PETITION OF WILLIAM BEGGS FOR JUDICIAL REVIEW
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 61
P847/14
OPINION OF LADY WOLFFE
In the petition of
WILLIAM BEGGS
Petitioner;
for
Judicial Review
Petitioner: Leighton; Drummond Miller LLP
Respondent: Byrne; SGLD
26 April 2016
Introduction
[1] In this petition for judicial review the petitioner, who is a convicted life prisoner detained within HM Prison in Edinburgh, challenges on a number of bases the procedure followed in relation to two charges for alleged breaches of discipline contrary to the Prisons and Young Offenders Institution Rules 2011 (“the Rules”). In particular, the petitioner was charged with:
- a breach of discipline (under reference number ED/1230/14) said to have occurred on 7 August 2014 and said to have involved disrespectful conduct (“the first charge”); and
- a further breach of discipline (under reference ED/1236/14) on 8 August 2014 and which was said to have occurred during a hearing in relation to the first charge and said to have concerned threatening conduct (“the second charge”).
The Scottish Prison Service (“the SPS”) determined that both charges had been established.
[2] The petitioner challenges certain features of the procedure followed and which are said to be unfair in a number of respects. Separately, he argues that a departure from the Rules in one respect constituted an irregularity and that that irregularity vitiates the determination of the charges. He challenges the vires of one of the Rules. In addition to these procedural challenges, he also challenges the determination of the second charge.
[3] There were subsidiary challenges to other matters, but it is necessary first to set out the factual background. The conduct which was the subject-matter of the first charge occurred on 7 August 2014 and in the context of a complaints procedure initiated by the petitioner. As a consequence, the petitioner was served with a complaint setting out the first charge (of disrespect). It was at the disciplinary hearing convened on 8 August 2014 in respect of the first charge that the petitioner’s conduct on that occasion resulted in a second charge and a fresh disciplinary procedure in relation to the second charge. The disciplinary procedures for the first and second charges ran in tandem. For the sake of clarity, however, I will set out separately the procedure in respect of the first charge and the second charge, before turning to the Rules and the legal challenges made.
The factual background
The pre-history: the petitioner’s prior complaint to the Scottish Public Service Ombudsman (“SPSO”)
[4] The petitioner’s counsel did not attempt either in his written or oral pleadings to set out the relevant or full chronology and which must form the necessary context in which to assess a challenge of procedural unfairness. As will be seen, most of the relevant material was not placed before me until the start of the respondent’s submissions, late on the afternoon of the third day of this continued first hearing lasting four days. In the quotations in this opinion from the productions, pleadings or notes of argument I do not correct the grammatical or other infelicities found in those documents.
[5] The petitioner’s counsel did begin with the “pre-history”, as it were, and which was said to relate to the petitioner’s prior complaint to the SPSO in respect of a female member of staff, a Miss K B (“KB”). Part of that complaint alleged a failure on the part of the SPS properly to consider the petitioner’s complaint to it in respect of KB (“the original complaint”). The tenor of the original complaint included (i) that in an email communication KB had been disparaging about something said by the petitioner, (ii) that she should be required to apologise personally to the petitioner; (iii) that the minutes of an internal complaints committee (“ICC”) meeting were inaccurate; and (iv) that the petitioner insisted that KB not be allowed to participate in ICC matters concerning the petitioner.
[6] By its decision dated 28 July 2014 (no 6/1 of process), the SPSO upheld the petitioner’s complaint in part. So far as relevant to what was said to be the background of this petition, the SPSO recommended that the SPS (i) apologise for certain failings identified in the investigation of the petitioner’s complaint; and (ii) it remind staff involved in complaints handling to avoid using language that could be misinterpreted. The date for implementation of the recommendations was 25 August 2014. The second charge had been determined before this date. The first charge was determined on this date. I now require to set out the relevant context in which the petitioner’s legal challenges fall to be assessed.
The first charge
The conduct of the petitioner at the ICC hearing
[7] The petitioner attended an ICC hearing on 7 August 2014. The subject-matter of the petitioner’s complaint being dealt with at that ICC hearing is, for present purposes, irrelevant. KB was present at that ICC hearing. She was not the decision-taker, but had responsibility for taking notes of meetings. There were two employees of the SPSO sitting in at the hearing as part of their training (“the two SPSO employees”). They had no active role to play in those proceedings. As will be seen, one of the issues that arises is the absence of the two SPSO employees at the subsequent disciplinary hearing into the first charge.
[8] The finding in the first charge, as set out in the record of inquiry of the hearing into the first charge (no 7/3 of process) (“the record of inquiry into the first charge”), was that on entering the ICC hearing the petitioner stated that he was unhappy with the fact that no assurances about the supervision of KB had been received and he questioned her ability to be impartial. The petitioner was described as speaking loudly and about KB in her presence. The adjudicator presiding at the ICC hearing described the petitioner’s entry as “ranting” and “unacceptable”, given KB’s presence in the room. The petitioner had attended that ICC meeting with a letter addressed to Andrea Frost with the intention of reading it out. That letter (no 6/2 of process) was in the following terms:
“Dear Ms Frost
ICC MEETING 7 August 2014: Ms [KB] (SPS Notetaker)
You may recall that I have previously raised with you in the context of your ICC chairmanship, issues surrounding the involvement in ICC meetings of Ms [KB].
Standing that successive ICC Chairs were not prepared to deal themselves with the issues surrounding Ms [KB]’s involvement in ICC business (falsification of ICC narrative, offensive e-mail remarks, &c), I pursued a PCF2 complaint about [KB]’s conduct and ultimately receiced a wholly unacceptable response from the Governor, apparently composed by her Deputy. I pursued the matter to the Scottish Public Services Ombudsman (‘SPSO’).
By letter of 28 July 2014 the Ombudsman has confirmed having upheld my complaint in terms that Ms [KB]’s email remarks were suggestive of bias on her part, recommending that the Governor apologise for her failings in responding to my complaint, recommending that staff involved in complaint handling be reminded to use appropriate language, and recommending that a proper explanation be provided vis a vis the falsification of the ICC narrative relative to PCF1 ref: EH/140204/1607.
In the absence of confirmation of any of Ombudsman’s recommendations having been action or of any specific assurances in relation to the future conduct and supervision of Ms [KB] in the handling of this present complaint, I wish to place on record my dissatisfaction at her involvement and thank you for your attention to this matter.”
The first charge and its supporting statement
[9] As a consequence of the petitioner’s conduct the ICC hearing did not proceed and the petitioner was served later that day with a notice of a charge of breach of discipline (“the first charge sheet”). The first charge sheet, produced at no 7/1 of process, alleged that contrary to paragraph 10 of Schedule 1 to the Rules the petitioner had:
“whilst attending the ICC today, subject Miss [KB] to remarks and behaviour from yourself that she and the committee felt was disrespectful”.
Immediately below this is a pre‑printed Note for there to be “enough detail to ensure that the prisoner is fully aware of the circumstances leading to this charge” and two lines further down there is space to provide details of “Other witnesses who may speak to the charge”. The names of three persons were then provided who might speak to the first charge. These included Andrea Frost (the person presiding over the ICC hearing, and referred to variously as a unit manager or adjudicator), and KB. The first charge sheet stated that the first charge would be enquired into the next day, on 8 August 2014, at a time to be advised. The two SPSO employees were not listed on the charge sheet for the first charge.
[10] The first charge sheet is contained on a pro forma the second page of which contains the following passage:
“You will be allowed to hear all the evidence against you, to receive copies of any written statements being submitted in evidence, to question witnesses against you, and to call witnesses on your own behalf (unless the adjudicator is satisfied that a proposed witness would not have relevant evidence to give). If you wish to call witnesses yourself, it will assist if you would advise your gallery officer as soon as possible. Please note that prisoner and non-SPS witnesses cannot be compelled to give evidence. You are also entitled to access to such reference materials as you may need to help you prepare your defence, such a copy of the Prison Rules, and to have writing materials for use in taking notes during the hearing.
The adjudicator may also, in exceptional circumstances, allow you to be represented at the hearing by a legal adviser (Rule 113(9)). If you wish this to be considered in your case, please inform your gallery officer as soon as possible.
NOTES:
1. You do not have to make requests for witnesses etc at this stage. It will, however, help matters to be dealt with as quickly as possible if you do.
2. You may, if you wish, make a written reply to this charge. Ask your gallery officer for paper/writing materials.”
[11] As after noted, it appears to be the practice for written statements to be supplied in support of a charge and, if that written statement is accepted by the prisoner, then there is no need for the author of the statement to attend. There was a written statement submitted in support of the first charge and this was produced at no 7/2 of process. The substance of this was as follows:
“STATEMENT BY REPORTING OFFICER:
Whilst attending the ICC this afternoon as a committee member, I witnessed 66067 Mr William Beggs being disrespectful to note taker Miss [KB]. Miss [KB] was very upset with these remarks and requested Mr Beggs be placed on report.
Miss [KB] believe’s this behaviour, in her opinion, to be disrespectful for the following reasons:
- Mr Beggs has raised these issues previously and they have been subject of investigations where he has been warned not to continue to challenge Miss [KB]’s presence at the ICC
- Mr Beggs stated that Miss [KB] had previously falsified notes taken at the ICC and that Miss [KB] was not competent within this role.
- Mr Beggs stated that he was not happy with Miss [KB]’s presence at the ICC.
- Mr Beggs stated that any notes Miss [KB] takes should be super vised as these have previously been falsified.
- Mr Beggs was told by the chairperson to cease from continuing with these remarks, to which he did not.
- Mr Beggs also produced a letter to the effect of Miss [KB]’s incompetence, which he passed to chairperson A Frost.
- Mr Beggs has also stated that he does not want Miss [KB] present at the ICC until assurances have been made by the Governor regarding Miss [KB]’s future conduct and supervision.
Miss [KB] informed me that this behaviour has gone on for a period of time and that Mr Beggs tone, attitude and remarks were disrespectful and continue to be disrespectful, undermining Miss [KB]’s role as the ICC co-ordinator.
I informed Ingliston Manager Ian Duff that Mr Beggs will be placed on report.”
First charge: hearing on 8 August (morning)
[12] The record of inquiry into the first charge is contained on a form (an “ADJ2”) which has a series of questions on the first two pages, followed by space for recording the findings and provision for additional pages to be added, if required. Its purpose is to record the procedure followed and the findings made. In relation to the two pages of pre‑typed questions, as it was explained in submissions, these questions are gone through with a prisoner at the commencement of each hearing for breach of discipline. The purpose of the questions is to ensure compliance with the obligations imposed in the Rules, especially rule 113. This process is referred to in some of the documentation as “due process”. The ten questions (with the commentary contained on the form) are as follows:
“The questions set out below should be put in order to the prisoner and the answer in each case circled clearly.
1. Do you wish to sit? YES/NO
2. Do you need material for taking notes. YES/NO
3. Are you the prisoner named on the charge sheet? YES/NO
4. Did you receive written notice of this charge at least two hour YES/NO before the Hearing?
(If not the disciplinary hearing must be adjourned. If the time and date for resuming the hearing are set, the prisoner must be informed and recorded below).
5. Do you understand the charge, and the purpose of this hearing? YES/NO
(If it is clear that after explanation the prisoner genuinely does not understand the charge or the nature of the proceedings, the inquiry must be adjourned: if a date and time for resumption are set at this time, these must be stated to the prisoner and record below).
6. Are you ready now for this inquiry to go ahead? YES/NO
The prisoner must be told that in exceptional circumstances the prisoner may be represented at the hearing by a legal Advisor. The Governor must however be satisfied that it is necessary or desirable).
(If answer is no) Do you wish an adjournment? See record of hearing.
If adjournment requested, whether granted.
(The reason for the request must be recorded: if granted, the date and time for resumption must if set at this time be stated to the prisoner and recorded below, as must ground(s) for refusal if request is not granted)
7. Are you prepared to accept the written evidence presented to YES/NO you without requiring the charging officer and any witnesses identified to appear in person?
(If answer is not the witnesses must be called to give their evidence in person, with the hearing being adjourned if necessary for this purpose, unless rule 113(11) applies. If answer is yes the written evidence must still be read out to the prisoner at the hearing).
8. How do you plead? NOT GUILTY GUILTY
NB: Silence, or any reply other than a clear “guilty”, must be treated as a plea of “not guilty” and recorded as such. If the plea is one of “guilty”, you may go straight to step 12 (Conclusion). Otherwise, proceed to step 9.
9. Do you wish to make a written statement? YES/NO
10. Do you wish to call any other witnesses at this time? (you may YES/NO also ask to call witnesses at a later stage of the hearing).
[Any written statement by the prisoner should be read out and the original also placed on the record. Any request by the prisoner for the calling of witnesses should be recorded here along with the adjudicator’s decision and reasons for the decision. Such requests may be made orally or in writing. NB: if the prisoner is allowed to call witnesses copies of the letters inviting them to attend, and a note of any replies, must be made available to the prisoner and form part of the record.]”
[13] The disciplinary hearing in respect of the first charge was recorded as starting at 10:10. The adjudicator, Mr Macpherson, started by going through the questions in turn. At question 5, “Do you understand the charge, and the purpose of this hearing?”, it is recorded that the petitioner did not understand the charge because he stated “the charge did not have anything to do with the narrative”. The note attached to the record of the inquiry into the first charge continues, as follows:
“The orderly room started at 10.10am. I started the process by asking the questions on form ADJ2. At question number 5 Mr Beggs stated that he did not understand the charge. When I asked him what part of the charge he didn’t understand he said that the charge did not have anything to do with the narrative. I explained that I would consider his thoughts when I reached the point in the process where I found out what the charge was. He then handed me a written submission. Informed Mr Beggs that I would read his submissions at the appropriate time. He then informed me that he would write in his notes that I was refusing to read such submissions. I made it clear to Mr Beggs that I was not refusing to read his submissions, I was waiting for the appropriate time in the process. It was clear from Mr Beggs demeanour and attitude that he was not happy with this answer.
When I asked him if he was ready for this hearing to go ahead he refused to answer either yes or no. I asked him the question five times but he would only say that the answers are in my submissions and that I should read them. At this point I adjourned the orderly room to seek advice from HQ.”
Mr Macpherson adjourned the disciplinary hearing at that point in order to take advice. The note appended to the record of inquiry into the first charge then stated:
“As Mr Beggs left the orderly Room I instructed FLM D O’Neill to hand back the unread submission to him. Mr Beggs refused to take them back. FLM O’Neill then put the submissions, still unread, into a white envelope and sealed said envelope, put Mr Beggs name on to envelope and asked the staff to give it to Mr Beggs.”
[14] Before turning to the resumption of the disciplinary hearing when reconvened on the afternoon of 8 August 2014, in the light of the challenge to the lack of specification of the first charge, it may be convenient to note here that by the time of this disciplinary hearing the petitioner had had the charge itself (7/1 of process) as well as the statement (at no 7/2) relied upon in support of it. (The terms of these two documents are set out above, at paragraphs [9] and [11], respectively.) It was confirmed before me at the first hearing that the petitioner’s reference to the “narrative” (in his reply to question 5 and quoted in the preceding paragraph) is to the supporting statement contained in 7/2. It is clear that the petitioner related the two documents to each other, his objection being in effect that the statement did not support the first charge.
First charge: hearing on 8 August (afternoon)
[15] At the reconvened hearing in the afternoon on 8 August 2014, Mr Macpherson endeavoured to go through the questions. The following is then recorded (on the first and second continuation sheets of 7/3 of process):
“I started the process from the beginning to ensure that Mr Beggs was aware of due process. All his answers were the same as he had answered at the original orderly room. When I asked question 6 he again refused to give an answer. I told him that I had received advice and I would record the fact that he was obstructing the process and I would now move on to the next Question. I then asked him if he wished for an adjournment. His reply was its in my submission, its in my submission. Again I asked him if he would wish an adjournment and at this he threw his submission statement at me. These sheets of paper fell onto the floor and were not read. He then tried to throw more paper towards me and on this occasion he was stopped by the staff. In doing so two pieces of paper were ripped. Due to this behaviour Mr Beggs was placed on report I then asked him again if he wanted an adjournment and he replied yes. When asked the reasons why he wished an adjournment he said see my submissions. I adjourned the orderly room until Tuesday 12th August Mr Beggs then left the orderly room and I informed FLM Duff to return the unread submissions to Mr Beggs. As Mr Beggs had raised that FLM Duff had assaulted him I instructed the staff to send a nurse to see Mr Beggs and to inform the police.”
The disciplinary hearing was adjourned until 12 August. For reasons that are irrelevant to the issues before me, that was further adjourned to 13 August 2014. As Mr Macpherson was not available, the disciplinary hearing was allocated to Grant Marshall (“Mr Marshall”) who progressed the disciplinary hearing in respect of the first charge thereafter.
Letter from the petitioner to SPSO
[16] On the same day as the abortive disciplinary hearing for the first charge, the petitioner sent a letter to the SPSO (produced at 6/4 of process) in the following terms.
“I refer to the above and to my telephone conversation this morning with a member of your team in the course of which I indicated that I may wish to call as witnesses two SPSO employees who were present at HMP Edinburgh yesterday as observers at a meeting of the prison’s Internal Complaints Committee (‘ICC’).
Following my submission to the ICC Chair of a letter in terms of the Ombudsman’s decision and referring to its terms at the outset of the meeting, I have been placed ‘on report’ for an alleged breach of para 10 of Schedule 1 to the Prison Rules 2011, namely that I did ‘…whilst attending the ICC today, subject Miss [KB] to remarks and behaviour … that she and the committee felt was disrespectful.’ Whilst I do not see how quoting from the Ombudsman’s decision letter could amount to ‘disrespectful’ behaviour, it may be that the Adjudicator will wish to proceed with a charge which I believe to be an ‘abuse of process’ and an attempt to intimidate me from pursuing further complaints. In that event I would wish to call as witnesses your Ms Alison Bennett and your Ms Kate Thomas. It may be that my solicitors will wish to precognosce these witnesses, in which event they will be in touch directly.
In the meantime I should be grateful if you would e-mail to my solicitors a copy of the above decision. This should be forwarded FAO Mr W James Smith to the following e-mail address: mcgreevyandco@btinternet.com.
I thank you in anticipation of your assistance.”
First charge: hearing on 13 August
[17] At the hearing on the first charge adjourned to 13 August, Mr Grant endeavoured to go through the preliminary questions (i.e. due process). The petitioner is again described as continuing “to disrupt due process”. The petitioner states that he had sent his submissions to the SPS HQ. Mr Marshall adjourned briefly to look into this. After that adjournment, he took a photocopy of the submissions.
