Case No: CO/5573/2014
Neutral Citation Number: [2016] EWHC 176 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/02/2016

Before:

LORD JUSTICE BURNETT
MR JUSTICE OUSELEY

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Between:

	THE QUEEN on the application of RYAN WILSON	Claimant	
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	THE INDEPENDENT ADJUDICATOR
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 THE SECRETARY OF STATE FOR JUSTICE	Defendant

Interested Party	

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Matthew Stanbury (instructed by Swain & Co.) for the Claimant
Tom Weisselberg QC (instructed by GLD) for the Defendant

Hearing date: 15th December 2015

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Judgment
Mr Justice Ouseley: 
1.	The Claimant is serving a sentence of 4 ½ years detention in a Young Offender Institution, YOI, for robbery. He is due for release in June 2016. In 2014 he was subject to disciplinary proceedings for the unauthorised possession of alcohol, to which he wished to raise the common law defence of duress. The Independent Adjudicator, IA, found that it was not available in law. The Claimant contends in these proceedings that that ruling was an error of law. 

The facts
2.	On 11 August 2014, the Claimant alerted an officer that he had been threatened into keeping “hooch”, illicit alcohol, in his cell. Next day, in response, another officer entered his cell and he showed her the hooch. He was moved for his safety to another wing.
3.	The officer reported him to the Governor for having an unauthorised article in his possession, contrary to rule 51(12) of the YOI Rules. The Governor referred the case to the IA because of its seriousness. The IA, District Judge Strongman, adjourned the first hearing for evidence to be obtained from the two officers. At the resumed hearing on 12 September 2014, the Claimant wished to advance the common law defence of duress, saying that he had been threatened with a knife held to his throat to make him store the hooch.
4.	The IA found that the Claimant had been threatened as set out in the report of the officers, “with immediate violence involving the use of a knife”, and had told the authorities about the hooch as soon as the threat was over. He held that in a criminal trial, the defence of duress would have been “available”. I think he means that it would have succeeded, on the evidence which he had, rather than merely that the evidential burden had been met sufficiently for the prosecution to have to disprove it, although the IA record, and the sentence imposed, leave that unclear.  
5.	However the IA found that, as a matter of law, the defence of duress was not available because prison disciplinary proceedings differed from criminal proceedings, such a defence would create difficulty in maintaining prison discipline and limited penalties were available. The IA treated the Claimant as effectively pleading guilty, the duress as mitigation, and awarded 10 additional days suspended for 4 months. The period of suspension passed without activation of the additional days. 
6.	Mr Greenwood, of the National Offender Management Service, NOMS, policy team, said in his witness statement, that there had been just over 9000 referrals of disciplinary offences to the IA in 2013; a quick, efficient and informal adjudication procedure was required. Good discipline was essential to the maintenance of order in prisons; speed was necessary because of the frequency with which prisoners were moved between establishments or came to the end of their sentence, and because delay left prisoners with the impression that breaches of the Rules went unpunished.   
The Legal Framework
7.	The relevant Rules are the Young Offender Institution Rules 2000 SI 3371, the YOI Rules. The case was argued by the Claimant by reference to the Prison Rules 1999 SI No 278, but they are not materially different. This case does not turn on some peculiarity of the YOI Rules.
8.	Section 47(1) of the Prison  Act 1952 provides:
“(1) The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions or secure training centres, and for the classification, treatment, employment, discipline and control of persons required to be detained therein.”
9.	The relevant part of the Rules is headed “Offences Against Discipline”. Rule 51 provides: “A prisoner is guilty of an offence against discipline if he -…(12) has in his possession- (a) any unauthorised article….” 
10.	The immediately preceding offences in rule 51(10) and (11) cover being intoxicated by drinking alcohol and consuming alcohol, but both of those offences are subject to rule 52A, which provides: “It shall be a defence for a prisoner charged with [either of those offences] to show that… (b) the alcohol was consumed by him without his consent in circumstances where it was not reasonable for him to have resisted.”
11.	I note that this is both wider than the common law defence of duress, and its language suggests that more than an evidential burden lies on the prisoner seeking to take advantage of it.
12.	There is a similar defence to the offence under rule 51(9) if a prisoner is found with a substance in his urine, which demonstrates that he has taken a controlled drug.  Rule 52 provides that it “shall be a defence for a prisoner charged with an offence under rule 51(9) to show that: … the controlled drug was administered by or to him under duress or to him without his consent in circumstances where it was not reasonable for him to have resisted.”  I note again the language of the burden of proof, the specific reference to “duress”, to which is added the language found in rule 52A, creating a wider statutory defence. Duress must mean duress as the common law defence. 
