Anthony Clarke, R (on the application of) v Secretary of State for Justice
[2024] EWCA Civ 861
Secretary of State for Justice v Peter Kane & Anor
14 July 2023
[2023] EWCA Civ 842
Court of Appeal
A prisoner got in trouble and was punished. A judge said the person who decided the punishment wasn't clear enough about why they chose that punishment. Another judge said it was clear enough from what happened, and the punishment should stand.
Key Facts
- •Peter Kane, a category A prisoner, was charged with four breaches of prison rules after verbally abusing a governor and damaging prison property.
- •The charges were initially referred to the police, but the police declined to investigate.
- •The charges were subsequently referred to an Independent Adjudicator (IA), who found Kane guilty on two charges and imposed sanctions.
- •Kane challenged the IA's decision through judicial review, arguing the referring governor had not properly considered the seriousness of the offences before referral.
- •The High Court quashed the IA's decision, finding the IA lacked jurisdiction because the governor's determination of seriousness was inadequate.
Legal Principles
Prison governors must determine whether a charge is 'so serious' that additional days should be awarded or if referral to an IA is 'necessary or expedient for some other reason' before referring it to an IA.
Prison Rules 1999, Rule 53A
IAs have the power to dismiss a referral if they consider it unlawful, meaning the PSI or Prison Rules were not correctly followed.
Prison Service Instructions (PSI) 05/2018, Annex A, paragraph 2.33
While governors are not required to give detailed reasons for their determination of seriousness in every 'so serious' case, sufficient reasoning must be apparent to the IA.
Court of Appeal judgment
Outcomes
The Court of Appeal allowed the Secretary of State's appeal.
The Court found that the governor's mention of the 'nature of the charge' was sufficient to indicate a proper consideration of the seriousness threshold. The facts of the case themselves demonstrated the seriousness of the offences. The IA was not required to investigate the governor's reasoning process, only whether a lawful referral had been made.
The High Court quashed the IA's decision.
The High Court judge found that the IA's reasoning for finding jurisdiction was inadequate because the referring governor had not sufficiently articulated his consideration of the seriousness threshold as required by Rule 53A and PSI 05/2018.
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