[18] There are in fact two submissions by the petitioner dated 8 August 2014 and bearing to relate to the first charge, each two pages in length. They are produced as no.6/3(b) and 6/3(a). These submissions are in the following terms:
“CHARGE & PARTICULARS
The charge alleges a breach of discipline contrary to Para 10 of Schedule 1 to the Prison Rules 2011, namely: ‘… is disrespectful to any person, other than a prisoner, who is at the prison …’
and, in particular, that ‘… on 7 August 2014 at 14:25 …’
I did ‘… whilst attending the ICC today, subject Miss [KB] to remarks and behaviour from [my]self [sic] that she and the committee felt was disrespectful.’
(1) The charge is incompetent, since it does not allege any particular remarks or behaviour which could be deemed as being ‘disrespectful’ to anyone. The ‘Statement’ of the Charging Officer similarly refers to ‘remarks’, but fails to set out any comments made which could be viewed as ‘disrespectful’ to Ms [KB].
All of my remarks were addressed to the ICC Chair and members. None were directed to Ms [KB]. My remarks were no more than a verbal rehearsal of the written concerns which I passed to the ICC Chair.
Ms [KB’s] previous involvement in ICC business was the subject of a form PCF2 complaint of misconduct against Ms [KB], to which the Governor failed to respond appropriately, according to the SPSO in a decision dated 28 July 2014. The SPSO has held that e-mail remarks made about me by Ms [KB] suggested that she was biased against me. The SPSO has held that the Governor should explain the circumstances in which an ICC narrative produced by Ms [KB] from notes taken by Ms [KB] was not an accurate record of what was said by the ICC Chair, Mr B Martin, in the course of the ICC meeting on 4 March 2014 [EH/140204/1607]. The concerns which I raised are all objectively justified and based upon evidence which has been independently considered. They were entirely appropriate matters to bring to the attention of the ICC.
Nothing in my letter of 7 August 2014 is in any sense ‘disrespectful’ of Ms [KB] or anyone else. The expression of objectively justifiable concerns to the ICC Chair in circumstances where the Governor has been asked by the SPSO to apologise to me, to make clear to staff involved in complaint handling that they should not use language which is indicative of bias or liable to misinterpretation, and to provide a proper explanation for the falsified narrative of the ICC of 4 March 2014 cannot give rise to a disciplinary charge pursuant to para 10 of Schedule 1 to the Prison Rules 2011 and the Charge set out in the ADJ1 form accordingly amounts to an abuse of the Orderly Room procedure.
In all of the foregoing circumstances the Adjudicator should dismiss the charge without further procedure.”
This was signed by the petitioner and dated 8 August 2014. The next two pages of the submission (no.6/3(a)) are in the following terms:
“(2) I wish to be legally represented on the following basis:-
- the charge raises the important legal issue of the right of a prisoner to make formal complaints to the Governor and to the SPSO about the conduct of a staff member without being victimised and a result of so doing
- the charge will involve the calling and precognoscing of external (SPSO) witnesses, and the examination of witnesses speaking to the charge, including [KB], who appears to feel that the ventilation of legitimate and objectively justified concerns about her own conduct amounts to ‘disrespect’ of her in some personal sense, and these tasks will best be undertaken by a solicitor
- a ‘guilty’ finding could have serious repercussions for a life sentence prisoner approaching the ‘4 year window’ in 2015.
(3) I will require to be provided with certain materials and to have the opportunity to consider these in advance of a further hearing:-
- the notes taken by the SPS notetaker and any other SPS employee in the course of the ICC meeting concerned
- all and any information held by the Governor and SPS senior management at the prison in relation to the investigations carried out in relation to the complaints detailed in the SPSO’s decision letter of 28 July 2014 [201401500]
- all and any information held by the Governor and senior SPS management at the prison in relation to any remedial steps taken in response to the SPSO’s decision and recommendations of 28 July 2014 [201401500] as of Thursday 7 August 2014
- all and any information contained within the current SPS Adjudication Manual
- all and any information held by the Governor relative to any disciplinary charge contrary to para 10 of Schedule 1 to the Prison Rules 2011 such as may have been laid at HMP Edinburgh between 1 January and 31 July 2014.
- all and any information in the possession to the Governor supporting the assertion within the Charging Officer’s ‘Statement’ to the effect that I have ‘… been warned not to continue to challenge Miss [KB]’s presence at the ICC.’
(4) I require time to consult with my solicitors, consider any material forth coming from the SPS (or any refusal or failure to provide the requested material) and to prepare my defence.
(5) For the avoidance of doubt I confirm that I am not prepared to accept as evidence the written statement of Charge Officer Mr McKenzie.”
This was also signed by the petitioner and also dated 8 August 2014.
[19] In response to those submissions, Mr Marshall adjourned the disciplinary hearing to allow the petitioner to arrange for the two SPSO witnesses to attend and to provide written reasons for any other witnesses he would like Mr Marshall to consider. (There is no document recording that decision but, as will be seen, Mr Grant must have acceded to the petitioner’s request to have a further witness because the petitioner calls Mr Macpherson at the reconvened hearing. Mr Macpherson had presided on 8 August 2014 over the first disciplinary hearing in relation to the first charge, and it was the petitioner’s conduct at this hearing which became the subject‑matter of the second charge.) In the end, the disciplinary hearing into the first charge was only reconvened on 25 August. For completeness, I set out what is recorded in the record of the first charge of the hearing on 13 August:
“13/08/14 (14.15hrs) - Again Mr Beggs continued to disrupt the due process, he had sent his written submissions to SPS HQ. Adjourned (14.20hrs) at until I could phone HQ. I recommenced orderly room proceedings at 14.20hrs agreed to accept Mr Beggs written submission and took a photo copy (this numbered 4 pages broken into two separate submissions and we agreed to number 1 & 2). Adjourned to allow Mr Beggs to arrange for witnesses from the SPSO to attend and to provide written reasons for any other witnesses he would like me to consider. I asked Mr Beggs if he wanted a photo copy of my notes and he refused this offer.
The submission provided by Mr Beggs contained requests for information that was passed to the Business Management team to be treated as an FOI as the information requested would not influence my decision or had a bearing on the alleged breach of discipline.
Sent letter (14 August 2014) to Mr Beggs giving him six working days to arrange his witnesses to attend and 4 working days to provide reasons for another witnesses he would like the Adjudication Officer to consider. Along with Officer D Healy I went to his cell on the 18th August at 16.15hrs and he informed me that he had nothing for me.”
Letter from Adjudicator to petitioner of 14 August 2014 (6/7)
[20] After the disciplinary hearing on 13 August, Mr Marshall sent a letter to the petitioner the next day. This responded to the various points raised by the petitioner in his written submissions handed over and received at the adjourned disciplinary hearing on 13 August. Mr Marshall’s letter was in the following terms:
“As the resumption to the above alleged breach of discipline was adjourned on the 13th August held in the orderly room at Ingilston Level 4 for me to consider the written reasons you provided.
As we agreed to mark the sheets 1 and 2, I will respond accordingly to those I consider to have any bearing on the outcome and consider relevant.
I am prepared to give you six working days to arrange for the witnesses from the SPSO to attend the orderly room on your behalf and will reconvene on 25th August at 10.00hrs. If they decide to appear the witnesses will only be there to answer questions on your alleged conduct within the ICC on 7th August, as the SPS has no power to compel them to appear. The costs of (non SPS) witnesses named attending from out with the establishment will be met yourself.
I will ask the Ingilston FLM on the morning of the 25th August to issue you with the resumption paperwork.
Names of the two SPSO observers are Alison Bennett and Kate Thomas.
Should you wish any further witnesses to attend that you consider are relevant to the proceedings then you should provide me with the reasons and their name(s) by 18 August at no later then 16.00hrs and I will provide you with my decision the same day. If I agree to any other witness to attend then I will give you 4 working days to invite them to attend. If I decide to allow any witness or witnesses to attend they will only be required to answer questions relevant to the alleged breach of discipline.
Acting FLM Derek McKenzie will attend as the reporting officer.
I will not allow your Lawyer to attend in relation to this orderly room as it is not a complex issue and I do not consider it necessary.
I will not allow any form of recording or videoing during the orderly room this is not necessary and does not form any part of the procedures.
Paragraph 3 on part 2 of the paperwork you submitted is an FOI request and has been passed to the Business improvement time for a response and I do not consider it relevant to the orderly room proceedings.
The other issues you have raised are considered irrelevant to the proceedings and would have no impact on the outcome of the hearing.”
Correspondence with SPSO in respect of attendance of SPSO staff
[21] I have already referred to the letter sent by the petitioner to the SPSO requesting inter alia the attendance of the two SPSO employees and referring to the prospect that the petitioner’s agents might wish to precognose them. Thereafter, the petitioner’s agents also wrote to the SPSO by letter dated 17 August 2014 (at no 6/12 of process). Their letter was in the following terms:
“We act on behalf of Ian Beggs who is presently a prisoner at H M Prison Edinburgh. Kindly note our interest in this matter. We enclose herewith his mandate to enable you to respond to us.
We understand that Mr Beggs wrote to the Scottish Public Services Ombudsman on both 8 and 11 August 2014. We enclose herewith copies of those letters for your information.
We have been instructed by Mr Beggs to consider raising Judicial Review proceedings at the Court of Session in relation to incidents which have arisen within the prison, in particular regarding the conduct of an Internal Complaints Committee meeting on 8 August 2014. We understand that two members of your staff, Ms Alison Bennett and Ms Kate Thomas, were observing the Internal Complaints Committee for training purposes.
We wish to take statements from both of these individuals to enable us to understand what occurred at the Internal Complaints Committee.
We also understand that Mr Beggs has asked for both of these individuals to be cited as witnesses at disciplinary proceedings within the prison. Please can you confirm whether this is a possibility and, if so, what the cost of doing so would be?
We look forward to hearing from you and thank you in anticipation of your assistance.”
[22] It should be noted that the petitioner’s agents did not ask to precognosce the two SPSO employees. Nor did they even ask for these two individuals to supply statements. The petitioner’s agents did not explain that there was any urgency and they did not stipulate the timescale within which any reply was needed.
[23] The SPSO responded by letter dated 21 August 2014, as follows:
“Dear Sirs
Complaint about Scottish Prison Service
We refer to your letter dated 17 August 2014 sent on behalf of your client, Mr Beggs, enclosing a mandate.
Forgive us if we have overlooked some relevant matter, but on the basis of the correspondence you have provided us with, we currently see no basis in law for our staff to be required to provide you with statements and no reason why our staff should be cited as witnesses.
If you wish to seek to clarify your position, please do not hesitate to contact us directly.
Yours faithfully”
It would appear that there was no follow‑up by the petitioner’s agents to this, for example, by exploring any other means by which the evidence of these two individuals might be obtained (eg by a statement produced by them or by a telephone precognition with the petitioner’s agents). In the course of the submissions before me, the petitioner’s agents were anxious to emphasise that this inactivity was by reason of a lack of funds.
Visit by adjudicator to petitioner in his cell
[24] Before the disciplinary hearing on the first charge was resumed, Mr Marshall attended at the petitioner’s cell on 18 August, apparently as a follow-up to his letter to the petitioner on 14 August 2014. It is recorded that the petitioner did not have anything for him.
First charge: hearing on 25 August 2014
[25] The disciplinary hearing in respect of the first charge which had been adjourned from 14 August 2014 was reconvened on 25 August. The notes of that appended to the record of inquiry into the first charge are in the following terms:
“Orderly Room 25 August 2014
25/08/14 (10.25hrs) - I welcomed Mr Beggs into Orderly Room and he sat down as there is no need for us to identify ourselves as we know each other from dealing in previous orderly rooms in connection with this case.
Began due process and commenced going through Orderly room paperwork and again Mr Beggs questioned question 5 regarding the understanding the charge. I again explained that the charge was treats someone with disrespect and that conduct behaviour that would be considered reasonable. As this was a tactic that Mr Beggs had incorporated at each orderly room I continued with due process. He requested another adjournment due to (Labelled A) the material requested and issues regarding precognition and attendance of the employees of the SPSO. I explained that I was not prepared to adjourn the orderly room again as there would be two witnesses attending to-days orderly room ( A Frost Chair of the ICC and D McKenzie reporting officer). The information requested would not influence my decision as it did not bring any bearing on the charge. Adjournment refused.
Mr Beggs wanted FLM D McKenzie to read his statement; FLM McKenzie entered the orderly room and read this report paperwork. Second piece of paper submitted B suggesting that the statement in the paperwork from Mr McKenzie amounted to hearsay evidence.
Mr Beggs was instructed to ask his questions through the Adjudicator. He asked Mr McKenzie if he knew personally that he had at any time been challenged or warned not to challenge Miss [KB] at an ICC. Mr Mc Kenzie stated that he did not and that he had written the report as instructed by Miss [KB]. Mr Beggs then stated that the first statement was hearsay evidence and not accurate. I acknowledged this however I was concerned regarding the charge of treats someone with disrespect.
As I wanted to clarify whether or not Mr Beggs conduct in the ICC towards Miss [KB] was in any way disrespectful I asked Mr McKenzie how Mr Beggs came across at the ICC, Mr McKenzie stated that he had raised his voice and his tone and manner came across as disrespectful as he talked about Miss [KB] while she was in the room. (Mr Beggs on entering the ICC stated the contents of the letter which amongst other issues made comment that he was unhappy that there had been no assurances re her (Miss [KB])( supervision dissatisfaction of her involvement and questioning her ability to be impartial).
I asked the Chair of the ICC on the day of the alleged offence to take part in the orderly room proceedings. I asked Ms Frost if she would consider Mr Beggs behaviour to have been unacceptable in relation to Miss [KB]. Ms Frost described his entry into the ICC as ranting and that would consider it to have been unacceptable with Miss [KB] in the room (there was also two visitors from the SPSO in attendance when the incident occurred).
Mr Beggs asked Ms Frost to confirm if he had called Miss [KB] incompetent, she confirmed that he had not but had talked loudly re the contents of the letter.”
[26] In the course of that hearing, the petitioner submitted two further documents to the adjudicator (lodged at 6/10 page 524):
“(1) I am not yet ready to proceed since (a) the materials requested (including the contemporaneous notes of the ICC meeting of 7 August 2014) have not yet been disclosed to me and they are germane to the Charge set out in the ADJ1 Notice and the Statement of the Charging Officer and (b) since issues surrounding the precognition and attendance of the two SPSO witnesses have not yet been resolved.
(2) Standing that the contents of the Charging Officer’s statement, repeated by him in the course of the Orderly Room procedure, do not disclose any actual disrespect to Ms [KB], and that much of the statement amounts to the ‘hearsay’ of persons who have not spoken directly to the Charge, and there being no other evidence before the Adjudicator in support of the Charge, a ‘not guilty’ finding should be entered.”
The first charge: determination and punishment
[27] Upon the conclusion of the cross examination by the petitioner of Ms Frost, who had been the adjudicator presiding over the ICC hearing on 7 August 2014, Mr Marshall made the following determination:
“Decision
I found Mr Beggs guilty based on the written and verbal evidence from the report and the witness verbal evidence.
I was able to collaborate [sic] from the witness evidence that there was an act committed by Mr Beggs. That the disrespect was directed towards Miss [KB] and that his behaviour and manner he conducted himself was reasonable to conclude that it was disrespectful. That his behaviour and conduct was intended to be disrespectful by stating the contents of the letter to the ICC Chair that was intended to undermine Miss [KB] (not only was this carried out in front of SPS staff visitors from the SPSO were in attendance).
He did not want to state any mitigating circumstances when given the opportunity.”
[28] Having found the first charge established, the punishment was to deprive the petitioner of one day’s wages and five days’ recreation.
The second charge
The second charge and supporting statement
[29] As noted above, the conduct that was the subject-matter of the second charge was said to have occurred at the disciplinary hearing on 8 August 2014 in respect of charge 1. I have already quoted above, at paragraph [15], what was recorded as having transpired on that date and which led to the second charge. The second charge alleged that the petitioner’s “conduct was threatening towards the Staff managing the Adjudication Process”. The two witnesses recorded on the second charge as speaking to it were Colin Adamson and Joseph Cairns.
[30] A supporting statement was provided, and was in the following terms:
“At the above time and date I was assisting with the management of an Orderly Room which was considering an alleged breach of discipline made against Mr Beggs. During the process the adjudicator was having some difficult in communicating with Mr Beggs, because Mr Beggs was constantly interrupting him. Mr Beggs then presented a written response and attempted to submit this to the Adjudicator, at which point he was informed that the Adjudicator could not accept the document at that stage of the process. Mr Beggs insisted, and pushed the said item across the table towards the Adjudicator on several occasions, on each occasion it was returned to him. He finally threw the papers in the direction of the Adjudicator and was warned by me that his conduct was inappropriate.
A short time later he attempted to submit another document in the same manner and as he attempted to slide the document across the table I placed my hand upon it to stop it progressing any further. Mr Beggs reacted very aggressively towards me and attempted to grab the document from the table, and I was obliged to react towards what I perceived to be a direct threat towards my person.
He was thereafter warned that his conduct was inappropriate and threatening, to which he took the names of all the staff in the Orderly Room and threatened to take legal action against us all. This was deemed to be a further instance of threatening behaviour.”
The second charge: hearing on 9 August
[31] Commensurate with the speed intended under the Rules, the disciplinary hearing in respect of the second charge took place the next day, on 9 August 2014. As will be seen, this was twice adjourned, and the matter only determined on 18 August 2014. By the start of the disciplinary hearing on 9 August 2014, the petitioner had been provided with the second charge and the supporting statement. This began with the adjudicating officer going through the 10 questions (again referred to as “due process”). The record of inquiry into the second charge (no 7/6 of process) records the following:
“66067 W Beggs appeared in the Orderly Room on the 9 August 2014 at approximately 09.15hrs charged with a breach of discipline contrary to Paragraph 3 of schedule 1 to the Prisons and Young Offenders Institutions (Scotland) Rules 2011. Uses threatening words and behaviour.
On entering the Orderly Room Mr. Beggs identified himself and sat down. As I started to ask the set questions as detailed on Form ADJ2 Record of Hearing into a Charge of Breach of Discipline. Mr Beggs immediately talked over me and quickly read out in an unclear manner some form of words which I could not understand or did not have time to note. I explained the process and then asked Mr. Beggs if he received written notice of this charge at least two hours before the hearing. Mr. Beggs did not reply and sat there with a vacant look. I thought at first he was thinking about his response and then asked again to which he remained silent.
To satisfy myself that Mr. Beggs did receive the paperwork or not, at least two hours before the hearing, I checked the Form ADJ1 Notice of Charge of Breach of Discipline (Charge Sheet). This form clearly evidenced to me that the paperwork was served on Mr. Beggs at 20.50hrs on the 8 August 2014 by Officer Adamson in the presence of Officer Cameron. On that basis and in the absence of any response from Mr. Beggs which would state to the contrary then I was satisfied that Mr. Beggs received the paperwork longer than 2 hours before the hearing. I advised Mr. Beggs.