13.	The range of the other disciplinary offences is important. Some, but not many, simply replicate criminal offences such as assault. The others are more obviously disciplinary, although the way in which they are committed could and in some cases probably would also involve criminal offences: escaping from prison, detaining a person against their will, fighting any person, receiving any controlled drug “or without the consent of an officer, any other article” during a visit, possessing “any unauthorised article” as here, taking “improperly” someone else’s article, being absent from where the prisoner is required to be, being disrespectful to an officer, and disobeying any lawful order. For no offences, other than those I have specifically referred to, is there any express defence of duress or a defence resembling it.
14.	The governor determines whether the charge should be dealt with by the IA or by the governor. This need for independent adjudication for some disciplinary offences arose out of Ezeh and Connors v UK [2004] 39 EHRR 1. Rule 53A requires the governor to refer the charge to the IA if it “is so serious that additional days should be awarded if the prisoner is found guilty” or if it is “necessary or expedient” for some other reason for the charge to be referred to the IA. The IA’s powers of punishment are more extensive than those of the governor, notably because they include the power to award up to 42 additional days, which the governor cannot award at all. The more serious punishments are also subject to review by the Senior District Judge. The prisoner is entitled to legal representation before the IA. 
15.	The maximum for a disciplinary offence is therefore less than it would be were the same offence also a criminal offence, or if the disciplinary offence were committed in a way which could be tried as a criminal offence, in the criminal courts, for example, if the improper taking of property actually involved its theft. More serious criminal offences are investigated by the police and may be dealt with through the normal criminal court process.
16.	NOMS has issued guidance for governors about prison discipline procedure, which includes straightforward advice about the law. This guidance does not apply to the IAs, though they may find it of assistance without it infringing their independence. It offers, for example, straightforward advice on admitting hearsay evidence, focussing on weight and fairness, rather than on the common law rules or on the Criminal Justice Act 2003. It identifies the elements of possession in the criminal law. It refers to self-defence, adopting the formulation of the criminal law. It does not refer to duress as a general defence, nor does it add any commentary on the specific duress-related defences in the Rules. 
The submissions
17.	Mr Stanbury, for the Claimant, submitted that the charge would be characterised as a criminal charge for the purposes of Article 6 ECHR by virtue of the penalty of additional days which could be awarded. Although Article 6 created neither entitlement nor bar to any particular feature of substantive law, and could not itself entitle the Claimant to plead duress, the applicability of Article 6 showed that the offence should be seen as criminal for the purposes of substantive criminal English law, and should therefore attract the common law criminal defences, which include duress. Self-defence, for example, was available as a defence to assault, even though the Rules were silent on that point. He accepted that this argument could not apply to charges, including assault and those brought  under  rule 59(12), which were heard by the governor, since they would not enjoy the protection of Article 6, and so could not be categorised as criminal charges. 
18.	Mr Weisselberg QC, for the Secretary of State, replacing at the last minute the indisposed Ms Davidson whose Skeleton Argument he adopted, submitted that the crucial distinction between criminal offences and disciplinary offences  still had to be drawn in English substantive law, whether Article 6 applied or not. Article 6 did not apply to all proceedings before the IA where the potential penalty included the imposition of additional days, or to the particular disciplinary offence here, but even if all prison disciplinary offences were criminal offences for Article 6 purposes, none were criminal offences for the purposes of domestic substantive and procedural law. The defence of duress did not apply here anyway, as could be seen from the express provision made for it, or some like defence, in respect of some but not this or most other offences. The IA had suggested reasons why duress was not meant to be available. It was easy to allege, and in a prison context, any such defence would also involve a further investigation of the alleged duress, itself a criminal or disciplinary offence, delaying what was intended to be a swift and less formal procedure. Duress, unlike self-defence did not strike at an ingredient of the offence, and so disproving it was not an inherent part of proving an offence. Duress, and threats short of common law duress, were more aptly allowed for in mitigation of disciplinary offences; and the IA’s punishment was subject to review at the offender’s instigation. 
Conclusions 
19.	I do not accept Mr Stanbury’s submissions for the following reasons. 
20.	Article 6 ECHR provides that in the determination “of any criminal charge against him” a person is entitled to various rights which enable a fair trial. It was not at issue but that that did not afford any right to a defence of duress; it creates no rights in respect of the content of substantive law, civil or criminal; for example, R v Gemmell [2002] EWCA Crim 1992; [2003]1Cr.App.R.23, and Matthews v Ministry of Defence  [2003] UKHL 4; [2003] 1 AC 1163. Mr Stanbury therefore  had to deploy his more oblique Article 6 argument that the IA’s adjudications on disciplinary offences were the “determination of criminal charges”, and therefore the Rules should be construed so that substantive common law criminal defences applied to them;  there was no need to make express provision for duress since, if the offences were properly characterised as criminal offences, the operation of the criminal law would imply the availability of the defence of duress.
