Kane, R (On the Application Of) v The Independent Adjudicator

An Independent Adjudicator is not required to investigate or review the reasons why a Prison Governor referred disciplinary charges under rule 53A of the Prison Rules 1999. Once a lawful referral is made, the Governor becomes functus officio and the adjudicator must determine the charges on their merits, unless the referral is clearly unlawful. An assault for disciplinary purposes requires intentional or reckless conduct causing another to apprehend immediate and unlawful violence; actual physical contact is unnecessary. A court may refuse permission under section 31 of the Senior Courts Act 1981 where any defect would not have affected the outcome. Unpublished guidance is not automatically unlawful where it is not secret, the affected person had access to it, and there is no evidence that it materially influenced the decision.

The claimant, a serving category A prisoner, challenged disciplinary decisions made by an Independent Adjudicator after a Prison Governor referred four charges under rule 53A of the Prison Rules 1999. The adjudicator accepted two pleas, found two further charges proved, and imposed 18 additional days’ imprisonment.

The renewed judicial review application alleged that the adjudicator should have dismissed the charges because the Governor’s reasons for referral were not before her; that the assault finding lacked an express finding that the victim apprehended violence; that the endangerment finding was unlawful; and that sanctions were unlawfully based on unpublished guidance. The endangerment ground was not pursued on renewal.

1. Referral under rule 53A. The statutory power to refer charges belongs to the Prison Governor. Once a lawful referral is made, responsibility for adjudicating the merits passes to the Independent Adjudicator and the Governor becomes functus officio. The adjudicator has no duty to investigate the factual basis or adequacy of the Governor’s reasons for referral. Unless there is obvious unlawfulness in the transfer, the adjudicator must determine the charges fairly and cannot dismiss them merely because the referral reasons are unavailable.
2. The pro forma requirement asking whether the Governor had properly considered the seriousness threshold appears to invite an inquiry outside the statutory scheme. The relevant question is whether a decision was made under rule 53A(1), subject to the qualification that an obviously unlawful referral may require separate intervention.
3. Assault. An assault under rule 53(1) is established by intentional or reckless conduct causing another to apprehend immediate and unlawful violence. Physical injury or contact is unnecessary. Throwing a piece of wood deliberately at a prison officer’s head established the necessary actus reus and mens rea. The officer’s evasive action made apprehension of injury the only reasonable inference, so an express finding was unnecessary.
4. Section 31. Even if the findings contained a technical defect, permission could be refused under section 31 of the Senior Courts Act 1981 because it was highly likely that the same decision would have been reached.
5. Sanctions guidance. R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 did not establish that a public body may never rely on guidance unless it is published on a website. Its publication observations concerned a deliberately secret policy conflicting with the published policy. Here the guidance was publicly obtainable, the claimant’s solicitor knew of it, there was no evidence of material reliance, and no unlawful or excessive sanction was shown.
6. Permission to apply for judicial review was refused on all grounds. Costs and publicly funded costs were dealt with under the order.

This was a renewed application for permission to apply for judicial review. The High Court refused permission on all grounds.