Lashley, R (on the application of) v An Independent Adjudicator & Anor

For an offence under rule 51(24) of the Prison Rules, the prosecution must establish that the prisoner received an article during a visit, knew that the article existed, and knew that he lacked permission to have it. Where the prisoner’s case is that nothing was received, and the evidence clearly establishes receipt of something, the adjudicator may determine the issue on that straightforward basis. An adjournment request must be considered carefully to ensure a fair opportunity to prepare, but an adjudicator should proceed where the request is unjustified and adequate preparation has been available.

The claimant sought judicial review of an independent adjudicator’s finding that he had received an article from his brother during a prison visit without permission. The adjudicator relied principally on clear CCTV footage and imposed 25 additional days, delaying the claimant’s release on licence.

The claimant challenged the decision on substantive grounds, arguing that the evidence did not establish what the article was or the necessary mental elements. He also argued that the adjudicator had unfairly refused an adjournment so that more experienced representation could attend. The claim was heard on an expedited basis after Cranston J ordered an inter partes hearing.

1. Claim dismissed. The adjudicator had not erred either substantively or procedurally.
2. Rule 51(24) required proof that the claimant received an article during the visit, knew that it existed, and knew that he lacked permission to have it. Strictly, however, receiving anything during a visit without permission constituted an offence against the Prison Rules.
3. The adjudicator was entitled to regard the CCTV as clearly showing the claimant receiving something. Since the claimant’s case was that he had received nothing, the hypothetical possibility that the article might have been innocuous, or that he might have believed he had permission, did not arise on the evidence.
4. An adjournment request had to be considered carefully so that a prisoner had a fair chance to prepare the case. That obligation did not require an adjournment where the request was unjustified. The claimant had had approximately a fortnight to arrange representation, the hearing was straightforward, and there was no demonstrated further preparation that would have assisted, apart from the possible obtaining of a statement from the claimant’s brother.
5. The refusal to adjourn was therefore lawful, and the application for judicial review was refused.

The judgment records that Cranston J ordered an expedited inter partes hearing on the papers on 3 July 2008. The Administrative Court then heard and refused the judicial review claim on 18 July 2008.