Bashir, R (on the application of) v The Independent Adjudicator

This is the substantive hearing of a claim for judicial review brought by the claimant, who was at all material times a prisoner at HM Prison Rye Hill where he was serving a sentence of fifteen years imprisonment. The Defendant has not played an active part in these proceedings, which have been defended by the Second Interested Party. References hereafter to “the Defendant” are references to the Second Interested Party. The Defendant is referred to hereafter as “the Adjudicator”.

On 20^th January 2010, the claimant was required to provide a urine sample for testing for the use of controlled drugs in accordance with the policy in relation to mandatory drug testing contained in Prison Service Order 3601. The basis on which the test was authorised was said to be a reasonable suspicion that the Claimant had taken controlled substances. The Claimant was first directed to provide a sample at 10.05. He attempted to but failed to provide a sample at 12.00, 13.09 and 14.00. He was offered but refused water at 10.05, 11.05, 12.05 and 13.05. The claimant is a devout Muslim who was fasting prior to a Court of Appeal appearance as part of his religious preparation for that hearing. As a result, the Claimant was unable to provide a sufficiently large urine sample (the sample he provided was 10 ml whereas the minimum required was 35 ml). He was told that if he did not provide a sufficiently large sample, he would commit an offence under the Prison Rules. The claimant declined the drinks that he was offered on the basis that he was fasting. In consequence he could, and did, not produce the required sample. He was charged with failing to obey a lawful order contrary to Rule 51 (22) of the Prison Rules 1999. This led to a hearing on 17 March 2010 before the Adjudicator at which the Claimant was convicted and a penalty of 14 days additional detention was imposed. The conviction is challenged on the basis that

Article 9 of the ECHR provides that:

“(1)

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2)

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in interest of public safety, for the protection of public order, health or morals over the protection of the rights and freedoms of others.”

A prisoner commits an offence against prison discipline if he commits one of the offences listed under Rule 51 of the Prison Rules 1999. Rule 51(22) provides that:

“51.

A prisoner is guilty of an offence against discipline if he

…

The rules applicable to adjudication are contained in the Prison Discipline Manual. By paragraph 6.113 it is provided that:

“ A lawful order is one which is reasonable and which a member of staff has authority to give in the execution of his/her duties.… In relation to Mandatory Drug Test procedures, the governor/director has a duty to demonstrate in advance that an order to provide a sample is lawful. The MDT process is a single and continuous one in which separate orders cannot be given.”

By paragraph 6.114 it is provided that:

“Before an adjudicator can be satisfied of guilt beyond reasonable doubt the following must be established

…

The order was lawful

…”

In relation to the conduct of adjudication hearings, Chapter 7 provides at paragraph 7.1:

“The standard of proof

Before finding the charge proved, an adjudicator must be satisfied beyond reasonable doubt that the prisoner has committed the offence with which s/he is charged. Otherwise the charge must be dismissed, regardless of how the prisoner has pleaded”.

It was accepted at the hearing before the Adjudicator that the Claimant attended the prison’s mandatory drug testing suite as required; that he tried to provide a sample on three occasions; that he was only able to provide a sample of 10 ml (the required sample is 35 ml – see paragraph 6.113 of the MDT PSO) notwithstanding that he was given the maximum period of time (four hours) to provide a full sample. The Claimant explained to the testing officer that he was fasting in light of the approaching Court of Appeal hearing. The prison officer confirmed in evidence that the Claimant made him aware of this. The day when the Claimant was called for testing was the third day of the three-day fast. The Court of Appeal hearing was to take place on the 21^st January 2010.

The evidence before the Adjudicator was that the Claimant was a devout Muslim; that there are many individual voluntary fasts in the Muslim faith; that a person can engage in an individual voluntary fast for three days for particular personal reasons and the evidence of the prison Imam who gave evidence before the Adjudicator was that “on a personal level if you start [to] fast you should go straight with it to the end”. The Claimant’s evidence before the Adjudicator (which was not challenged) was that he had been advised by another Imam to fast for three days prior to his approaching Court of Appeal hearing. His evidence was also that he had been unable to provide a sample of the requisite quantity despite his best efforts. Again this was not challenged. His subjective belief that he could not break a fast once it had started was not challenged either or at any rate there is no record of such a challenge being made.