I then asked Mr. Beggs if it was his name that was on that charge sheet. Mr. Beggs remained silent and uncooperative. I then asked him if he understood the charge and the purpose of the hearing. Again he remained silent and uncooperative.
I stopped the process at this time and explained to Mr. Beggs that I required to go through due process so I can consider all the facts and evidence presented and to allow him every opportunity to contribute to the process, to state his case, state any mitigation and to assist me throughout this process. He remained silent and uncooperative.
I advised Mr. Beggs that he was being obstructive, uncooperative and unhelpful and he was hindering the process. I again asked Mr. Beggs if he could reply to my questions to allow me to look into the charge of breach of discipline and why was he being obstructive and uncooperative. He remained silent, sitting with a vacant look. I noted at this time that his behaviour was bizarre and concerning.”
The second hearing: reconvened hearing on 11 August 2014
[32] The disciplinary hearing in respect of the second charge was reconvened on 11 August and, again, the adjudicating officer Mr McLeod began by going through the 10 questions. The record of inquiry into the second charge records the following as having occurred:
“The Orderly Room was reconvened at approx. 10.10hrs on the 11 August 2014. I reminded Mr. Beggs that I adjourned this report on Saturday due to his unresponsive approach and to allow me to seek advice.
I advised him that I would now go back through the Orderly Room process and hoped that he would respond to the set questions to allow me to undertake my role as Adjudicator. I asked questions 1, 2 and 3 to which he answered. I had already established that Mr. Beggs had received written notice of the charge at least two hours before the hearing although when I asked him again this time he replied.
I then asked him question 5 and that he understood the charge and the purpose of the hearing. No response was given by Mr. Beggs and he remained silent.
I ascertained that he was okay and well to take part in the adjudication process to which he again remained silent and did not respond. I advised him that by remaining silent then this would mean to me that he was okay unless he told me otherwise. He remained silent, uncooperative, obstructive in his approach and unhelpful.
I advised Mr. Beggs that he was trying to circumvent or prevent the process being followed by not communicating with myself and allowing due process so on that basis I will continue with the process. Mr. Beggs remained silent.
I then asked Question 5 again, explaining to him that I am giving him every opportunity to assist me in going through the process, to look at the charge and evidence presented and to give him every opportunity to contribute into the process, offer any position, view or mitigation. He remained silent.
I then asked him if he was ready for the enquiry to go ahead. Mr. Beggs eventually spoke to confirm that he had handed over his submissions on a sheet of paper and he was under no obligation or was required to verbally respond to me. I advised him to the contrary that he being was obstructive and unhelpful.
I then read the written submission. It contained 5 points.”
[33] The petitioner’s written submission was in the following terms:
“(1) In view of the seriousness of the charge, its potential implications for me and the particular circumstances alleged, I wish to be legally represented.
(2) In any event I shall require to take legal advice and prepare a defence.
(3) I do not accept the statement of the Reporting Officer as evidence in this adjudication.
(4) In order to help me prepare my defence I require a copy of the ADJ2 form in relation to Charge ED/1230/14 and any other notes or records compiled by Mr MacPherson in the course of the adjudication.
(5) I will require to call Mr MacPherson as a witness.”
[34] The adjudicating officer responded to that as follows:
“1. He requested to be legally represented. I asked him for reasons why he has requested to be legally represented at the hearing. He replied because of the seriousness of the charge and the potential implications. I asked him if there were any points of law or complexity in question in relation to the seriousness of the charge that requires legal representation; Mr. Beggs could not provide any additional information or legal argument to support this request. I asked him if there were any points of law or complexity in question in relation to the potential implications of being on report that requires legal representation. Mr. Beggs stated he was a lifer and this could impact on his management and progression. I acknowledged that could be the case and again asked him if there was any point of law or complexity or other reason why his lawyer should attend the hearing and he could not provide any reasonable answer for me to further consider.
On that basis and I was satisfied there was no requirement to adjourn the hearing yet again so his lawyer could attend or that my decision to refuse this request would be unreasonable. I advised Mr. Beggs and he replied ‘it is your decision’.
2. He requested to take legal advice and prepare his defence. On that basis I adjourned the hearing to allow him 72 hours to seek legal advice. I advised him I would re-convene the hearing on Thursday morning (14 August 2014) unless otherwise advised.
3. The third point of the submission states that Mr. Beggs does not accept the statement of the Reporting Officer as evidence in this adjudication. I have noted this.
4. The fourth point is that he has requested a copy of the ADJ2 Form in relation to another Breach of Discipline which at this time is outstanding. (and as of the 18 August 2014 was still outstanding) I see no relevance at this stage of this process for Mr. Beggs to be given a copy. If there are any points he wishes to raise then he can raise them at that hearing.
5. The last point states that Mr. Beggs requires to call Mr. Macpherson as a witness. He has not noted what assistance or evidence the witness can give or bring to the hearing at this time.”
[35] Accordingly, at the point in the due process where question 6 was addressed, concerning the petitioner’s readiness to proceed, his request for an adjournment to take legal advice was granted and 72 hours afforded for that purpose. (The petitioner’s counsel confirmed at the hearing before me that the petitioner did indeed take advice from his legal advisors.) In the event, the disciplinary hearing was not reconvened until a week later, being 18 August 2014. This was due to the non-availability of the reporting officer and the witness whom the petitioner wished to call (top of page 5 of 7 of no 7/6 of process and the note at page 536 of no 6/10 of process). It is apparent from this, and the record of inquiry into the second charge, that the petitioner’s request for a witness (Mr Macpherson) was granted. The record of inquiry into the second charge bears to record further submissions made by the petitioner. However, I was not referred to these and nothing was made of them in the four‑day hearing before me. In particular, it was never suggested by the petitioner’s counsel that there was any failure on the part of the SPS to respond appropriately to those communications.
The second charge: further reconvened hearing on 18 August 2014
[36] The disciplinary hearing in respect of the second charge finally reconvened on 18 August 2014. In the seven day period of adjournment the petitioner had taken legal advice, he had secured the attendance of Mr Macpherson as a witness and had submitted further written submissions. The following is recorded as having taken place:
“Due to the unavailability of both the Reporting Officer and the witness that Mr. Beggs wished to call then the Hearing was re-scheduled to take place on Monday 18th August 2014. Mr. Beggs was notified by letter of this change and the reasons on the 12 August 2014.
A further submission was sent by fax signed by Mr. Beggs which was received on the 15 August 2014 to which I was given on my return to duty on the 18 August 2014. The general content of this submission related to the points raised at the Hearing on the 11th August 2014. The reference to the police matter was discussed at the Hearing on the 18th August 2014.
A further submission in relation to a number of points and issues including reference to this hearing was sent by fax to the prison on Sunday 17 August 2014 by Mr. Begg’s solicitor. This includes references and requests under FOI and SAR and this is being managed and processed by the prison’s Business Support Team and will be responded to in due course as per required timescales.
The Hearing re-convened on the 18th August 2014 at 10.25am. Having confirmed that Mr. Beggs received notification (ADJ4) then the hearing commenced. To refresh the position I began by explaining the reasons for the adjournment and immediately I had to warn Mr. Beggs about his conduct as he started to talk over me and speak to the staff present in the Orderly Room. I explained to him this was discourteous and rude.
I explained to Mr. Beggs that he had requested Mr. Macpherson to attend as a witness and pointed out that he had given no reason on his written submission which he submitted on the 11 August 2014. Mr. Beggs replied I require Mr. Macpherson because he was there.
Mr. Beggs proceeded to hand over another submission. This was a 4 point submission. (1-4) I read and noted this submission. Point 1 was acknowledged; Point 2 had been already discussed at the hearing on the 11th August 2014; Point 3 had already been discussed at the hearing on the 11th August 2014; and in relation to Point 4, Mr. Beggs was advised that the hearing would continue today.
The hearing then continued with FLM Duff reading out his statement. Mr. Beggs was asked if he had any questions for the Reporting Officer and Mr. Beggs proceed to ask a number of questions. This was around the following:
- If Mr. Beggs constant interruptions were seen as threatening words or behaviour.
- If Mr. Beggs threw or slid the papers.
- In what way Mr. Beggs acted aggressively.
- Were the papers taken away as evidence.
- Was the reference in the statement to Mr. Beggs taking legal action against the staff perceived also as a threat.
FLM Duff clarified that initially the constant interruptions were not threatening but inappropriate and these actions were not threatening at the time. FLM Duff then went onto explain and clarify that first of all Mr. Beggs slid the papers to the adjudicator, and the Adjudicator advised him that he would take any submission at the most appropriate time of the hearing. FLM Duff then explained that he then picked up the papers and attempted to throw them towards the Adjudicator.
FLM Duff in his view perceived this as threatening behaviour; Mr. Beggs lunged forward in a threatening manner to which he had to take reactive action.
FLM Duff reiterated that his behaviour towards him was threatening and he said that it was Mr. Beggs that ripped the papers through his actions and not himself. Mr. Beggs lunged towards me in an aggressive manner and I defended myself appropriately. FLM Duff advised that there was no need to take the papers as a production and they were put in an envelope and conveyed back to Mr. Beggs.
I then asked if Mr. Beggs if he had slid the papers across the table to which he admitted this.
FLM Duff stated that the threats made to staff about taking legal action is an example of intimidating staff and there is significant evidence that Mr. Beggs takes such action and in this case he personally perceived this as a threat.
Mr. Beggs then confirmed at the hearing that he understood the responses to his questions.
Mr. Macpherson, Unit Manager was called by Mr. Beggs as a witness and the reason as aforementioned was because he was there.
Mr. Beggs stated that Mr. Macpherson may not be fully aware of the statement and I advised Mr. Beggs that I would read out the evidence. He was in agreeance [sic] and there was no objection. I read out the evidence then Mr. Beggs objected.
Mr. Macpherson in his evidence said Mr. Beggs slid the first set of papers across the table and they fell off the table. After being advised, Mr. Beggs attempted to slide the papers again even after he was told not to, and FLM Duff had to intervene to stop this happening. Mr. Macpherson had told Mr. Beggs that he would take and look at the submission when as part of the process was appropriate to do so.
Mr. Beggs asked Mr. Macpherson if he had felt threatened. Mr. Macpherson replied that Mr. Beggs behaviour was unacceptable despite being told not to this.
Mr. Beggs asked Mr. Macpherson if at any time did he get out of the chair. Mr. Macpherson replied stating that he raised his backside off the seat to throw the papers at him.
Mr. Beggs asked if Mr. Macpherson had heard him saying anything to FLM Duff. Mr. Macpherson replied he could not recall at this time.
Mr. Macpherson stated Mr. Beggs threw the papers. The Orderly Room was adjourned at Mr. Beggs request and he was placed on report following this adjournment. Mr. Macpherson stated that in his view, he did not take the threat of legal action as a threat.
I then asked Mr. Beggs if he had anything else to add to the evidence that has been led, Mr.Beggs submitted yet another submission with 6 points. (5-10)”
[37] In relation to the petitioner’s two submissions, bearing to contain 10 points in total, these were not referred to in oral submissions at the first hearing by either party. No point was taken in relation to the manner in which those were dealt with at the material time. On the basis, therefore, that nothing turns on this, I make no further reference to them.
The second charge: determination and punishment
[38] The second charge was then determined by the adjudicating officer, in the following manner:
“On the basis of all the information and evidence led and presented I found Mr. Beggs guilty for the following reasons:
It is clear to me and beyond reasonable doubt that he did use threatening words or behaviour in that he did throw or slide papers towards or at the adjudicator in a deliberate manner despite being told not to do so by the Adjudicator.
He acted in a threatening manner by rising from his chair (without permission) which resulted in FLM Duff assessing and entitled to personally perceive, an immediate threat to his safety by Mr. Beggs was imminent by such actions and as a result FLM Duff had to take immediate reactive decisive actions to this threat. As part of my decision, this is reasonable and proportionate to the threat and risks presented.
It is also reasonable and I am satisfied that Mr. Beggs’ actions, behaviour and approach solely contributed to the threat which FLM Duff was faced with at the Orderly Room on the 8 August 2014. It is also clear to me that this threat was aimed at FLM Duff. The charge and evidence presented was corroborated and also supported by Mr. Begg’s witness. And finally Mr. Beggs admitted during the hearing that he did indeed slide the papers across the table despite being told not to at this stage of the hearing.
Mr. Beggs was advised that his behaviour and actions were unacceptable, discourteous and disrespectful and such behaviour will not be tolerated.”
As a consequence of the determination that the second charge was established the petitioner lost access to his money (in terms of rule 51(3)) for seven days, he also lost wages and recreation privileges for seven days.
The factual position as presented by the petitioner at the first hearing
[39] I have endeavoured to set out fully the chronology of the initiation and determination of the disciplinary procedures constituting the first and second charges. This is necessary because a case based on procedural unfairness is highly fact-sensitive. Additionally, whether the denial of a desiderated step (such as an opportunity to take legal advice, or to have legal representation or to be granted adjournments) amounts to unfairness in a relevant sense should be assessed against a variety of factors including, for example, the character of the proceedings, the nature or seriousness of the charge, the ability of the person concerned to participate, the consequence of any adverse finding for him, and, possibly, any relevant prior procedure (e.g. has the desiderated step already been granted).
[40] The petitioner’s counsel’s approach, however, was to provide a very limited presentation of the facts, and to advance a generalised submission which did not attempt to relate or explain the general unfairness asserted to the facts of this case. Despite being pressed to set out the facts so that there was some context in which to assess the several grounds of challenge, the petitioner’s counsel did not do so. For example, for the purposes of arguing that the charges lacked specification, he confined himself to looking at the two charges, but disregarded the supporting statements. The only passage referred to in the record of inquiry into the first charge was the short passage about the petitioner being asked to direct his questions through the chair. (This was to demonstrate procedural irregularity.) The assertion that there had been unfairness to the petitioner by reason of a failure to grant an adjournment was made without reference to the several adjournments previously granted. The petitioner’s counsel made no reference to the record of the inquiry into the second charge, notwithstanding the challenge to the merits of the determination of the second charge. And, as noted below, he made no reference to any materials that might have been relevant to the ICC hearing of 11 September and whose determination is also challenged. To a large extent, therefore, the court was dependent upon counsel for the respondents setting out the background, which he did with commendable economy at the end of the third day and into the morning of the fourth day of this first hearing. I now turn to consider the relevant rules.
The Rules
[41] The petitioner argues that the legal test in rule 113(9) of the Rules, which is said to be a test of “exceptionality”, is wrong in law and ultra vires. Separately, he argues that, to the extent a procedure was adopted that was not in accordance with rule 113(7), it was irregular. The petitioner also argues that the procedure followed was unfair in a number or respects. Reference was made in the petition to rule 113(3) and 113(8), concerning whether there had been adequate time for a prisoner to prepare and a prisoner’s request for witnesses.
[42] As noted more fully below, several of the grounds of challenge in this petition assert that the procedure adopted was unfair in certain respects. The question of fairness is a highly fact‑sensitive assessment and not one that can be properly assessed in the abstract. It is for this reason I have set out fully the relevant factual context above. However, in assessing whether a procedure was unfair or irregular, it is also important to have regard to the character and purpose of the procedure in question, not just to the particular rule or feature challenged, as well as to the nature of the determination and the consequences of any adverse determination. It is necessary, therefore, to set out the scheme under the Rules in order to identify the essential features of it and which may inform the assessment of questions of unfairness.
[43] Part 11 of the Rules governs discipline within the prison regime in Scotland. Schedule 1 to the Rules contains the matters that constitute a “breach of discipline”. Breaches of discipline can include “being disrespectful to any person, other than a prisoner, who is at the prison” (in paragraph 10) and of “using threatening words or behaviour” (paragraph 3). Both of these charges are on the lower end of the scale of defined breaches. Other breaches of discipline provided for in the Schedule include assaults, unlawful drug use, disobedience or obstructiveness in certain respects, being in possession of unauthorized articles, escaping or absconding from prison.
[44] Rule 111 provides that any breach must be notified to the Governor in writing immediately. Where a charge is brought, rule 112 provides that in respect of a serving prisoner this must be brought within 48 hours of the discovery of the act or omission constituting the alleged breach, and that written notice must be served on the prisoner at least two hours before the commencement of a disciplinary hearing: rule 112(2).
[45] The procedure governing disciplinary hearings is provided for in rule 113, which provides as follows:
“113.— Disciplinary hearings
(1) Where a charge has been brought against a prisoner under rule 112, the Governor must hold a hearing into the alleged breach of discipline no later than—
(a) the next day after the charge has been brought; or
(b) where the next day is a Sunday or a public holiday, the day after that Sunday or public holiday,
unless in exceptional circumstances, the Governor considers that a later hearing is necessary.
(2) A hearing into an alleged breach of discipline under paragraph (1) is to be known as a disciplinary hearing.
(3) The Governor must be satisfied that the prisoner has had sufficient time to prepare his or her case before commencing the disciplinary hearing.
(4) The Governor must adjourn the disciplinary hearing for such period of time as may be reasonably necessary, where the Governor is satisfied —
(a) that the prisoner requires further time to prepare his or her case; or
(b) there are other reasonable grounds for an adjournment.
(5) Where an adjournment is granted under paragraph (4)—
(a) the disciplinary hearing may continue before any Governor provided no submissions have been made by the prisoner; but
(b) the disciplinary hearing must only be continued by the Governor who granted the adjournment where submissions have been made by the prisoner.
(6) Where the Governor who granted the adjournment is not able to continue the disciplinary hearing under paragraph (5)(b) within a reasonable period of time after the adjournment then—
(a) the disciplinary hearing must be abandoned; and
(b) the charge may only be brought again if it is brought within 48 hours of the abandonment of the disciplinary hearing.
(7) At the disciplinary hearing, the Governor must—
(a) inform the prisoner of the breach of discipline alleged;
(b) allow the prisoner the opportunity to present his or her case;
(c) allow the prisoner the opportunity to call witnesses where permitted to do so under paragraph (8); and
(d) subject to paragraph (12), allow the prisoner to cross-examine any other witnesses.
(8) At the disciplinary hearing, the prisoner may request that a witness be called and this request must be granted by the Governor where the Governor is reasonably satisfied that the evidence the witness is likely to give will be relevant to the determination of the charge.
(9) The Governor may, on the application of a prisoner, permit the prisoner to be represented at the hearing by a legal adviser where in exceptional circumstances the Governor considers such representation is necessary or desirable.
(10) Subject to paragraphs (11) and (12), the Governor may, at the disciplinary hearing, take into account any relevant evidence in any form, including—
(a) oral evidence from any person;
(b) written evidence from any person;
(c) documents and records;
(d) film and photographs;
(e) sound recordings; and
(f) other physical evidence.
