Nathan Gifford v The Governor of HMP Bure (1) Secretary of State for Justice (2) and the Prison and Probation Ombudsman (interested party) [2014] EWHC 911 (Admin)

The claimant, “G”, who was a prisoner at HMP Bure, was prohibited from having any direct contact with any person under the age of 18.  Allegations were then made that the claimant had attempted to contact a child under 18 by means of a letter and had spoken on the telephone to a child under the age of 16.

G applied for permission to seek judicial review of the decision of the Secretary of State for Justice refusing to quash findings of guilt against G arising out of two internal adjudications, held at HMP Bure.  G claimed that the adjudication decisions were flawed as he had not been asked specifically whether he had taken steps to contact his legal representatives. The Secretary of State for Justice sought guidance on when claims should be referred to the Prison Ombudsman and when they were suitable for judicial review.

The Court found that the question of legal representation had been raised with G at both hearings.  At the first hearing the adjudicator raised the question of legal representation and G had said that he did not want to have further legal advice.  The Court also stated that G knew about the prohibition and admitted sending the letter, which is why he pleaded guilty.  In those circumstances G waived any entitlement he had to further legal advice and the adjudicator was entitled to proceed without it.  At the second hearing G had again stated that he did not want legal advice and he chose not to ask for an adjournment.  Mr Justice Coulson stated that “…even if I granted permission to seek judicial review of the decision to uphold that adjudication, I would have refused the substantive claim on its merits”.

The defendants argued that the judicial review proceedings should never have been brought as G always had an alternative remedy by way of application to the Prison and Probation Ombudsman (“PPO”). G argued that he would not have been able to get the appropriate relief from the PPO because they could only make recommendations and, unlike the court, could not quash the decisions in the two adjudications.  The Court did not agree that was a legitimate distinction as the case law showed that the ombudsman’s recommendations were followed in almost every case.  The Court was wary of providing wider guidance on the issue as to which claims might be commenced before the PPO, and which claims might be a proper matter for judicial review. However, since the matter had been argued fully before the court, the Court held that it would be sensible to give some limited guidance as to where the Court sees the split between references to the PPO, on the one hand, and applications for judicial review, on the other.

In the Court’s view, complaints made by prisoners arising in connection with adjudications are generally suitable for reference to the PPO due to the PPO’s experience of the prison service; the PPO’s ability to deal with both merits and procedure; the relative speed with which the PPO can act; and the cost effective nature of the PPO’s dispute resolution service.  Even if there was an increase in the number of complaints made to the PPO, the PPO would still be able to address complaints quicker than the Administrative Court.

The Court stated that there will be some complaints arising out of prisoner adjudications were a reference to the PPO will not provide a proper alternative remedy and where judicial review is the appropriate course.  These will include cases where an injunction is sought and other cases where there is an urgent or emergency element.  It will also include cases where there is a challenge with which the PPO cannot deal, such as complaints which are about the underlying conviction or sentence.  Lastly, it will also include cases where the complaint arises out of a prisoner adjudication, but is properly concerned with matters of policy and the legality thereof (the traditional ambit of judicial review).

If a prisoner wants to challenge by way of judicial review the outcome of an adjudication they must explain in their claim form how and why the claim is not suitable for resolution by the PPO.  It will not be enough to simply say that it concerns a matter of policy: a proper explanation of how and why the challenge concerns a matter of policy will need to be provided.

The substantive application for judicial review was refused.

 

Comment

The approach in this case may have implications for the wider question of when is access to the Ombudsman an alternative adequate remedy displacing recourse to judicial review at the permission stage; and ultimately for whether any independent appeal system (which may or may not be introduced under the Care Bill/Act, and which may or may not extend to challenges to matters of legality of policies) is such as to oust judicial review altogether.

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