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30 April 2014

Judicial Review is a remedy of last resort, no ifs, no buts: Judicial Review and Ombudsmen Schemes

8 mins

Crime analysis: When are complaints made by prisoners regarding adjudications suitable for judicial review? Sara Lomri, assistant at Bindmans LLP, considers a recent decision by the Administrative Court.

Original news
Gifford v Governor of HMP Bure and another [2014] EWHC 911 (Admin), [2014] All ER (D) 43 (Apr)

In refusing permission to apply for judicial review on the grounds of an alternative remedy, the Administrative Court gave guidance as to when complaints made by prisoners arising in connection with adjudications were suitable for a reference to the interested party Prison and Probation Ombudsman (PPO), on the one hand, and for applications for judicial review, on the other.

What is the significance of this decision?
The High Court handed down some stern words restating that judicial review is a remedy of last resort, and that, in the absence of at least a credible policy challenge, this ‘hopeless’ claim should have been referred to the PPO scheme instead. Coulson J did not accept that the PPO’s inability to quash the adjudication decisions in question (unlike the court), meant that no appropriate remedy was available, and accepted the evidence heard that in the vast majority of cases recommendations made by the PPO were followed by the Secretary of State. He stated that the PPO was more capable and better placed than the High Court in dealing with adjudication disputes, and would have done so with relative speed and at a much lower cost, which would have been in the public interest. Coulson J made these findings notwithstanding concern voiced on behalf of the PPO as to his lack of funding and the potentially catastrophic effect of any judgment which indicated that more cases of this type should be referred to him.

Could this decision affect future prison adjudication procedures?
The decision will not significantly impact upon the adjudication procedures itself–rather that any challenge of an adjudication by way of judicial review can only be justified on the limited basis set out at para [54], and summarised below, namely, where an injunction is sought or there is an urgent or emergency element, if the complaint is about the underlying conviction or sentence, or if the complaint is properly concerned with matters of policy. Further, if any complainants do wish to seek judicial review to challenge an adjudication, they will need to explain in their claim form how and why the claim is not suitable for resolution by the PPO, explaining in detail how and why the challenge concerns a matter of policy.

In other words, claimants have an even steeper hill to climb persuading the High Court to consider granting permission for a claim which turns on a prison adjudication.

It is perhaps worth noting that the claim argued at the final hearing was essentially that the Governor’s hear-ing two separate adjudications should have granted further adjournments for Mr Gifford to seek legal advice.

The facts were that Mr Gifford had already been granted adjournments in order to seek legal advice in both matters, but more significantly that at the beginning of both adjudication hearings Mr Gifford confirmed that he needed no further legal assistance, then hearing the evidence changed his plea to guilty, and then indicating that he wanted an adjournment for further legal advice, was refused. It is worth advising those facing adjudication proceedings to be clear beforehand whether or not they want legal advice and to state their position clearly at the start. Of course, this is not always evident when the evidence has not been heard or previously disclosed.

What does this mean for the operation of the PIN-phone system?
By the time it got to the final hearing, the claimant accepted that the PIN system was no longer an issue in the proceedings. Coulson J said the original claim that the ‘PIN-phone system in operation at HMP Bure (and/or in operation in most prisons across the United Kingdom), was in some way unfair and a breach of the claimant’s Article 6 rights’ (para [27]) ‘went nowhere on the facts…I consider that this point should always have been apparent to the claimant’s advisors’ (at para [30]). In fairness, it is not clear from the judgment that the claimant’s advisors had been given the chronology of the claimant’s application to have them added to his telephone account when the claim was issued. As it transpired, the claimant had not applied to have his advisors added to his telephone account until after one adjudication, and when he did apply, it took four days to get the advisors added, which Coulson J described as an ‘efficient response’ (at para [31]).

Are there lessons to be taken from this case in relation to judicial review claims regarding prison law?
Practitioners must be more cautious than ever in carefully considering the most appropriate avenue to challenge a decision made within the prison estate. This is not only limited to decisions arising out of prisoner adjudications as it is likely that the principles from this case will be used by the Secretary of State to defend other claims on behalf of prisoners where the case might plausibly be referred to the PPO instead (although note Coulson J does state at para [52] that his observations are limited to disputes arising in connection with prisoner adjudications). Any request that the High Court reviews such a decision, rather than the PPO, will likely need to be justified at every stage and supported by strong reasons.

In reality, judicial reviews on behalf of prisoners are particularly challenging because, in evidential terms, practitioners will often have little more than their client’s witness statement at the time of issue due to press-ing limitation deadlines and difficulties in obtaining pre-action disclosure. The lack of supporting evidence means it can be difficult to properly assess a case, what the most appropriate avenue for challenge is, and whether the case does in fact properly involve a challenge to policy in the initial stages. Balanced against the possibility of issuing a claim for judicial review when the case should have been referred to the PPO, is the risk of exposing your client to a missed limitation deadline. It is a tough call.

What is the significant case law in this area?
The significant case law is summarised at paras [36-39] inclusive on judicial review as a last resort and use of ombudsmen schemes (including the PPO).

What wider guidance did the court offer in this case?
The Secretary of State for Justice specifically requested detailed and wide-ranging guidance from the court as to which cases should be referred to the PPO, purportedly on the basis that it is cheaper for him to have the majority of these claims dealt with by the PPO than the High Court. On the other hand, the PPO made representations to the contrary, seeking to limit any guidance, both as a matter of legal principle but also as a matter of practicality due to his concerns about the lack of funding and resources available to him (from the Secretary of State). Having heard conflicting evidence from the Secretary of State and the PPO, Coulson J pointedly remarked that it is in the Secretary of State’s interest for proper resources to be provided to the PPO to allow him to fulfil his remit, but would not involve himself further in their ‘budget war’ (para [51]).

Against this backdrop, Coulson J was obliged to tread a careful line on the issue of guidance, although it seems that the PPO came off worse. He gave what he describes as ‘some very general guidance…limited to disputes arising in connection with prisoner adjudications’ (para [52]), which in his view are generally suitable for reference to the PPO. However, he envisages three discrete types of cases arising out of prisoner adjudications, which may properly be referred to the High Court rather than the PPO:

  • where an injunction is sought or whether there is an urgent or emergency element
  • where the matter relates to an underlying conviction or sentence of a prisoner
  • where the complaint arises out of a prisoner adjudication but is properly concerned with matters of policy

He adds the caveat that any policy challenge must explain in the claim form how and why the claim is not suitable for the PPO and provide a proper explanation of how and why the challenge concerns a matter of policy.

This article was first published on Lexis®PSL Crime on 28 April 2014. Click here for a free trial of Lexis®PSL.

Interviewed by Duncan Wood.  

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