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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Russell, R (On The Application Of) v Secretary Of State For Home Department & Ors [2000] EWHC Admin 366 (10 July 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/366.html
Cite as: [2000] 1 WLR 2027, [2000] EWHC Admin 366

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST


CO/3081/99
Royal Courts of Justice
Strand
London WC2A 2LL
10th July 2000


B e f o r e
MR JUSTICE LIGHTMAN
BETWEEN:
THE QUEEN
and
(1) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) THE GOVERNOR OF HMP FRANKLAND
(3) THE GOVERNOR OF HMP FULL SUTTON
Respondents
ex parte
ANDREW RUSSELL
Applicant
_________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
_________
Ms Phillippa Kaufmann (Instructed by Messrs Bhatt Murphy, 23 Pitfield Street, London N1 6HB) appeared on behalf of the Applicant.
Miss Alison Foster (Instructed by the Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the Respondents.
Judgment
As Approved by the Court
Crown Copyright ©


INTRODUCTION
1. This is an application by Mr Russell (pursuant to permission granted by Jowitt J on the 25th August 1999) for an order quashing a decision ("the Decision") of the Governor of HM Prison Full Sutton ("the Governor") dated the 18th February 1999 finding Mr Russell guilty of an offence against prison discipline as upheld on review on the 26th March 1999. The application raises an important question as to the conditions to be satisfied if a lawful order is to be made for a prisoner to attend a mandatory drug test ("a MDT").
BACKGROUND
2. The Criminal Justice and Public Order Act 1994 ("the 1994 Act"), by the insertion of Section 16A into the Prisons Act 1952, enabled the Prison Service for the first time in 1995 to introduce a mandatory drug testing programme for prisoners. The purpose of the scheme was both to discourage drug use in prisons and to offer treatment and support for those who are discovered to be using drugs. Section 16A reads (so far as material) as follows:
"(1) If an authorisation is in force for the prison, any prison officer may at the prison in accordance with prison rules require any prisoner who is confined in the prison to provide a sample of urine for the purpose of ascertaining whether he has any drug in his body."
3. Section 47(1) of the Prisons Act 1952 gave authority to the Home Secretary to make rules and regulations for the management of prisons and for the discipline and control of persons therein. At all times relevant to this application the Prison Rules 1964 ("the Rules") were in force. These have now been replaced by the Prison Rules 1999, but the terms of the rules in question are the same. Rule 46A provided that, when a prison officer required a prisoner to provide a sample, he should so far as reasonably practicable inform the prisoner that he was being required to provide a sample in accordance with Section 16A and that a refusal to provide a sample may lead to disciplinary proceedings being brought against him. Rule 47(19) provided that a prisoner was guilty of a disciplinary offence if he disobeyed a lawful order. Rule 48 delegated the duty to enquire into a disciplinary charge to the prison governor. Rule 49 provided that a prisoner should be given a full opportunity of hearing what was alleged against him and of presenting his own case. Rule 50 listed the punishments that could be imposed following a finding of guilt.
4. In January 1997 the Prison Service issued a Mandatory Drugs Testing Manual ("the MDTM") which in Section 3 paragraphs 3.1-3.2.1 set out the circumstances in which testing might be conducted. This (so far as material) reads as follows:
"3.1 There are five areas where mandatory drug testing may be applied. All prison establishments will be required to introduce a random testing programme with a fixed proportion of the prison population being tested each month. In addition to the random programme, governors will be able to introduce MDT in any of the four other areas where these are relevant to their specific local drug problems and support for local drug strategy.
Areas of use:
* Random testing - prisoners will be selected for this test on a strictly random basis
* Reasonable Suspicion.....
* Risk assessment.....
* Testing on reception
3.2 Random Testing programme
Unlike targeted testing, the random testing programme will provide unbiased and objective management information on the scale nature and trends of drug misuse in each establishment. This will assist in the development of local drug strategies.
3.2.1. Selection of prisoners for random testing
* In order to satisfy legal and statistical requirements, prisoners must be selected for testing on this programme on a totally random basis, using lists of prisoners generated by the LIDS computer
* The information provided will assist in generating performance indicators on the level of drug misuse, based on the proportion of prisoners testing positive for each drug type.
* The MDT co-ordinator must check that the correct procedures have been followed in generating random lists of prisoners and will provide authorisation for these tests.
3.8.1 All establishments must participate in the MDT random testing programme. A set proportion of the prison population must be tested each month. This proportion will be determined centrally by prison Service headquarters. The names of these prisoners must be selected using the LIDS computer system provided for this purpose in order to maintain statistical integrity and to avoid successful legal challenge.
Information provided to the Applicant
(12) The Mandatory Drugs Testing Manual makes it a requirement of the testing procedure that all prisoners who are required to give a sample of urine must be provided with the following information:
`2.3.2: Rule 46A sets out certain conditions which must be followed if a requirement to provide a sample for drug testing purposes is to be considered lawful.
