Garland, R (on the application of) v Secretary of State for Justice & Anor

Rule 53(1) of the Prison Rules 1999 requires a disciplinary charge to be laid as soon as possible, meaning within 48 hours unless exceptional circumstances make that impossible. The 48-hour period is a longstop: within means not later than 48 hours, including the end of the period. The rule does not require proof that the charge was laid at the earliest possible moment within those 48 hours. A pro forma description of the time as approximate does not create uncertainty where the evidence establishes that the charge was laid within the period. Obiter, breach does not automatically invalidate later proceedings. Dismissal or quashing may be justified by prejudice or wholly unwarranted delay.

The appellant, a prisoner serving a sentence of imprisonment for public protection, was charged with failing to obey a lawful order after resisting a search. Notice of the charge was given approximately 48 hours after the incident. The charge was proved at a Governor’s adjudication, and the Director of High Security upheld the decision on appeal.

The appellant unsuccessfully complained to the Prisons and Probation Ombudsman and then sought judicial review. Mr Justice Mitting refused permission. On appeal, the remaining issue was whether the charge complied with Rule 53(1) of the Prison Rules 1999, including the meaning of as soon as possible and within 48 hours, and the legal consequence of any breach.

Lord Justice Hughes gave the judgment. Lady Justice Black and Lord Justice Tomlinson agreed. The appeal was dismissed.

1. Construction of Rule 53(1). The rule requires a disciplinary charge to be laid as soon as possible, but that requirement means that it must be laid within 48 hours unless exceptional circumstances make compliance within that period impossible. It does not impose a separate obligation to prove that the charge was laid earlier whenever that might have been possible. The contrasting wording of CPR 54.5(1), and of Rule 54(1) of the Prison Rules 1999, did not justify importing an additional in any event requirement.
2. Meaning of within. In ordinary language, a charge laid on the stroke of the 48th hour is laid within 48 hours. The rule therefore means not later than 48 hours after discovery of the offence.
3. Application to the evidence. The use of approximately in the pro forma did not create material uncertainty. The evidence pointed to the charge having been laid at the end of the 48-hour period. The analogy with Atkinson v DPP [2004] EWHC 1457 (Admin) was inapposite because, there, the record could not reliably establish when the information had been laid.
4. Consequences of breach. The court considered, obiter, the consequences had there been non-compliance. Following the approach in R v Soneji [2005] UKHL 49 and R v Clarke and McDaid [2008] UKHL 8, the question is what consequence Parliament intended. A minimal breach without prejudice does not automatically invalidate the adjudication. A charge laid outside 48 hours may be dismissed, or an adjudication quashed, where the prisoner suffered prejudice, and may also be struck down where there is no excuse for unwarranted delay. The earlier decision in R v Board of Visitors of Dartmoor Prison ex p Smith [1987] 1 QB 106 was not displaced by Soneji, but its reasoning concerned differently worded and more flexible provisions.
5. Ombudsman proceedings. The challenge to the Ombudsman’s decision was unnecessary. If the adjudication was invalid, the Ombudsman’s decision added nothing; if it was valid, no error in the Ombudsman’s decision was established.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the refusal of permission to apply for judicial review.
• High Court of Justice, Queen’s Bench Division, Administrative Court Mr Justice Mitting refused permission for judicial review of the prison adjudication and the Ombudsman’s decision.