce the protection afforded to litigants. Furthermore, the case-law relied on by the Government has to be viewed in its proper context. The judgments of 23 June 1981 [Oztürk], 10 February 1983 [Le Compte, Van Leuven and De Meyere]and 21 February 1984 [Albert and Le Compte] concerned litigation which was classified by the domestic law of the respondent State not as civil or criminal but as disciplinary (Series A, no. 43, p. 9, para. 11) or administrative (Series A, no. 73, pp. 10-14, paras. 17-33); these judgments related to bodies which, within the national system, were not regarded as courts of the classic kind, for the reason that they were not integrated within the standard judicial machinery of the country. The Court would not have held Article 6 para. 1 (art. 6-1) applicable had it not been for the “autonomy” of the concepts of “civil rights and obligations” and “criminal charge”. In the present case, on the other hand, what was involved was a trial which not only the Convention but also Belgian law classified as criminal; the Oodenaarde criminal court was neither an administrative or professional authority, nor a jurisdictional organ of a professional association..., but a proper court in both the formal and the substantive meaning of the term...The reasoning adopted in the three above-mentioned judgments, to which should be added the Campbell and Fell judgment of 28 June 1984 (Series A, no. 80, pp. 34-39, paras. 67-73 and 76), cannot justify reducing the requirements of Article 6 para. 1 (art. 6-1) in its traditional and natural sphere of application. A restrictive interpretation of this kind would not be consonant with the object and purpose of Article 6 para. 1 (art. 6-1)...” [bracketed words added]

As to the adequacy of the appeal process in curing the first instance deficiency in a criminal trial the Court continued at §33:

“...The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for an initial violation of one of the Convention’s provisions...Thus, the Adolf judgment of 26 March 1982 noted that the Austrian Supreme Court had “cleared...of any finding of guilt” an applicant in respect of whom a District Court had not respected the principle of presumption of innocence laid down by Article 6 para. 2 (art. 6-2) (Series A, no. 49, pp. 17-19, paras. 38-41). The circumstances of the present case, however, were very different. The particular defect in question did not bear solely upon the conduct of the first-instance proceedings: its source being the very composition of the Oodenaarde criminal court, the defect involved matters of internal organisation and the Court of Appeal did not cure that defect since it did not quash on that ground the judgment of 29 June 1979 in its entirety...”

To the same effect was the decision of the European Court in Findlay v United Kingdom [1997] ECHR 8. The shortcomings in the trial of criminal charges at a court martial could not be cured by review of the proceedings on appeal. At §79 the Court said:

“Nor could the defects referred to above (in paragraphs 75 and 77) be corrected by any subsequent review proceedings. Since the applicant's hearing was concerned with serious charges classified as "criminal" under both domestic and Convention law, he was entitled to a first-instance tribunal which fully met the requirements of Article 6 para. 1 (art. 6-1) (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, pp. 16-18, paras. 31-32).”

I have made reference to these observations of the European Court (which were not explicitly cited to us) because they serve to illustrate that the demands of the trial of a criminal charge at first instance are treated by the Court as different from proceedings of a non-criminal nature involving disciplinary or administrative proceedings affecting the citizen’s “civil rights”, notwithstanding that the terms of Article 6(1) apply to both. It is the means by which the state can secure the Article 6(1) guarantees which may vary according to the nature of the proceedings at first instance.

The question for this court is, therefore, whether supervisory review in the High Court of disciplinary proceedings before the governor is a sufficient guarantee of the fairness of the proceedings within the meaning of Article 6(1), recognising that if the proceedings had involved the resolution of a “criminal charge” judicial review would be insufficient. It does not follow that merely because there is a dispute of fact the resolution of which will weigh heavily in the making of an administrative or disciplinary decision, the tribunal resolving that issue of fact must, absent a criminal charge, be fully Article 6(1) compliant. I agree with Mr Grodzinski that this court must examine the nature and subject matter of the proceedings together with the issues at stake in order to judge whether the availability of judicial review renders the proceedings as a whole Article 6(1) compliant.

The proceedings were undoubtedly disciplinary in nature. They related not to fitness to practise a profession but to the maintenance of good order and discipline in a custodial institution in which the inmate was serving a sentence lawfully imposed after a public trial. The disciplinary charge was disobedience of a lawful order. The European Court (particularly in Engel, Ezeh and Connors and Campbell and Fell) has acknowledged the need for a special disciplinary regime for the sake of timely and convenient disposal of disciplinary issues in prisons. The charge of disobeying a lawful order has the effect of removing from the reporting officer himself to the senior manager of the institution the decisions whether the order was disobeyed, whether to impose a punishment and, if so, what punishment should be imposed. That process has the effect of safeguarding inmates from arbitrary punishment. Obedience to lawful orders is of the essence in the maintenance of good order and discipline in custodial institutions and it is difficult to think of a disciplinary charge in respect of which speedy resolution might be a weightier consideration.

The governor will not have any personal knowledge of the facts of the case. If he does he should disqualify himself (R (Al–Hasan) v Home Secretary). He is bound to follow the requirement of PSO 2000 in a spirit of inquiry to reach an impartial conclusion upon evidence which has been disclosed to the inmate. He must reach his adjudication upon disputed facts so that he is in no reasonable doubt that a lawful order was disobeyed.

The maximum penalty of cellular confinement for 10/16 days constitutes a modest interference with the inmate’s ‘enjoyment’ of the normal custodial regime. He will continue to have contact with YOI staff, with visitors and with the chaplain (or his equivalent) if he wishes.

