Smith, R (on the application of) v HMP Belmarsh & Anor

Article 6 may apply to prison disciplinary proceedings even where no additional days can be imposed. The nature of the offence is a free-standing criterion: conduct may be criminal in character although committed within prison and dealt with under disciplinary rules. The fact that conduct could constitute a criminal offence does not, by itself, engage Article 6. The case must be exceptional, having regard to the nature of the conduct and the circumstances in which criminal proceedings were not pursued. A failure to provide an independent tribunal will ordinarily invalidate the decision, but relief may be refused where the court is satisfied that the outcome was inevitable and no prejudice resulted.

The claimant, a life prisoner, challenged a disciplinary finding that he had seriously assaulted a female prison officer. The governor referred the matter to the police, but the police declined to prosecute without giving reasons. The governor then adjudicated the disciplinary charge, imposed cellular confinement and forfeiture of privileges, and the Secretary of State upheld the finding.

The claimant argued that the charge was criminal for the purposes of Article 6, requiring an independent tribunal, and that he should have been legally represented. He also alleged procedural unfairness in the conduct of the hearing. The central issues were whether Article 6 applied and, if so, what relief and procedural consequences followed.

1. The claim was dismissed. The failure to refer the matter to an independent adjudicator did not justify relief because the claimant suffered no prejudice and the result was inevitable.

2. The court applied the three Engel criteria: domestic classification, the nature of the offence, and the nature and severity of the penalty. Following Ezeh and Connors v United Kingdom (2003) 39 EHRR 1, the second and third criteria are alternative, not necessarily cumulative. The nature of the offence may therefore be sufficient, without a penalty involving additional custody.

3. The claimant’s assault was exceptionally serious. It was capable of criminal prosecution, involved serious injuries, and had been referred to the police under the applicable prison guidance. The unexplained refusal to prosecute did not prevent the disciplinary charge from being criminal in character for Article 6 purposes. The hearing should therefore have been before an independent adjudicator.

4. The court accepted that the circumstances were exceptional and did not detract from the cautious approach in R(Tangney) v The Governor of HM Prison Elmsley [2005] H.R.L.R. 36. The ordinary position remains that disciplinary conduct will not engage Article 6 merely because it also constitutes a criminal offence.

5. The governor was entitled to refuse legal representation. The relevant factors included the seriousness and potential penalty, possible points of law, the prisoner’s ability to present his case, procedural difficulty, the need for speed, and fairness between participants. The evidence and issues were straightforward, and the claimant could present his case.

6. The simultaneous questioning of two prison officers was procedurally irregular, but caused no prejudice. The claimant abandoned the hearing, the evidence against him was overwhelming and unchallenged, and the governor was entitled to proceed in his absence.

7. The judge further observed that the treatment of life prisoners should be reconsidered, including the possibility of additional days before expiry of the tariff. He also considered it essential that police give reasons when declining to prosecute serious prison assaults. These observations were intended to prevent recurrence of the problem identified by the case.