Shreeve, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant is a convicted murderer serving a life sentence with a tariff of 20 years, detained at HMP Swaleside. As a practising Buddhist, he was entitled in principle to have an incense holder in his cell, subject to formalities. On 7 May 2005, the Appellant was given a notice of report alleging possession of an unauthorised article contrary to rule 51(12)(a) of the Prison Rules 1999, specifically "a sharpened stabbing implement formed from a bamboo incense holder." The disciplinary hearing was initially held on 9 May 2005 and adjourned to 27 May 2005, when Deputy Governor Farquhar found the charge proved. This finding was upheld by the area manager on 15 August 2005. The Appellant challenged this decision by way of judicial review, with the hearing before the Administrative Court taking place on 18 October 2007. The proceedings were commenced on 22 November 2005, with permission granted on 30 January 2006. The Secretary of State did not contest the delay in hearing.

Legal Issues Presented

1. Whether the disciplinary charge against the Appellant was properly proved beyond reasonable doubt, specifically whether the object possessed was proven to be "a sharpened stabbing implement formed from a bamboo incense holder" as charged.
2. Whether the adjudicator and area manager erred in treating the Appellant's admission of possession of the object as an admission of guilt to the full charge without proving the specific nature and knowledge elements required by the Prison Discipline Manual.
3. Whether the area manager lawfully upheld the finding of guilt on a different basis than that charged, namely possession of another prisoner’s property, without amending the charge or allowing the Appellant to respond.

Arguments of the Parties

Appellant's Arguments

• The Appellant was charged not simply with possession of an unauthorised bamboo incense holder but with possession of a "sharpened stabbing implement formed from a bamboo incense holder," requiring proof of all elements under paragraph 6.39 of the Prison Discipline Manual.
• While presence and control of the object were not disputed, the prosecution failed to prove that the object was indeed "sharpened" and formed into a stabbing implement or that the Appellant knew of this nature.
• The adjudicator wrongly treated the Appellant's written submission admitting possession as an admission of guilt rather than as a mitigation or defence, denying the Appellant the opportunity to challenge the specific elements of the charge.
• The area manager erred by upholding the finding on the alternative basis that the Appellant possessed another prisoner’s property, a different offence not charged, without amendment or opportunity to respond, breaching procedural fairness and relevant prison rules.

Secretary of State's Arguments

• The Appellant was permitted to have an incense holder but not a sharp one; the adjudicator properly found the object was sharp and the Appellant knew this, satisfying all elements of the offence.
• Any alleged error by the adjudicator was cured by the area manager’s appeal decision, which lawfully upheld the finding on the basis that possession of another prisoner’s property rendered the item unauthorised.
• The alternative basis for guilt did not amount to an amendment of the charge but was an additional reason justifying the finding of guilt, which the Appellant would have been aware of.
• All three elements of the offence were established beyond reasonable doubt, and there was no need to prove the item had been sharpened to convict.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tangney v The Governor of HMP Elmley [2005] HRLR 1220	Article 6 of the European Convention on Human Rights concerning fair trial rights in prison disciplinary proceedings	The Court accepted the Secretary of State’s submission that Article 6 did not assist the Appellant and therefore did not consider it further.
R v Board of Visitors of HM Prison Swansea ex p Scales (1985) Times 21 February	General principles relating to prison disciplinary procedures	The Court found that this precedent did not assist in resolving the issues in the present case and declined to elaborate.

Court's Reasoning and Analysis

The Court began by examining the formal charge as recorded on the disciplinary hearing form, which specified possession of "a sharpened stabbing implement formed from a bamboo incense holder." The Court emphasised that under paragraph 6.39 of the Prison Discipline Manual, the prosecution must prove beyond reasonable doubt not only presence and control but also that the article is what it is alleged to be and that the prisoner knew its nature.

The Court held that the adjudicator failed properly to address the specific nature of the object and the Appellant’s knowledge thereof. The adjudicator treated the Appellant’s admission of possession as an admission of guilt to the entire charge, overlooking the crucial elements that the object was sharpened and formed into a stabbing implement and that the Appellant knew this. This was a substantive error because the charge was not merely possession of a sharp object but possession of a sharpened stabbing implement formed from another object.

The Court rejected the Secretary of State’s argument that the area manager’s upholding of the finding on the alternative ground of possession of another prisoner’s property cured the adjudicator’s error. The area manager’s reasoning introduced a new element not charged and denied the Appellant the opportunity to respond, breaching procedural fairness and the Prison Rules. The Court further explained that it is not permissible to convict on a charge different from that laid without amendment and proper process.

The Court acknowledged that minor discrepancies in the description of an object (e.g., colour) might be acceptable, but the substantive difference here went to the gravamen of the charge and could not be overlooked. The Court underscored the importance of strict adherence to the procedural and evidential requirements in prison disciplinary proceedings, given their potential serious consequences for prisoners.

Finally, the Court concluded that the Appellant was entitled to relief by quashing the area manager’s decision, as the conviction was not properly founded on the charge as laid and the Appellant was denied a fair opportunity to contest the specific elements of the offence.

Holding and Implications

The Court's final decision was to GRANT the application for judicial review and to quash the decision of the area manager dated 15 August 2005.

The direct effect of this decision is that the disciplinary finding of guilt against the Appellant is nullified. The Court declined to substitute any alternative finding or amend the charge, noting that neither the area manager nor the Court has the power to amend charges or find guilt on alternative bases outside proper procedure. The Court also noted the serious potential future ramifications of the erroneous finding, particularly regarding parole considerations, and thus ordered a quashing rather than merely a declaratory judgment.

No new legal precedent was established beyond the application of existing principles regarding the necessity of proving all elements of a charge as laid and ensuring procedural fairness in prison disciplinary proceedings.