(11) For the purposes of paragraph (10)—
(a) where any evidence in paragraph (10)(c) to (e) is to be considered at the disciplinary hearing, the prisoner must be given an opportunity to look at and consider that evidence before presenting his or her case to the disciplinary hearing; and
(b) evidence listed in paragraph (10)(b) to (f) may only be considered at the disciplinary hearing without associated oral evidence if the prisoner agrees or if paragraph (12) applies.
(12) The Governor may take into account written evidence relating to the analysis of a sample provided in accordance with rule 93 or 94, written by the person who carried out that analysis, without requiring the person's attendance at the disciplinary hearing if—
(a) the person is not an officer or employee;
(b) the prisoner has been afforded the opportunity to make representations about why the person should give oral evidence; and
(c) the Governor is satisfied, having considered any representations from the prisoner, that it is appropriate to admit the evidence and that there is no sufficient reason why the person needs to give oral evidence.
(13) The Governor must consider all the relevant evidence before making a finding and, for a prisoner to be found guilty of a breach of discipline, the Governor must be satisfied beyond reasonable doubt.
(14) The Governor must inform the prisoner whether the prisoner has been found guilty or not guilty of the breach of discipline alleged and of the reasons for that decision.
(15) Where the Governor finds that the prisoner is guilty of the breach of discipline alleged, but before determining whether a punishment under rule 114 is appropriate, the Governor must—
(a) consider whether the breach of discipline is aggravated by virtue of containing an element of discrimination as described in rule 6 and, if so, inform the prisoner of the aggravation; and
(b) give the prisoner an opportunity to raise any relevant matters in mitigation.
(16) Where the Governor finds that the prisoner is guilty of the breach of discipline charged and that a punishment under rule 114 is appropriate, the Governor must inform the prisoner of—
(a) the punishment to be imposed on the prisoner under rule 114 including whether the punishment is to be suspended under rule 115; and
(b) the reasons for the Governor's decision to impose the punishment.”
The character of disciplinary proceedings under the Rules
[46] From the foregoing it is clear that the Rules reflect the desire for expedition. By virtue of rule 112(2)(b) a charge must be brought within 48 hours of the discovery of the charge. Under rule 113(3) the charge must be heard the next day. Disciplinary hearings are to be conducted with a minimum of formality. Observations from the case law reinforce this understanding. It has been said that expeditious resolution of disciplinary matters is desirable because “Prison Governors should have autonomy in the control and management of their prisons and that the oversight of discipline by prisoners is a key factor in this”: Tangney v Governor of HMP Elmley [2005] HRLR 36 at paragraph 15. Indeed, the European Court of Human Rights (“ECtHR”) recognised this in Campbell and Fell v UK (1985) 7 EHRR 165, where at paragraph 69 the Strasbourg Court stated it:
“is well aware that in 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 expeditiously 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.” (Emphasis added.)
[47] One of the cases concerning the English rules described those rules as partly “inquisitorial”. When asked to comment on this observation, the respondents’ counsel was reluctant to characterise the Rules (which are not the same as the English rules) as either wholly adversarial or inquisitive. While they had features of both, they were, he said, sui generis. Consideration of the conduct of the disciplinary hearings, as provided for in rule 113 and as translated into practice by the “due process” questions in the ADJ2 form, suggests that this is correct.
[48] The 10 questions that are contained on the ADJ2 form used at the start of each disciplinary hearing, and referred to in some of the documentation as “due process”, are clearly designed to implement features of the Rules. These “due process” questions are set out in full, in paragraph [12], above. In respect of evidence, rule 113(10)(b) specifically permits this to be by “written evidence from any person” (i.e. in the form of a statement). Consistent with this is question 7 of the due process questions, in which the prisoner is asked if he is content to accept the written evidence. If yes, then the commentary to question 7 provides that this must be read out to the prisoner. If the prisoner is not prepared to accept the written evidence, then the commentary explains that the witness will be called to speak to his or her evidence and the disciplinary hearing will be adjourned if necessary, subject to rule 113(11). It is clear from rule 113(11)(b) that other forms of evidence (e.g. documents, physical evidence etc.), apart from oral testimony itself, may only be considered without associated oral evidence if the prisoner agrees. The only exception to this is in relation to samples and where the prisoner must make a case as to why the person who carried out a sample analysis must be called: rule 113(12).
[49] In respect of evidence of any eye witness to fact, therefore, this may be presented by written statement (e.g. such as that provided in the officers’ statements supporting charges 1 and 2, respectively, in numbers 7/2 and 7/4 of process) or, if that is not agreed to by the prisoner, by oral evidence.
[50] Under the Rules there is no “prosecutor”, as it were, seeking to prove the charge. Rather, rule 113(13) provides that the Governor must consider all the relevant evidence before making a finding and that for any finding of guilty of breach of discipline, the Governor must be satisfied beyond reasonable doubt.
[51] The commentary to question 5 of the due process recognises the importance of the prisoner understanding the charge and the nature of the proceedings. If the adjudicating officer is not satisfied of these matters, then (as the commentary states): “the inquiry must be adjourned”.
[52] Having regard to the foregoing features, it is inherent in the system of disciplinary procedure that the process will be resolved very quickly and within two to three days. The respondent’s position was that the disciplinary process brought into focus in this petition should be considered in this context. Having regard to the nature of the challenges advanced in this petition, I agree. The pursuer’s counsel did not address himself to the scheme in the Rules or to this analysis advanced on behalf of the respondents. I accept the respondents’ analysis. It is consistent with the case law and with the purpose and provisions of the Rules themselves.
The Guidance
[53] The respondents produced a two‑page guide, governing “orderly room” (i.e. disciplinary hearings), called “Prisoners Orderly Room Guide: Breaches of Discipline Reports - Adjudications. Your Rights, Responsibilities and the Procedures (‘the Guidance’)”: see no.7/17 of process). So far as material, that Guidance provided as follows:
“The information contained in this guide details what will happen when you appear before the Governer at a Breach of Discipline Hearing. This information will make clear:
- The legal rules about Disciplinary Hearings.
- Your rights.
- Your responsibilities.
- The procedures the Hearing will follow
- How you can obtain more information about the rules.
1. The adjudicating Governor will tell you what the charge against you is and he/she will ask if you received your charge sheet detailing the charge(s) against you.
2. He/she will ask if you know and understand the procedures the Hearing will follow. If you have doubts about this you must say now, and the Governor shall explain them to you, but this package gives you all the information you require.
3. The evidence against you will be read out by the Officer who placed you on Governor’s Report. If this Officer is not available on the day you appear before the Governor, and you had intended to ask him/her questions about the Report, the Governor may adjourn the Hearing to a later date to facilitate this.
4. You will be asked to reply to the charge. If you feel that the charge is valid, the Governor will ask if you would like to say anything that you feel he/she should consider when deciding on their findings, (ie any mitigating circumstances). They will have your conduct record read out and, after consideration, will announce their findings and punishment(s) or otherwise.
5. If you wish to defend yourself against the charge, the Governor will ensure the following:
i. “Have you had enough time to prepare your defence? If not, why not?” The Governor will decide whether to continue or not.
ii. “Did you tell an Officer that you wished to call witness(es) or request legal representation?” If possible, tell an Officer as soon as you can that you intend to call witness(es), and who they are, ie their name(s), number(s), etc so as to facilitate this request. This does not mean that it will automatically be granted. On receipt of this information in the Orderely Room, the Governor will consider both the relevant and value of the witness(es) and that they are available. Should the Governor refuse your request to call the witness(es), he/she will give you their reason. The same procedure applies in the case of a request for legal representation.
6. You will be given the opportunity to ask the Reporting Officer relevant questions, but these must be put through the Governor. The same applies if any witness(es) are called in support of the charge, ie you can ask the witness(es) questions through the Governor.
7. If there is more than one charge against you, each will be dealt with separately, although if found guilty of more than one charge, the Governor may impose punishments to run consecutively.
8. In a case where the charge(s) is/are not proven, you will be told as such and will be returned to your Hall or Workplace.
This guide is intended to give a clear picture of what will happen if you appear before the Governor on a Breach of Discipline charge. If you do not understand any part of what you have read, or are unclear as to what it means, ask an Officer for advice.
IT IS IN YOUR INTEREST TO READ AND UNDERSTAND THE CONTENTS OF THIS INFORMATION.
A copy of “The Prisons and Young Offenders Institutions (Rules) 1994” is available from your Hall Manager if you require further information.
Further General Information
The Governor may, at any time, adjourn the Hearing. This could happen, for example, in order to await Police investigations, or so that witness(es) can be present. You will be told the reason. Normally you will return to your present location unless you are placed on a Rule which restricts you mixing with other prisoners.
YOU SHOULD RETURN THIS GUIDE TO THE GOVERNOR WHEN APPEARING IN THE ORDERLY ROOM.”
The petitioner’s counsel did not make any submission in relation to the Guidance.
Petitioner’s grounds of challenge
The petition
[54] It is a little difficult to discern relevant grounds of challenge in the petition and which relate to the actual conduct of the hearings into the two charges. The petition, which was twice adjusted before the first hearing and was amended once in the course of the first hearing before me, contains 41 statements extending over 16 single-spaced pages. Notwithstanding its length, the petition does not generally succeed in setting out a coherent factual narrative or in articulating and applying the recognised legal grounds of challenge available in judicial review proceedings. There are numerous general assertions of unfairness. This same approach is carried over into the pleas-in-law, of which there are ten. Three pleas-in-law seek declarators in general terms: e.g. the first plea is that “procedure at a disciplinary hearing requiring to be fair, declarator to that effect should be pronounced”. The ninth plea is in like terms, but stated to be in respect of a disciplinary appeal. The tenth plea states that “Permission for legal representation at disciplinary appeals being necessary when fairness requires it, declarator to that effect should be granted.” The plea-in-law directed to legal representation at the disciplinary hearing stage, being the second plea, is in the following terms: “The correct interpretation of Prison Rule 113(9) being that it permits legal representation when fairness requires it, declarator to that effect should be granted”. There then follow two pleas that “Esto prison rule 113(9) cannot be interpreted to permit legal representation when fairness requires it”, it is then asserted that “it is unlawful in terms of the domestic law” (the third-plea-in law) or that “it is unlawful in terms of the ECHR” (the fourth plea-in-law), and that the said rule should be “reduced to the extent necessary to permit representation when fairness requires it”. The fifth plea-in-law presupposes that the test in rule 113(9) is “exceptionality”, and on this presupposition states that “The exceptional circumstances’ test in Prison Rule 113(9) not being lawful in terms of the ECHR should be reduced”. Only three pleas are directed to the determinations of the charges. The sixth plea-in-law states that “The decisions [sic] complained about being pronounced following on from a procedure that was, in all the circumstances, unfair they should be reduced”. The seventh plea-in-law states “The decisions [sic] having been pronounced following an irregular procedure should be reduced”. In respect of the second charge, it is asserted that this “having been pronounced following upon an error of law should be reduced”.
[55] There are a number of statements in the petition containing general contentions under reference to certain Convention Rights. Statements 19 to 24 are in the following terms:
“19. That the petitioner’s convention rights are protected by the Human Rights Act and the Scotland Act. It is unlawful for any public authority to act in a manner which is incompatible with any person’s convention rights. Acts includes failures to act (Human Rights Act, s6). Moreover the respondents have no power to act in a manner incompatible with the petitioner’s convention rights, by virtue of the Scotland Act (s57(2)). Acts include failures to act (s100(4)). The petitioner’s convention rights include rights in terms of article 8 of the European Convention on Human Rights (“ECHR”). Article 6 provides for a fair trial in the determination of a prisoners civil rights. Article 8 provides for respect inter alia for the personal autonomy of the individual. Article 1, Protocol 1 inter alia protects an individuals possessions and their use.
20. That prisoners’ civil rights are protected by article 6 of the ECHR. The petitioner’s civil rights are protected by article 6 of the ECHR. Prisoners’ personal autonomy is protected by article 8 of the ECHR. The petitioner’s personal autonomy is protected by article 8 of the ECHR. Prisoners’ earnings and money are protected by article 1, protocol 1 of the ECHR. The petitioner’s earnings and money are protected by article 1, protocol 1 of the ECHR.
21. That any procedure that results in a determination of the petitioner’s civil rights requires to be fair in terms of article 6 of the ECHR. The respondents averments in answer are denied.
22. That any procedure that results in an interference with the petitioner’s article 8 rights requires to be fair. What is fair in any given case will depend upon the particular facts and circumstances. Although article 8 is concerned primarily with the substance of the rights involved it also carries with it a procedural protection. Reference is made to Turek v Slovakia (2007) 44 EHRR 43.
23. That any procedure that results in an interference with the petitioner’s article 1, protocol 1 rights requires to be fair. What is fair in any given case will depend upon the particular facts and circumstances. Article 1, protocol 1 carries with it a procedural protection. Reference is made to Paulet v United Kingdom [2014] ECHR 477, particularly paragraph 65.
24. That the procedure adopted in terms of disciplinary hearings in terms of Part 11 of the prison rules require to be fair in order to respect the petitioners convention rights. Prosecutions under the Prison Rules have the possibility (in the event of finding a breach) of interfering with the prisoners’ article 8 rights, article1, protocol 1 rights and civil right to association. In particular, prisoners found guilty of breaches of discipline can be subjected to cellular confinement and loss of wages. As such they require basic procedural guarantees, including a fair procedure. Reference is made to Munjaz v United Kingdom (2012) ECHR 1704, paragraphs 78-80 and Turek, above.”
[56] However, these matters were not developed in oral submissions or in the three versions of the petitioner’s note of argument lodged at various times (the second revised version was lodged a little before the continued first hearing and the third day of the petitioner’s counsel’s oral submissions, and it is from this version that quotations in this opinion are taken). The court was not taken to any passage in the case of Turek (referred to at the end of statement 22). There was brief reference in oral submissions to the passages identified in Paulet and Munjaz, but no attempt was made to relate these to the petitioner’s circumstances or the procedure followed in the determination of the charges.
[57] In respect of whether any Convention Right of the petitioner was engaged, this was advanced as a matter of assertion, not considered analysis. Under reference to rule 51(3), which (subject to certain provisos) “may” allow a prisoner to withdraw money held on an account, it was argued that article 1 of protocol 1 (“P1:1”) might be engaged. An entitlement to earnings (under rule 86(1)), to take exercise (under rule 87(1)) and to do so in association with others (under rule 87(3)) were said potentially to engage Convention Rights. These were expressed as “entitlements” in the Rules hence, it was argued, they were “civil rights” for the purpose of article 6. The principal purpose of this submission appears to have been with a view to invoking an observation in Dickson v UK (2008) EHRR 41 to advance the vires argument (see ground 3, below). However, there was no reference in oral submissions to the issue of proportionality, which lay at the heart of any consideration of whether there has been any infringement of article 8 or P1:1 of the ECHR. The submission went no further than to suggest, as a matter of generality, that the convention rights offered important safeguards. More fundamentally, while there was reference to the petitioner’s “civil rights” for the purpose of article 6, it was not explained (beyond what I have just noted) how, in the circumstances, that article was engaged in this case. This was not explored in relation to the considerable jurisprudence about the scope of article 6 and the autonomous meaning accorded to “civil rights and obligations” and “criminal charge” and, in particular, in relation to the body of case-law as to whether internal prison disciplinary proceedings (especially if resulting in only minor punishments) are capable of engaging article 6. The joint bundle contained cases potentially relevant to these matters: see, e.g., Campbell and Fell v UK (1984) 7 EHRR 165, Mathewson v The Scottish Ministers 2001 1 PLR 390, R (West) v Parole Board [2005] 1 WLR 350, Tangney v The Governor of HMP Elmly and Another [2005] HRLR 1220, and R(King) v the Justice Secretary [2015] 3 WLR 457. In the latter case, for example, Lord Reed doubted whether a decision to authorise continued segregation of a prisoner was within the ambit of article 6(1). Analogous decisions concerning determinations of internal disciplinary matters might attract a similar analysis. In relation to the petitioner’s reliance on article 6, the respondents argued that this was misconceived. The determination of a minor disciplinary change invoking a punishment under rule 114 of the Rules did not give rise to a criminal charge for the purpose of article 6 (see Mathewson v The Scottish Ministers 2001 PLR 390) nor did it involve the determination of a “civil right or obligation” (King, cit. supra). Properly construed, the particular rules relied on conferred privileges, not rights. They did not bestow “rights” within the ambit of article 6. I accept the respondents’ submissions on these matters. In any event, the petitioner’s counsel accepted that the Convention arguments, such as they were, did not add much to the petitioner’s several challenges. Those challenges were not fundamentally predicated on the petitioner’s convention rights.
[58] It is possible to consolidate the many disparate challenges made in the petition and in the revised note of argument to the procedure adopted, or to the terms of the Rules themselves, as follows:
1. Procedural unfairness: There are three discernable strands to this ground of challenge:
(i) there was inadequate notice in the charges;
(ii) the procedure for calling witnesses was unfair, and
(iii) the failure to give adjournments was unfair; (statements 14, 15, 16, 29 and 35);
2. Procedural irregularity: determination of the second charge was procedurally improper because the petitioner’s questions in cross required to be put through the adjudicator (statement 28);
3. The challenge to rule 113(9) on the basis that it imposed a test of “exceptionality” and was ultra vires: the test to permit legal representation at a disciplinary hearing in terms of prison rule 113(9) is contrary to law (statement 27);
4. The denial of legal representation: there was unfairness to the petitioner, because he was refused legal representation (petition, statements inter alia 25, 31, 38);
5. The substantive challenge to the determination of the second charge: the disciplinary finding of guilt relating to the second charge is wrong in law; the petitioner’s behaviour did not constitute threatening conduct (statement 39); and
6. The apparent bias ground: the presence of the administrative assistant, Miss KB, at the ICC hearing of the second charge gave rise to an appearance of partiality, where impartiality is necessary for the proceedings to be fair (statement 41).
The petitioner’s counsel’s submissions at the first hearing
[59] The first hearing in this matter was originally set down for two days. This proved insufficient for the petitioner’s counsel, whose submissions occupied almost three full days.
Notwithstanding the length of his submissions and the lodging of the revised note of argument (extending to 102 paragraphs), the petitioner’s counsel did not take the court to all of the relevant productions. In respect of the Rules, for the purposes of the procedural changes and the vires argument, he confined himself to reference to parts of rule 113. He offered no separate analysis of the overall scheme in the Rules or the character of disciplinary proceedings in a prison context. One of the features of the petitioner’s argument in relation to the Rules was to argue that there were certain irregularities and that these irregularities were sufficient so that “there was no need to go on to consider the separate issue of unfairness.” As a fall back, the argument was that any irregularity raised a presumption that the procedure was unfair with the consequence, it was said, of shifting the onus on the respondents to show it was nonetheless fair. By this means the petitioner’s counsel sought to advance his arguments without the necessity of addressing whether (on his hypothesis) any irregularity resulted in actual prejudice. This approach may explain why the arguments about unfairness were presented at a level of generality and without relating them in any way to the actual circumstances that obtained at the material time. The respondents’ reply to this feature of the petitioner’s arguments was to argue, in my view correctly, that fairness is context specific. Reference was made to Tangney v Governor of Elmley Prison [2005] HRLR 36 at 40 to 46, and to the well-known observation “in law context is everything”, in R (on the application of Daly) v Secretary of State for the Home Department 2001 2 AC 532 at paragraph 28.
