Gifford v The Governor of HMP Bure & Ors

Judicial review is generally a remedy of last resort. Where an ombudsman can investigate both the merits and procedure of a decision, has relevant expertise, and can provide effective redress through recommendations, a reference to the ombudsman may be the most effective and convenient remedy. Prisoner complaints arising from adjudications will generally be suitable for the Prison and Probation Ombudsman. Judicial review remains appropriate where urgent relief or an injunction is sought, where the complaint concerns a conviction or sentence outside the Ombudsman’s remit, or where the real issue is a policy challenge. A claimant seeking judicial review of a prisoner adjudication should explain why the complaint is unsuitable for resolution by the Ombudsman.

The claimant sought judicial review of the Secretary of State’s refusal to quash findings of guilt arising from two internal prison adjudications. He alleged that he had been denied adequate access to legal advice because the adjudicators refused further adjournments. The original claim also challenged the prison PIN-phone system, but that issue was abandoned.

The defendants and the Prison and Probation Ombudsman contended that the claimant had an adequate alternative remedy by referring the complaints to the Ombudsman. The court therefore considered both the merits of the adjudication complaints and whether judicial review was appropriate.

1. Substantive complaints. The challenges to both adjudications were hopeless. At each second hearing the adjudicator asked whether the claimant wanted legal assistance, and the claimant said that he did not. He could have produced the solicitor’s letter and sought an adjournment at the outset. In any event, after the claimant admitted the relevant conduct and changed his plea to guilty, a further adjournment would have served no useful purpose. The decisions were neither irrational nor procedurally flawed (paras [15]-[18], [25]-[26]).
2. Alternative remedy. The court applied the principle that the appropriate remedy depends on which available avenue is most convenient, expeditious and effective, considered both for the claimant and the public interest. Judicial review should ordinarily be used only where other means of redress are not conveniently and effectively available, as explained in R v Huntingdon District Council ex parte Cowan, R v Devon County Council ex parte Baker, Kay v Lambeth London Borough Council and R (Cart) v Upper Tribunal (paras [36]-[38]).
3. The Ombudsman could investigate both the merits and procedure of prisoner adjudications, had substantial relevant experience, and recommendations were followed in almost every case. Its process was also materially less costly and generally quicker than judicial review. The fact that the Ombudsman made recommendations rather than binding quashing orders did not prevent it from being an effective alternative remedy (paras [40]-[48]).
4. Complaints arising from prisoner adjudications are generally suitable for reference to the Ombudsman. Judicial review may nevertheless be appropriate where urgent relief or an injunction is required, where the complaint concerns an underlying conviction or sentence outside the Ombudsman’s remit, or where the complaint is genuinely about policy. A claimant must explain in the claim form how and why the complaint is unsuitable for resolution by the Ombudsman; merely labelling it a policy challenge is insufficient (paras [52]-[57]).
5. The PIN-phone challenge was unsustainable and irrelevant to the outcome of the second adjudication. Permission would have been refused on the alternative-remedy ground, and, alternatively, the substantive claim would have been refused as hopeless (paras [27]-[32], [58]-[59]).