The Adjudicator found the claimant guilty. The reasons given by the independent adjudicator as recorded by him on Form F256 were as follows:

“Not in dispute that failed to provide sufficient sample w/i 4 hours provided.

D told staff he was fasting and wd not take water. Imam Anwar confirms that person can undertake a fast at any time for reasons of particular personal sig. In this case the D had hearing before CA.

PS0 3601 paragraph 4.74 provides for a proc. to be followed @ Ramadan & other religious festivals which involve total fasting.

This was nt a religious festival. Of course there is nothing to prevent an individual fasting on any partic. date, however they bear the conseq of that. PSO provides an approp. response to religious observance.”

The first issue that arises is whether the reasons given by the Adjudicator were sufficient in the circumstances. This question is closely allied to a second point made on behalf of the Claimant namely that it was an essential ingredient of the offence with which he was charged that intention be proved to the criminal standard. It was argued that the Claimant could not have the requisite intent because he was unable to provide a sample of sufficient volume because he was fasting and was entitled by operation of Article 9 of the European Convention on Human Rights (ECHR) to refuse to break his fast by drinking water so as to enable him to provide the necessary sample. In my judgment there is a third issue that arises namely whether the order to provide a sample was a lawful one if in the circumstances it amounted to a disproportionate interference with the Claimant’s Article 9 right to manifest religious observance. It was of course for the prosecuting authority to prove beyond reasonable doubt that the order was a lawful one in the circumstances.

Paragraph 7.4 of Chapter 7 of the Prison Discipline Manual establishes that the reasons given must be sufficient to enable the prisoner to exercise his or her right to challenge an adjudication in each of the ways there described. Although initially the contrary was argued on behalf of the Defendant, it is now common ground that to be convicted of the offence with which the Claimant was charged the Adjudicator had to be satisfied that the Claimant intended to commit the offence and also that the order he disobeyed was a lawful order. As is emphasised by Paragraph 7.1 of Chapter 7, the Adjudicator had to be satisfied that these elements had been proved beyond reasonable doubt. The reasons given by the Adjudicator had to be sufficient to enable the Claimant and his advisers to understand why the Adjudicator had concluded that the prosecuting authority had established each of these elements to the requisite standard.

Whilst it is true to say that the Adjudicator did not in terms state that for the offence to be proved the order disobeyed had to be shown to be lawful and that intention had to be proved, I am just satisfied that in the circumstances that was unnecessary. I say that because the facts said to constitute the offence were not in substance disputed. Thus the only issues before the Adjudicator were and could be whether the order disobeyed was a lawful one and whether intention had been established. That being so, I am not able to accept the submission that the reasons given were inadequate because they failed to say in terms that the prosecuting authority had to prove each of these matters and to do so beyond reasonable doubt.

What remains is whether the reasons given adequately explain why the Adjudicator concluded that the order was lawful and that the requisite intention had been established. In my judgment, the reasons given, whilst sparse, fall just on the right side of what is acceptable. The adjudicator concluded that intent was established because the Claimant could not provide a sample as required because he was fasting and declined to break his fast by drinking water as requested. The reasons also show that the Adjudicator concluded that because the fast being undertaken was not part of a religious festival the fact of the fast either did not make the order an unlawful one or did not affect his conclusions on the intention issue because the exception created by the MDT PSO in respect of festivals was of no application. Whether that was a sufficient basis to conclude that intent was established and the order was lawful is a separate issue.