[60] The outcome of a party’s case should not be determined by manner in which it was presented, but rather by consideration of all of the relevant factual matters, once properly set out, and applying the relevant law, whether supportive or adverse to the position adopted by one party or the other. Much of the factual context and relevant law was not referred to by reason of the approach taken by the petitioner’s counsel. As a consequence, the court did not have the benefit of considered argument on behalf of the petitioner presented in respect of the full background. As presented, much of the petitioner’s case was stated at such a level of generality as to be largely irrelevant. Accordingly, I have endeavoured to set out more fully the relevant factual context, at paragraphs [7] to [38] above, to set out the scheme in the Rules, and the relative Guidance, at paragraphs [41] to [53] above, and to adopt a coherent structure (two paragraphs above) in which to consider the many disparate challenges, so that the petitioner’s arguments may be properly assessed in the light of relevant and appropriate context.
[61] I now turn to deal with the petitioner’s six grounds of challenge (as consolidated in paragraph [58], above).
Ground 1: inadequate specification in the charges; and the procedure in respect of witnesses and adjournments was unfair
[62] There are three discrete complaints within ground 1:
(i) the petitioner argues that the charges gave inadequate specification such as to give no fair notice;
(ii) he also argues that there was unfairness in that more steps were not taken to secure the attendance of two witnesses for the purposes of the determination of the first charge; and
(iii) there is also a complaint about the failure to adjourn.
(i) Specification of the charges
Petitioner’s argument
[63] The petitioner argued that the charges were inadequate in their specification such as to be unfair. (This feature of the charges was also relied on to support the argument (considered below) that it was procedurally unfair to deny the petitioner legal representation at the disciplinary hearings.) The petitioner’s counsel advanced the argument about lack of specification under reference to the charges themselves, which I have set out above in paragraphs [9] and [29], respectively, but he did so without reference to the supporting statements of the officers (recorded at paragraphs [10] and [30], above). As it was apparent that the petitioner had had these supporting statements in advance of the disciplinary hearings, I asked the petitioner’s counsel whether in considering this ground of challenge it was relevant to read the charge together with the supporting statement. His position was that there was no express provision in the Rules for the use of statements. If there was no express provision in the Rules, so the argument ran, the use of statements was irregular and ultra vires, and those had to be disregarded in considering the argument about lack of specification in the charges. The petitioner’s counsel did accept that if each charge was read together with the supporting statement, there was adequate specification.
[64] Looking at the charges in isolation, as the petitioner’s counsel contended was the correct approach, it was argued that these lacked adequate specification. However, this submission was not developed. There was no discussion of how they were said to be lacking in specification or what way greater specification might have been given. It was not suggested that any asserted lack of specification had any impact on or prejudice to the petitioner in meeting these charges. No cases were cited in support of the petitioner’s position.
Respondents’ reply
[65] In meeting the argument that the petitioner did not receive fair notice arising out of the first and second charges, the respondents start by noting that in each case the petitioner was given, in advance, the charge and the officer’s statement in support (7/1 and 7/2 for the first charge, and 7/4 and 7/5 for the second charge). In the light of these documents, set out above at paragraphs [9] and [30], the petitioner’s contention that he received inadequate specification was misconceived. The charges were clear and precise. Their content should be considered in the context of disciplinary charges where their disposal was of a minor nature. They provided the petitioner with adequate notice and were referred to for their full terms. The charges were intelligible and in no way so imprecise as to have “no ascertainable meaning”: Mohammed Gul v Secretary of State for Justice [2014] EWHC 373 (Admin).
[66] Under reference to the well known passage in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, the respondents argued that the charges satisfy the legal requirements of certainty. In Doody, the court said:
“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from any of the often cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances, (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically to every situation.
What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken with a view to procuring its modification or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weight against his interests fairness will very often require that he is informed of the gist of the case which he has to answer” (emphasis added).
[67] The two charges gave sufficient specification. Having regard to the foregoing, the petitioner had sufficient information to answer each charge at the disciplinary hearing concerning it. The two charges met the required standard of fairness.
Decision on lack of specification in the two charges
[68] The two charges relate to allegations of minor breaches of discipline. One alleges disrespect and the other threatening conduct. In my view, these are straightforward concepts and do not raise complex issues of law. They do not require explication by legally qualified persons. The test in Doody was recently considered by the Supreme Court in R (King) v Secretary of State for Justice [2015] 3 WLR 457, and confirmed as good law. While that case concerned a decision by a prison Governor to continue segregation of a prisoner under the English rules, the observations about the opportunity to be afforded to a prisoner in respect of that kind of decision are apposite to the determination of a charge of indiscipline. In R(King), Lord Reed gave the judgement of the court, which was concurred in by the other justices, including the President (Lord Neuberger) and the Deputy President (Baroness Hale). Lord Reed referred to Doody and its consideration of questions of procedural fairness generally and more particularly as regards “the procedural rights of prisoners in relation to decisions which may affect them adversely”: see paragraph 96. After referring to the case of R (Osborne) v Parole Board [2014] AC 1115, Lord Reed stated (at paragraph 100]):
“A prisoner’s right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought. This will not normally require disclosure of the primary evidence on which the Governor’s concerns are based…” (emphasis added).
In my view, both of the two charges, considered simply on their terms, gave the “gist” (per Doody) or the “substance” (per R(King)) of the case that the petitioner had to answer. The requirements of fairness were met.
[69] In any event, I reject the petitioner’s contention that no regard may be had to the officers’ statements produced in support of each charge. The Rules make express provision for evidence by statements: see rule 113(10)(b). Further, it is readily apparent that the petitioner had these statements in advance of each disciplinary hearing and, moreover, he had related them to the charges he faced. See paragraph [14] above. Against that background, there is no merit in the argument that each charge, either looked at in isolation or together with the relative supporting statement, failed to give adequate specification of the charge or the conduct which was underlying each charge. This ground of challenge fails.
(ii) The non-attendance of the two SPSO witnesses
Petitioner’s argument
[70] The petitioner founds on the absence of the two SPSO witnesses as a feature of the unfairness of the procedure adopted in relation to the first charge. This ground of challenge relates only to the first charge, as there was no unmet request for additional witnesses in respect of the second charge.
[71] As recorded above at paragraphs [19] and [25], the disciplinary hearing in respect of the first charge was adjourned on 13 August 2014 to enable the petitioner to arrange for the attendance of the two SPSO witnesses. The petitioner was advised by letter the next day that he had until 25 August to arrange for the attendance of these witnesses, although it was explained that the SPS had no power to compel the attendance of non-SPS witnesses and, if they did attend, the costs would have to be met by the petitioner: see paragraph [20] above. It was also explained in that letter that the evidence of these witnesses would be confined to questions as to the alleged conduct at the ICC hearing on 7 August. (No issue appears to be taken with this aspect of the procedure.)
[72] The argument being advanced in the petition is a little unclear. At statement 14 it is stated that the petitioner’s agents had no funding to pay for the SPSO witnesses and that, while the petitioner was eligible for civil legal aid and civil advice and assistance, those forms of assistance were not available to meet the cost of witnesses attending disciplinary hearings. It is also narrated that the petitioner’s agents sought to secure the attendance of the SPSO witnesses but were unsuccessful and that the SPSO and their staff were unco‑operative. In statement 15, which relates to the continued disciplinary hearing of the first charge on 25 August, it is stated that:
“had the hearing been adjourned the petitioner’s agents could and would have sought to persuade the SPSO witnesses to attend or perhaps to compel their attendance or to obtain their evidence in a letter or affidavit or other form.”
[73] In the petition, the focus is on the failure of the adjudicator further to adjourn the disciplinary hearing on 25 August 2014 on the basis that the petitioner’s agents “could and would have sought to persuade the SPSO witnesses to attend” or would have secured their evidence in some other form.
[74] By the time of the first hearing, however, this issue was approached somewhat differently in the petitioner’s revised note of argument. The argument there presented was as follows:
“24. Prison Rule 113(8) provides ‘... the prisoner may request that a witness be called and this request must be granted by the Governor where the Governor is reasonably satisfied that the evidence the witness is likely to give will be relevant to the determination of the charge.’
- It is unclear what procedure is envisaged by the Prison Rule. The prisoner requests a witness to be called and the Governor grants that request. The contention for the prisoner is that the Governor having granted the request that a witness be called it is incumbent upon the Governor to procure the attendance of that witness.
- As a matter of practicality prisoners are likely to be unable to secure the attendance of witnesses. In the present case the issue involved witnesses from the SPSO but what about the more common situation when prisoners and prison officers are involved? The SPS can clearly procure their attendance but the prisoner may be hard-pressed to do so. The proper interpretation of the scheme of the Rules is that it is for the Governor to procure the attendance – or at least to make efforts to procure the attendance – of witnesses that he has permitted. That did not happen in the present case – so that was a procedural irregularity. (Emphasis added.)
- It is important to note that it is only witnesses who have relevant evidence to give that are permitted to be called. It is clear that the adjudicator was of the view that the SPSO witnesses were likely to give relevant evidence to give as otherwise he would not have permitted them to be called. The petitioner cannot state with certainty what the SPSO witnesses would say – they have not been precognosed on his behalf. They were however present when the petitioner is alleged to have acted disrespectfully. As the petitioner denies acting disrespectfully it can reasonably be surmised that they will be in position to give evidence supporting that contention.
- The respondents took no steps to facilitate the attendance of the SPSO witnesses and they restricted the petitioner’s ability to call those persons as witnesses through the punishment imposed for the breach of discipline ref ED/1236/14. (Emphasis added.)
- The petitioners agents had sought to precognose and secure the attendance of the SPSO witnesses and they were initially reluctant to do so (letters to SPSO of 17 August 2014 and from of 21 August 2014). The expectation however would have been that those witnesses would have co-operated when the position was explained to them (as per HMA v Monson (1893) 21R(J) 5 at 11). Those efforts were ended by the disciplinary hearing taking place.” (Emphasis added.)
The focus in the petitioner’s revised note of argument was on the asserted failure of the SPS to secure the attendance of the SPSO witnesses.
Respondents’ reply
[75] In relation to how matters were put in the petition, the respondents argued that there was no specification of how the petitioner’s agents “could and would” have secured the attendance of these two witnesses. It was never explained in oral submissions how this would have been done, or how these non‑SPS witnesses could have been compelled to attend. There was no mention of an affidavit in any of the documentation placed before the court or in oral submissions. No argument was advanced to the court in support of this aspect of the petitioner’s pleadings. No statements from these witnesses was produced to this court, as they might have done, to demonstrate for example, some material variance between their account and the findings of fact in the determination of the first charge by the adjudicating officer. Again, this is consistent with the petitioner’s approach that no prejudice need be shown. In the absence of this material, the prospect of any prejudice is only hypothetical.
[76] The respondents also criticised the efforts made by the petitioner’s agents. The terms of the letters from the petitioner and his agents are set out in paragraphs [16] and [21] above. The SPSO were not told of the urgency of the request or any timescale within which this was needed. The respondents noted that the petitioner’s agents contented themselves with asking for the two SPSO witnesses to attend. They did not explore any other form in which their evidence might more readily have been secured, e.g. by statement, and which would accord with what is envisaged in terms of the Rules. For whatever reason, the petitioner’s agents demanded what was, as it were, the most onerous means to secure this evidence: by requiring the attendance of the two SPSO witnesses at a disciplinary hearing on an unspecified date. They did not explore less onerous means by which the evidence of these witnesses could be obtained: by precognition over the phone or, indeed, simply by asking each witness to provide a short statement of what they observed and for their comments on the charge in question or on the supporting statement produced. These other means by which the evidence of the two SPSO witnesses could have been secured would have been the least burdensome for these two individuals and would have entailed minimal legal expense on the part of the petitioner. The production of a statement from these witnesses would have been entirely commensurate with the manner of proceeding envisaged within the Rules. The case advanced by the petitioner sought to impose an obligation on the SPS but against a background that the alternative and straightforward measures the petitioner might have taken were not pursued.
Decision on non-attendance of the SPSO witnesses
[77] The submission on behalf of the petitioner has to be assessed against the full background, not acknowledged in the petition and not addressed by the petitioner’s counsel in his oral submissions, that the petitioner had secured an adjournment of some 12 days (between 13 and 25 August 2014) specifically so that he could obtain the evidence of the SPSO witnesses. Accordingly, the challenge focused on the asserted failure of the adjudicator further to adjourn the disciplinary hearing is predicated on an incomplete factual basis. As noted above, at paragraph [19], the petitioner was granted an adjournment in order to seek the attendance of the two SPSO witnesses. The petitioner himself wrote to the SPSO on 9 August and mentioned that his agents would be in touch and might wish to precognose the two witnesses. The petitioner’s agents thereafter wrote to the SPSO. The SPSO’s reply, unhelpful to the petitioner, is noted above at paragraph [23].
[78] It must also be noted that the assertion in paragraph 29 of the petitioner’s revised note of argument (the first passage highlighted in bold) is factually incorrect. So far as appears from the documentation placed before the court, the petitioner’s agents did not seek to precognosce the SPSO witnesses. They confined themselves to requesting that these witnesses attend, no doubt with a view to minimising the legal fees that the petitioner might incur to his agents for their involvement. It should also be noted that no basis was offered to the court at the first hearing to support the “expectation” referred to at the end of paragraph 29 of the revised note of argument (nor was the case there referred to placed before the court). It is surprising that in the 15 months between the events referred to and the first hearing in this petition no steps appear to have been taken to ascertain from the two SPSO witnesses whether they would have been prepared to attend or to provide statements and, if so, what their evidence would have been. The manner in which it is set out at the end of paragraph [29] in the note of argument is speculative, at best.
[79] What then of this newly-contended for obligation on the part of the SPS to ask for or to “facilitate” or “procure” attendance of non-SPS witnesses, as asserted in paragraphs 26 and 28 of the revised note of argument? The petitioner’s counsel did not offer any analysis of the Rules, or of any particular provision of them, to support the assertion made at the end of paragraph 26 of his revised note of argument (and which I have highlighted above). Having regard to the character of the disciplinary procedure and the purpose and terms of the Rules, discussed at paragraph [46] above, there is no discernible basis for the petitioner’s legal argument that the Rules must be interpreted as requiring the SPS to procure or facilitate the attendance of non‑SPS witnesses. Turning to the specific context, as noted in the commentary on the charge forms, and as is apparent from the Rules, the SPS have no power to compel the attendance at an internal disciplinary hearing of a witness who is not their employee. This is stated in terms in the ADJ2 form, quoted above at paragraph [10]. Accordingly, there can be no legitimate expectation to support this contention. Furthermore, the SPSO having refused the request from the petitioner’s agents, it was not explained how a request from the SPS would have been treated differently. The only material before the court, therefore, is suggestive that any request would have been refused in like manner. For the purposes of this argument, the petitioner is not in a position to establish the basic factual basis on which any legal duty might be predicated. So far as the material discloses, the petitioner never disclosed to the SPS that his agents had requested the attendance of the two SPSO witnesses or that the SPSO had refused this. It is symptomatic of the approach taken by the petitioner’s counsel to contend for imposition of certain general legal duties in the abstract but without relating them to the actual facts in the case. As a matter of the facts in this case, once they are considered, it would appear that the petitioner never asked the SPS to assist in the manner in which it is now contended they were under a legal duty to do. In the circumstances of this case, this is an untenable ground of complaint and one which the pleader appears to have been content to advance in disregard of the complete or correct (and readily ascertainable) factual position.
[80] This argument might be tested in another way: did fairness require nothing less than the attendance of two SPSO witnesses in person (the implicit basis of this aspect of the petitioner’s case), or would statements from the two SPSO witnesses have sufficed? In answering this question it may be relevant to consider by whom or for what purpose a witness is called. It may well be the case, if there is a dispute as to what happened or there were to be challenges to credibility, that a prisoner would wish to have the witnesses against him give their evidence orally at the disciplinary hearing so that they could be challenged and cross‑examined. However, that form of challenge is unlikely to be made in respect of witnesses called by the prisoner. This is by reason of the semi-inquisitorial character of the disciplinary hearings. There is no “prosecutor” who would have an interest in challenging the evidence of witnesses called by a prisoner. The role of the adjudicator is more inquisitorial, and is to receive and consider this evidence, together with all other relevant evidence. Even had the SPS been aware at the material time of the SPSO’s refusal of the petitioner’s request, fairness did not require the SPS to do more in relation to the attendance of the two SPSO witnesses.
[81] In the whole circumstances, I refuse to find as a matter of law that any obligation such as contended for in oral submissions arose, and where, on the facts, the petitioner never advised the SPS of the SPSO’s response and, more fundamentally, where other more pragmatic and achievable steps were possible but were not pursued. This ground of challenge fails.
(iii) non-adjournment
[82] At several points the SPS are criticised for failing to grant adjournments (or more properly, having regard to the chronology set out above, further adjournments). For example, at paragraph 30 of the revised note of argument it is argued (albeit not readily foreshadowed in the petition itself) that:
“In the circumstances of [the first charge] no reasonable Governor could have been satisfied that the petitioner had ‘… had sufficient time to prepare his or her case before commencing the disciplinary hearing’ (the test within rule 113(3)). There had been a very limited amount of time available to the petitioner since permission to call the SPSO witnesses had been granted. This petition for judicial review had been presented on the Friday before the Monday hearing, highlighting the difficulties that existed.”
Decision on non‑adjournment
[83] This bears to relate to the first charge. However, the petitioner was granted an adjournment on 13 August 2014 for the purpose of obtaining the evidence of the two SPSO witnesses. He was told by letter the next day that he would have until 25 August to do so. Accordingly, the contention in the second sentence of this paragraph of the petitioner’s revised note of argument does not accord with the facts, insofar as these may be taken from the documents placed before the court. It is difficult to make any sense of the final sentence. Implicit in this whole passage is the assumption that there was some further irregularity or unfairness on the part of the respondents in not further adjourning the disciplinary hearing of 25 August. However, an adjournment is not granted for its own sake or simply because a prisoner requests this. By this point in time the petitioner had had a total of 12 days to consider securing the evidence of the two SPSO witnesses. He had known by 13 August that he had 9 days in which to seek this evidence in one form or another. Having regard to the expedition with which disciplinary proceedings are to be conducted, this was a more than adequate period to enable the petitioner to seek to secure the evidence of the two SPSO witnesses by one means or another.
