Prisoner adjudication decision quashed

23 February 2015

The Administrative Court has quashed a review decision by the Secretary of State for Justice refusing to overturn an adjudication finding made against the claimant prisoner.

In R (Soar) v Secretary of State for Justice [2015] EWHC 392 (Admin) the Court quashed a review decision by the Secretary of State (SSJ), refusing to overturn an adjudication finding made against the claimant prisoner.

The claimant had been adjudicated for disobeying a lawful order after trying to take some bread to work with him. It was agreed, as per PSI 47/2011, that for the order to be lawful it also had to be reasonable. The claimant had argued that he uses bread to alleviate constipation, and therefore was taking it to work for an ostensibly medical reason.

The governor accepted that the question of whether the claimant needed the bread for a medical reason could be relevant to whether the order was reasonable, and to that end telephoned the healthcare department to take advice. This took place in the absence of the claimant and the advice was that all bread will not alleviate constipation, and in fact might make it worse (in fact this likely depends upon the type of bread).

The governor then called the claimant back into the adjudication room, without affording him an opportunity to question the nurse, and found the charge proved. The judge found that the claimant should have been allowed an opportunity to question the nurse, as per PSI 47/2011: [21].

The claimant appealed the decision to the SSJ, which was, consistently with many of these review decisions, in “somewhat pro forma terms”: [26]. The review decision failed to address the complaint that the claimant had not been allowed to question the witness, and that the evidence had been taken in his absence; instead focusing on whether the evidence justified the substantive decision. In response to the pre-action letter the SSJ wrongly suggested that the claimant had an opportunity to dispute the evidence: [32].

The judge heard argument on whether, following the decision in R (Gifford) v Governor HMP Bure [2014] EWHC 911 (Admin), the claimant should have pursued an appeal to the prisons and probation ombudsman (PPO). The claimant submitted that the defendant could not take this point because permission had already been granted. The judge found that the authorities on that issue were conflicting, but that relief should be granted pursuant to the overriding objective: [46] – [48]. Accordingly the decision was quashed.

Practitioners are reminded that further to the decision in Gifford it remains the position that challenges to adjudication decisions should ordinarily be taken to the PPO in the first instance, unless the challenge can properly be characterised as being a policy one.

Mr Soar was represented by Garden Court North Chambers’ Matthew Stanbury and Dean Kingham of Swain & Co, Deptford.

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