O'Brien, R (On the Application Of) v Independent Adjudicator

An independent adjudicator appointed under the prison disciplinary scheme has a limited statutory function: to inquire into charges referred by the governor. That function does not include an incidental power to refer the charge to the police instead of conducting the inquiry. The adjudicator does not acquire the governor’s separate power to report suspected crime merely because she is dealing with a charge referred by the governor. The legislative scheme prioritises swift in-prison adjudication for disciplinary offences, while leaving police referral primarily to the governor. An adjudicator may report exceptionally serious criminality discovered during the process where the public interest requires it, but that does not justify abandoning the charge already referred for inquiry. A decision apparently predetermined by a personal practice or policy is also unlawful.

The claimant, a serving prisoner, sought judicial review of the defendant independent adjudicator’s decision to refer two disciplinary charges concerning possession of mobile phones to the police rather than determine them herself. The charges had been referred to her by prison governors under the Prison Rules 1999. Permission had been granted on the principal jurisdictional issue, with renewed grounds concerning an alleged unpublished policy and the Data Protection Act 1998.

The central questions were whether the adjudicator had power to make the police referral, whether the decision disclosed apparent predetermination, and whether the associated processing of personal data was lawful.

1. Jurisdiction. The court held that the independent adjudicator had no express power to refer a disciplinary charge to the police. Applying the statutory-context approach to implied incidental powers, the court concluded that such a power was not necessary to enable her to perform her limited function of inquiring into the charge ([2019] EWHC 2884 (Admin), paras 66–69).
2. The Prison Act 1952 vested general prison superintendence in the Secretary of State, and the Prison Rules 1999 established a swift disciplinary process. The rules required the referred charge to be inquired into by the adjudicator. They did not permit her to abandon that inquiry because a further or more serious matter came to light. If new conduct disclosed a more serious charge, she could inform the governor, who could consider referring it to the police. That did not justify abandoning the existing charge (paras 67–72).
3. The governor had an implied power to report crime or suspected crime within the prison, supported by the prison-management functions and the Prison Service Instructions. The adjudicator was not, however, sitting as a substitute governor. Her independence meant that she possessed only the powers conferred on her as adjudicator, together with powers necessarily incidental to the inquiry (paras 73–78).
4. The court recognised that a judge sitting in ordinary court proceedings may direct that serious criminal conduct emerging in the proceedings be reported to the police. That public-policy principle did not apply in the same way when a District Judge was sitting as an independent adjudicator. There was no absolute prohibition on reporting exceptional criminality discovered through the adjudication process, such as corruption or gross error, but the present mobile-phone charges did not fall within that exception (paras 76–78, 84).
5. The evidence also established apparent predetermination. The adjudicator had decided to refer the charges before examining the additional evidence or hearing submissions on the issue. It was unlawful for a judicial decision-maker to operate a personal policy as to how a category of case should be dealt with (paras 79–81).
6. Because the adjudicator lacked power to make the referral, processing the claimant’s sensitive personal data for that purpose breached the first data protection principle. The declaration of unlawfulness was sufficient remedy; the decision was not quashed because the claimant had since been released and one charge had been marked not to be proceeded with (paras 82–86).

Not stated in the judgment.