While the governor cannot be said to be institutionally independent it is my view that the disinterested observer would conclude that arrangements for the resolution of the disciplinary charge of disobedience within the setting of the custodial institution are palpably fair.

The High Court upon a review of the disciplinary proceedings has jurisdiction:

The issues at stake in a judicial review in this case (apart from the issue of Article 6(1) compliance) would, but for the agreement between the parties referred to at paragraph 23 above, have been whether (1) the governor should have accepted the claimant’s guilty plea; (2) there was evidence upon which the governor could reasonably have reached a finding of guilt; (3) the imposition of cellular confinement for three days was, in the particular circumstances of the case, proportionate. The High Court would have jurisdiction to consider and rule upon each of these issues. I observe that if the High Court concluded that Mr Shepherd did not apply his mind to the question whether the claimant’s plea should be accepted in light of the claimant’s comments immediately following (and Mr Shepherd does not assert that he did, c.f. paragraph 16 above), his imposition of the penalty would almost certainly be quashed. While the inmate will already have served his punishment before the High Court undertakes its review, I accept the submission made on behalf of the Secretary of State that this fact is of lesser significance when the first instance tribunal is to be treated as impartial, if not institutionally independent.

In my judgment, on the facts of the present case, the proceedings complied with the requirements of fairness under Article 6(1). The High Court enjoyed “full” jurisdiction to review the issues which arose for consideration. Had the issue been simply one of disputed evidence (as to whether a lawful order had been disobeyed), in respect of which the High Court would have limited powers of review, I would have reached the same conclusion. As Lord Bingham observed in Runa Begum (paragraph 89 above) and Baroness Hale observed in R (A) v Croydon LBC (paragraph 57 above) the wider the autonomous meaning afforded to “the determination of a civil right” the less stringent may be the requirements for Article 6(1) fairness in the first instance decision making process. While these observations were made in the context of welfare provision it seems to me that they apply with equal, if not greater, force to these disciplinary proceedings before the governor of a custodial institution. I understand the weight of the European Court’s analysis of the nature and effect of the factual issue arising in the ‘welfare’ case of Tsfayo (paragraph 85 above). As the European Court observed at §47, however, the HBRB was not merely lacking in institutional independence from the local authority but was directly connected to one of the parties having a pecuniary interest in the result. Thus, the safeguards built into the HBRB procedure were not adequate to overcome “this fundamental lack of objective impartiality”. Lack of institutional independence seems to me to be an inevitable consequence of a disciplinary process which depends upon its internal resources for its efficiency and effectiveness. It is not possible at one and the same time to enjoy both a speedy process of resolution and full institutional independence for the first instance tribunal. Such a system of adjudication would defeat the purpose of the disciplinary proceedings themselves. It seems to me to confound reason, common sense and proportionality to require that whenever an inmate disputes a charge of disobedience, the consequence of which may be a modest punishment of cellular confinement, a special adjudicator should be appointed to decide the issue. I would dismiss the claim.

With the single inconsequential exception referred to in paragraph 129 below, I agree with the reasoning and conclusions of Lord Justice Pitchford. In view of the thoroughness of his judgment, my own remarks can and will be brief. In what follows I use ‘prison’ to refer to any penal institution and ‘prisoner’ to a person serving any custodial sentence.

It is quite clear in my view that a right of association with others is a ‘civil right’ for the purposes of Article 6(1) of the ECHR, and a right which is retained by prisoners, albeit in necessarily restricted form and subject to suspension or further restriction in accordance with rules, such as the Young Offender Institution Rules 2000, which govern the prison concerned. To paragraphs 105 and 106 of the judgement of Lord Justice Pitchford I would add only that Mr. Donno’s evidence in paragraph 65 of his witness statement that “the main part of the punishment [of cellular confinement] is the prevention of association with other prisoners” recognises that such association is a feature of normal prison life.

I turn to consider whether a prison disciplinary hearing resulting in a penalty of cellular confinement amounts to a “determination of [the prisoner’s] civil rights” for the purposes of Article 6(1). Independently of authority, I would have come straight to the conclusion that it does. The penalty imposed leads immediately to the suspension of the prisoner’s rights of association with other prisoners. In my view none of the authorities reviewed by Lord Justice Pitchford compels a contrary conclusion. The requirement of a “contestation” is in my view met by the fact that a prison disciplinary tribunal is convened first to decide whether a disciplinary offence has been committed (as to which (a) there may be competing evidence and submissions and (b) a plea of guilty is not necessarily treated as determinative); and, if so, to further decide which of the available penalties should be imposed (as to which there may be further submissions).

I turn to Articles 3 and 8 of the ECHR. It is of course impossible to predict every combination of circumstances that might arise in future. That said, I find it difficult to conceive of circumstances in which a disciplinary punishment of up to 10 (or 16) days’ cellular confinement could ever properly be described as “inhuman or degrading”, or as indicating a lack of respect for the private life of the prisoner concerned, accepting that “private life” has been broadly interpreted. In relation to Article 8, therefore, my approach differs from that of Lord Justice Pitchford (see paragraph 114 of his judgment). We agree, however, that the penalty of 3 days’ cellular confinement imposed in Mr. King’s case did not interfere with his rights under either Article.

It is agreed that Mr. Shepherd was not an “independent tribunal” for the purposes of Article 6(1). However, the High Court of Justice is, and I am firmly of the view that the power of the High Court to review a decision taken in prison disciplinary proceedings to impose cellular confinement is sufficient to meet the requirements of Article 6(1) in relation to the proceedings as a whole. I respectfully adopt the analysis of Lord Justice Pitchford in paragraphs 118 to 125 of his judgment and have nothing to add in this regard.

It follows that I too would dismiss the claim.