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

An adjudication is procedurally unfair where the decision-maker obtains material opinion evidence from a witness in the prisoner’s absence and decides the charge without allowing the prisoner to question that witness or adduce responsive evidence. The question is whether there was a real possibility of a different outcome had the procedural error not occurred. A review decision must address a clearly raised complaint about the evidential procedure. Although complaints arising from prison adjudications will generally be suitable for the Prison and Probation Ombudsman, relief may still be granted where refusing it would leave the claimant without an effective remedy or cause disproportionate further expense and delay.

The claimant, a life prisoner at HMP Full Sutton, challenged a NOMS decision upholding an adjudicator’s finding that he had disobeyed a lawful order under the Prison Rules. The adjudicator had telephoned a nurse during the hearing to obtain medical information about the claimant’s need to take bread to work. The claimant was not given an opportunity to question the nurse or respond before the charge was found proved.

The claimant also challenged the adequacy of the review decisions and faced an argument that he should have used the Prison and Probation Ombudsman as an alternative remedy. The central issues were whether the adjudication and review process was fair, whether the error could have made no difference, and whether relief should be withheld because of the alternative remedy.

1. The adjudication was unfair. The nurse’s view about the effect of bread on constipation was opinion evidence which materially influenced the adjudicator’s assessment of whether the order was lawful. Under the applicable Prison Service Instruction and ordinary principles of natural justice, the claimant should have been allowed to question the witness and adduce further evidence.
2. The claimant could not properly be expected to request questioning only after the verdict. The adjudicator’s record and evidence showed that he relied on the nurse’s opinion, rather than merely checking whether a diagnosed condition appeared in the medical records.
3. The relevant fairness question was whether there was a real possibility that the tribunal would have reached a different conclusion had the claimant been allowed to challenge the evidence. The defendant properly made no submission that the error could not have affected the result, since there was no evidence establishing the accuracy of the nurse’s opinion and the adjudicator had relied upon it.
4. Both review decisions were flawed. The first failed to address the complaint that the nurse’s evidence had been received without an opportunity for questioning. The supplementary decision incorrectly stated that the claimant had been able to dispute the evidence or request another medical witness.
5. The Prison and Probation Ombudsman was generally a suitable alternative forum for prison-adjudication complaints, as explained in R (Gifford) v Governor of HMP Bure & Others and R (Odigie) v Serco & Secretary of State for Justice. However, permission had been granted, the merits challenge succeeded, and refusing relief would have required further expenditure and risked leaving the claimant without a remedy after the Ombudsman had declined to investigate.
6. The review decision was quashed. The court reserved the question of costs for written submissions.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.