Judgments - Regina v. Secretary of State for the Home Department (Respondent) ex parte Al-Hasan (FC) (Appellant) Regina v. Secretary of State for the Home Department (Resondent) ex parte Carroll (FC) (Appellant) (Conjoined Appeals)

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    28.  Those paragraphs in the Court of Appeal's judgment to my mind provide a convincing answer to the main argument then being advanced on behalf of these two appellants, namely that Mr Copple, by the very fact that he knew of the security concerns which had occasioned the search, was thereby disqualified from hearing the charges through being unable to adjudicate fairly upon them. As the Court of Appeal pointed out, it was clearly necessary that sensitive security information was not disclosed to the prisoners in the course of the adjudications and, to guard against that risk, any governor trying these charges would necessarily have had to be given in advance of the hearing precisely the same sort of background information about the search as Mr Copple already had. Principal Officer Markham, for example, had to be told by Mr Copple not to answer a question put by Mr Carroll: "What were these items that intelligence indicated could threaten the security of the establishment?" These adjudications could not properly have been conducted by a governor unaware of the background. So much, indeed, Mr Fitzgerald QC on behalf of these appellants now accepts.

    29.  What, however, Mr Fitzgerald does not accept is that Mr Copple could properly decide the central question raised by the prisoners on these adjudications, the legality or otherwise of the orders to squat. He could not bring the necessary degree of independence and impartiality to that task. Mr Carroll's defence to the charge against him was in terms: "a blanket order that everyone must squat is illegal". That, therefore, was the critical issue on which Mr Copple had to rule. Having been present when the general order for a squat search was approved by the governor, could he properly do so? Or might he reasonably be supposed to have pre-judged the issue? That precise question, although seemingly raised below as part and parcel of the natural justice challenge, appears not to have been addressed by the Court of Appeal. Perhaps it was lost sight of amidst the myriad other arguments advanced. Be that as it may, it is now, as already indicated, the principal issue for your Lordships' decision on the present appeal.

    30.  The common law test for bias has been authoritatively settled by the recent decisions of this House in Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2004] 1 All ER 187:

    "The question is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased".

    31.  Unknown to the appellants at the time of these adjudications, or indeed at the time when their judicial review proceedings were first brought, Mr Copple not merely knew of the background to this search but had actually himself been present when the squat order was approved. This fact only emerged when Mr Copple gave his statement in Mr Al-Hasan's case on 5 July 2000 (rather oddly it did not appear in his earlier statement of 15 May 2000 in Mr Carroll's case). How would the fair-minded observer regard that? Would he think there was a real possibility that, Mr Copple having at the very least acquiesced in the order for a squat search, he would later at the adjudication stage be predisposed to find it lawful?

    32.  In addressing this all-important question it is helpful to take note of a line of recent authority culminating in the decision of this House in Davidson v Scottish Ministers 2004 SLT 895. In Davidson the House affirmed the decision of the Second Division of the Court of Session to set aside decisions made by an Extra Division of that Court on the ground that they were vitiated by apparent bias and want of objective impartiality on the part of one member of the Court, Lord Hardie. What essentially had happened was that the Extra Division had been called upon to decide as a question of law whether section 21 of the Crown Proceedings Act 1947 prevented the Scottish courts from ordering specific performance against the Scottish Ministers as part of the Crown. Some three years earlier Lord Hardie as Lord Advocate had assured the House of Lords in its legislative capacity that such was indeed the position. In reaching its conclusion the House examined a number of cases in the European Court of Human Rights concerning the circumstances in which a judge's prior involvement in the eventual question for decision could be said to raise doubts as to the domestic court's independence and impartiality.

    33.  In Procola v Luxembourg (1995) 22 EHRR 193, for example, the court concluded, perhaps not surprisingly, that as four of the five members of the Conseil d'Etat had previously contributed to an advisory opinion on the lawfulness of a proposed new regulation, their subsequent ruling confirming its lawfulness breached article 6 (1). I need cite only para 45 of the court's judgment:

    "45. The Court notes that four members of the Conseil d'Etat carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg's Conseil d'Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution's structural impartiality. In the instant case, Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question, . . ."

    34.  A similar conclusion was reached by the Court in McGonnell v United Kingdom [2000] 30 EHRR 289, concerning the Bailiff of Guernsey's determination of an appeal which turned upon the application of a development plan in which he had personally been involved whilst in government. Again, a single paragraph of the court's judgment suffices:

    "57.  The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant's planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, . . .".

