CASE OF WHITFIELD AND OTHERS v. THE UNITED KINGDOM
Violation of Art. 6-1 in respect of three applicants;Violation of Art. 6-3-c in respect of all applicants;Not necessary to examine Art. 6-3-b;No violation of Art. 5 alone or in conjunction with Art. 13;Non-pecuniary damage - findings of violations sufficient (with regard to three applicants);Non-pecuniary damage - financial award (with regard to one applicant);Costs and expenses award - Convention proceedings
Josep Casadevall;Nicolas Bratza
5. The first applicant was born in 1968 and is currently in prison in the Isle of Wight, the second was born in 1961 and lives in London and the third was born in 1980 and lives in Leeds. The fourth applicant was born in 1976. 6. On 15 March 1996 the applicant was sentenced to nine years’ imprisonment following a conviction for causing grievous bodily harm. 7. It was later alleged that on 5 June 1998, as he was being transferred to HMP Parkhurst, a fight broke out during which he “headbutted” one of the prison officers. On 6 June 1998 he was charged with assault contrary to Rule 47(1) of the Prison Rules 1964. 8. The adjudication hearing before the governor commenced on 22 June and continued on 23 June 1998 when a letter was received from the applicant’s solicitor requesting that he be legally represented at the hearing. The governor adjourned the hearing until 14 July 1998 to consider the request. On 7 July 1998 legal aid was granted by the Legal Aid Board for representation prior to and at the adjudication hearing. 9. On 8 July 1998 the applicant orally outlined to the governor why he needed legal representation but the governor rejected the request: “I have considered the case for legal [representation]. I do not feel there is an issue of seriousness or potential penalty. You are able to conduct your defence. You have access to check original with the prisoners you may call as witness. I do not consider you have been unfairly treated in comparison with the other prisoner so charged. No points of law are in question”. 10. By letter of 28 July 1998 the applicant’s solicitors asked the governor to reconsider. By letter of 30 July 1998 the prison service responded explaining that in considering requests for representation governors did not need to be sure beyond reasonable doubt that representation was not needed before rejecting a request but were required to take account of the six criteria set out in the “Tarrant principles” (R. v. Secretary of State for the Home Department ex parte Tarrant [1984] QB 251). 11. The adjudication hearing resumed on 25 September 1998. The applicant again requested legal representation for the hearing without success. The governor found the applicant guilty (adding “whether your actions were deliberate or reckless, although you have not advanced that as a defence”) and sentenced him to 21 “additional days” pursuant to Rule 50 (1) (f) of the Prison Rules 1964. 12. On 5 November 1998 his solicitors appealed to the Secretary of State referring to the imminent incorporation into domestic law of Article 6 of the Convention and to the failure to grant legal representation for the hearing. By letter dated 10 December 1998 the Secretary of State rejected the appeal stating that the adjudication had been thoroughly reviewed, that the hearing had been fairly conducted and that the findings should be upheld. 13. The applicant was granted legal aid to obtain counsel’s opinion on the lawfulness of the governor’s decision of 8 July 1998. Counsel advised on 11 January 1999 that the applicant had no realistic prospects of success given the Hone and McCartan case (Hone and McCartan v. Maze Prison Board of Visitors [1998] 1 All ER 381). As to whether the governor’s exercise of discretion was unreasonable, the “Tarrant criteria”, the “relatively minor nature of the offence” and the capacity of the applicant, meant that the prospects of passing the “high hurdle of irrationality” on judicial review were remote. 14. In December 1987 the applicant was sentenced to seventeen years’ imprisonment for armed robbery and making threats to kill. 15. Following a fire in his cell, on 15 November 1998 he was charged with intentionally endangering the health or personal safety of others by his conduct, or of being reckless as to whether such health or safety was endangered, contrary to rule 49 of the Prison Rules 1964. He appeared at an adjudication hearing before the governor on 16 November 1998. He pleaded not guilty and the hearing was adjourned. 16. On 24 November 1998 a solicitor submitted a written request to the governor to represent the applicant at the adjudication hearing. 17. On 16 December 1998 the adjudication reconvened. The applicant made written representations in which he admitted telling a prison officer that he had caused the fire by throwing a lighted taper on the bed. However, he explained that that was untrue and that he believed his cell had been deliberately set on fire by other prisoners who thought that he was an informant. He had not explained this to the prison officers at the time as he was in the presence of other prisoners and he feared reprisals. He consistently maintained throughout the hearing that he had not started the fire. He cross-examined various witnesses called by the governor. The hearing continued the following day when he formally applied for legal representation for the remainder of the hearing, on the grounds that there were a large number of witnesses to be called, that the charge was a serious one and that it was difficult to be his own representative given the issue about his false admission. The governor refused his request taking the view that the offence was not sufficiently serious to warrant legal representation and that the applicant had demonstrated that he was capable of presenting his own defence. The hearing was adjourned until 22 December 1998 to enable a particular prison officer to be called. 