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R (Bates) v. District Judge Zani (Independent Adjudicator) & Secretary of State for Justice [2011] EWHC 3236 (Admin)

DATE: 08 Dec 2011

In this claim for judicial review the Claimant, a serving prisoner, challenged the decision of an independent adjudicator finding him guilty of possessing an unauthorised article, namely a mobile phone, in breach of the Prison Rules 1999 as amended.

The Claimant’s co-accused has been released before the adjudication hearing and therefore the disciplinary charge was pursued only against the Claimant. The co-accused had initially pleaded not guilty but, the day before his release, he admitted in a written statement that the mobile phone was his and not the Claimant’s. At the adjudication hearing, the Claimant relied on that written statement as evidence of his innocence. The adjudicator upheld the charge, concluding that the written statement was not reliable and that the Claimant was not credible.

The Claimant contended that the proceedings were unfair and in breach of Article 6 ECHR because his co-accused had not been present to give oral evidence. He also submitted that the finding of guilt was irrational.

Dismissing the claim, Stephen Males QC (sitting as a Deputy High Court Judge) held:

(1) Prior to the hearing, the Claimant had been given the opportunity to indicate whether he wished to call any witnesses. He indicated that he did not wish to call any witnesses. In those circumstances, the absence of the co-accused could not be said to be procedurally unfair or in breach of Article 6 ECHR.

(2)  The adjudicator was entitled to reach the findings that he did. The Court should be slow to interfere with adjudications where there was material upon which it was open to the adjudicator to act. There was such material here and therefore there was no reason to interfere with the adjudicator’s decision.

Charles Banner appeared for the Secretary of State for Justice, who successfully resisted the claim as an Interested Party (the Defendant adjudicator did not take part in the proceedings).