21.	Engel v Netherlands (1979-1980) 1 EHRR 647 produced three criteria for the purpose of deciding whether adjudications on disciplinary offences were the determination of criminal charges, so as to attract the procedural safeguards of Article 6. These were applied in Ezeh, above, at [82].  The first criterion is the domestic classification of the offence as criminal, disciplinary or both; that is the starting point but is no more than of “formal and relative value”.  The very nature of the offence is of greater import. Third is the severity of the maximum potential penalty and in particular whether it involves deprivation of liberty. The three criteria do not create a three stage test, but are factors to be weighed together. Potter LJ observed in Han v HM Customs and Excise [2001] EWCA Civ 10140; [2001] 1 WLR 2253 at [26] that the second and third factors carried greater weight in the ECtHR’s approach than did the first.  Ezeh [120] also suggested that the penalty actually imposed was relevant to the determination, but I consider that that can only go to whether or not there was an actual breach, in the result, of the fair trial safeguards.
22.	It is not necessary to resolve the questions disputed before us of whether Article 6 applies to all proceedings before the IA, and if not, whether these particular proceedings were subject to Article 6. There is room for argument on the point, as shown by (R) Napier v SSHD [2004] EWHC 936 (Admin), [2004] 1WLR 3056.   I shall instead make the assumption that Article 6 does apply to them all and so applies to this one in particular.
23.	Accepting however that premise to Mr Stanbury’s argument, the conclusion which he draws simply does not follow. Potter LJ, in Han [26] and [84], pointed out that “criminal charge” in Article 6 had an “autonomous” meaning, for ECHR purposes. The fact that a disciplinary charge might be a “criminal charge”, for the application of the safeguards in Article 6, did not mean that it therefore became a criminal charge for other domestic purposes, and did not necessarily make it subject to the Police and Criminal Evidence Act 1984 and its Codes, for example. It only required the provisions of Article 6 to be met; see also Mance LJ at [88]. 
24.	It follows that even less can Article 6 impel the adoption of otherwise inapplicable domestic criminal substantive law simply because its procedural safeguards are applicable. That approach would run counter to the decisions, above, about the procedural and non-substantive nature of Article 6; and procedural alone it self-evidently is. The meaning of “criminal charge” in Article 6 is confined to determining the applicability of Article 6. The procedure does not determine the content of the substantive law to which it applies; the procedural Article 6 tail cannot wag the substantive domestic dog. That however is what Mr Stanbury is seeking to achieve, indirectly but just as effectively. The very existence of the first Engel criterion also shows that there can be different classifications of an offence for domestic and Article 6 purposes.  
25.	Once it is recognised that Article 6 is of no assistance, the true question can be tackled. The question of whether duress is available as a general defence under the Rules is fundamentally one of their statutory construction. The Article 6 procedural classification is simply irrelevant to whether the Rules should be so construed. There is no issue of interpretation which requires any “reading down”. 
26.	 R v Board of Visitors of Hull Prison ex parte St Germain No.1 [1979] 1 QB 425 deals with the distinction between disciplinary and criminal offences, and provides significant assistance on the question of construction here. The question there was whether the Court of Appeal had jurisdiction to hear appeals from the Divisional Court’s decision on judicial review applications against decisions of the Board of Visitors which had adjudicated on offences against prison discipline, including assault. This turned on whether the decisions were made in “a criminal cause or matter” for the purposes of the predecessor to s18 of the Senior Courts Act 1981. So the actual issue there was one of classification, whereas the actual issue here is whether the Rules include a generally applicable defence of duress.
27.	The Court held that the decisions were not made in “a criminal cause or matter”. Megaw LJ distinguished them from cases in which trial and punishment for an offence would be by a court or tribunal. The fact that these were specifically described in the Prison Rules as offences against discipline weighed heavily with  him: the question arose out of a “special, as it were “private law”, code of discipline, related to a particular and limited class of persons, and in respect of which special considerations apply.” [442B]. Shaw LJ, [452 B-E] said:
“It is no doubt true that such proceedings possess some of the attributes of such a cause or matter. Thus there are involved the elements of accusation, inquiry and adjudication as well as possible consequences of a punitive character. What is absent is the essential characteristic of a criminal cause or matter, namely, that it is a penal proceedings for the infraction of a requirement relating to the enforcement and preservation of public law and order. An act or course of conduct which is of a criminal character may also, in a particular environment, be a breach of domestic discipline. The nature of any proceedings which ensue is not inexorably determined by the fact that their subject matter is criminal and their outcome punitive. It is necessary to take account also of their context and their overall objective.”