[84] Against the background I have set out, I find that there was no irregularity or procedural unfairness, as contended for by the petitioner, in refusing to grant a further adjournment for the purpose of securing the attendance of the SPSO witnesses. I address the argument about a further failure to adjourn for legal representation below, at paragraph [105], and which is the subject of the fourth ground of challenge.
Ground 2: Was there any procedurally irregularity by reason of requiring the petitioner’s questions in cross to be put through the adjudicating officer (statement 28)
The petitioner’s counsel’s presentation of this issue
[85] Statement 29 of the petition is in the following terms. (I have highlighted in bold those passages that relate to this ground of challenge.):
“That the procedure adopted at the disciplinary hearing, reference ED/1230/14, dated 25 August 2014 was irregular. Prison Rule 113(3) states that a ‘…Governor must be satisfied that the prisoner has had sufficient time to prepare his or her case before commencing the disciplinary hearing’. Prison Rule 113(7) provides that the adjudicating officer ‘… must … (b) allow the prisoner the opportunity to present his or her case; (c) allow the prisoner the opportunity to call witnesses where permitted to do so under paragraph (8); and (d) … allow the prisoner to cross-examine any other witnesses.’ Prison Rule 113(8) provides ‘… the prisoner may request that a witness be called and this request must be granted by the Governor where the Governor is reasonably satisfied that the evidence the witness is likely to give will be relevant to the determination of the charge.’ The petitioner was not permitted to cross-examine the witnesses at the disciplinary hearing. Rather his questions were put to witnesses through the adjudicating officer. That procedure did not satisfy the terms of Prison Rule 113(7). Separatim, the petitioner requested that witnesses from the SPSO be called as condescended upon above. The adjudicating officer purported to allow that request but attached conditions to it. There is no provision for an officer to attach conditions to calling a witness. In terms of the scheme of the Rules the petitioner requested those witnesses to be called and the Governor granted the request for those witnesses to be called. It was the responsibility of the Governor at the hearing to call witnesses that had been permitted by him to be called. Esto it was not the responsibility of the Governor in any event took no steps to facilitate their attendance. Separatim, as condescended upon above, the respondents restricted the petitioner’s ability to call those persons as witnesses through the punishment imposed for the breach of discipline ref ED/1236/14. In circumstances no reasonable Governor could have been satisfied that the petitioner had ‘… had sufficient time to prepare his or her case before commencing the disciplinary hearing’. In all the circumstances the procedure adopted at the hearing was irregular. In all the circumstances the procedure adopted at the hearing was unfair. Admitted that the case was adjourned until the 12th August 2014 at the petitioner’s request. Admitted that the hearing was reconvened on the 12th August 2014, that the matter was allocated to be determined by Mr Marshall and that it was adjourned to the following day. Admitted that the petitioner had sent written submission to Scottish Prison Service Headquarters and the hearing on 13 the August 2014 was adjourned to obtain a copy from Headquarters. Admitted that the hearing was reconvened and then adjourned. Admitted that on the 14th August 2014 the petitioner was written to by the respondents giving him 6 working days to arrange for his witnesses to attend and 4 working days to provide reasons for further witnesses. Admitted that on the 25th August 2014 the hearing was reconvened at 10.25 hours. Admitted that the petitioner requested a further adjournment to precognosce and call as witnesses staff from the SPSO. Admitted that that request was refused. Admitted that at each hearing the petitioner requested that the hearing be videotaped and these requests were refused. Admitted that the petitioner had access to his wages account from which he could have purchased stamps”.
This issue is also referred to at paragraphs [22] and [23] in the petitioner’s revised note of argument, as follows:
“[22] Prison Rule 113(7) provides:
‘At the disciplinary hearing, the Governor must—
(c) allow the prisoner the opportunity to call witnesses where permitted to do so... and
(d) subject to (provisions that are not relevant), allow the prisoner to cross-examine any other (other witnesses.’
[23] In both disciplinary hearings the petitioner was not permitted to ask witnesses questions. Questions were conveyed to the adjudicator who then asked questions. That is not the procedure provided for in the Rules”
[86] It was argued before me that, as there was no express provision in the Rules enabling the adjudicator to ask that questions by a prisoner be put through him, the procedure adopted was irregular. For that reason, it was argued, it was also unfair. No separate argument or factor was identified as to why any irregularity (as asserted) resulted in unfairness. Again, this may be because the petitioner’s contention was that the irregularity was such that “there is no need to go on to consider the separate issue of fairness”: paragraph 19 of the petitioner’s revised note of argument.
Clarification of the procedure actually followed for questions put by the petitioner
[87] In response to a question from the court, the petitioner’s counsel accepted that the petitioner was able to put every question he wished to put. He had not been stopped from asking any question. The impression left was of the petitioner asking a question, and the adjudicating officer repeating this to the witness, with the answer being repeated back in reverse order. While cumbersome, it might well be that such a procedure minimises confrontational aspects of questions or might be of assistance to less articulate prisoners. Such a procedure might have the potential to become problematic if that process resulted in the evidence elicited being materially influenced or diluted. However, that was not the case here. In respect of this matter, the respondents clarified what had taken place. The impression given by the petitioner’s counsel’s submissions was not correct. No question had been restated by the adjudicator: As it was explained by the respondents:
“The petitioner did cross-examine witnesses, he did so by directing – as requested – his questions in cross examination through the chair. In particular the petitioner directed his questions to the chair, those questions were heard by the witness, answered by them, were not repeated by the chair and thus not subject to dilution, modification or interpretation.”
The petitioner’s counsel did not contradict or challenge this as factually incorrect or incomplete in any respect.
Respondents’ reply
[88] The respondents argued that the procedure followed was consistent with the Guidance and which was available to prisoners before taking part in any disciplinary hearing: see the Guidance quoted at paragraph [53] above. Rule 113 should not be read in isolation but alongside the policy giving it practical content within a prison disciplinary environment. This is because, it was argued, “in matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance”: per Lord Mance in Bloomsbury International Limited v Department for Environment, Food and Rural Affairs [2011] UKSC 25 at 10. What was provided for in the Guidance did not run contrary to the requirement of rule 113 which has, as its purpose, a substantive safeguard to permit prisoners accused of infractions to challenge witnesses against them. The ability of the petitioner to do so was unaffected by the procedure adopted. The procedure adopted did not run contrary to the rule as a matter of substance or form. In any event, an adjudicator presiding over a disciplinary hearing was entitled to regulate the procedure before him or her in this way.
[89] As a fall‑back the respondents argued that if prison rule 113(7) had not been strictly or formally complied with, there had been substantive compliance having regard to the context. The court should not reduce a decision if there has been a failure to follow a rule that makes no substantive difference. In support of this reference was made to the observation of Lord Justice Hughes in R (on the application of Garland) v Secretary of State for Justice [2011] EWCA Civ 1335 [2012] WLR 1879 at paragraph [25], where he said:
“I conclude that Parliament did not intend that any non-compliance with this rule, however minimal and however devoid of prejudicial effect, should render invalid everything which follows. That is not to say that the prison authorities are able to treat the rule as an empty vessel. If a charge is laid outside the 48-hour period it is at peril of being struck down, by means of the Governor or adjudicator dismissing it, or, in the last resort, by the court quashing any adjudication. Those consequences should certainly follow if the prisoner has been occasioned any prejudice by the delay. They may also follow if there is simply no excuse for unwarranted delay. These are intended to be summary and largely inquisitorial proceedings, and it is clearly intended that they should be concluded speedily.”
[90] The question the court is required to answer in addressing a breach of procedure (though none was conceded here) is whether the breach is material and whether failure to comply with the rule should vitiate the entirety of the decision having regard to the aim of the process and the purpose of the provision: R v Soneji [2006] 1 AC 340. It was plain, it was argued, that the purpose of the provision had been achieved and the alleged failure did not justify reduction of the determination of the charges. The application of prison rule 113(7), by channeling questions through the adjudicating officer, did not give rise to prejudice or unfairness.
Decision on ground 2
[91] I do not accept that the procedure followed in the manner of questioning was irregular or was in breach of rule 113(7), as contended by the petitioner. It was accepted by the petitioner’s counsel that the petitioner had not been precluded in any way from asking any questions in cross‑examination. On the facts, once clarified, there was no question of dilution or modification of the evidence the petitioner sought to be elicited. There is no evidence to suggest that the petitioner was deflected in any way in his cross‑examination. The petitioner’s counsel conceded that this ground of challenge was “formal”. He nonetheless did not seek to demonstrate that this “formal” breach, so his argument went, resulted in any unfairness or would have had led to any practical difference at the hearing. I have no hesitation in preferring the arguments advanced by the respondents.
[92] This ground of challenge fails.
Ground 3: Whether rule 113(9) of the Rules was ultra vires
The petitioner’s argument
[93] Rule 113(9) provides as follows:
“The Governor may, on the application of a prisoner, permit the prisoner to be represented at the hearing by a legal adviser where in exceptional circumstances the Governor considers such representation is necessary or desirable.”
[94] This aspect of the petitioner’s case is set out in statements 26 and 27 of the petition, which are in the following terms:
“26. That fairness in terms of the ECHR may require a prisoner be legally represented at a disciplinary hearing. As condescended upon above, articles 6, 8 and article 1, protocol 1 of the ECHR require a fair procedure. Accordingly the Prison Rules should be interpreted as permitting legal representation if that is required for a fair hearing notwithstanding the requirement for exceptional circumstances in the Prison Rules. Esto the test of exceptional circumstances cannot be read to permit legal representation when necessary for a fair hearing then the Prison Rules are to that extent a breach of the petitioners rights and so unlawful. As they are unlawful they should be reduced to the extent necessary to remedy that unfairness.
27. That the test for legal representation at disciplinary hearing is unlawful. A test of exceptional circumstances in the present case is an interference with the petitioners convention rights. Such a test does not permit the necessary proportionality assessment to be undertaken and is so unlawful. ‘Exceptionality’ is too high a test to afford a proper balanceto be struck between the competing rights involved. Dickson v. the United Kingdom (2008) 46 EHRR 41, paragraph 82. Moreover, ‘exceptional circumstances’ is not a proper legal test. (G v Mental Health Tribunal for Scotland 2014 SLT 247, paragraph 54). Without reference to a criterion to gauge exceptionality the test is lacking legal precision or certainty. The provision does not indicate with sufficient clarity the scope of the discretion conferred on the respondents and the manner of its exercise. It does not provide sufficient safeguards against arbitrariness. In the absence of legal precision or certainty the interference with the petitioner’s rights lacks the necessary quality of law required by the ECHR and so it unlawful (Reference is made to Gillan v the United Kingdom (2010) 50 EHRR 45, paragraphs 76-87). The Prison Rules are secondary legislation signed by a member of the Scottish Ministers. On the hypothesis that the Prison Rules are a breach of the petitioner’s convention rights they are ultra vires the Scottish Ministers. If the Rules are ultra vires they are not law. If the Rules are not law they should be reduced to the extent necessary to remedy the breach of the convention.” (Emphasis added.)
[95] This was amplified in the petitioner’s revised note of argument, as follows:
“12. Legal representation requires to be granted if fairness requires it - as much can be seen in R (Tarrant) v Secretary of State for the Home Department 1985 QB 581.
Prison Rule
13. The test for legal representation set out in the Rules at orderly room hearings is:
‘113 (9) The Governor may, on the application of a prisoner, permit the prisoner to be represented at the hearing by a legal adviser where in exceptional circumstances the Governor considers such representation is necessary or desirable.’
Prison Rule: fairness
14. As a matter of law that should be interpreted to mean that representation will be permitted if fairness requires it. The test that is provided for in the Prison Rules is not the same as one of fairness but it should be and the Rules should be interpreted in that way (a declarator to that effect is sought). Fairness requires that as a matter both of domestic and ECHR law.
15. If the test cannot be interpreted to be a test of fairness then the Prison Rule is fundamentally flawed and should be partially reduced either at common law (as in R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219) or in terms of the ECHR (as being incompatible with the petitioner's convention rights that mandate fairness).”
[96] Trying to put the matter shortly, the petitioner argued that the test for legal representation in rule 113(9) was that of “exceptionality”. Under reference to G v Mental Health Tribunal for Scotland 2014 SLT 247 (at paragraph [54]), it was argued that ”exceptional circumstances” is not a proper legal test. In that case, Lord Reed had stated that “…’exceptional circumstances’ cannot be a legal test: circumstances can be described as exceptional only by reference to a criterion, rather than exceptionality being a criterion in itself”. Accordingly, rule 113(9) was contrary to law and, to that extent, should be reduced. It was also contended that a test of exceptional circumstances in the present case was an interference with the petitioner’s Convention Rights. Such a test, it was argued, did not permit the necessary proportionality assessment to be undertaken and so is unlawful. “Exceptionality” was said to be too high a test to afford a proper balance to be struck between the competing rights involved: Dickson v the United Kingdom (2008) 46 EHRR 41, paragraph 82.
[97] Further, it was argued that in the absence of a criterion to gauge “exceptionality”, the test in rule 113(9) was lacking in legal precision or certainty. Rule 113(9) did not indicate with sufficient clarity the scope of the discretion conferred on the respondents and the manner of its exercise. It did not provide sufficient safeguards against arbitrariness. In the absence of legal precision or certainty the interference with the petitioner's rights lacks the necessary quality of law required by the ECHR and so is unlawful: Gillan v the United Kingdom (2010) 50 EHRR 45, at paragraphs 76‑87. It was also argued that the qualification that the Governor should consider it “necessary or desirable” provided no greater precision or certainty.
[98] If an exceptionality test is objectionable in terms of the ECHR, then the prison rule should be partially reduced in order to remedy that difficulty.
The respondents’ reply
[99] In responding to this argument the respondents pointed out that, the test in rule 113(9) was whether it is “necessary or desirable” to allow legal representation at a disciplinary hearing. Looking at the matter generally, it was argued that the rule is not unlawful. Reference was made to G v Mental Health Tribunal 2014 SLT 247 at 54. In relation to the petitioner’s reliance on Dickson, it appeared that the petitioner sought to establish the applicability of article 6 in order to establish a narrow proposition ‑ said to arise from Dickson ‑ that a test of exceptionality is inimical to conducting a proportionality exercise. However, it was argued that Dickson did not establish such a proposition. It had to be read in its context: see paragraph [13] thereof.
[100] Having regard to the overall scheme of prison discipline (and notably the absence of a punishment that involves an extension of detention), it was argued that it will be the exception that representation will be necessary or desirable: see Lord Goff in Reg v Maze Visitors Ex. P. Hone (House of Lords) [1988] 1 AC 379 (“Hone”) at 392. Having observed that the jurisdiction of a prison Governor was of a “summary nature, and should properly be exercised with great expedition”, Lord Goff stated that: ‘In the nature of things, it is difficult to imagine that the Rules of natural justice would ever require legal representation before the Governor.” The petitioner was therefore misconceived in his proposition that the test in rule 113(9) is one of “exceptionality”.
[101] In any event, whether legal representation was “necessary or desirable” was plainly the test that was actually applied in the resolution of the petitioner’s case having regard to the lack of legal or other complexity inherent in the charge: see the record of inquiry into the second charge (no 7/6 of process at continuation sheet page 3, quoted above at paragraph [34]). It is apparent from a fair reading of that passage that the decision of the adjudicating officer was not periled on a test of exceptionality. In these circumstances, it was argued, the petitioner’s vires argument was academic and had no bearing on the actual determination about legal representation made in this case.
Decision on ground 3
[102] On the material before me, I accept that the respondents did not apply a test of “exceptionality”. I begin by noting that the commentary to question 6 of the “due process” form (ADJ2, quoted above, at paragraph [12]) states that the Governor must be satisfied that representation by a legal advisor is “necessary or desirable”. This directs the decision-taker to this test, not one of “exceptionality”. Furthermore, on a fair reading of the exchange between the petitioner and the adjudicator conducting the reconvened hearing on 11 August 2014 on the second charge, it is also clear that the refusal of the petitioner’s request for legal representation was not based on any test of “exceptionality”. Nor was this done peremptorily. The adjudicator asked the petitioner a number of times his reasons for this request and, in particular, whether there was any point of law or complexity in question. Apart from the petitioner stating that the outcome could impact on his management and provision, which the adjudicator accepted, the petitioner was unable to state any point of law or complexity. In the light of those exchanges, and in the context where the commentary to the “due process” questions gone through on each occasion directed the adjudicator to the correct test, I reject the contention that the SPS applied a test of exceptionality in their determination of this request.
[103] In the light of that finding, the argument that rule 113(9) of the Rules contained a test of “exceptionality” and was ultra vires or contravened any unspecified Convention Right of the petitioner is academic. On the facts of the case, that was not the approach applied. In any event, I accept the respondents’ submissions as to the proper interpretation of rule 113(9).
[104] Rule 113(9) provides that:
“The Governor may, on the application of a prisoner, permit the prisoner to be represented at the hearing by a legal adviser where in exceptional circumstances the Governor considers such representation is necessary or desirable.”
I start by considering the language of rule 113(9): it expressly directs legal representation may be permitted upon a consideration of whether “such representation is necessary or desirable”. It does not impose a test of exceptionality. Construing this rule in the context of the Rules, the phrase “in exceptional circumstances” is to be read as a reference to the likelihood of the circumstances occurring and making representation “necessary or desirable”. As noted above, the Rules are designed for the expeditious determination of charges of indiscipline. The procedure the Rules set out enables the practical participation of the prisoner. The prisoner’s effective participation is further facilitated by the “due process” questions gone through at each hearing. In the vast majority of cases, any determination of a factual matter is likely to be a short, sharp issue. This is the import of the observation by Lord Goff in Hone, cited above, at paragraph [100]. The age of that case does not diminish the force of those observations. These features may well mean that it will only be in the rare or exceptional case that legal representation will be either necessary or desirable. This is not the same as imposing a test of “exceptionality”. As the petitioner’s further arguments based on the Strasbourg jurisprudence were predicated on an interpretation of rule 113(9) that I have rejected, it is not necessary to address those cases. In any event, the petitioner has not advanced a relevant basis to engage any Convention Right. For these reasons, the petitioner’s vires argument is misconceived. This ground of the petitioner’s challenge fails.
Ground of challenge 4: Whether refusal of adjournment for legal representation was unfair
[105] As noted above, to the extent that the Rules apply a test of “exceptionality” the petitioner challenges the vires of the Rules. I have already determined that issue. While the petitioner appears separately to argue that it was procedurally unfair not to be afforded legal representation (or, more accurately, not to be afforded a further adjournment for that purpose), the averments of these are bound up with the vires challenge. Statements 26 and 27 of the petition have been set out above. In statement 25 of the petition the following is advanced:
“That fairness in terms of the domestic law may require a prisoner be legally represented at a disciplinary hearing. If legal representation is required for a fair hearing then it should be permitted notwithstanding the requirement for exceptional circumstances in the Prison Rules. The Prison Rules should be so interpreted as a matter of domestic law. Esto the test of exceptional circumstances cannot be read to permit legal representation when necessary for a fair hearing then the Prison Rules are inherently flawed. In those circumstances the Prison Rules embody a procedural unfairness and should be reduced to the extent necessary to remedy that unfairness. In those circumstances there would be a systemic risk of unfairness. Reference is made to R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219. Admitted that there is no right to representation in terms of the prison rules. The authorities referred to by the respondents are referred to for their full terms beyond which no admission is made. Quoad ultra the respondents’ answers are denied save insofar as coinciding herewith.” (Emphasis added.)
