R (on the application of Peter Kane) v The Independent Adjudicator

Under rule 53A of the Prison Rules, the governor must personally determine whether a charge is sufficiently serious for referral to an independent adjudicator, or whether referral is necessary or expedient for another reason. The adjudicator may examine whether that jurisdictional condition has been lawfully satisfied, but may not substitute their own assessment of seriousness.

The referral decision must disclose brief reasoning showing that the governor addressed the relevant threshold. The charge alone, a general assertion of seriousness, or referral of the matter to the police does not necessarily demonstrate that the threshold was considered. Relevant circumstances must also be addressed where appropriate. A failure to do so deprives the adjudicator of jurisdiction.

The claimant, a Category A prisoner, challenged an independent adjudicator’s decision imposing 18 additional days after four charges arising from an incident at HMP Whitemoor had been referred for adjudication.

The referral was made by a second governor after the police took no action. The claimant argued that the governor had not determined whether the charges were so serious that additional days should be awarded, as required by rule 53A of the Prison Rules. The adjudicator rejected the jurisdictional objection, relying on the nature of the incident, Covid-19-related arrangements and the earlier police referral. The central issue was whether the material before the adjudicator demonstrated that the governor had applied the statutory seriousness threshold.

1. Jurisdiction under rule 53A. The governor’s determination lawfully confers the adjudicator’s power to inquire into the charge. The adjudicator may therefore examine the legality of the referral, including whether the governor applied the relevant threshold. There is no duty to investigate the factual basis of the governor’s assessment, but it must be apparent that the governor addressed the threshold and gave brief, intelligible reasons ([12]-[14]).
2. The relevant assessment is the governor’s, not the adjudicator’s or the court’s. The court could not substitute its own view that the conduct was sufficiently serious. The reasons should address the circumstances of the conduct as well as the charge itself. The Prison Service guidance indicated that the seriousness test concerned a very serious risk to order and control or to the safety of those within the establishment ([15]-[16], [23]-[24]).
3. The adjudicator’s reliance on Covid-19 arrangements and new regulations did not show that the second governor had considered the rule 53A threshold. The later guidance, even if admissible, did not remove the need for reasons addressing the charge and its circumstances ([17]-[24]).
4. Referral to the police was relevant background but did not establish that the rule 53A threshold had been met. Police referral was ordinarily required for assaults on staff, subject to limited exceptions, and the threshold for police referral was not shown to be the same as the threshold for adjudication ([26]-[30]).
5. The adjudicator therefore lacked jurisdiction and should have dismissed the adjudication. The irrationality ground added nothing independently. The adjudication decision and punishments were quashed. No remittal was ordered because, owing to the passage of time, the matter could not realistically return to the adjudicator. A payment on account of costs of £10,000 was ordered within 28 days ([31]-[34]).

The judgment itself records that permission was refused on paper by John Howell QC and on oral renewal by David Lock QC. Permission was subsequently renewed before the Court of Appeal, where Lord Justice Popplewell considered the first ground arguable and important. The judicial review was then determined by the Administrative Court.