28.	He recognised that some offences under the Prison Rules coincided with criminal offences under the general law but that others did not. Proceedings arising from them could not be regarded as a criminal cause or matter.   He continued at p 452D:
“It is true also that the consequence to a prisoner may be a deprivation of some privilege which in a broad sense corresponds to a penalty or punishment. However, as I have said, the combination of these factors does not serve to transform what is essentially a domestic disciplinary proceeding into a criminal cause or matter. Such a proceeding does not purport to deal with misconduct in its relation to the public law or the public interest albeit that the particular misconduct may have an impact on both. It is a proceeding designed and pursued with the limited objective of maintaining order within the confines of a prison, and it is in that narrow context that its character falls to be determined.”
29.	The Board of Visitors was not a judicial tribunal, nor one before which an offender was liable to be convicted and punished for a criminal offence. Waller LJ added at p461C that the findings of the Board of Visitors could not give rise to a plea of autrefois acquit or convict. 
30.	Mr Stanbury recognised St Germain as a significant hurdle to surmount. He submitted that we were not bound by that case to hold that the offences in the Rules were strictly disciplinary offences, and that it should be distinguished on the grounds that, after Ezeh, above, it was no longer possible to draw a simple distinction between disciplinary and public or general law criminal offences; the fundamental difference was now between the governor on the one hand and the IA and Crown Courts on the other. The loss of remission was no longer the loss of a privilege; additional days affected the right for prisoners serving a term greater than a year to be released at the half way stage; s244 Criminal Justice Act 2003.  
31.	 St Germain is, I accept, not strictly binding since it construes the language of “criminal cause or matter” in s18 Senior Courts Act for the purpose of appeal rights, which is not the issue here, but it is persuasive in relation to the general principles underlying the distinction between disciplinary and criminal offences. I also accept that a part of the reasoning in St Germain is no longer apposite, to the extent that it drew on the privilege as opposed to the right to early release. Ezeh however shows that the Article 6 framework for consideration of what is “criminal” as opposed to disciplinary only applies where the question is whether Article 6 itself is applicable to the proceedings; it is not applicable to the issue of substantive law here.  The fundamental difference between governor adjudications on the one hand, and the IA/Courts on the other to which Mr Stanbury refers is also misconceived. 
32.	 None of his submissions persuade me that the principles underlying the general distinction between criminal and disciplinary offences drawn in St Germain are inapplicable here. Those principles tell strongly in favour of treating the YOI and Prison Rules as separate non-criminal disciplinary codes for the purpose of the application of the common law defence of duress. 
33.	The Rules are made for the purpose set out in s47 of the Prison Act 1952, that is avowedly for the purpose of prison order and discipline and not for the creation of a set of bespoke or special criminal offences. The relevant Part of the Rules is introduced by reference to discipline. The list of disciplinary offences under rule 51 is clearly devised for the circumstances of a custodial institution. The Rules and proceedings have the limited “domestic” purpose of maintaining order in custodial institutions. The offences in the Rules are not criminal offences under the general criminal law for the most part, and certainly not the one at issue here, and even where coincident with general criminal offences, they are treated as part of a special non-criminal disciplinary code. There are no special categories by type of offence. They are all treated alike in the Rules, whether they have criminal law equivalents or could be committed in a way which involved a crime under the general criminal law. They are not tried before a criminal court, nor by the procedures and evidential rules of such a court; nor are they subject to the same penalties as are their public criminal equivalent, for very obvious reasons. They do not lead to conviction, or permit a defence of autrefois convict or acquit. The fact that the IA determines the more serious offences, but still only as disciplinary offences, does not make him a criminal court for domestic purposes, and the nature of his adjudication would not alter the applicable substantive law. I add that the procedure and evidential provisions, while Article 6 compliant, are deliberately quicker, and more informal than a domestic criminal trial, for good reason.
34.	 Criminal offences arising in custodial institutions, which are not dealt with under the disciplinary code, are dealt with through trial in the criminal courts, under the procedural and evidential rules for such trials, and attract the heavier punishments there available. They are quite different. And many crimes relevant to good order and discipline in a prison are not the clear subject of disciplinary offences, for example the more serious personal assaults or dishonesty offences. That emphasises the difference between the code for disciplinary offences and the general criminal law, applicable to prisoners and the general public alike.    