    35.  In Pabla Ky v Finland (Application No. 47221/99), a decision of the European Court of Human Rights dated 22 June 2004, the Court's decision went the other way. The complaint there was that a member of the Finnish Parliament had sat as an expert member of the Court of Appeal. The barrenness of the complaint on the particular facts of that case appears clearly from paragraph 34 of the Court's judgment:

    "34  Accordingly, the Court concludes that, unlike the situation examined by it in the cases of [Procola and McGonnell], [the Member of Parliament] had not exercised any prior legislative, executive or advisory function in respect of the subject-matter or legal issues before the Court of Appeal for decision in the applicant's appeal. The judicial proceedings therefore cannot be regarded as involving 'the same case' or 'the same decision' in the sense which was found to infringe Article 6.1 in the two judgments cited above. The Court is not persuaded that the mere fact that [the Member of Parliament] was a member of the legislature at the time when he sat on the applicants' appeal is sufficient to raise doubts as to the independence and impartiality of the Court of Appeal. While the applicant relies on the theory of separation of powers, this principle is not decisive in the abstract."

    36.  Those authorities I have found helpful. The others cited to us I confess I have not. R v Board of Visitors of Frankland Prison Ex p Lewis [1986] 1 WLR 130 (the case discussed in paragraph 59 of the Court of Appeal's judgment) goes essentially to the degree of background knowledge the tribunal may properly have when adjudicating on a prison disciplinary charge, no longer at issue on these appeals. That is true also of the unreported first instance decisions in R v HM Prison Service Ex p Hibbert (16 January 1997) and R v Deputy Controller of HM Prison Buckley Hall Ex p Thomas (20 June 2000). As for such cases as Sengupta v Holmes [2002] EWCA Civ 1104 and Saraiva de Carvalho v Portugal (Application No. 15651/89 decided on 23 March 1994), these address the very different question of how far a judge may properly have had some prior judicial involvement in a case he ultimately has to decide.

    37.  I return, therefore, against the background of the relevant case law, to the critical question: how would a fair-minded observer regard these appellants' adjudications? Would he think it a real possibility that Mr Copple, having been present when the squat search order was confirmed by the governor, would be predisposed thereafter to find it lawful? Would he, in the language of the Strasbourg Court, feel "doubt, however slight its justification", about Mr Copple's impartiality, "legitimate grounds for fearing" that Mr Copple may have been influenced by his prior participation in the decision-making process?

    38.  In resisting the appeal, Mr Sales for the respondent Secretary of State submits that on the particular facts of this case the answer to those questions is "no": the line, he submits, was not crossed. Mr Copple, he contends, had not here been exercising "any legislative, executive or advisory function" (Pabla Ky) in respect of the squat order whose legality he was later being required to adjudicate upon. He was merely present when Governor Woods gave his approval to the order. Mr Sales further argues that in assessing the objective appearance of the fairness of these adjudications regard must be had to the statutory context in which they were held. Parliament has charged governors and their deputies with the task of adjudicating on prison disciplinary offences. True, as the Court of Appeal noted in para 57 of its judgment, another governor can always be brought in from another prison, but this is a most exceptional and no doubt inconvenient course. Regard should also be had, submits Mr Sales, to the existence of other institutional constraints and safeguards surrounding the adjudicative process: the requirement for the Secretary of State to confirm any finding of guilt, the possibility of complaint to the Prison Ombudsman, and, most significantly of all, the availability of judicial review by which the legality of any disputed order can be tested. Finally, Mr Sales reminds us, both courts below (including in particular a Court of Appeal presided over by Lord Woolf with all his expertise and experience in this field of law) found nothing intrinsically unfair in Mr Copple adjudicating on these charges; in determining the objective impression given by these adjudications, he submits, the House should give due weight to these earlier findings.

    39.  For my part I have not found this an easy case. There is undoubted force in Mr Sales's arguments and there can be no question but that Mr Copple himself undertook these adjudications in the best of good faith and without any thought whatever that his earlier involvement in the matter could in any way be regarded as having compromised his independence and impartiality. On balance, however, I have come to the conclusion that the bias argument is here made good. At the end of the day it seems to me that by the very fact of his presence when the search order was confirmed, Mr Copple gave it his tacit assent and endorsement. When thereafter the order was disobeyed and he had to rule upon its lawfulness, a fair-minded observer could all too easily think him predisposed to find it lawful. After all, for him to have decided otherwise would have been to acknowledge that the governor ought not to have confirmed the order and that he himself had been wrong to acquiesce in it.