Before the sample is taken a prisoner must be informed:
* That the sample is required under section 16A of the Prison Act 1952;
* They may be confined for up to 5 hours to facilitate the process.'
The mandatory drug testing authorisation form [`the MDTA Form'] contains all this information; a copy must be given to every prisoner required to provide a sample, it must be posted in the sample taking area and distributed to prisoners with other information on drug testing procedures."
5. The Prison Discipline Manual ("the PDM") issued by the Prison Service, supplements the Prison Rules and provides guidance on the implementation of the disciplinary process within prisons. The preface states:
"The Manual contains both instructions and guidance on procedures related to the discipline system. Governors and controllers must comply with the instructions and must take account of the advice.....Its contents have been shaped by the decisions of the courts and experience in the field. Adjudicators must manage hearings in accordance with the rules of natural justice and following the guidance in the Manual will offer the best prospect of that."
It goes on to provide:
(a) (in para 1.2) that the role of the adjudicator is to enquire into a report of alleged events and decide whether a breach of Prison Rule 47 has been established beyond reasonable doubt, ascertain the facts and for this purpose to prepare himself to question, in the spirit of impartial inquiry, the accused, the reporting officer and any witnesses; and
(b) (in para 6.65 and 6.66) as follows:
"6.65 A lawful order is one which a member of staff has authority to give in the execution of his or her duties.
6.66 Evidence. Before an adjudicator can be satisfied of guilt beyond reasonable doubt the following must be established:
(a) The action of a member of staff amounted to an order....
(b) The order was lawful.
(c) The accused did not comply with the order ...
(d) The accused intended not to comply with a lawful order, or was reckless as to whether he or she was not doing so. This means the accused must have understood what was being required of him of [sic] her."
FACTS
6. Mr Russell is a long term prisoner currently held at HM Prison Full Sutton, a high security dispersal prison. On the 23rd December 1998 a prison officer gave to Mr Russell "an order under Section 16A of the Prison Act 1952 to attend a mandatory drug test". It was authorised as a "random test", but there is a dispute of fact whether the prison officer told Mr Russell that it was a random test. Clearly Mr Russell considered that it was. Mr Russell had recently been directed to attend a number of such random tests and he took the view that it was improbable that he could have been selected again on this occasion at random. On this basis he refused to comply with the order. Disciplinary proceedings were commenced. Mr Russell made clear that his defence was that the order to attend the drug test was unlawful because it was an order to attend a random test and the test would not be a random test because his name could not have been selected at random. The hearing took place before the Governor on the 18th February 1999. Mr Russell told the Governor that he had refused to attend the test as he understood the order to be one to attend a random test and that he had not been selected on a strictly random basis. The Governor proceeded to make the Decision, namely that Mr Russell's challenge to the lawful character of the order was not relevant on the adjudication, that on the evidence the charge was proved and that as punishment an additional 14 days should be added to Mr Russell's sentence.
THE ISSUES
7. (a) Two decisions or one decision
The Governor submits that in a case such as the present there are to be considered to be two distinct orders given to the prisoner. The first order, given before the prisoner goes to the drug testing unit, is to go there. The second order, given when he gets there, is to submit to the test. The Governor points out that the MDTA Form, which has to be handed to the prisoner before being required to submit to the test, is only given to the prisoner at the unit when required actually to submit to the test. The Governor accordingly contends that, whether or not the lawfulness of the second order can be challenged on the ground that there was no random selection of the prisoner, the first order is free standing and its lawfulness cannot be so challenged. I reject this contention. There was in this case a single decision and a single order (presumably by or on behalf of the Governor) for Mr Russell both to go to the unit and to submit to the test. An order to attend a mandatory drug test under Section 16A is an order to attend the unit and submit; it is not merely an order to attend. The order given cannot be construed as merely an order to go to the unit and await any further order that might be made to submit to the test. Accordingly if the order (so far as it was an order to submit) was not lawful, so also must be the order to attend which was merely the necessary preliminary to the test taking place.
(b) Condition precedent
The position adopted by the Governor was as set out in paragraph 15 of the First Statement of Mr Lee, Head of the Supply Reduction Group of the Drug Strategy Unit within the Sentence Management at HM Prison Headquarters: "It is the Respondent's case, of course, that randomness is not a condition of legality". I disagree. The order to submit to a random test can only be valid if and so far as it was a random test and if Mr Russell had indeed been selected at random. Once the issue was raised by Mr Russell whether his selection was random, this issue had to be resolved before a decision could be made whether the order was lawful. The issue could not be discarded, as it was discarded by the Governor, as irrelevant. This view is reflected in paragraph 6.66(b) of the PDM. The Decision accordingly must be bad in law, because the Governor refused to address this issue.
