Regina v. Secretary of State for the Home Department (Respondent) ex parte Al-Hasan (FC) (Appellant) Regina v. Secretary of State for the Home Department (Respondent) ex parte Carroll (FC) (Appellant) (Conjoined Appeals)

A prison governor adjudicating a disciplinary charge must satisfy the common law requirement of objective impartiality. The question is whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias.

Knowledge of a prison's operations or of relevant security information does not ordinarily disqualify an adjudicator. A different conclusion may follow where the adjudicator participated in, or tacitly endorsed, the particular order whose lawfulness must later be decided. Once an adjudication is vitiated by apparent bias, its result cannot stand merely because another impartial tribunal would inevitably have reached the same conclusion.

Prison authorities ordered prisoners on two wings of HMP Frankland to undergo squat searches following indications that dangerous items might be concealed. The appellants refused and were charged under Rule 47(19) of the Prison Rules 1964 with disobeying a lawful order.

Deputy Governor Copple found both appellants guilty after rejecting their contention that the search order was unlawful. He had been present when the governor approved that order. The Administrative Court dismissed their judicial review claims, and the Court of Appeal dismissed their appeals in [2001] EWCA Civ 1224, reported at [2002] 1 WLR 545.

The House considered whether Mr Copple's earlier involvement created an appearance of bias sufficient to invalidate the disciplinary adjudications.

1. Both appeals allowed unanimously. Lord Brown of Eaton-under-Heywood delivered the leading speech. Lord Bingham, Lord Rodger, Baroness Hale and Lord Carswell agreed that the disciplinary findings should be set aside.

2. Per Lord Brown, the governing common law test, authoritatively settled by Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2004] 1 All ER 187, asks whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased.

3. Mr Copple was not disqualified merely because he possessed background security information. Any governor conducting the adjudications would have needed such information to protect sensitive sources and determine which questions could safely be answered. Lord Rodger stressed that experience, expertise and prior familiarity with general issues ordinarily assist adjudication and do not establish apparent bias.

4. The decisive feature was Mr Copple's presence when the governor approved the particular squat-search order whose lawfulness he later had to determine. Per Lord Brown, his presence amounted to tacit assent and endorsement. A fair-minded observer could therefore think that he was predisposed to uphold the order, since a contrary decision would acknowledge that both the governor's approval and his own acquiescence had been wrong. Lord Rodger and Baroness Hale agreed that this unusual, close association with the self-same order created a real possibility of bias.

5. The appearance of bias could have been avoided if Mr Copple had disclosed his presence when the order was approved and obtained the prisoners' informed consent to his adjudicating. Alternatively, he should have stood down in favour of another governor, if necessary from another prison.

6. Per Lord Brown, once proceedings are successfully impugned for want of independence or impartiality, the resulting decision is necessarily tainted by unfairness. It cannot stand on the ground that an impartial adjudicator would inevitably have reached the same result. The findings of guilt were therefore quashed and ordered to be expunged from the appellants' disciplinary records.

7. The adjudications pre-dated the Human Rights Act 1998. The appeals consequently succeeded under common law principles alone, and no Convention damages were available.

1. House of Lords: Both appeals were allowed unanimously. The disciplinary findings were quashed and ordered to be expunged.
2. Court of Appeal: The appellants' conjoined appeals were dismissed on 19 July 2001: [2001] EWCA Civ 1224, reported at [2002] 1 WLR 545.
3. Administrative Court: Newman J dismissed the conjoined judicial review claims on 16 February 2001.