Kamara, R (on the application of) v Secretary of State for Justice

For the purposes of the 48-hour disciplinary time limit, evidence is discovered when information objectively gives the prosecuting authority reasonable grounds to believe that an offence may have been committed by an identified person. The rule does not require evidence of the highest or most persuasive quality, nor does it require the prisoner’s oral evidence or a warning against self-incrimination. Evidence communicated orally at an adjudication may suffice. The time limit may be extended in exceptional circumstances, including circumstances in which further adjudication is reasonably required to assess the credibility of evidence, but that issue must be properly raised.

The claimant, a prisoner, challenged his conviction by an Independent Adjudicator for possessing an unauthorised mobile phone contrary to rule 51(a) of the Prison Rules 1999. The phone had been found in another prisoner’s cell. At the other prisoner’s adjudication, the claimant’s signed statement admitting possession was produced and its contents and the claimant’s identity were communicated to the reporting officer. The claimant was not charged until nearly a month later.

The Independent Adjudicator held that the disciplinary time limit did not begin until the claimant gave oral evidence at a later hearing. The claimant sought judicial review of that decision and of the Chief Magistrate’s consequential decision on punishment. The central issue was when the evidence linking the claimant to the offence had been discovered under paragraph 2.3 of chapter 2 of the Prison Discipline Manual.

1. Claim allowed. The decision of the Independent Adjudicator was quashed. The Chief Magistrate’s decision also fell because its effectiveness depended upon the Adjudicator’s decision.
2. The relevant rule required a charge to be laid as soon as possible and, save in exceptional circumstances, within 48 hours of discovery of evidence linking the accused to the offence. It was not confined to evidence of a particular quality.
3. On 16 October 2008, the claimant’s signed statement, the admission contained in it, and the claimant’s identification were communicated to the reporting officer at the adjudication. Those matters constituted evidence linking the claimant to the offence. The authorities therefore had 48 hours in which to act. Their failure to obtain the document itself did not prevent discovery, since the reporting officer was made aware of its contents and identity of its author.
4. The court applied the approach in Tesco Stores Ltd v London Borough of Harrow [2003] EWHC 2919: discovery occurs when facts disclosed, viewed objectively, would give a prosecuting authority reasonable grounds to believe that an offence may have been committed by an identified person. The longer time limit in that case did not justify a different interpretation.
5. The expression exceptional circumstances could potentially cover the need to await determination of a Newton hearing concerning the credibility of evidence emerging during another prisoner’s mitigation. That argument might have affected the result, but it had not been relied upon and was not decided as applicable.