Tangney v The Governor of HMP Elmley & Anor

Whether prison disciplinary proceedings involve a criminal charge under Article 6 depends on the domestic classification, the nature of the offence, and the nature and severity of the penalty. Domestic classification is only a starting point. The criteria may operate separately or cumulatively, particularly the second and third criteria identified in Engel v The Netherlands (1979-80) 1 EHRR 647 and applied in prison cases.

For a life prisoner who cannot receive additional days, a possible effect of an adjudication on a later Parole Board decision is not a penalty imposed by the adjudicator. Article 6 was therefore not engaged on these facts. Common-law fairness is flexible and context-dependent; it creates no freestanding right to an independent adjudicator in these circumstances.

The appellant, a life prisoner, challenged two disciplinary adjudications conducted by a prison governor. He had been charged with assaulting a prison officer and using threatening, abusive or insulting words or behaviour. He argued that the charges should have been heard by an independent adjudicator under Article 6 of the ECHR and under the common law.

The High Court, Administrative Court, dismissed his judicial review claim. During the appeal, the Secretary of State accepted two material errors of fact and the findings of guilt were quashed. The Court of Appeal nevertheless heard the appeal because the appellant claimed continuing victim status and the issue had wider relevance to life prisoners. The central question was whether Article 6 or common-law fairness required referral of such charges to an independent adjudicator.

1. Disposition. The appeal was unanimously dismissed. Although the adjudications had already been quashed following the Secretary of State’s acceptance of material factual errors, the appeal was heard because the issue affected other life prisoners and the appellant relied on continuing victim status.
2. Article 6 test. The Court applied the three criteria identified in Engel v The Netherlands (1979-80) 1 EHRR 647: domestic classification, the nature of the offence, and the nature and degree of severity of the penalty. Domestic classification is only a starting point. In the prison context the criteria must be applied with regard to the practical and policy reasons for a special disciplinary regime, but the boundary between criminal and disciplinary proceedings must still be maintained. The criteria are separate and may be considered cumulatively; the second and third criteria may themselves establish a criminal charge, as explained in Ezeh and Connors v United Kingdom (2004) 39 EHRR 1.
3. Application to a life prisoner. The appellant was never liable to additional days. The possible postponement or refusal of release by the Parole Board was not a penalty imposed by the adjudication. It was a decision based on whether continued detention was necessary for public protection under section 28 of the Crime Sentences Act 1997. The possible influence of an adjudication on that assessment did not satisfy the third Engel criterion, either alone or with the other criteria. Article 6 was therefore not engaged.
4. Future cases. The question was fact-sensitive and should be considered if a concrete case arose. If a future disciplinary charge against a life prisoner engaged Article 6, the Prison Rules 1999 would have to be read compatibly with the Convention. The court indicated that words might be read into Rule 53A, or that an express power to refer exceptional cases could be added.
5. Common law. The common law does not impose a higher, freestanding requirement that disciplinary charges against life prisoners be heard by an independent adjudicator. Under Lloyd v McMahon [1987] 1 AC 625, fairness depends on the decision-making body, the decision, and the statutory framework. Since Article 6 was not engaged and no separate unfairness was shown, the common-law challenge also failed. The Court did not treat paragraph 48 of the Court of Appeal decision in R (Al-Hasan) v Secretary of State for the Home Department [2002] 1 WLR 545 as laying down a general rule for life prisoners.

• Court of Appeal (Civil Division). In [2005] EWCA Civ 1009, the appeal from the Administrative Court was dismissed unanimously.
• High Court of Justice, Queen’s Bench Division, Administrative Court. Moses J dismissed the appellant’s judicial review challenge on 12 November 2004.