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

In prison disciplinary proceedings, the prosecution must prove the offence as particularised, not merely the Prison Rule under which the charge is brought. Where the charge alleges possession of a particular unauthorised article, the adjudicator must prove both the article’s identity and the prisoner’s knowledge of its nature to the criminal standard. A material discrepancy between the charge and the facts relied on cannot be cured without amending the charge and giving a fair opportunity to answer it. An appeal or review authority cannot uphold the finding on a different factual basis where its statutory power is limited to quashing, remitting or mitigating the finding or punishment.

The claimant, a serving life prisoner, was charged under rule 51(12)(a) of the Prison Rules 1999 with possessing an unauthorised article, namely a sharpened stabbing implement formed from a bamboo incense holder. The adjudicator treated the claimant’s admission of possession as sufficient to prove the charge and treated the religious and factual explanation as mitigation. The area manager upheld the finding, adding that possession of another prisoner’s property made the article unauthorised.

The claimant sought judicial review of the area manager’s decision. The central issue was whether the charge required proof that the article was the sharpened stabbing implement particularised, and that the claimant knew its nature, and whether the area manager could uphold the finding on a different basis.

1. The application succeeded. The decision of the area manager dated 15 August 2005 was quashed. There was no order as to costs.
2. The charge recorded on the disciplinary form was possession of an unauthorised article, namely a sharpened stabbing implement formed from a bamboo incense holder. Paragraph 6.39(a) of the Prison Discipline Manual required proof that the article was what the charge alleged. Paragraph 6.39(b) required proof that the claimant knew its nature. Both matters had to be established beyond reasonable doubt.
3. The adjudicator’s finding that the object was sharp, and that the claimant knew he was not permitted to possess sharp items, did not establish the charge as formulated. The allegation was materially different: it concerned an object that had been turned into a stabbing implement and had been sharpened and formed from an otherwise innocuous article. This was substance, not semantics.
4. The discrepancy could have been cured by amending the charge during the hearing to allege possession of a sharp pointed bamboo incense holder. No amendment was made. The claimant was therefore denied a fair opportunity to address the crucial issues of the object’s nature and his knowledge of it.
5. The area manager’s reasoning did not cure the error. It failed to recognise the adjudicator’s mistake and treated possession of another prisoner’s property as an alternative basis for conviction. That introduced a different factual basis after conviction. Under rule 61 of the Prison Rules 1999, the area manager could quash the finding or deal with the punishment, but had no power to amend the charge or substitute a finding of guilt on another basis. The Administrative Court had no such power either.
6. A judgment alone was insufficient because the erroneous finding might have serious future consequences, including before the Parole Board. A formal quashing order was required.

First-instance judicial review. The court quashed the area manager’s decision dated 15 August 2005. There was no order as to costs.