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

A prison disciplinary adjudication is fair if the adjudicator determines whether the charge is proved to the criminal standard on the evidence before him. A co-defendant’s release does not ordinarily require the charge against the remaining prisoner to be dismissed. Nor must the adjudicator secure oral evidence which the legally represented prisoner has not requested and whose written evidence is already before him. A credibility assessment is not irrational merely because the adjudicator rejects a witness’s account. The court will intervene only where there is no material on which the adjudicator could properly act.

Charles Bates, a serving prisoner, challenged an independent adjudicator’s decision finding him guilty of possessing an unauthorised mobile phone contrary to Rule 51(12)(a) of the Prison Rules 1999. The phone was found concealed in a PlayStation belonging to him, in a cell shared with Scott Robinson. Robinson was released before Bates’s hearing and did not give oral evidence, but had written accepting sole responsibility. The adjudicator rejected Robinson’s account and Bates’s evidence, imposing seven days’ cellular confinement. The challenge alleged procedural unfairness and irrationality, including that the hearing should not have proceeded without Robinson and that an adverse point had not been put to Bates.

1. The claim was dismissed. The adjudicator was entitled to proceed after Robinson’s release. Bates was legally represented, had expressly declined to call witnesses, and chose to rely on Robinson’s written statement. The adjudicator was not required to suggest that oral evidence should be sought or to arrange Robinson’s attendance.
2. Fairness did not require Bates and Robinson to be dealt with together. The adjudicator’s task was to decide whether Bates’s guilt was proved to the criminal standard on all the evidence, not to determine which of two co-defendants had a better claim to belief. The Prison Discipline Manual recognised that co-defendants could appropriately be heard separately.
3. The adjudicator rationally regarded Robinson’s statement as suspicious because it was made immediately before release and contradicted his earlier plea of not guilty. Rejecting Robinson’s evidence did not itself establish Bates’s guilt. The adjudicator nevertheless considered the whole case, including the discovery of the phone in Bates’s PlayStation and Bates’s own evidence, which he was entitled to find incredible.
4. The remark that there were better places to conceal a phone was peripheral. It did not appear in the contemporary record or summary grounds and was not the reason for the decision. It therefore could not found either an unfairness or irrationality challenge.
5. R (King) v Secretary of State for Justice [2010] EWHC 2522 (Admin), [2011] 1 WLR 2667 established the relevance of Article 6 to cellular-confinement disciplinary proceedings, but Article 6 added nothing here because the adjudicator was independent. The approach in R (Maloney) v Governor of HMP Rochester [2000] Prison L.R. 23 supported the conclusion that the adjudicator was entitled to determine the case on the evidence presented.

First-instance judicial review. The claimant had appealed to a Senior District Judge for review of the punishment, but that review did not extend to the finding of guilt. This claim challenged only the independent adjudicator’s decision.