R (Al-Hasan) v Secretary of State for the Home Department

The House of Lords allowed the appeals and quashed the disciplinary findings against the appellants on common law grounds of apparent bias. The decisive legal principle applied was the objective test from Porter v Magill (and Lawal) — whether the fair-minded and informed observer would conclude there was a real possibility that the adjudicator was biased. Although prison governors and their deputies may need relevant background knowledge to adjudicate fairly in disciplinary matters, the Deputy Governor's presence when the governor approved a highly intrusive "squat" search gave rise to a real possibility of bias in subsequent adjudications about the lawfulness of that very order. The Court expunged the findings as tainted by want of independence and impartiality. The Human Rights Act 1998 did not apply retrospectively to provide additional remedies in these particular cases.

This is an appeal from adverse rulings of the Administrative Court and the Court of Appeal upholding prison disciplinary findings against two long-term category A prisoners who refused to obey a mass "squat" search order. The search was ordered after detection dogs indicated a security risk in a classroom used by the prisoners' wings. The Governor approved a blanket order requiring prisoners to squat; Deputy Governor Copple was present when that approval was given. The appellants were tried for disobeying a lawful order under the Prison Rules and found guilty by Copple, who ruled the order lawful. The appellants sought judicial review, advancing grounds including breaches of natural justice and Convention rights; their claims failed below.

The House was asked to decide principally whether the adjudications were vitiated by apparent bias because the adjudicating officer had been involved (by his presence at the approval) in the decision he later had to adjudicate. The Lords applied the well-established common law test ("the fair-minded and informed observer" test from Porter v Magill and Lawal) and examined Strasbourg authority on prior involvement (notably McGonnell, Procola and Pabla Ky) and domestic authorities (notably Davidson).

The House held that, on the particular facts, a fair-minded and informed observer could conclude there was a real possibility that Copple, having tacitly acquiesced in the governor's confirmation of the squat order, would be predisposed to find it lawful when called upon to adjudicate. That appearance of bias required the disciplinary findings to be set aside and expunged. The Lords emphasised that the conclusion was narrow and fact-specific: experience and necessary background knowledge do not, as a rule, disqualify adjudicators. Finally, because the adjudications pre-dated the Human Rights Act 1998, no Convention-based remedies (such as damages under section 8) could be awarded in these appeals as a result of the Act's non-retrospectivity.

Appeal allowed. The House held that the Deputy Governor’s prior presence when the governor confirmed the squat search order gave rise to a real possibility of bias in his subsequent adjudications on the order's lawfulness. The disciplinary findings were therefore tainted by lack of objective impartiality and were quashed and expunged. The decision rested on common law principles of independence and impartiality; the Human Rights Act 1998 did not apply retrospectively to give further relief.

Judicial review first heard by Newman J in the Administrative Court (judgment 16 February 2001). Appeal to the Court of Appeal (reported at [2002] 1 WLR 545; EWCA Civ 1224) where the findings were upheld. Further appeal to the House of Lords which allowed the appeals ([2005] UKHL 13).