Right to a Fair Hearing and Disciplinary Proceedings in Prison

King v Secretary of State for Justice [2010] EWHC 2522 (Admin) (13 October 2010)

The High Court of Justice has held that disciplinary proceedings may constitute the determination of civil rights, invoking the rights under art 6(1) of the European Convention on Human Rights.  The Court held that a prisoner does have a civil right to association, but that a temporary restriction on this right may not constitute an interference with the right.  It also held that the lack of impartiality of an adjudicator of disciplinary proceedings did not necessarily amount to a lack of procedural fairness.

Facts

This case was a judicial review brought by a prisoner, Mr King, of decisions made by the Deputy Head of Residence at the Portland Young Offender Institute and Governor Adjudicator that Mr King was guilty of a disciplinary offence whilst serving a sentence at the Young Offender Institute at HMP Portland and should therefore be confined in his cell for 3 days.

Mr King asserted that the disciplinary proceedings amounted to a ‘determination of a civil right’ requiring procedural fairness under art 6(1) of the Convention.  It was common ground that the proceedings were not criminal in nature.  Mr King claimed that this right had not been met as the Governor or his delegate was not an independent tribunal within the meaning of art 6(1), and that the decision should therefore be quashed.

Article 6(1) of the Convention provides, so far as is relevant for current purposes:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Disciplinary hearing

Mr King appeared was subject to a disciplinary charge under the Young Offender Institute Rules 2000 for failing to comply with a lawful order.  The non-compliance was alleged on the basis that Mr King refused to show himself to staff during a check and remained hidden in his shower/toilet cubicle, even when ordered to come out.

Mr King was interviewed in relation to the offence and asked whether he wanted legal representation or legal assistance, to which he answered that he did not.  He was asked whether he understood the evidence, and confirmed that he did, and he then pleaded guilty to the offence.

Mr King offered an explanation for his conduct, stating that he was hearing voices and indicated he had had problems of this nature previously.  He advised the Governor that he started to ‘lash out’ in the toilet at the time of the roll call.  He advised that he was seeing the mental health team.

At the time of his initial sentencing, a psychiatric report had been provided diagnosing Mr King as suffering from anti-social personality disorder and post-traumatic mood instability.  The psychiatric report was not before the Governor at the disciplinary hearing.

If Mr King was found guilty of the offence, the Governor was able to impose certain punishments, including confinement to a cell or room for a period not exceeding 10 days.  Before imposing the punishment there is a requirement that the prisoner be assessed by a medical practitioner or registered nurse, by way of an Initial Segregation Safety Screen, and the Governor was required to take account of any medical advice that the punishment is unsuitable when making his decision.  Mr King was assessed and it was indicated that with regular observations he could cope with a short period of segregation.

The Governor imposed a punishment of 3 days cellular confinement, but Mr King’s actual confinement was just under 2 full days.

The conditions under which a prisoner is to be kept in cellular confinement are set out in paragraphs 7.27-7.34 of the Prison Service Order 2000.  These state that the main difference between a prisoner in cellular confinement and those that are not is that the prisoner in cellular confinement will remain locked in his/her cell other than for particular activities, such as an hour in the exercise yard, showers, phone calls, visits and meals (all of which take place without association with other prisoners).  This states that ‘the main part of the punishment is the prevention of association with other prisoners’.

Under Rule 59 of the YOI Rules, a prisoner charged with a disciplinary offence is to be given the opportunity for a hearing and to present his case.  In relation to charges referred to an adjudicator, as is the case here, the prisoner has the right to be provided with legal representation.  There is not a right of review against the decision of a Governor, but the Secretary of State may quash the Governor’s decision or reduce the punishment.

Under Chapter 2 of the PSO, the adjudicator is required to adjourn a hearing for health assessment of the prisoner’s fitness if s/he considers this necessary before proceeding further.  The Governor did not recall this particular case, but stated that his usual practice was to either adjourn the adjudication or not proceed with it at all in a case of mental unfitness.  He therefore asserted that he must have been satisfied that Mr King was fit to face the adjudication.

Mr King submitted that the Governor should not have accepted his plea of guilty, as his psychiatric condition meant that there was a question as to whether or not he was mentally responsible for his actions at the time of the offence.

Existence of a civil right

Mr King argued that the European Court has recognized a right to association as a civil right, and it is a right acknowledged as such in domestic law.  Rules 37, 38 and 40 of the YOI Rules require prisoners to be provided with work, regime activities, exercise, recreation and education in circumstances that provide the prisoner’s basic right of association with fellow inmates.  The YOI Rules do not explicitly establish the minimum level of association to which an inmate is entitled.  Mr King argued that as all prisoners enjoy a basic ability to associate with the other prisoners to some degree, the prisoners’ basic standard of association is a right.