18. On 22 December 1998 the applicant was due for early release from custody pursuant to the provisions of the Criminal Justice Act 1991. On the morning of that day he fell down a flight of stairs and was injured. He was treated for head and back pain by a doctor at a hospital. Once informed of developments, the applicant’s solicitor submitted orally to the governor that, given the applicant’s injury, the interests of natural justice required the charge to be dismissed and the applicant to be released. Further written representations were also made: due to the nature of the injuries and the medication received, it was unreasonable for the applicant to represent himself and the charge should be dismissed and that the solicitor should be informed should the proceedings continue so that he could make further representations. These written representations were not seen by the governor until after the adjudication hearing. The applicant returned to prison after his treatment and was certified by the prison doctor as fit for adjudication. The adjudication recommenced that day (22 December 1998) and the applicant was accompanied at the hearing by a medical officer. While prison staff maintained that he was alert and able to conduct his defence (even asking for the hearing to commence), the applicant stated that he felt so dizzy and ill that he could not concentrate and was incapable of asking questions or putting forward his case. The same day he was found guilty as charged and was sentenced to 35 additional days’ detention to commence on that day. 19. The applicant applied to the Secretary of State to review the hearing. He maintained that he had been unable to conduct his defence properly because of the medication and that the governor erred in refusing legal representation given the seriousness of the charge. The Secretary of State upheld the finding and punishment. An application for leave to apply for judicial review was lodged, leave was granted, the High Court hearing took place on 18 January 1999 but the substantive application for judicial review was dismissed. 20. The applicant was released on 26 January 1999. 21. On 31 March 1999 the applicant was sentenced to 23 months’ imprisonment following conviction for violent disorder, affray, criminal damage and breach of a supervision order. He was detained at a young offenders’ institution in Doncaster. 22. On 5 April 1999 he was charged with assaulting (punch in the face) another inmate (H) contrary to Rule 50(1) of the Young Offender Institution Rules 1988. The applicant claimed that he asked to see a solicitor but was told that he was not allowed to do so. He then pleaded guilty to the charge. On 6 April 1999 the deputy controller of the prison commenced the adjudication of the charge. However, once it became apparent that H’s jaw had been broken, the adjudication was adjourned and the charge was referred to the police for investigation. 23. On 9 April 1999 the applicant’s solicitors wrote to the controller requesting confirmation that the applicant could be legally represented at any adjudication. On 12 April 1999 the controller responded stating that the adjudication had been adjourned as the charge had been referred to the police. He also noted that the applicant had not requested legal advice or representation at the hearing, had pleaded guilty to the charge and had apologised for the injuries caused. On 19 April 1999 the controller wrote to the applicant’s solicitors, stating that: “I write to advise that the victim of the alleged assault will not co-operate with the police investigation and wishes for the matter to be dealt with internally. In view of the foregoing it is our intention to complete the hearing forthwith. As your client pleaded guilty at the initial hearing I am not prepared to allow him to be legally represented. I have applied the ‘Tarrant’ criteria and am satisfied that he can adequately conduct his own defence and, if necessary, mitigate his actions.” 24. On 21 April 1999 the applicant’s solicitors asked the controller to re-consider his refusal of legal representation: since the applicant had instructed them that it was self-defence, his guilty plea was not satisfactory. The applicant submitted that his solicitor had also advised that that defence was potentially a good one. By letter of 21 April 1999 the controller rejected their request: the applicant could claim self-defence at the hearing and that claim would be examined on adjudication. 25. On 23 April 1999 he was refused leave by the High Court to seek judicial review of the controller’s decision of 21 April 1999: there was no arguable case that the controller had failed to exercise his discretion in accordance with the above-noted Tarrant criteria. On 26 May 1999 the applicant’s renewed application for leave to seek judicial review to the Court of Appeal was refused. It was considered a simple case in which the applicant had sworn an affidavit setting out his account of the incident including a passage which claimed self-defence and the adjudicator would have to decide whether he believed the applicant or H. The Convention case-law opened to the Court (Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, and Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I) did not establish an inflexible rule that legal representation should be accorded in every case or even a looser rule that it should be generally accorded. It was held that there was no need for legal representation and that there was no identifiable legal error in the controller’s refusal. 