O'Neil, R (on the application of) v Independent Adjudicator & Anor

Failure to retain and produce physical evidence in prison disciplinary proceedings does not automatically prevent reliance on that evidence. The adjudicator must examine carefully why it is unavailable and assess whether reliance upon other evidence would cause injustice. Compliance with the Prison Discipline Manual is an important safeguard for prisoners, who may be disadvantaged in defending disciplinary allegations.

Possession requires control of the relevant article. It cannot be inferred merely from the fact that an article was found in a cell occupied by the prisoner. A concession in related proceedings does not establish an error of law in the present adjudication where the reasons for that concession are unknown.

The claimant, a serving prisoner, challenged an independent adjudicator’s decision finding him guilty of possessing a mobile telephone charger and aerial in breach of prison discipline rules. The aerial was not produced at the hearing, contrary to paragraph 5.7 of the Prison Discipline Manual. The claimant argued that this failure caused injustice and that a related judicial review claim brought by his cellmate, Alan Collins, showed that the adjudicator had misdirected herself on possession.

The court considered whether the adjudicator’s findings were legally irrational or involved an error of law.

1. The claim was dismissed. The adjudicator was entitled to find that the claimant possessed the charger and aerial, and no error of law or irrationality was established.
2. The requirement in paragraph 5.7 of the Prison Discipline Manual to retain and produce physical evidence is an important safeguard. Prisoners may be less able than persons at liberty to defend disciplinary allegations, so adjudicators must guard against any relaxation of evidential standards.
3. Non-compliance with paragraph 5.7 does not create an absolute rule that the missing evidence can never be relied upon. The adjudicator must consider carefully why the evidence was not retained or produced and whether reliance on other evidence would cause injustice. Here, the adjudicator heard and tested the prison officer’s evidence, and her conclusions about the existence and nature of the aerial were open to her.
4. The finding that both prisoners had control of the aerial implicitly directed the adjudicator to the correct requirement for possession. Possession could not properly be inferred merely because the aerial was found in the cell, but the materials before the adjudicator were sufficient to support her finding that the claimant controlled it.
5. The consensual quashing of Collins’s adjudication did not demonstrate an error in the claimant’s case. The reasons for that concession were unknown and no significance could be attached to it without further material.
6. Permission to appeal was refused. Although compliance with the Manual was of general importance, this case raised no issue of wider importance and there was no realistic prospect of success.