Bannatyne, R (on the application of) v Secretary of State for the Home Department & Ors

A prison disciplinary adjudication is not subject to an absolute requirement of publicity under Article 6. The right to a public hearing is qualified by the exceptions in Article 6(1), including public order and security. Campbell and Fell v United Kingdom remained applicable, notwithstanding subsequent European jurisprudence recognising that serious prison disciplinary charges may be criminal for Article 6 purposes. The practical burdens and security risks of transferring prisoners, witnesses and officers to public courts justified hearings before prison adjudicators being conducted without public admission.

The claimant, a serving prisoner, challenged the Secretary of State’s refusal to quash an independent adjudicator’s finding that he had assaulted a prison officer. He received an additional 28 days’ imprisonment. The principal issue was whether Article 6 required the disciplinary hearing to be held in public. Subsidiary challenges concerned the adequacy and rationality of the adjudicator’s reasons, and alleged differential treatment under Article 14.

The claim was heard as an application for judicial review of the Secretary of State’s decision, but was substantively directed at the adjudicator’s decision.

1. The application was dismissed. The adjudicator’s reasons were adequate. The dispute was narrow: whether the claimant’s head touched the officer’s head. Two officers gave evidence that it did and two prisoners gave contrary evidence. The adjudicator was entitled to prefer the officers’ evidence, and the court was particularly slow to interfere with a credibility assessment based on hearing and seeing the witnesses.

2. The claimant had no absolute right to a public hearing under Article 6(1). The starting point was Campbell and Fell v United Kingdom, which remained good law. Public order, prison security, the need to maintain discipline, and the practical difficulties of admitting the public to prisons continued to justify exclusion of the press and public from this type of disciplinary hearing.

3. The later authorities did not require a different conclusion. Riepan v Austria concerned ordinary criminal proceedings and did not undermine the distinction recognised in Campbell and Fell v United Kingdom. Ezeh and Connors v the United Kingdom applied the Engel criteria and extended Article 6 protection to certain prison disciplinary charges, but did not invalidate the reasoning concerning publicity in the prison context.

4. The realistic alternative to a hearing within the prison would have been transferring prisoners and witnesses to local courts. That would involve security risks, escort arrangements, loss of prison staff, accommodation difficulties and substantial administrative burdens. These were relevant public-order considerations, not merely a reliance on lack of resources. Privacy interests of prisoner and officer witnesses also supported the existing arrangement.

5. The claimant had not requested a public hearing before the adjudicator or the Secretary of State. In any event, the court would have been reluctant to grant relief beyond a declaration. The claim was therefore refused.