26. On 1 June 1999 the adjudication hearing took place. The applicant was found guilty as charged. He was awarded 35 additional days’ imprisonment and he was to be excluded from associated work for 14 days. Fourteen days of canteen privileges together with associated dining and recreation privileges were also forfeited. 27. On 22 July 1999 the applicant was sentenced to four months’ imprisonment for motoring offences. His ordinary release date would have been 18 September 1999. 28. On 6 September 1999 he was charged with a breach of prison discipline contrary to paragraph 51(16) of the Prison Rules 1999, it being alleged that he had thrown burning material from a cell window. The hearing was adjourned to allow it to be heard by the deputy governor. 29. On 13 September 1999, upon his return from annual leave, the applicant’s solicitor received a letter from the applicant denying the charges and requesting urgent assistance. The solicitor sent a facsimile to the governor at 9.30 a.m. on 13 September 1999 requesting an adjournment to enable him to take urgent instructions and provide legal advice. The hearing resumed on 14 September 1999 when the deputy governor refused an adjournment. It is recorded on the applicant’s “Record of Hearing and Adjudication” that the deputy governor stated the following: “I have a letter from your solicitor requesting that you be allowed legal advice. I have considered your request and refuse it on the following grounds. 1. No points of law are likely to arise. 2. You can present your own case. 3. Although the charge is serious it does not require a solicitor to mitigate it. 4. There are no procedural difficulties. 5. There is a need for reasonable speed. There has already been a delay.” The deputy governor found the applicant guilty as charged and awarded 18 additional days’ imprisonment. 30. An application for leave to apply for judicial review was made arguing that the imprisonment was based upon a punishment, the legality of which was seriously flawed both on grounds of irrationality and procedural unfairness. On 21 September 1999 Mr. Justice Moses granted leave but refused bail. On 23 September 1999 the Secretary of State quashed the punishment in the following terms: “The adjudication detailed above has been reviewed and it has now been decided that the finding of guilt should be quashed on the grounds that the adjudicator should have offered Mr. Clarke a limited opportunity to consult with his solicitors. Although Mr. Clarke did not apply for legal advice or assistance at the original hearing on 6 September he should have been given the opportunity to discuss matters with his solicitor, possibly by telephone to arrange for a meeting the next day, and given a deadline for obtaining the advice he sought. A time limit could have been set to ensure that the prisoner did not delay the hearing unnecessarily. In view of the urgency of this case, please arrange for Mr. Clarke to be released immediately as this decision means that he is serving added days now.” 31. The applicant was released at 17.10 hours on 23 September 1999, having served five of the additional days awarded. 32. By letter dated 26 November 1999 the Treasury Solicitor refused to admit liability in respect of the alleged unlawful imprisonment. Counsel was therefore asked to advise whether there existed any effective domestic remedy which the applicant could pursue in respect of the relevant five-day period of detention. Counsel advised that there was no such remedy: under English law a disciplinary finding was presumed to be valid and, in effect, the order for additional days’ detention was valid until it was set aside. 33. On 28 January 2000 the applicant’s solicitor wrote to the Treasury Solicitor pointing out that, in the light of Counsel’s advice, no claim for false imprisonment or misfeasance in public office would be commenced. However, it was alleged that the deputy governor’s conduct violated Article 6 of the Convention. A request was therefore made for an ex gratia payment to compensate the applicant for the 5 days’ detention resulting from the adjudication. The Treasury Solicitor responded that the matter would be considered after the publication of the House of Lords judgment in R. v. Governor of Brockhill Prison, ex parte Evans. No. 2 ([1999] 2 WLR 103). The Government have not submitted that any payment was made. 34. The Court refers to the law and practice outlined in the case of Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, §§ 37-62, ECHR 2003X). 35. A charge was, in general, drawn up by a prison officer against whom the alleged offence was committed or who witnessed or dealt with the incident during which the alleged offence took place. Such reporting officers could consult a more senior officer on what charges were to be laid against the prisoner. A charge was formally laid when form a Notice of Report was handed to the accused. A charge had to be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the alleged offence being discovered. Every charge laid against a prisoner had to be inquired into by the prison governor. The governor also determined the charge against the accused during the adjudication hearing and imposed punishments from those available to him under the prison rules. Since the 1990s the management of certain prisons has been contracted out to private security companies. All such “contracted out” prisons have a “Controller” (a Crown employee) linking them to the Home Office and the governors are called “Directors”. Adjudcation hearings are conducted by the Controller rather than by the Director.