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

A prison disciplinary hearing must be fair at common law. Fairness requires a prisoner to know the substance of the evidence relied upon before answering the charge and to have a genuine opportunity to call relevant witnesses.

Where an adjudicator dismisses an application on a materially false premise caused by the prison authorities’ failure to disclose a prior direction, the resulting decision is unfair if the court cannot know what would otherwise have occurred. The same applies where the authorities wrongly state that a requested witness is unavailable and the witness might have affected the adjudicator’s assessment of the evidence.

The claimant, a serving prisoner, was convicted by a prison adjudicator of failing to comply with an order to provide a urine sample under the Prison Rules 1999. The lawfulness of the order depended on whether there had been reasonable suspicion of drug misuse.

The adjudicator had directed disclosure of the evidence supporting reasonable suspicion. The prison authorities failed to disclose the relevant statement, and the adjudicator later forgot the direction. The authorities also wrongly stated that a requested witness was unavailable. The Secretary of State declined to quash the adjudication, despite several representations. The central issue was whether those failures rendered the hearing unfair and required the Secretary of State to quash the adjudicator’s decision.

1. The claim succeeded. The court quashed the Secretary of State’s decision and made a mandatory order requiring the Secretary of State to quash the adjudicator’s finding of guilt. Costs were awarded to the claimant on the standard basis, together with a public funding detailed assessment.

2. Common-law fairness required the claimant to know precisely what the prison relied upon in asserting reasonable suspicion. Rule 54(2) of the Prison Rules 1999 gave him a full opportunity to hear what was alleged against him. The court accepted that late disclosure, considered in isolation, might not necessarily invalidate the adjudication. The decisive issue was the combination of the undisclosed direction and the adjudicator’s resulting misunderstanding.

3. The adjudicator dismissed the application to dismiss on the materially false premise that no disclosure direction had been made. The prison authorities’ failure to correct that premise meant that the claimant was denied a fair determination of an application which might have ended the proceedings. The court could not determine what decision the adjudicator would have made had he known the true facts.

4. The claimant had also given continuing notice that he wished to call a relevant witness. The witness was incorrectly described as unavailable, although he could and would have attended. If his evidence had raised a reasonable doubt about the prison officer’s account, the claimant would have been acquitted. The court could never know whether that would have occurred. The witness failure therefore independently rendered the hearing unfair.

5. The defendant could not avoid the consequence by attributing the relevant error to the presenting officer. Applying the principle illustrated by R v Blundeston Prison Board of Visitors, ex parte Fox-Taylor [1982] 1 All ER 646, the prison authorities’ failure affecting the fairness of the hearing invalidated the adjudication. The only lawful course was to quash the finding of guilt.

This was a first-instance judicial review in the Administrative Court. The court quashed the Secretary of State’s refusal and ordered the Secretary of State to quash the prison adjudicator’s decision.