Non independent tribunal can curtail young offenders’ rights

20 October 2010 by Catriona Murdoch

Ben King and Secretary of State for Justice [2010] EWHC 2522 (Admin) – Read Judgment

True or False: 1. A non-independent tribunal can determine your civil rights? 2. A non-independent tribunal can curtail your civil rights?

The high court has answered “true” to both of these questions . The non-independent tribunal in this case was the adjudication system in young offender institutions (YOI). The high court ruled that whilst the governor adjudicator was not an independent tribunal for the purposes of Article 6(1) ECHR, it could still determine and ultimately curtail an inmates civil rights.

The case of “King” raises important issues concerning the regime for adjudication of disciplinary charges brought against inmates at prisons and young offender institutions across England and Wales. In 2008 alone 190,192 punishments were imposed for disciplinary offences in young offender institutions.

This claim for judicial review was brought on the grounds that the proceedings determined a civil right which required the procedural guarantees of the civil limb of Article 6(1) of the ECHR, it was agreed by both parties that the YOI governor was not an independent tribunal within the meaning of Article 6(1), accordingly the appellants sought to quash the decision of the YOI governor.

The inmate King found himself before the governor adjudicator for disobeying an order; procedural safeguards were followed insomuch as he was offered a written reply, the opportunity to call witnesses, legal representation or assistance. King pleaded guilty. Significantly King suffers from a psychopathic anti-social personality disorder with prominent mood instability, along with post-traumatic stress disorder. A medical practitioner then completed a safety screen which deemed King fit for cellular confinement for a period of three days, of which he served less than two full days.

This arguably amounted to a disproportionate punishment given King’s psychiatric condition. It was debatable whether King was mentally responsible for his actions, as such the governor adjudicator should have treated the plea as equivocal, resulting in a plea of not guilty being entered.

“The European Court has treated civil rights as those rights which the individual is entitled to enforce in his private capacity.” The civil right in question was the enjoyment by detainees of association with other inmates, which if interfered with would also breach Article 3 (anti torture and inhumane treatment) and / or Article 8 (right to private and family life). Both articles by virtue of the Human Rights Act 1998 are part of a person’s civil right in domestic law.

The high court agreed with the appellants that the YOI Rules 2000 implicitly provided inmates with a basic right of association with fellow inmates. A right which is subject to the lawful discretion of the governor.

The appellants argued that the availability of judicial review of the governor’s adjudication did not satisfy the guarantees provided for under Article 6(1) because it “comes too late in the process to save the breach caused by lack of institutional independence”.

However, the high court did not accept this and instead agreed with the European Court that interference with civil rights can be assigned to non-judicial professional tribunals provided the tribunal is compliant with Article 6(1) or the proceedings are subject to “judicial control with “full” jurisdiction capable of rectifying the first instance deficiency”.

Both Lord Justice Pitchford and Mr Justice Maddison agreed that for Article 3 and 8 to be engaged the punishment needed to reach a certain level of seriousness. Both agreed that the period of confinement in question even for a person suffering from a psychotic mental illness would not engage Article 3.

Lord Justice Pitchford accepted that in some circumstances removal from association could constitute an interference with privacy, but that in this case it had not done so. Mr Justice Maddison disagreed and stated he found it “difficult to conceive of circumstances” in which a disciplinary punishment of up to 10 (or 16) days cellular confinement (and in this case only 3 days) would breach Article 8.

The justices’ favoured timely and convenient disposal of disciplinary issues in prisons over the need for a wholly independent tribunal, claiming any defects in proceedings could be adequately cured by judicial review:

Lack of institutional independence seems to me to be an inevitable consequence of a disciplinary process which depends upon its internal resources for its efficiency and effectiveness.

The “inter-relation between the Article 6(1) concept of “civil rights” on the one hand, and the Article 6(1) requirement of an “independent and impartial tribunal” has been considered in length in this case. Whilst a more definitive approach has been adopted in relation to civil rights under Article 6(1), the fact that thousands of disciplinary orders and punishments will continue to be adjudicated under an impartial tribunal is perhaps a cause for concern.

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