Gleaves, R (on the application of) v Secretary of State for the Home Department

Prison disciplinary offences should be construed no more harshly to a prisoner than equivalent criminal offences. Language in the Prison Rules should receive its ordinary, broad and non-technical meaning. The adjudicator must consider the prisoner’s defence and comply with the requirement to keep a reliable record of the hearing and reasons for rejecting that defence. A court may accept later evidence from the adjudicator where there is no statutory duty to give reasons, the evidence is credible and consistent with the record, and there is no real risk of retrospective justification. Expert evidence is inappropriate where the issue falls within ordinary judgment, but its admission will not invalidate the decision unless it affected the outcome.

The claimant sought judicial review of the Secretary of State’s decision upholding a prison governor’s finding that he had used threatening, abusive or insulting racist words or behaviour contrary to Rule 51 (20A) of the Prison Rules 1999. He disputed calling a member of prison staff a “Kraut” and relied on the surrounding use of a mimicked German accent. Permission was granted on whether the governor had found that the word had been used, and the court also considered whether the governor had adequately considered the defence and had improperly relied on expert evidence. The claimant later sought permission to raise additional procedural grounds concerning questioning witnesses and the completeness of the hearing record.

1. The application was dismissed. The governor had found that the claimant used the word “Kraut”; the mimicked accent was surrounding evidence rather than the basis of the finding.
2. Prison disciplinary offences should be construed no more harshly to the prisoner than criminal offences. Rule 51 (20A) and Rule 51A should be given a broad and non-technical meaning. The ordinary meanings of “threatening”, “abusive” and “insulting” apply, assessed in the circumstances of the case.
3. The governor’s later witness statement could be admitted. There was no statutory duty to give reasons making their adequacy a condition of legality. The statement was credible, consistent with the record and undisputed evidence, and was not a retrospective justification. It established that the governor had considered the defence, the claimant’s intentions and the reasons for controlling the questioning process.
4. Expert evidence was unnecessary and inappropriate on whether the language was racially offensive or intimidating, but its admission had no effect on the outcome. The governor had sufficient evidence to find the charge proved, including the claimant’s own evidence that he was angry with the officer.
5. Permission to raise the further grounds was refused. The claimant had always known that questions were put through the governor and that the form did not record the direction. The alleged procedural defects could not have affected the outcome, and there was no sufficient justification for raising the grounds at that late stage.