Alternatively, he argued that the effect of s 7 of the Human Rights Act 1998 was to make human rights enforceable in civil courts as private rights for the purposes of art 6 of the Convention.  Pursuant to section 6 of the HR Act, it is unlawful for a public authority to act in a way that is incompatible with a convention right.  Section 7 of the HR Act provides a right for a person affected by the unlawful act of the public authority to bring proceedings against the authority or rely on the Convention right in any legal proceedings.

Mr King relied on two convention rights as being applicable: art 3, which provides the right to freedom from torture, inhuman or degrading treatment or punishment, and art 8, which provides the right to privacy and family life, free from interference by a public authority.  The Court noted that Mr King did not rely on art 11, which provides that ‘everyone has the right to freedom of peaceful assembly and to freedom of association with others’.

Mr King submitted that the deprivation of association of a prisoner must be justified as necessary to attain the legitimate aim pursued, being good order in prisons.  He also submitted that removal from association constitutes an interference with the right to privacy.

‘Determination’ of a civil right

If there was a civil right, it was also necessary to consider whether there was a determination in relation to the civil right from the disciplinary hearing.  Mr King claimed that there was, as his acknowledgement of guilt did not remove the quality of determination from the hearing, and, further, the Governor’s selection of penalty directly affected his civil right of association.

Decision

Existence of a civil right

The Court noted that whilst a prisoner forfeits the right to associate with the people of their choice upon receiving a custodial sentence, the prisoner does not forfeit his or her right of association with fellow human beings.  The Court found that the YOI Rules and privileges system under the PSO implicitly recognize the basic right of a prisoner to associate with other prisoners.  The extent of the basic association to which the prisoner is entitled is in the discretion of the Governor.

The Court accordingly held that there was a right of association, which is a civil right.

‘Determination’ of a civil right

The Court held that, whilst the adjudication was for the purpose of resolving whether Mr. King had committed a disciplinary offence rather than whether he enjoyed a right of association, the word ‘contestation’ was to be given a substantive rather than formal meaning.  Accordingly, the punishment of cellular confinement did render the disciplinary proceedings a ‘contestation over civil rights and obligations’.

The Court did not consider the disciplinary nature of the proceedings to have a decisive influence on the issue whether they involve a determination of a civil right.

Interference with the civil right

The Court held that the rights under arts 3 and 8 of the Convention will not be engaged unless the punishment reaches a particular level of seriousness.  It was noted that the removal from association can amount to an interference with the right to privacy in some circumstances.  But in the current case, the award of 3 days cellular confinement was not a significant interference with Mr. King’s right to association so as to constitute interference with Mr King’s art 8 rights.

Procedural fairness

The Court held that the Governor or his delegate was required to act fairly, proportionately and in accordance with the rules of natural justice when adjudicating a disciplinary charge.  His decisions are able to be challenged in judicial review proceedings brought in the High Court.

It was common ground that the Governor was not an objectively independent tribunal for the purposes of art 6(1) of the Convention.  However, the Court held that the Governor would not have any personal knowledge of the facts, is bound to follow the PSO in reaching an impartial conclusion upon evidence disclosed to the prisoner, and must reach the adjudication upon disputed facts so he is in no reasonable doubt that a lawful order was disobeyed.

The Court held that the resolution of the disciplinary charge is conducted in a way that is fair.  Further, the High Court has the full jurisdiction to hear a review of the disciplinary proceedings.

Accordingly, the Court held that the proceedings in the current case complied with the requirements for fairness under art 6(1) of the Convention and dismissed the claim.

Relevance to the Victorian Charter

The provisions of the Charter of Human Rights and Responsibilities Act 2006 are similar to the relevant provisions of the Convention and the HR Act.

Section 24 of the Charter provides that a person who is a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.  Section 10 of the Charter provides a person with a right to not be subjected to torture or treated or punished in a cruel, in human or degrading way.  Section 13 of the Charter provides a person with a right to privacy and freedom from interference with his/her privacy, family, home or correspondence.  Further, s 16 of the Charter provides a right to freedom of association.

Accordingly, the principles in this case are potentially applicable to similar disciplinary hearings in Victoria.

The case provides that, whilst a disciplinary hearing is not a criminal hearing, this may involve the determination of a civil right.  The circumstances in which a civil right will be considered to be interfered with will depend on the particular circumstances, however a short and justified interruption to the right may not be considered to constitute interference with the right.

This case provides that the rules of procedural fairness are applicable to disciplinary proceedings.  However, the fact that the adjudication is performed by a party somewhat connected to the particular institution will not necessarily mean that there has been a denial of procedural fairness, provided the proceedings are conducted in compliance with the requirements of natural justice and there is a right to review of the decision.

The decision is at www.bailii.org/ew/cases/EWHC/Admin/2010/2522.html.

Mandy Lister is a volunteer with the Human Rights Law Resource Centre