35.	This distinction between criminal and disciplinary proceedings is significant for the true construction of the Rules in relation to duress. The premise necessary for Mr Stanbury’s argument that duress is available as a defence, because disciplinary offences are criminal offences by virtue of the penalties available to the IA, has not been made out. Other than for the purpose of testing the applicability of Article 6, the domestic categorisation holds sway: these disciplinary offences are not criminal offences. The implication of a generally available defence of duress would run counter, on normal canons of construction, to the express provision for some form of defence of duress, and in one instance the express provision for the common law defence of duress, in relation to Rule 51(9) – (11) offences. That point is strongly supported by the very limitation which Mr Stanbury had to place on his Article 6 argument, namely that the defence of duress was available only to charges heard by the IA, and not as a defence to the same charges if heard before the governor. That is an impossible contention: the construction of the Rules, the nature of the offences and the availability of a particular defence cannot vary with the manner of adjudication.  If not available for the latter, the defence is not available for the former. 
36.	Mr Stanbury submitted that, on the true understanding of the Rules, duress was available for all offences before the IA and not just for those disciplinary offences which had general criminal law counterparts; anomaly existed in the express availability of the defence for some offences but not for most. Although there was no explanation for the availability of some such defence in relation to those three sub-rules but not others, and we know of no obvious rationale for that limited express provision, it is clear that the defence could not have been provided so as to redress an anomalous absence of a defence of duress in relation to those three sub-rules. Nor could it have been provided to make clear what might have been unclear for those offences, but clear enough for the others.  Instead it must be taken that the law maker realised that the defence did not apply generally, and for some reason, perhaps experience of particular cases, decided to provide it only for that limited range of offences. The lack of express provision for the other offences is the clearest indication that it was not intended to apply to them; it so easily could have been made to do so had that been intended.  That is further supported by the choice of different language for the expression of the defence, and the separate reference to “duress” in one only of the sub-rules creating some form of duress defence, and by the way in which the burden of proof is expressed.
37.	 Although there may be no obvious reason for the express availability of a duress defence or similar for those select few offences, there are reasons why it might not be a generally available defence. The disciplinary offences are intended to be resolved quickly in the interests of order, discipline,   fairness, and with some informality. Prisoners are not infrequently transferred, and the hearings should be concluded beforehand for logistic and other reasons. A prisoner may be nearing release. An assertion of duress may pass the evidential threshold, and require investigation and evidence from prisoners and officers in order for the charge to be proved.  This is likely also to involve the investigation of offences allegedly committed by other prisoners.  The investigation could readily be lengthened, and made more difficult of resolution. The role of duress as mitigation leaves much more to the experience and judgment of the governor or IA.  
38.	Mr Stanbury drew by analogy on the absence of express reference to self-defence in relation to assault or fighting, yet clearly self-defence was a defence to assault (though on his argument not before the governor). In my judgment, there is no parallel to be drawn with self-defence. It is a defence to an assault charge, one of only a handful of disciplinary offences to which it would be available. But the reason it is a defence to assault is that the application of unlawful force is an ingredient of assault, and the use of reasonable force in self-defence is lawful. So the defence negates an ingredient of the offence. There is no need for its availability to be spelt out; it is present by necessary implication in the word “assault”. Duress is different; it applies when all the ingredients of the offence have been made out, including intent. The disproof of duress, if raised, is not inherent in the proof of the ingredients of the offence; it does not negate intent or prove involuntariness. It is not incorporated by the words of the offences themselves, in contrast with self-defence. 
39.	Mr Stanbury also faced difficulties over how far his submission that the offences under the Rules dealt with by the IA were criminal offences would have to go in relation to the rules of evidence. It could not stop at the point of forensic convenience for his case. If the principle were that the potential penalty made the offence criminal so as to attract not just the procedural protection of Article 6, but therefore also substantive provisions of domestic criminal law, it would be strange indeed to exclude its rules of evidence. But what rules, say, in relation to hearsay would apply? The Criminal Justice Act 2003 Chapter 2 was not to said to apply, presumably on the basis that he would say that these are not criminal proceedings in relation to which the strict rules of evidence apply; s134. But his argument in this case may contradict such a conclusion.  The common law has however been somewhat superseded. NOMS Guidance reflects a simpler approach than either, on the basis that it is not dealing with criminal proceedings.  And what of “bad character”, which might have a role to play in prison offences? The rules were abolished at common law and the 2003 Act only applies to criminal proceedings to which the strict laws of evidence apply.
40.	Mr Stanbury’s argument, eloquently put though it was, lacks principle and practicality. In my judgment, this claim must fail.
Burnett LJ  
41.	I agree.