Haase, R (on the application of) v Independent Adjudicator & Ors

Article 6 does not generally require the prosecutor in prison disciplinary proceedings to be independent of the prison service. Fairness is context-sensitive. In assessing prison adjudications, the court must consider the nature and seriousness of the charge, the need for expedition, the inquisitorial procedure, disclosure safeguards, legal representation, and the adjudicator’s independence and impartiality. Although R v Stow recognised concerns about prosecutorial independence in courts-martial, its reasoning should not be extended automatically to prison adjudications. On the safeguards present, fairness did not require a separate prosecutor who was not a witness to the alleged offence.

The claimant, a serving prisoner, was found guilty by an Independent Adjudicator of disobeying a lawful order to provide a drugs-test sample and received 21 additional days’ detention. The reporting prison officer presented the prosecution case and gave evidence which conflicted with the claimant’s evidence.

The claimant sought judicial review, arguing that Article 6 required the prosecution to be conducted by an independent person, or at least by a prison officer who was not a witness. The central issue was whether the existing prison disciplinary arrangements were unfair because the presenting officer could be both prosecutor and witness.

1. Application dismissed. The adjudication was fair and complied with Article 6.
2. Article 6 expressly requires an independent and impartial tribunal, but does not expressly require an independent prosecutor. Any such requirement would arise only as an aspect of fairness. The requirements of a fair trial depend on the facts and circumstances of the proceedings.
3. R v Stow was binding at High Court level and could not be refused as wrongly decided or per incuriam. Its recognition that prosecutorial independence may bear on Article 6 fairness was therefore accepted, but its ambit was not extended beyond the circumstances of the court-martial concerned.
4. Prison disciplinary proceedings have distinctive features. The offences are generally less serious than those sent to the ordinary criminal courts, they must be dealt with speedily, and the procedure is inquisitorial rather than adversarial. Prison officers are required to act fairly and with integrity. Prisoners have rights to legal representation, disclosure of witness identities and statements, and directions from the adjudicator where further disclosure is sought. The adjudicator must conduct an impartial inquiry.
5. Those safeguards, together with the security and public-order considerations recognised in Campbell and Fell v UK, distinguished the prison proceedings from the court-martial in R v Stow. Fairness did not require an independent prosecutor or a prosecutor who was not a witness.
6. The court rejected the submission that disclosure requirements themselves demanded prosecutorial independence. The cases were generally straightforward, the Manual required disclosure, and the adjudicator could investigate alleged non-disclosure. An independent prosecutor would not in any event prevent deliberate concealment of evidence.
7. An independent corps of trained prison prosecutors might be desirable, particularly for more serious or complex cases, but it was not shown to be mandatory. The claim for judicial review was dismissed.

First-instance judicial review proceedings. No earlier decision appealed from was identified in the judgment.