It was submitted on behalf of the Claimant that the Adjudicator could not in law have concluded that intent had been established to the criminal standard on the evidence that was before him. I am not able to agree with that submission. It is first necessary to identify what order had been given before the intent that has to be established can be identified. The Order was an order to provide a sample – see paragraph 6.116 of the Prison Discipline Manual. Assuming that the order to provide a sample is a lawful one, it is open to an Adjudicator to infer the necessary intent from a refusal to drink water as and when it is offered so as to enable a sample to be obtained. It is the requirement that the order be a lawful one that enables a distinction to be drawn between those who for example are on hunger strike for reasons that do not engage Article 9 and refuse to break it to enable a sample to be obtained and cases where the prisoner is unable to provide a sample because he is fasting for reasons that do engage Article 9, where, depending on the circumstances, the order to provide a sample may or may not be lawful. In both cases the requisite intent is obvious or can be inferred from the refusal to drink. What separates one from the other is the lawfulness of the order. Assuming for present purposes that Article 9 is engaged, lawfulness will depend on whether to require the prisoner to break his fast amounts to a disproportionate inference with his Article 9 rights. It is this distinction that explains the policy in relation to prisoners fasting during Ramadan. If a fasting prisoner was required to provide a sample during Ramadan and was physically unable to do so without breaking his fast, the issue that would have to be determined by the Adjudicator is not whether the prisoner concerned had the requisite intent (viewed in isolation he probably would) but rather whether to order a fasting prisoner to provide a sample which it is foreseeable he might not be able to provide without breaking his fast was a lawful order. The procedure set out in Paragraphs 4.70-4.75 of the Mandatory Drug Testing PSO was devised in order to prevent such issues arising.

The Claimant submitted that since he had decided to embark on a three day fast two days prior to being ordered to provide a sample it follows that the Claimant could not have had the required intent. I do not agree that these facts would preclude the Adjudicator from concluding that intent had been proved to the requisite standard for the reasons I have identified above. The Claimant was invited to consume water to enable a sample to be taken after he had said that he was fasting and thus was unable to provide a sample of the volume required. It is from those refusals (which post date the order to provide a sample) that intent was and could be inferred. Once the order had been given, the Claimant had four hours to comply with it and thus it was entirely permissible to infer an intention to disobey from the refusal to drink water.

In my judgment the submissions made on behalf of the Claimant at Paragraphs 6 to 7 of his skeleton submission confuse the issue of intention with the issue of lawfulness of the Order, which is the question that logically needs to be answered first. If the order was a lawful one then the inference of intention from a refusal to drink in order that a sample could be provided was irresistible in my judgment. If the order was not a lawful order then questions of intention do not arise in the circumstances of this case.

ECHR Article 9(1) creates a number of different rights some of which are absolute (the right to freedom of thought, conscience and religion) and some of which (the right to manifest one’s religion or beliefs) are qualified by Article 9(2). Thus the freedom to follow one of the five schools of Islam is an absolute right but the right to manifest such a belief (as for example by fasting) is a qualified right. Thus here the question whether the order to provide a sample was a lawful one requires the consideration of three questions being:

The Parties’ Respective Cases

The Adjudicator’s Approach

The Factual Background

It might have been contended that the Claimant’s professed belief that he could not break his personal fast was not a genuinely held belief because a personal fast was one that could have been broken off for a sufficient reason without any significance so that he could have broken off his fast, taken water and provided a sample before resuming his fast. However that was not the evidence before the Independent Adjudicator. The Defendant has sought to adduce such evidence before me in the form of a statement from Prison Officer Ahtsham Ali. Counsel for the Claimant attacked that evidence on the basis that there is no evidence that the Officer is qualified to give expert evidence on matters of Islamic thought. The officer says in his statement that he is a Muslim; that he has studied Islamic jurisprudence and that for 6½ years he has been a Muslim adviser to the Prison Service. This is a limited foundation for the suggestion that the officer has sufficient expertise to give evidence on the spiritual issues that he gives opinion evidence about. However it is not necessary that I resolve that question in the circumstances of this case. The officer’s evidence is of no value in determining the genuineness of the Claimant’s belief that to break his fast was not permitted because it was not evidence that was before the Adjudicator nor was it evidence that was put to the Claimant. The genuineness of the Claimant’s belief was not challenged before the Adjudicator. Thus it does not seem to me to be open to the Defendant in these proceedings to contend that the Claimant’s belief that he was not permitted to break his fast was not a belief that he held in good faith or was capricious or fictitious. Even if it could be said that the evidence of the Prison Imam who gave evidence before the Adjudicator was implicitly consistent with there being an entitlement to break a private fast for a sufficient reason, the reasons given by the Adjudicator do not suggest that he viewed it in that way or that he inferred that the Claimant’s claimed belief was not genuinely held and in any event that point does not appear to have been put to the Claimant.

