Wilson, R (on the application of) v The Independent Adjudicator & Anor

Article 6 ECHR provides procedural safeguards. It does not determine the content of domestic substantive law. A prison disciplinary charge may be a criminal charge for Article 6 purposes while remaining a non-criminal disciplinary offence in domestic law.

The availability of common-law duress under prison rules is therefore a matter of statutory construction. Where the rules expressly provide duress or similar defences for particular offences, the absence of such provision for other offences indicates that no general defence was intended. Duress may nevertheless be relevant in mitigation.

The claimant, serving a sentence in a young offender institution, was charged under rule 51(12) of the Young Offender Institution Rules 2000 with possessing an unauthorised article, namely illicit alcohol. He said that he had been threatened with a knife and sought to rely on the common-law defence of duress.

The Independent Adjudicator accepted that the threat would have made duress available in a criminal trial, but held that the defence did not apply to prison disciplinary proceedings. The claimant challenged that ruling by judicial review, arguing that the potential award of additional days made the charge criminal for Article 6 purposes and thereby attracted domestic criminal defences.

1. The claim was dismissed. The availability of duress under the Rules was a question of statutory construction. The Article 6 classification of the proceedings was not determinative.
2. Article 6 has an autonomous meaning of criminal charge for Convention purposes. The Engel v Netherlands criteria concern the applicability of Article 6 procedural safeguards. They do not convert a disciplinary charge into a domestic criminal offence or import domestic criminal substantive law.
3. The Rules constitute a separate, non-criminal disciplinary code made under section 47 of the Prison Act 1952. Their purpose is the maintenance of order in custodial institutions. The offences are dealt with through a quicker and more informal procedure, do not lead to criminal convictions, and attract different penalties. The fact that an Independent Adjudicator may impose additional days does not alter their domestic character.
4. The express provision in rules 52 and 52A for duress or similar defences in specified cases strongly indicated that no general common-law defence of duress was intended. The construction could not vary according to whether the charge was heard by the governor or the Independent Adjudicator. Duress could instead be taken into account as mitigation.
5. Self-defence provided no analogy. It is implicit in assault because reasonable force in self-defence negates the unlawful-force ingredient. Duress operates after the ingredients of the offence have been established and does not negate them.