Human rights – Disciplinary offences – Impartiality – Independence – Prisoners

R (on the application of John Haase) (claimant) v Independent Adjudicator (defendant) and Secretary of State for Justice (interested party): R (on the application of John Haase) (appellant) v Secretary of State for Justice (respondent): CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lords Justice Scott Baker, Richards): 14 October 2008

The appellant prisoner (H) appealed against a decision ([2007] EWHC 3079 (Admin), [2008] 1 WLR 1401) that the practice, in prison disciplinary proceedings heard by an independent adjudicator, of the prosecution case being presented by a prison officer who might also be a witness, was not incompatible with article 6(1) of the European Convention on Human Rights 1950.

While serving a sentence of imprisonment, H had been charged with disobeying a lawful order. He contested the charge and the adjudication was heard by an independent adjudicator. The prosecution was conducted by the reporting prison officer. Both the prison officer and H gave evidence, and that of the prison officer was preferred over that of H. H was consequently found guilty. H submitted that the fundamental requirement in article 6(1) was that of a fair hearing, and in order to meet that requirement the prosecutor, as well as the adjudicator, had to be independent and impartial. He argued that there was an insufficient guarantee of independence and impartiality unless the prosecutor was an officer from a different prison, was subject to a code of conduct and was given appropriate training so as to ensure that all relevant material was disclosed and that the tribunal was not misled.

Held: The court was not persuaded that article 6(1) imposed any general requirement as to the independence and impartiality of the prosecutor. If, on the particular facts, a lack of such independence or impartiality resulted in unfairness to the defendant, then there could be a violation of article 6(1), but a lack of prosecutorial independence or impartiality did not in itself render the proceedings unfair or give rise to an automatic violation. It was significant that the express requirement of independence and impartiality in article 6(1) related only to the tribunal. If the tribunal was independent and impartial, fairness could in principle be achieved without imposing an additional general requirement as to the independence and impartiality of the prosecutor, and there was insufficient justification for implying such an additional requirement into article 6(1). Nowhere had the Strasbourg Court said that article 6(1) required the prosecutor to be independent and impartial. H had relied on a finding in Cooper v United Kingdom (48843/99) [2004] 39 EHRR 8 ECHR as to the independence of the prosecutor, arguing that it could be taken to suggest that the independence of the prosecutor was a distinct consideration under article 6(1). However, that finding had to be looked at in the context of the case as a whole. The judgment could not be read as an implied acceptance by the court that an absence of prosecutorial independence and impartiality would be a violation of article 6(1) in that event, and the case did not provide any real support for H’s case, Cooper considered. While R v Stow (Matthew Gary) [2005] EWCA Crim 1157, [2005] UKHRR 754 appeared to provide some support for H’s case, it had to be treated with caution. First, the need for a degree of independence and impartiality on the part of the prosecution had been conceded by the Crown. Second, the court did not seem to have appreciated quite how limited the Strasbourg case law was on the issue. Third, the decision placed undue weight on the characteristics of Crown prosecutors and the requirements laid down for them in the Code for Crown Prosecutors; independent prosecutors were not a universal feature of the English legal system. The correctness of Stow was therefore doubted and the scope of the decision was to be limited. There, the court’s focus had been on the specific context of a court martial, and what was said about prosecutorial independence and impartiality was not to be treated as governing cases arising in other contexts, Stow distinguished.

Appeal dismissed.

Tim Owen QC, Hugh Southey (instructed by Langleys) for the claimant/appellant; no appearance or representation for the defendant; David Perry QC, Sam Grodzinski (instructed by Treasury Solicitor) for the respondent.