[106] In the revised note of argument this argument was first framed in terms of several arguments available under the ECHR, though it is accepted that this “may not add a great deal ultimately”: paragraph 8 of the revised note of argument. There then follows the vires challenge to rule 113(9) of the Rules on the basis that it entails an “exceptionality” test. At a later point, the petitioner returns to the unfairness argument in his revised note of argument. In particular, at paragraphs 45ff the following is set out:
“Legal representation: disrespectful conduct charge (ref ED/1230/14)
45. The proper extent of the charge against the petitioner and any defence he may have was not clear.
46. It was not clear what the mens rea of the offence was.
47. It was not clear what amounted to ‘disrespect’.
48. It was not clear if a defence based upon qualified privilege, article 10 of the ECHR or some other basis is available to the petitioner. It would clearly have a ‘chilling’ effect on the prisons complaints process if prisoners were to be liable for disrespectful conduct for statements made within that process.
49. The petitioner was entitled to fair notice of the conduct alleged against him. The charge was lacking in specification (production 7/1). The charge against the petitioner did not specify the manner in which the petitioner was disrespectful. The degree of specification necessary in a disciplinary charge will vary depending upon the circumstances of the case.
50. In the present case the petitioner was entitled to express concern about [KB]. He sought to draw the ICC’s attention to the recent decision from the SPSO.
51. The respondents were called upon to produce any ‘standards of behaviour’ documents that have been promulgated by them and have failed to do so. (Paragraph 32 of the petition)
52. The issues involved were complex and merited the involvement of a legal representative.
Legal representation: threatening conduct charge (ref ED/1236/14)
53. The petitioner was entitled to fair notice of the conduct alleged against him. The charge was lacking in specification (production 7/4).
54. There was a clear personal involvement between the petitioner and the prison officers involved. Such personal involvement would impair the petitioner’s ability to effectively present his case.
55. The content of the allegations and defence were such that legal representation was appropriate – as in Airey v Ireland (1980) 2 EHRR 305, paragraph 24
56. A finding of breach of discipline for threatening conduct is likely to impact in a particularly adverse manner upon the petitioner as the crime for which he is presently serving a sentence is murder”.
[107] In respect of the first charge, it is contended that the issues were “complex”. The petitioner’s counsel was content to leave this as a matter of assertion. He did not seek to develop this point, or to give any explanation as to what, precisely, in the first charge was “complex”. (At the first hearing, nothing was made of the non-production of any “standards” as referred to in paragraph 51 of the note of argument.)
[108] While reference was made in the petition to the case of R (Refuge Legal Centre) that case was not referred to in submissions. The only other case the petitioner’s counsel referred to was that of Airey v Ireland (1980) 2 EHRR 305. While Airey v Ireland was referred to in oral submissions, it was not for those passages in which the Strasbourg court explained why (in the circumstances of that case) the absence of legal representation was a breach of article 6. The only reference was to an observation of the court, at paragraph 24, regarding the stress that a party litigant in a divorce matter might face and the “emotional involvement” between the parties that might hamper a party’s objectivity. When pressed as to whether this actually was the petitioner’s position, that he had felt impaired by reason of the “personal involvement” between him and the prison officer (KB), the petitioner’s counsel accepted that he had no precognition from the petitioner to that effect and was not aware of any such concern on the part of the petitioner. At best, this was a hypothetical concern but not one for which there was any factual basis available to the pleader.
[109] In his oral submissions the petitioner’s counsel did not really expand upon the arguments contained in his revised note of argument, and which I have quoted above. He cited no other cases in support of this ground of challenge.
Reply for respondents
[110] In reply, the respondents contended that the petitioner’s claim that denial of legal representation was unfair is misconceived. The petitioner’s argument failed to have regard to the context. The context was the conduct of summary administrative disciplinary hearings in prisons, and which eschewed the formalities of a court. Further, the disciplinary charges could only give rise to the limited and minor punishments described in prison rule 114. Correspondingly with the relatively minor character of the punishments, discipline should be resolved expeditiously. Reference was made to the observation of Lord Goff in Reg v Maze Visitors ex. p. Hone (House of Lords) [1988] 1 AC 379 at 392 B, and which I have set out above at paragraph [100], above.
[111] Turning to the Rules, it was argued under reference to rule 112(2)(b) (namely, that a charge must be brought within 48 hours of the discovery of the charge) and to rule 133 (that the charge must be heard the next day), that there was built into the system of disciplinary procedure a clear desire that the process will be resolved very quickly and within two to three days. The desirability for expeditious resolution of disciplinary matters was recognised in domestic cases (see, e.g., Tangney v Governor of HMP Elmley [2005] HRLR 36 at paragraph 15) and by the Strasbourg court (see, e.g. Campbell and Fell v UK (1985) 7 EHRR 165 at paragraph 69). The disciplinary process brought into focus in this petition should be considered in this context.
[112] The respondents acknowledged that there may be circumstances where legal representation may be necessary or desirable. Reference was made to the observations of Lord Woolf CJ at paragraph 56 in R (on the application of Al-Hasan) v Secretary of State for the Home Department [2002] 1WLR 545, and quoted with approval by Lord Justice Scott Baker in Tangney v The Governor of HMP Elmley and Others [2005] HRLR 1220 at paragraph 43:
“…56 It is recognised that a prisoner can required to be legally advised and in a limited category of cases to be represented ( Ex p Tarrant [1985] QB 251 ). The degree of protection which the courts will require for the prisoner increases with the gravity of the offence and the complexity of the proceedings. However, the court has to recognise the need within a prison environment to maintain discipline by having a reasonably expeditious process for dealing with disciplinary offences. In the case of both sets of the appeals we have the impression that the proceedings were being conducted generally in a fair manner and if the court is to interfere with the decisions which were reached on the grounds of fairness, this will depend on the specific criticisms made of the adjudication process as applied to the facts of the particular appeal.”
However, subject to rule 113(9), there was no right to representation before an adjudicator. Reference was made to R v Secretary of State for the Home Department ex parte Tarrant [1984] 2 WLR 613 at 285. In Tarrant the court considered factors that may inform the discretionary decision to allow representation in the English context. It identified the expedition of proceedings and legal complexity to be important factors to be weighed when determining whether representation was appropriate. This aspect of Tarrant had been the subject of subsequent favourable judicial comment in R v Maze Visitors ex p Hone, cit. supra.
[113] In the context of summary disciplinary charges that cannot give rise to an extension of detention, it was argued that it was difficult to imagine that fairness, or the rules of natural justice, would ever require legal representation. For that reason, it was accurate to describe the provision of representation for prisoners before a disciplinary hearing as the exception, having regard to the range of disposals available to the adjudicator. In support of this, reference was made to Lord Goff in Hone (at page 392B-G), where he stated:
“Each, both Governor and board of visitors, is exercising a disciplinary jurisdiction; and, as the Rules of 1982 clearly demonstrate, each may do so in respect of offences against discipline which could in law constitute criminal offences. Each must also be bound by the Rules of natural justice. The difference between them is not so much a legal as a practical difference. The jurisdiction exercised by the Governor is of a more summary nature, and should properly be exercised with great expedition; furthermore the punishments which he can award are limited to those set out in rule 32 of the Rules of 1982, though he can refer the matter to the Secretary of State (and, through him, to a board of visitors) under rule 33(1)(e) if he considers that it may be desirable that a more severe punishment should be awarded. In the nature of things, it is difficult to imagine that the Rules of natural justice would ever require legal representation before the Governor. But though the Rules of natural justice may require legal representation before a board of visitors, I can see no basis for Mr. Hill's submission that they should do so in every case as of right. Everything must depend on the circumstances of the particular case, as is amply demonstrated by the circumstances so carefully listed by Webster J. in Reg. v. Secretary of State for the Home Department, Ex parte Tarrant [1985] Q.B. 251 as matters which boards of visitors should take into account. But it is easy to envisage circumstances in which the Rules of natural justice do not call for representation, even though the disciplinary charge relates to a matter which constitutes in law a crime, as may well happen in the case of a simple assault where no question of law arises, and where the prisoner charged is capable of presenting his own case. To hold otherwise would result in wholly unnecessary delays in many cases, to the detriment of all concerned including the prisoner charged, and to wholly unnecessary waste of time and money, contrary to the public interest. Indeed, to hold otherwise would not only cause injustice to prisoners; it would also lead to an adventitious distinction being drawn between disciplinary offences which happen also to be crimes and those which happen not to be so, for the punishments liable to be imposed do not depend upon any such distinction.”
[114] Turning to the facts of this case, it was pointed out that the petitioner was given an opportunity to obtain legal advice. That was a benefit extended to him. The petitioner did not, even with the benefit of that legal advice, identify any legal complexity requiring legal representation. The charges were not legally complex. The petitioner was familiar and deft at the process of internal complaints. He was literate and authored detailed and complex written submissions: reference was made to his submissions at 6/2, 6/3, 6/4 and 6/5 of process (set out in paragraphs [8], [16], [18] and [33], above). He had the ability to understand the charges and to respond to them. Both charges related to minor incidents of prison discipline and were straightforward. They fall within the category identified by Lord Goff (such as a simple assault) not requiring legal representation.
Decision on ground 4
[115] At heart, on this issue, the principal proposition advanced on behalf of the petitioner was as follows: if fairness required it, legal representation should be allowed. There was no development of that proposition by reference to the case-law or to the circumstances obtaining (as disclosed in the documentation). The argument on behalf of the petitioner never extended beyond an assertion that certain features were “unfair”. There was no attempt to relate that in any meaningful way to the circumstances of the case or to explain what features rendered it “unfair” for legal representation to be denied. Indeed, the principal proposition was expressed at such a level of generality as to be without real content. It was also advanced in apparent disregard of the many observations in the case-law that any assessment of unfairness is fact sensitive. For example, in Hone, a case which specifically addressed whether there had been a breach of natural justice arising from the denial of legal representation to prisoners appearing before a board of visitors on a disciplinary charge, Lord Goff stated that:
“Everything must depend on the circumstances of the particular case, as is amply demonstrated by the circumstances so carefully listed by Webster J in Reg. v Secretary of State for the Home Department, Ex. p. Tarrant [1985 QB 215”.
In Tarrant, one of the arguments Webster J considered was whether the prison authorities had a discretion to allow legal representation. In holding that they did, he listed, non‑exhaustively, the factors that would be likely to inform this discretion. These factors (“the Tarrant factors”) included: (1) the seriousness of the charge and the potential penalty; (2) whether any points of law are likely to arise; (3) the capacity of a particular prisoner to present his own case; (4) procedural difficulties (one instance was the possible ineffectiveness of cross‑examination); (5) the need for reasonable speed in making an adjudication; and (6) the need for fairness as between prisoners and as between prisoners and prison officers. Given Lord Goff’s commendation of the Tarrant factors, I turn to consider the application of those factors to the circumstances of this case.
[116] In relation to (1) of the Tarrant factors, the charges were at the lowest level of conduct constituting misconduct and the penalties imposed were minor. The petitioner’s counsel did not engage with the Tarrant factors or frame his argument in relation to them. However, there is one matter that might nonetheless be relevant to this factor. This concerned what is stated toward the end of statement 13 of the petition. The substance of this is also repeated at paragraphs 38 to 40 of the revised note of argument. It is explained that any disciplinary finding will be recorded in the petitioner’s prison record. Regard could be had to such a finding by the Parole Board or in any psychological risk assessment. This could affect the petitioner’s progression through the prison estate. While this might be the case in respect of any prisoner whose detention might be susceptible to consideration by the Parole Board, it was also explained that the petitioner was subject to Integrated Case Management (“ICM”) ‑ as, indeed, were all life prisoners. At an ICM case conference on 17 June 2014, it was concluded that the petitioner should remain “report free”.
[117] In their reply, the respondents explained that the stipulation was that the petitioner remain report free for the three months prior to the ICM meeting at which the petitioner might be considered for progression to less secure conditions. The petitioner was not eligible to be considered before December 2015. Accordingly, he simply required to be “report free” between September and December 2015. The determinations of the charges would be of little significance by the time the petitioner was eligible for progression. More fundamentally, however, the respondents argued that the prospects for progression were limited having regard to the fact that the petitioner refuses to admit his guilt for the index offences, he does not co‑operate by taking part in courses designed to prepare him for progression and he does not participate in ICM meetings. Accordingly, any finding in respect of the two charges pales into insignificance.
[118] I accept the respondents’ explanation of how the petitioner might progress through the prison system. The petitioner’s counsel did not demur from this further explanation. Notwithstanding the petitioner’s concern about the apprehended impact of the findings of breaches of discipline in terms of the charges, I accept the respondents’ argument that these are insignificant in their potential impact, having regard to the other matters to which the prison authorities will have regard when they come to consider the petitioner’s progress. The outcome of the two charges does not, in my view, weigh heavily for the purposes of the first of the Tarrant factors.
[119] In relation to (2) of the Tarrant factors, the charges were straightforward and no issue of law arose. In any event, by the time of the adjourned discipline hearing of the 18 August on the second charge, the petitioner had already been granted an adjournment (at the disciplinary hearing on 11 August) in order to take legal advice. No complaint about lack of legal representation is made in relation to the first charge. In any event, at the time when those proceedings were adjourned (on 13 August, for 12 days) the petitioner had just secured an adjournment of the proceedings in the second charge. While that was ostensibly in the context of one charge, nothing would have precluded the petitioner from using that opportunity to take any further advice in relation to the other charge. As noted above, the petitioner’s counsel confirmed that the petitioner did take legal advice when afforded the opportunity to do so. Having done so, the petitioner did not at the reconvened disciplinary hearing identify any legal complexity arising in relation to the charges. (Nor, indeed, did the petitioner’s counsel.) In relation to number (3) of the Tarrant factors, I accept the respondents’ submission that the petitioner is intelligent and articulate. The petitioner does author cogent submissions, as is apparent from those quoted in this opinion. All of these features militate in favour of factor (5), being the need for expedition in the disposal of disciplinary charges.
[120] It is in the context of factor (4), being procedural difficulties, that any inadequate specification of the charges might fall to be considered. In respect of both charges, it was again asserted that these charges lacked adequate specification but this was now prayed in aid in support of the argument about the need for legal representation. (See paragraphs 47 and 49 of the petitioner’s revised note of argument in respect of the first charge and paragraphs 53 in respect of the second, set out in paragraph [106] above). As I have held that the charges (especially read together with the supporting statements) provided more than adequate specification, the services of a lawyer would not be needed to assist on that issue. In the event I am wrong on that point, concern about the lack of adequate specification is something that the petitioner was well able to articulate - and indeed, did, in his written submission - and to have asked for further clarification at the hearing. Indeed, a consideration of the submissions drafted by the petitioner, and which I have set out at paragraph [17] above, discloses that the petitioner is articulate and well able to identify the points he wishes to advance, and to advance them concisely and cogently. Certainly, there was no telling augmentation of this ground of challenge (of inadequate specification) in the petition, in the revised note of argument or by counsel in the oral submissions before me.
[121] Another matter potentially relevant to factor (4) of the Tarrant factors is the issue about cross-examination. In Tarrant, the manner in which the chairman presiding over the disciplinary hearing controlled the cross examination by the prisoner caused concern. In that case it was found that the chairman intervened to such an extent that he did not allow the prisoner concerned a fair opportunity to question the officer. For the reasons already explained, in determining ground 2, on the facts of this case there is no substance to this complaint considered as a free-standing complaint. Accordingly, it adds little as part of any argument that fairness required that the petitioner be afforded legal representation at either or both of the hearings on the first and second charges.
[122] The reference to “qualified privilege” at paragraph 48 of the petitioner’s revised note of argument is inexplicable and was advanced on the basis that the petitioner’s freedom of expression was being curtailed in defence to a charge in a disciplinary hearing. However, as noted above, the events that become the subject-matter of the first charge are alleged to have occurred in the context of an ICC hearing to hear the petitioner’s complaint. They were not disciplinary proceedings against him. The reference to qualified privilege is irrelevant. In respect of the assertion at paragraph [50] of the note of argument, that the petitioner was entitled to “express concerns about [KB]” this appears to disregard the finding of the adjudicator. It was principally the manner in which the petitioner conducted himself that was the gravamen of the finding against him.
[123] Having regard to the relatively minor nature of each of the charges (even assuming regard may be had to the findings of indiscipline as part of the petitioner’s prison record), the straightforward character of the subject-matter of the allegations, the provision to the petitioner of the supporting material in advance of the hearings, and to the prolonged procedure that preceded the hearings at which each disciplinary charge was determined (and which included adjournments during which the petitioner could and did take legal advice), I do not regard the decision not to grant a further adjournment for the purpose of the petitioner seeking legal representation as constituting unfairness in any relevant sense. There was no unfairness arising from the fact that the petitioner had no legal representation at the disciplinary hearings into the two charges. This ground of challenge fails.
Ground of challenge 5: the disciplinary finding of guilt relating to the second charge is wrong in law; the petitioner’s behaviour not constituting threatening conduct
The petitioner’s position
[124] This ground of challenge is directed only to the second charge. In contrast to the other grounds, which relate to procedural matters or raises an issue of vires, this ground seeks to challenge the merits of the determination. In particular, in statement 39 of the petition it is contended that the SPS erred in law in determining that the charge had been established beyond reasonable doubt. Statement 39 is in the following terms:
“39. That the disciplinary hearing on 18 August 2014, reference ED/1236/14, erred in law in determining that the charge against the petitioner had been established beyond reasonable doubt. The reasons for that decision disclose that the petitioner ‘threw or slid papers across the table’. Even if the petitioner had been told not to do so, sliding papers across a table is not threatening conduct. The reasons further indicate that in taking into account whether the A threat to take legal action is not ‘threatening’ conduct within the terms of the Prison Rules. The adjudicating officer indicates that the petitioner ‘…acted in a threatening way by rising from his chair (without permission)…’ Rising from a chair, even without permission does not amount to threatening behaviour. The allegation that the petitioner rose from his seat was not one that was within the charging officer’s report and was not one spoken to by any other witness. There was no indication prior to the hearing that it was alleged that the petitioner had risen from his seat. There was no suggestion prior to the hearing that the petitioner had lunged at anyone. The facts apparently accepted by the hearing were insufficient in law to justify a finding. The respondents averments in answer are denied save insofar as coinciding herewith.” (Emphasis added).