Although before me the Defendants seek to rely on the fact that the prison officer managing the Claimant’s drug test was not told that the Claimant was fasting until after the Claimant had been called for a test that is in my judgment irrelevant because (a) prior notice of the test was not given to the Claimant for obvious reasons, (b) there was no self reporting procedure for those engaging in fasting and (c) it was common ground that when called for his test the Claimant did tell the officer that he was fasting. Against that background, I now turn to the three questions that I have identified above.

Was Article 9 Engaged?

Although the Defendant relies on the fact that the fast being undertaken by the Claimant was not obligatory but voluntary, I reject that as a relevant consideration for present purposes. There is nothing within Article 9 that requires there to be a perceived, much less an objectively demonstrable, obligation for the manifestation of religious belief to be protectable. Lord Nicholls does not suggest that to be so in Paragraph 32 of his Opinion in Williamson. Indeed, he says quite the opposite in paragraph 33. On the evidence before the Adjudicator the Claimant’s fasting was a manifestation that was motivated or inspired by a religion and was not unreasonable and thus satisfied the relevant threshold requirements for Article 9 to be engaged. As I have said already the genuineness of his belief that he was not able to break his fast once it had started was not challenged before the Adjudicator. What must be demonstrated at this threshold stage is an intimate link between the act (here fasting) and the belief. In my judgment that link was clearly established on the evidence before the Adjudicator. In my judgment the Claimant’s rights under Article 9 were clearly engaged.

Was The Requirement To Provide A Sample An Interference With The Claimant’s Article 9 Rights?

The Defendant relies on Lord Bingham’s observation at Paragraph 23 of his Opinion in R (SB) v. Governors of Denbigh High School [2007] 1 AC 100 [2006] UKHL 15 that:

“The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practice or observe his or her religion without undue hardship or inconvenience.”

However, none of the authorities that are considered by Lord Bingham in that paragraph concern the position of prisoners. Although it was argued on behalf of the Defendant that the Claimant should be treated as having voluntarily accepted the restrictions implicit in a prison environment by committing the offences for which he had been convicted, I am not convinced that is a correct analysis. The only European Court of Human Rights (ECtHR) authority cited by either party that concerned a prisoner was Jakobski v. Poland (18429/06). That case concerned a complaint by the Claimant that he had been refused a meat free diet in prison contrary to the requirements of his faith. There was no suggestion made either by the Respondent or by the Court that the jurisprudence referred to by Lord Bingham was of any application to prisoners. In those circumstances I reject the Defendant’s contention that the line of authorities identified by Lord Bingham has any impact on the issues that arise in this case.

With that issue put to one side, in my judgment the question of whether there has been interference becomes essentially a factual one. Having accepted that for the Claimant to embark upon and maintain a three day fast which he genuinely believed could not be broken was a manifestation of his religious beliefs, it necessarily follows that to require him to provide a sample of urine which he was not able to provide without breaking his fast was an interference with the Claimant’s Article 9 rights. Thus, I conclude that the sole issue that arises in the circumstances of this case is the third of those identified above – whether the interference is prescribed by law, has one of the legitimate aims identified in Article 9(2) and is proportionate.

Proportionality

The Defendant accepts that it would be disproportionate even to allege that a person fasting during Ramadan or another religious festival was guilty of failing to obey a lawful order by failing to provide a sample that he could not physically provide without breaking his fast. The Claimant submits that it necessarily follows that similar considerations apply to someone undertaking a personal fast.

