Lake, R (on the application of) v The Governor HMP Highdown

Disciplinary proceedings before an independent prison adjudicator determining a criminal charge must comply with the fairness requirements of Article 6 of the European Convention on Human Rights. The right to obtain the attendance of defence witnesses is not infringed where the prisoner, represented by a solicitor, does not ask the adjudicator to secure a witness’s attendance. In an inquisitorial procedure, the adjudicator may ordinarily rely on the solicitor’s deliberate decision not to make that request. The adjudicator is not required to investigate privileged or potentially prejudicial reasons for that decision. Similarly, evidence known to the solicitor but not put before the adjudicator does not ordinarily render the hearing unfair.

The claimant, a serving prisoner, sought judicial review of an independent adjudicator’s decision finding him guilty of possessing an unauthorised item contrary to rule 51(12) of the Prison Rules 1999 and ordering 28 additional days in custody. The claimant relied on the absence of a prisoner witness, Mr Wimbury, whose earlier account supported his explanation of the shampoo bottle in which a SIM card had been found.

The witness was reported to be unwilling to attend, but the claimant’s solicitor did not ask the adjudicator to require his attendance or seek production of a note concerning ownership of the bottle. The central issue was whether those omissions made the adjudication unfair at common law or under Article 6 of the European Convention on Human Rights.

1. The application was dismissed. The proceedings before the independent adjudicator were fair and the claimant’s Article 6 rights were not infringed.
2. The proceedings involved the determination of a criminal charge for Article 6 purposes. They were therefore subject to the general fairness requirement in Article 6(1) and to the right under Article 6(3)(d) to obtain the attendance and examination of defence witnesses. If the claimant had been unfairly deprived of material evidence, the hearing would have been unfair both under the Convention and at common law.
3. Under paragraph 5.13 of the Prison Discipline Manual Adjudications, the adjudicator had power to require the witness to attend. However, the claimant’s solicitor knew that the witness was said to be unwilling to attend and made no application for that power to be exercised. The adjudicator was entitled to assume that the solicitor had a proper reason for that decision.
4. The inquisitorial nature of the procedure did not require the adjudicator to go behind the solicitor’s apparent decision or investigate whether it was ill-founded. Asking the solicitor to explain the decision could have elicited privileged or inadmissible material and could have created an appearance of bias if the adjudicator required attendance without an application.
5. The claimant’s solicitor also knew of a signed note concerning ownership of the bottle but did not ask for it to be produced. The adjudicator had not been told of the note and could not be criticised for its non-production. In those circumstances, the claimant had not been deprived of the opportunity to exercise his Convention rights.