[125] Beyond an assertion that the specific actions could never amount to threatening conduct (highlighted in bold), the submission was not further developed and no reference was made to any cases.
The respondents’ reply
[126] The respondents’ began by pointing out that an adjudicator’s decision, that the petitioner’s behaviour was threatening for the purpose of rule 110 and paragraph 1(3) of the schedule, is primarily a matter of judgment, within the exclusive province of the decision -maker who saw and heard the witnesses. Such an assessment is challengeable on rationality grounds. Reference was made to the observation of Lord Hoffman in Pigloswa v Piglowska 1999 1 WLR 1360, where he stated (at page 1372):
“First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc. v. Medeva Plc. [1997] R.P.C. 1 , 45:
‘The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.’
The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself. The reason why I have taken some time to deal with the Court of Appeal's assertion that the judge did not realise that she was entitled to exercise her own discretion is that I think it illustrates the dangers of this approach. The same is true of the claim that the district judge ‘wholly failed’ to carry out the statutory exercise of ascertaining the husband's needs.”
[127] The petitioner’s challenge was essentially a complaint about the weight or assessment of the evidence. However, the grounds for judicial review of that form of decision-taking are limited. Subject to irrationality or Wednesbury grounds (where it can be shown that no reasonable adjudicator properly directing himself could have reached such a decision), the court is not entitled to revisit the kind of qualitative assessment under challenge. It cannot substitute its own view. This was trite law, as was clear, for example, from the judicial observations that “…The question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision maker” (per Lord Mance in R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2011] 1 AC 437 (Supreme Court) at 70) or to the effect that: “The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision maker – subject only to a challenge for irrationality.” (per Lord Brown in SSHD v AP (no. 1) [2010] UKSC 24).
[128] Turning to the facts in this case, it was argued that each of the two adjudicators was entitled to reach the view that, in maintaining prison discipline in a prison environment, the petitioner’s conduct was contrary to the Rules in the ways specified. The petitioner’s remarks anent Ms KB and the manner in which they were made were not analogous to questions or submissions in the course of litigation where the petitioner argues special latitude is desirable: the petitioner’s conduct toward Ms KB arose in the course of a hearing into a complaint made by him. Ms KB was not a witness in that process, she was not an opponent or contradictor, she was a note-taker and a member of the administrative staff. The Rules are clearly applicable throughout the prison estate without exception. The petitioner should be aware of the Rules regarding conduct; they are made available throughout the prison. It was further argued that it would be undesirable for the Rules to be suspended or subject to modification during the course of an appeal against a prisoner’s complaint, which appeared to be the logic of the petitioner’s argument. Such an approach would give rise to confusion and would compromise the purpose and effectiveness of the Rules. It would create a deregulated area within the prison estate where discipline could not be maintained. It is for the SPS to determine and enforce a system of internal discipline. Their judgment should only be impugned on rationality grounds. Further, there is nothing “chilling” about the uniform application of the Rules requiring the maintenance of discipline at an appeal against a prisoner’s complaint. The requirement that the petitioner refrain from causing offence arose in the context of pursuing his own complaint in contrast to a disciplinary hearing where he is potentially subject to punishment. He was not defending himself against a charge. To reverse the position, as the petitioner invites the court to do, would be to sanction threatening and disrespectful conduct in the difficult circumstances prevailing in a prison environment and would be detriment of good order. The court should reject this argument.
Decision on ground 5
[129] I accept the correctness of the respondents’ submissions on this ground.
[130] Leaving aside the apparently incomplete fourth sentence of statement 39 in the petition, three circumstances (sliding papers across a table, threatening legal action and rising from a chair without permission) are asserted (in effect) to be incapable of amounting to threatening conduct even in the more controlled context of a prison. That this is the argument being made is reinforced by the penultimate sentence of that statement in the petition: that the facts accepted were ”insufficient in law” to justify a finding. This is again an instance where the factual contentions in the petition are not consistent with the information produced to the court. Having regard to the terms of the adjudicator’s finding on charge 2, it is clear that while there was reference in the evidence to a threat to take legal advice, that did not form part of the finding by the adjudicator as to what he found constituted threatening behaviour on the part of the petitioner.
[131] More fundamentally, no authority was advanced for the proposition that the two other actions could not ever, in any context, amount to threatening behaviour. It is in my view inept simply to assert that a set of factual circumstances is incapable in law to amounting to conduct that may be covered within the Rules. It is not suggested that there was no basis for any finding by the adjudicator of what occurred on the occasions that became the subject-matter of the first and second charge. While presented as an “error of law”, in substance this challenge is to the adjudicator’s assessment of the material before him, and the determination that on that material it had been demonstrated that the petitioner engaged in threatening conduct. I accept the respondents’ analysis that this really is a challenge to the qualitative assessment made by the adjudicator and that the relevant ground to challenge such a finding is on Wednesbury or irrationality grounds. It cannot be said that the adjudicator’s determination was perverse or irrational, or without a proper factual basis. Having regard to the character of the assessment and the context in which it was being made, it is not an available ground to invite the court to substitute its own assessment, or as here, the petitioner’s counsel’s ipse dixit, of what finding was not open to the adjudicator.
Ground of challenge 6: the ICC hearing
Sequelea to the determinations of the first and second charges: ICC procedure
[132] At statements 40 and 41 of the petition there is also recorded a challenge to an ICC hearing on 11 September 2014 and which appears to have followed the petitioner’s request for review of, or appeal against, the determinations of the first and second charges. In the course of his submissions on this, when the first hearing resumed before me for a third day, I reminded the petitioner’s counsel that the court had to be taken to any relevant documents that had been produced. Notwithstanding this, the petitioner’s counsel did not take me to any productions that might have related to the ICC hearing of 11 September 2014. The petitioner did not refer to any part of the pleadings on this chapter. Accordingly, the court was left uninformed as to what actually transpired. The petitioner’s counsel did not refer to the Rules at all in respect of this aspect of the petitioner’s case. There was, therefore, no submission as to (i) what the procedure was, or (ii) what the form of review or reconsideration was, and against which a submission of procedural unfairness might relevantly be assessed. The petitioner’s counsel contented himself with reading through parts of his further revised note of argument. In effect, what the court was treated to were several free-floating assertions of unfairness made in the abstract and without any submission either as to what happened or what should have happened.
The petitioner’s argument
[133] Put shortly, the submission was that (i) the ICC decision was flawed because it approved the unfair and unlawful determinations of the first and second charges, and (ii) that legal representation was required at the ICC hearing on 11 September “at least to the same extent” as at the disciplinary hearings. There is a further suggestion that the appearance of KB at that ICC hearing (regardless of the capacity in which she was present) “undermined the appearance of impartiality”.
[134] While I have endeavoured to set out in the first part of this opinion a full account of the procedure constituting the initiation and determination of the first and second charges (at paragraphs [4] to [38]), by reason of the manner in which this ground was advanced it is not possible to do so in relation to this aspect of the petitioner’s case. As presented, the case was fundamentally irrelevant.
[135] The petitioner dealt with this in his note of argument at paragraphs 77 to 86:
“ICC decisions (Production 7/7)
- The ICC decisions essentially flow from the original hearings.
- The ICC hearing purportedly approved the unfair and unlawful original disciplinary hearing. As such it was equally unlawful and open to reduction.
- Fairness required legal representation at that hearings to at least the same extent as to the original hearing. Moreover, the hearing required to deal with the issue that there was an insufficiency in the facts apparently found against the petitioner in relation to the threatening conduct charge (7/7, page 10) – a fairly legally sophisticated issue.
- The same hearing dealt with complaints with references ED/1230/14 and ED/1236/14.
- Criticisms of [KB] were what had lead to the whole disciplinary proceedings in the first place.
- In the particular circumstances, the presence and participation of [KB] at the ICC undermined the appearance of impartiality necessary for the proceedings to be fair. It was suggested by those representing the petitioner that in the circumstances Ms [KB] should not have any involvement in the hearing (6/14). The respondents declined and indicated that [KB] was an integral part of that process (per their letter of 2 September 2014) (6/16).
- It should be borne in mind, as appears to be repeatedly emphasized by the respondents, that this is a comparatively informal process and the usual protections that one might expect to guard against bias are absent. There is no judicial oath, there is no legal qualification, there is no right for the public to be present, there is no independent record of the proceedings, there was no legal representation for the petitioner, the whole episode had started with an allegation of disrespectful conduct against [KB] at an ICC hearing, the appeal against the petitioners conviction in relation to that allegation was going to be determined at another ICC hearing, the petitioners agents had suggested that she not take part at that hearing and were told that she was integral to the process.
- A fair minded and informed observer would know that the ICC process does not cease if Ms [KB] does not take part (if she is on holiday, for example) and therefore the statement that she was integral to the process would raise a real concern of partiality as between Ms [KB] and Mr Beggs.
- In all these circumstances a fair minded and informed observer would conclude that there was a real possibility that the tribunal was biased – which is the relevant test as in Helow v Secretary of State for the Home Department 2009 SC (HL) 1. While the fair minded observer is not unduly sensitive or suspicious, he is not complacent either.
- It is not an answer to say that [KB] was not part of the decision-making process. She was the complainer against Mr Beggs and did not need to be present at the ICC hearing. Notwithstanding that fact the ICC continued to have her present. The presence of [KB] was a risk to the fairness of proceedings that did not need to be taken.
- The petitioner chose not to attend as he was apprehensive that his position might be inaccurately recorded in an oral process, his position was clear from the written documentation, he was not to be permitted legal representation, his witnesses were not to be called, Ms [KB] was going to be present and the prison rules and forms indicate that prisoners need not attend.”
[136] While there was reference to 7/7 and 6/16 in his revised note of argument, the petitioner’s counsel did not take the court to these documents.
[137] Approaching the issue in the manner in which it was advanced, if the challenges to the two discipline charges fails, so too do the similar criticisms levelled at the ICC in respect of its upholding those charges.
[138] That leaves the issue of bias.
The respondents’ reply
[139] The respondents’ reply was as follows. In respect of the petitioner’s argument that the hearing before the ICC of 11 September 2014 was vitiated by apparent bias resulting from the presence of KB, it was pointed out that KB was present as a note-taker. She was not the adjudicator. She had no decision‑making role. She was an administrative member of staff charged with taking the notes of the hearing. The effect of the petitioner’s argument was to judicialise the disciplinary process relating to minor disciplinary infractions and which gave rise only to minor punishment under rule 114 and the appeal process under rule 118. This was undesirable. The summary process of determining charges against indiscipline should be dealt with quickly and efficiently. Any punishment under prison rule 114 amounted to only temporary deprivation of privileges, such as withdrawal of TV privilege. The procedural safeguards required by this court in that process should respect the summary aspects of this internal procedure dealing with relatively minor infractions of prison discipline.
[140] Reference was made to the recent case of The Congregation of the Poor Sisters of Nazareth and another v Scottish Ministers 2015 SLT 445, and in which Lord Woolman extracted the following propositions in relation to bias after a thorough review of the cases:
“[30] A number of more recent cases have considered the question of apparent bias: Davidson v Scottish Ministers (No.2) 2005 1 SC (HL) 7; Gillies v Secretary of State for Work and Pensions, [2006] 1 WLR 781; Prince Jefri Bolkiah v Brunei [2007] UKPC 62; and Belize Bank v AG Belize & Ors [2011] UKPC 36. From them, I draw the following key propositions:
a. Each case is intensively fact sensitive.
b. The threshold for establishing a case of apparent bias is a high one.
c. The fair-minded and informed observer takes a balanced approach.
d. He expects that
(a) the decision-maker will not be chosen to suit one party; and
(b) any doubt will be based on objective grounds.
[31] Kirby J outlined the knowledge and approach of the fair-minded and informed observer in his well-known judgment in Johnson v Johnson 2000 CLR 201:
‘The attributes of the fictitious bystander to whom courts defer have … been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality.’” (para 53)
[141] In the light of these observations, it was argued that the petitioner’s submission failed to have regard to the safeguard presented by the adjudicator as decision-maker at the ICC hearing of 11 September 2014. KB had not been present at the adjudication of those charges and was present at the appeal as a note taker alone. The adjudicator at the ICC is not criticised by the petitioner. He is therefore assumed to be a fair minded and professional decision‑maker exercising his function in good faith. The petitioner does not describe how the adjudicator’s decision would be unduly influenced by the alleged apparent bias of KB so as to render his decision vitiated by apparent bias. The petitioner fails to describe the causal connection between KB and the decision of the adjudicator that would be required to make out such a case. A fair minded bystander (presumed to have full knowledge of the material facts and fair-mindedness: Belize Bank Ltd v AG for Belize [2011] UKPC at 36) would regard it as important that the adjudicator is not said to be biased, such a bystander would conclude the adjudicator would exercise his judgment fairly and responsibly. A fair-minded observer would regard it as important that KB is an administrative member of staff whose influence in the outcome of the proceedings is extremely limited, and who played no role in the decision-making process. A fair minded observer would have regard to the fact she has previously indicated that she has not attempted to sway a decision-maker and that staff had been spoken to ensure the neutrality of internal correspondence, lest it give rise to misunderstanding. Reference was made to the letters at nos. 7/ 13 and 7/14 of process, and which were in part the SPS’s implementation of the outcome of the petitioner’s original complaint to the SPSO. The independent and fair-minded by‑stander would not regard KB’s involvement as a note-taker, as opposed to decision-maker determining an appeal, as giving rise to a perception of bias in the decision-making of the ICC. A fair-minded observer would have regard to the proven ability of the system (the SPS and SPSO) to correct clerical errors and remedy misunderstandings. A fair-minded observer would reasonably conclude that the views of administrative staff would not affect the judgment of a responsible decision‑maker, and so would not give rise to a real possibility the tribunal was biased.
Decision
[142] I accept the respondents’ submissions. Applying the factors from the case‑law summarised by Lord Woolman, in my view the fair-minded observer would understand that KB was present in her capacity as an employee, and whose function was confined to taking notes in administrative capacity. She was not the decision‑taker. It was not suggested that the decision‑taker would be influenced by her presence or that this would lead to one conclusion over another. In the whole circumstances, in my view the fair-minded observer would not conclude that the presence of KB for these purposes at the ICC hearing resulted in a real possibility of bias. This ground of challenge also fails.
Miscellaneous grounds of criticism
[143] I have dealt with the substantive grounds of criticism that were argued during the 4 days of this first hearing. Some stray arguments were also advanced.
CCTV recordings
[144] At paragraph 30 of the petition, the recording of proceedings by the use of CCTV is desiderated to “guard against irregularity”. It is asserted that this is justified because: “Fairness may require safeguards to be put in place to defend against irregular procedure”. This contention is repeated at paragraph 71ff in the petitioner’s revised note of argument, under the heading “Other issues bearing on fairness”. It is there asserted that “there is no good reason for not recording disciplinary hearings or appeals. Recording hearings and appeals would reduce the scope for irregularity that exists within the present system”. A little later on it is suggested that, if implemented, such measures “would serve to increase the overall fairness and protection afforded by the system in general. They would have in the present case as well.” The revised note then continues that the foregoing “are not specific criticisms but had they been implemented the balance of fairness could legitimately be struck differently”. It is difficult to understand what is meant by this last sentence. Certain matters of fact are simply asserted (“…there is no good reason for not recording…., or that the use of CCTV ‘would have’ increased overall fairness in the present case). Leaving aside the issue of whether there is any basis in fact to support the several assertions made, no relevant ground for judicial review of the absence of CCTV is discernible in these submissions. There is no associated order or plea-in-law directed at this matter.
Institutional reluctance
[145] The petition also contains a statement in which it is asserted that “there is an institutional reluctance to permit prisoners to have legal representation”. After a sentence whose meaning is unclear (“Such reluctance gives rise to a danger that even in cases that require legal representation to be determined fairly legal representation is not permitted.”) there is a reference to Smith v Parole Board [2005] 1 WLR 350. During the first two days allocated to the first hearing, the petitioner’s counsel referred to the case of Smith in support of this ground. Under reference to certain passages in that case, he contended that a like institutional reluctance permeated the SPS. I suggested that the observations in Smith referred to features found as a matter of fact established in earlier stages of that case. By contrast, here there was no factual basis set out in the petition to support such a case. By the time of the continued first hearing, for its third and fourth days, the petitioner’s counsel had produced the revised note of argument, and which sought to expand on this chapter: paragraphs 42 to 44. In particular, paragraph 43 begins as follows:
“The information from the SPS discloses that there were 48 requests for legal representation at HMP Edinburgh over a three year period (production 6/10, pages 10-11) and that, separately, there were 10 grants of legal representation (when not requested) (page 12).”
Lodged at 6/10 are the “recoveries under specification”. They total 646 pages. Page 12 of this contains a table showing that in 10 instances over a 3‑year period in HMP Edinburgh legal representation was granted to a prisoner even though no request had been made for legal representation. That information is suggestive (I put it no higher) that the SPS have not operated a policy of blanket refusals of requests for legal representation or fettered its discretion when considering such requests. Rather, that information is suggestive that individual adjudicators themselves determined that legal representation was necessary, even where the prisoner had not requested it. Whatever conclusion might tentatively be drawn from this information, it does not support the assertion of institutional reluctance. (In any event, the facts of this case would not support a conclusion that that was the basis for refusal here.) The only other information of a factual character was the reference in the latter part of paragraph 43 of the revised note of argument to the pleader’s estimate of the overall number of disciplinary charges: “It appears that there might be something in the region of 6,400 charges in that period (pages 23-497)”. The revised note of argument goes on to explain how this figure was extrapolated: “That figure was arrived at creating an average for the pages 24 to 35 inclusive (which 12 pages had 162 charges on them) of 13.5 charges per page. Multiplying that up for 475 pages gives a figure of 6,412.5” In response to a question, the petitioner’s counsel confirmed that he had not troubled to examine this material beyond the pages mentioned, and that only for the purpose of carrying out the estimate of total charges. Accordingly, there has been no meaningful analysis, for example, as to the nature of these charges or even to consider this material in the light of the Tarrant factors. This was the totality of the basis for the assertion of institutional reluctance.
[146] As presented, there is no proper or adequate basis in the material (such as it was) to support the assertion in the petition, even as augmented in the revised note of argument, of institutional reluctance on the part of the SPS. Had a specific order or plea been directed to these matters, I would have refused it.
[147] After I issued this Opinion to parties, I put the matter out By Order to be addressed in relation to parties’ pleas and the terms of the court’s interlocutor. It was agreed that the petitioner’s first, ninth and tenth pleas be refused as unnecessary and that his second to eighth pleas, inclusive, be repelled. It was also agreed that I sustain the respondents’ first and second pleas, as amended at the bar. It was also agreed that the respondents were entitled to their expenses, but that the petitioner’s liability be modified to nil. I shall pronounce an interlocutor in these terms.