The Defendant’s case in essence is that to require a prisoner undertaking a personal fast to provide a sample as part of the mandatory drug testing policy is proportionate because, for testing to be fully effective, it is important (a) not to give prior notice that testing is to be undertaken and (b) for a test to be undertaken as soon as possible in order to maximise the chances of obtaining a positive result from those who have taken controlled drugs. During Ramadan adjustments are made but such steps would be disproportionate in relation to individual fasts because it would require changes to staff hours and significant overtime payments to be made. It is submitted that this approach is all the more justified because, whatever the evidence before the Adjudicator, the true position is that personal fasts may be broken without offending Islamic doctrine. The evidence relied on in support of this last point is contained in the statement of Prison officer Ahtsham Ali.

The issue that I am considering in this case is not a challenge to the MDT policy but a much narrower issue namely whether on the evidence before the Adjudicator it was open to him to conclude that the order to the Claimant that he provide a sample in a four hour window ending at 2 pm on 20^th January 2010 notwithstanding that he could not do so without breaking his fast was a lawful order. This focuses attention on the evidence that was before the Adjudicator not on evidence that could have been but was not put before him. It includes what was or ought to have been obvious namely that sunset occurred at about 4.30 pm and that the Claimant would have broken his fast very shortly thereafter.

There was no evidence before the Adjudicator concerning the cost or inconvenience of making appropriate adjustments in the particular circumstances that arose in the Claimant’s case nor was there any evidence of a deleterious effect on efficacy that might result from such steps. Finally no evidence was tendered before the Adjudicator to justify a professed belief of reasonable suspicion on the part of the prison authorities that the Claimant had ingested a controlled substance. Evidence in relation to any of these issues may well have been relevant to the assessment of proportionality in this particular case. However, the only point made by the prosecuting authorities was that the fasting being undertaken was not part of a festival and so did not come within Paragraphs 4.71-4.75 of the MDT PSO. In my judgment that was not a permissible way to approach the proportionality issue because it failed to consider the particular circumstances of the particular case. If the evidence had been that in excess of 24 hours would have elapsed from the time when it was suspected that the Claimant had taken controlled substances before a post sunset test could be undertaken that would undoubtedly have been a factor to be taken into account. Similarly, if the particular circumstances at the particular prison on that particular day were that no qualified staff would be available after sunset that would have been relevant. If such evidence had been combined with evidence that the Claimant could have broken his fast without spiritual penalty or prejudice then that might have been sufficient to enable a conclusion to be reached that requiring the Claimant to break his fast was in the circumstances proportionate. Here however, no evidence was either led before the Adjudicator or placed before me that attempts to explain why the Claimant could not have been offered food and drink shortly after sunset and a sample obtained at that stage or why adopting this course would be disproportionately expensive or inconvenient. There is no evidence that a sample provided then would be of materially less forensic value than one provided at 2 pm.

There was no evidence before the Adjudicator which enabled him to conclude (as apparently he did) that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required to do so for the purposes of providing a MDT sample regardless of the circumstances. In any event some care needs to be taken before a Court accepts at face value assertions of an un-particularised sort that making reasonable adjustments would be too administratively inconvenient or too expensive to be contemplated. That argument was one that had been relied on by various domestic institutions of the Respondent State in Jakobski but which was soundly rejected by the ECtHR – see Paragraph 41 of the Judgment. In that case the ECtHR acknowledged that in relation to the proportionality issue, a fair balance had to be struck between the competing interests of the individual and the community as a whole and in deciding whether such a balance had been struck the state enjoyed a margin of appreciation in determining the steps to be taken to ensure compliance with the Convention – see Paragraph 47. In that case the Court rejected the contention of the state that it would be too expensive and too disruptive to provide the Claimant with a meat free diet because it was not persuaded that the provision of a vegetarian diet to the Claimant would have entailed any disruption to the management of the prison concerned or to any decline in the standards of meals offered to other prisoners. Here, as I have said, there was no evidence provided to the Adjudicator in relation to the costs and inconvenience issues.