    40.  It was not Mr Fitzgerald's primary argument that Mr Copple, quite apart from his own acquiescence in the order, would in any event have been inclined to uphold its legality in deference to the governor's position as his superior officer. Rather he assumes that Mr Copple was sufficiently independent of the governor to have reached his own independent view of the order's legality when eventually this came to be questioned at the adjudications. This assumption carries with it, however, the further assumption that, had Mr Copple had any doubts about the order when initially it fell for confirmation by the governor on the Monday morning, he would have felt able, indeed obliged, to question it and if necessary disassociate himself from it at the time. In short, any argument that Mr Copple might in any event on the adjudication have been expected to rubber-stamp the governor's order is really subsumed in the main argument that he had already by then committed himself to its validity.

    41.  From all this it follows that to have avoided the appearance of bias Mr Copple would either have had to make plain at the adjudications that he himself had actually been present when the squat search order was confirmed (rather than give the impression, as he appears to have done, that he had known nothing of it) and sought the prisoners' consent to his nevertheless hearing the charges, or alternatively stood down to enable them to be heard by a different governor (if necessary from another prison) without any such previous involvement in the case.

    42.  There remains only the question of what relief should follow upon this conclusion. Mr Fitzgerald submitted that the findings of guilt must now be quashed and deleted from the respective appellant's disciplinary records. Mr Sales contests this, submitting that in the event no possible injustice was done to these appellants: as was later clearly established by the Court of Appeal's judgment, and indeed is not now disputed, this search order was in fact perfectly lawful. It cannot sensibly be supposed, therefore, that there could have been any different outcome to the adjudications whoever had heard them.

    43.  On this question I entertain not the slightest doubt that Mr Fitzgerald is right. Indeed it seems to me clear both as a matter of principle and authority that once proceedings have been successfully impugned for want of independence and impartiality on the part of the tribunal, the decision itself must necessarily be regarded as tainted by unfairness and so cannot be permitted to stand. There are decisions to this effect both ancient and modern of the highest authority. Over 150 years ago in Dimes v Grand Junction Canal (1852) 3 HLC 759 the House of Lords set aside Lord Chancellor Cottenham's decree affirming the Vice-Chancellor's decision in favour of a company in which Lord Cottenham himself was a shareholder. As Lord Campbell said at p 793:

    "No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. . . . and it will have a most salutary influence on [inferior] tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside."

    44.  Only recently, in Millar v Dickson [2002] 1 WLR 1615, 1624, Lord Bingham of Cornhill took the same view with regard to a number of decisions reached by temporary sheriffs contrary to article 6 of the Convention:

    "There is indeed nothing to suggest that the outcome of any of these cases would have been different had the relevant stages of the prosecution been conducted before permanent instead of temporary sheriffs. There is no reason to doubt that the conduct of all the temporary sheriffs involved was impeccable, and no reason to suppose that any of the accused suffered any substantial injustice. But . . . it is in my view clear from authority that the right of an accused in criminal proceedings to be tried by an independent and impartial tribunal is one which, unless validly waived by the accused, cannot be compromised or eroded."

    So too here: the findings of guilt against these appellants must now be expunged.

    45.  For completeness I add only this. If your Lordships share my view upon these appeals, they will owe their success entirely to well established principles of common law. Both adjudications took place before the Human Rights Act 1998 came into force. They cannot, therefore, be impugned under domestic law by reference to the Convention: the non-retrospectivity of the Act is now, of course, firmly established—see most recently In re McKerr [2004] 1 WLR 807. There can accordingly be no question of any award of damages in these cases even supposing, which may be doubted, that, had a successful challenge been available under the Convention, there then would have been. As it happens, neither appellant will in fact have served any additional days detention pursuant to these adjudications. The order that Mr Carroll serve two additional days was in the event nullified by a combination of circumstances, namely his own decision on 16 October 1998 to postpone a Parole Board review of his case coupled with his eventual release on licence on 21 February 2001 on the recommendation of the Parole Board prior to his mandatory release date. Mr Al-Hasan as a life sentence prisoner could not be, and was not, ordered to serve additional days; and his offences, it is acknowledged, were such that the adjudication can have no possible impact upon whatever may be the final release date in his case.

    46.  These observations, however, are by the way. Limited though the effect of these adverse adjudications was upon these appellants, they are entitled to have them set aside.

 
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