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

Article 6(1) requires an independent and impartial tribunal, but does not generally require an independent and impartial prosecutor. Prosecutorial independence remains relevant to the overall fairness of proceedings where a lack of independence or impartiality causes unfairness on the particular facts; it is not an automatic or institutional requirement. A court-martial decision concerning prosecutorial safeguards was context-specific and did not govern prison disciplinary hearings. Such proceedings may comply with Article 6(1) where the adjudicator is independent and impartial and there is no material withholding of documents, misleading conduct or unfair effect on the assessment of evidence.

A serving prisoner challenged the compatibility of prison disciplinary adjudications with Article 6(1). He had refused an order to provide a urine sample and was prosecuted by the reporting prison officer, who also gave disputed evidence. An independent adjudicator found him guilty and imposed 21 additional days.

The Administrative Court, before Stanley Burnton J, rejected the claim: [2007] EWHC 3079 (Admin), also reported at [2008] 1 WLR 1401. The appeal concerned whether Article 6(1) implied a freestanding requirement for an independent and impartial prosecutor, and whether the prison disciplinary system was institutionally incompatible with that provision.

The appeal was dismissed. Lord Justice Richards gave the lead judgment. Lord Justice Scott Baker and Sir Anthony Clarke MR agreed.

1. Article 6(1). The express requirement of independence and impartiality relates to the tribunal, namely the decision-makers. It does not create a general requirement that the prosecutor must also be independent and impartial. An independent and impartial tribunal is fundamental to a fair trial, but fairness can in principle be achieved without an additional general requirement concerning the prosecutor. ECHR Article 6(1) does not impose that requirement by implication (paras [18]-[20]).
2. A lack of prosecutorial independence or impartiality may nevertheless be relevant where it has affected the conduct of the prosecution or otherwise caused unfairness. It does not itself render proceedings unfair or produce an automatic violation of Article 6(1). The issue is whether the overall hearing was fair on the particular facts (paras [18]-[19], [29]).
3. The court treated Cooper v United Kingdom (2004) 39 EHRR 171 as providing no real support for a freestanding prosecutorial requirement. Its finding concerning the prosecutor had to be read in the context of the case as a whole, where the stated legal principles concerned the tribunal. The issue of the position absent prosecutorial independence had not arisen for decision.
4. R v Stow [2005] EWCA Crim 1157 was treated with caution. The court doubted the correctness and general scope of its reasoning, noting the Crown’s concession, the limited argument, the restricted Strasbourg authority and the undue weight placed on Crown Prosecutor standards. The decision concerned a particular court-martial context and did not govern prison disciplinary proceedings (paras [21]-[28]).
5. The prison disciplinary system was not institutionally incompatible with Article 6(1). On the facts, there was no reason to believe that relevant documents had been withheld, that the tribunal had been misled, or that the adjudicator’s credibility assessment had been affected by the reporting officer also conducting the prosecution. The proceedings were fair and the appeal was dismissed (para [29]).

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 1089, the court dismissed the appeal.
2. Administrative Court, Queen’s Bench Division: Stanley Burnton J rejected the claim that the prison disciplinary arrangements breached Article 6(1), in [2007] EWHC 3079 (Admin).