Even if I am wrong in concluding that I ought to confine my attention to the evidence that was before the Adjudicator, the evidence in relation to the cost and convenience issues filed in these proceedings falls far short of what is required if such assertions are to form the basis of a claim that the interference was in the circumstances proportionate. The material that is offered in relation to cost and administrative inconvenience does not rise above the level of assertion. Turning first to the financial and administrative inconvenience arguments, the only evidence offered are the statements of Mr Lee who is the Head of the Intelligence and Operations Unit in the NOMS Security Group. He is also a highly qualified forensic toxicologist. His main statement is dated the 25^th January 2011. It runs to 13 paragraphs. In relation to the administrative and financial issues I am now considering he says simply this at Paragraph 13 of his statement:

“During Ramadan adjustments to the prison regime are made in relation to dietary needs, canteen unlock MDT and going to mosque. It is more difficult for a prison to make these adjustments on an ad hoc basis such as for voluntary fasting which a prisoner could choose to do at any time of year. If the voluntary fast was in the daylight hours a fasting prisoner would wish to eat before sunrise. If several prisoners did this it would have a disproportionate effect, requiring changes to staff hours and significant overtime pay. It is only practical to make these adjustments during festivals …”

The much more significant factor is the impact that adjustments might have on the efficacy of testing for illegal drug testing. I am satisfied that the Defendant has demonstrated to a high level the existence of a legitimate aim for mandatory drug testing. I am also satisfied that Mr Lee has demonstrated the need for such testing to be carried out randomly in order for it to be truly effective unless focussed on those in respect of whom there is a reasonable suspicion of drug abuse – see Paragraphs 5 and 9 of his first statement and Paragraphs 1(a), (c), 2 and 3 of his supplemental statement and the statistical information referred to and attached to the supplemental statement.

Mr Lee’s evidence is not merely that of an experienced and senior official but also that of an experienced forensic toxicologist. Thus I accept his evidence that at least some drugs will be eliminated from a prisoner’s system in as little as 24 hours from ingestion and that delay may have a potential impact on the efficacy of the testing programme. However, as I have said already, the question being addressed does not concern a challenge to the policy of MDT testing. The question I am considering is the much narrower one of whether in the particular circumstances to require this Claimant to break his fast in order to provide a sample was proportionate. There is no evidence from which I can conclude, much less was there evidence before the Adjudicator from which he could have concluded that a sample provided 3-4 hours after the last attempt to provide a sample had failed was impractical or forensically pointless. Such evidence could have been adduced. It could have involved as little as evidence that the Claimant had been observed conducting himself in a particular way at a particular time and in circumstances which gave rise to a reasonable suspicion that he had taken a controlled substance. Such evidence in combination with evidence as to the effect of a lapse of time might have been sufficient to demonstrate proportionality. However no such evidence has ever been offered.

In those circumstances I conclude that the approach of the Adjudicator in simply rejecting the Claimant’s case by reference to the strict terms of the Ramadan exception contained in PSO 3601 was wrong. I conclude that he should have approached the case before him by asking himself the three questions I have identified above in relation to the applicability of Article 9, answering them by reference to the evidence that was before him before then applying his conclusions to the charge faced by the Claimant. I accept that if it could be demonstrated that a correct approach would not have resulted in a different outcome that ought to lead to the dismissal of these proceedings. I am not satisfied that the same outcome would have resulted if the correct approach had been adopted. In those circumstances I conclude therefore that the challenged adjudication must be quashed.

In reaching that conclusion, I make it clear that nothing in this judgment has, or is intended to have, any impact on the lawfulness of MDT policy, which remains entirely unaffected by the conclusions that I have reached which are case specific and fact sensitive. In any subsequent case where lawfulness is challenged on Article 9 grounds, each of the three questions I have identified above will have to be asked. The answers that will be arrived at will depend entirely upon the evidence before the Adjudicator before whom the issue is raised.

In those circumstances, I quash the challenged adjudication.