Secretary of State for Justice v Peter Kane & Anor

Under rule 53A of the Prison Rules 1999, a governor must refer a charge to an Independent Adjudicator where it is so serious that additional days would be awarded if proved, or where referral is necessary or expedient for another reason.

In a so-serious case, the governor need not give reasons in every instance. The nature of the charge may make the seriousness apparent. The Adjudicator must form an independent view whether to proceed, but need not investigate the governor’s thought processes. The appeal was allowed.

The Secretary of State appealed against the decision of the High Court in [2022] EWHC 1376 (Admin), which quashed an Independent Adjudicator’s decision concerning four prison disciplinary charges against Peter Kane.

The charges arose from abusive behaviour, an assault involving a piece of wood, damage to prison property and conduct said to endanger safety. The referring governor stated that the charges were referred because of their nature and because the police had returned them. The central issue was whether rule 53A required a reasoned determination by the governor and an investigation by the Adjudicator before the disciplinary hearing could proceed.

Appeal allowed. The Court of Appeal, in the judgment of Bean LJ with which Thirlwall LJ and Peter Jackson LJ agreed, set aside the High Court’s order. The Independent Adjudicator had jurisdiction to proceed, and her decision was correct. The respondent could no longer be required to serve the additional days because his custodial sentence had expired.

1. Prison Rules 1999, rule 53A, requires the governor to determine whether the charge is so serious that additional days should be awarded if proved, or whether it is necessary or expedient for some other reason for an Independent Adjudicator to inquire into it. The appeal concerned the first limb.
2. Rule 53A does not require the governor to give reasons in every so-serious case. The governor’s assessment is not binding on the Adjudicator, and a later finding that additional days are inappropriate does not retrospectively make the referral unlawful.
3. PSI 05/2018 gives the Adjudicator power not to proceed with an unlawful referral and advises governors to state reasons where seriousness is not apparent. It does not impose a universal duty on the Adjudicator to investigate the referring governor’s reasoning. The Adjudicator must form an independent view whether to proceed, and must then decide guilt and penalty independently.
4. Where the charge or its particulars make the very serious risk to order, control or safety apparent, the facts may speak for themselves. The reference to the nature of the charges was sufficient in this case. The analogy with the school-admissions decision in R v Birmingham City Council ex p B [1999] ELR 305 was unhelpful because that decision arose in a materially different context. The alternative argument under section 31(2A) of the Senior Courts Act 1981 was academic.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and set aside the order below: [2023] EWCA Civ 842.
• High Court of Justice (Administrative Court): Quashed the Independent Adjudicator’s decision, holding that the referral governor had not shown proper consideration of the seriousness threshold: [2022] EWHC 1376 (Admin).