(c) Discretion
The Governor submits that, even if I decide (as I have decided) that the Decision is bad at law, nonetheless in my discretion I should not quash it because, having regard to the evidence of Mr Lee filed on behalf of the Governor on this application, it is clear that Mr Russell's selection was indeed a random selection, and that accordingly the order was valid. In his statement, Mr Lee sets out how the Prison Service ensures that the selection of prisoners for mandatory drug tests is made on a strictly random basis and how misleading appearances may be whether a selection is random:
"10. A computer operated system known as LIDS is used to generate the names of inmates required for testing and has been used since the inception of the MDT. The process runs, and is capable of running, only once a month. Before running the selection process, there is no way to identify which inmates will be selected. Since it can only be run once a month, it cannot be `redone' after the first list is produced. In normal circumstances the list is produced by the MDT co-ordinator.
11. The Local Inmate Database System (LIDS) is a prisoner database system implemented at all prisons and operating via remote terminals. Prison staff use LIDS to maintain prisoner information during the period of sentence. The prisoner record moves electronically whenever the prisoner is transferred. The system is used to record all salient details about the prisoner. Extracted information is transferred to a national system on a daily basis. The database can provide a wide range of population reports.
12. The LIDS system can also produce a number of prisoners for random mandatory drug testing purposes. Whilst it is possible to program in the percentage selection required, selection is restricted to one episode per month, with a percentage selected for the reserve list provided at the same time. The process is based on a random number generator, with a process built in to remove any duplicate selections. The final lists are printed out in the order the number were generated. The system makes no reference to previous runs of the process and it is therefore possible to generate the same prisoner on a number of subsequent occasions, as with any random process.
13. It is important to distinguish between randomness and probability. Randomness is the condition where, before the exercise is performed, it is not known which event will result. Each subsequent event is independent, since the outcome of any one event cannot influence the outcome of the others. But it is possible to calculate the chance of an event happening - probability is the expected or relative frequency. In order for the equilibrium point to be reached, the event has to be conducted on many occasions. In this instance, the event is the selection process for a random mandatory drug test."
8. The Prison Service have not previously disclosed the existence of this procedure, and Mr Russell could fairly and reasonably doubt the random character of his selection in the absence of this explanation for his selection. Most importantly the explanation draws attention to the critical distinction between randomness and probability. To reassure prisoners in future as to the randomness of their selection (which is a matter of serious concern to so many of them), the Prison Service has now decided to publicise the contents of these paragraphs and in future to provide a document setting out its contents (together with the MDTA Form) to all prisoners ordered to attend a test. If this procedure is followed, it is likely to be rare when much (if any) evidence will be required at disciplinary proceedings of the random nature of the selection of a prisoner for a test if this issue is raised by a prisoner: consider R. v. Governor of HMP Scrateside ex parte Wynter unreported Divisional Court 11.5.98.
9. Returning to the question of the exercise of discretion, for a number of reasons I do not think that the refusal of relief in this case would be just. Mr Russell disobeyed the order because he honestly (and not without any cause) believed that his selection was not random and that accordingly the order was not lawful. This was a reasonable view in the absence of any explanation for his selection, an explanation only extracted from the Prison Service after these proceedings commenced. The Prison Service until today took a totally wrong view of the relevance of random selection to the lawful character of the order in question and this attitude was what made these proceedings necessary. I do not agree with Mr Russell that paragraph 6.66D afforded a defence to the charge, for Mr Russell deliberately disobeyed an order which was in fact lawful. But whilst his mistaken belief that it was an unlawful order does not constitute an excuse for non-compliance, it was a mitigating factor. The weight given to this factor may turn on the perceived relevance of the randomness of the test to the legality of the order. The punishment ordered in this case may well have reflected the Governor's mistaken view that the randomness of the selection was irrelevant. If the Governor had appreciated that the randomness of the selection was critical to the lawful character of the order, she may well have imposed a more lenient sentence. In summary Mr Russell did not have a fair hearing and the punishment imposed may have reflected the error of law which permeated the Governor's thinking. In the circumstances justice requires that the Decision be quashed.
CONCLUSION
10. Accordingly I reach the conclusion that I should quash the Decision and I do so.
*****

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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/366.html