I read with interest a summary judgment from the Administrative Court, which tells us that in prison disciplinary hearings before an ‘independent’ adjudicator, the prosecution case can be presented by the prison officer who is the reporting officer and who is therefore a prosecution witness. Almost invariably in my experience, he is the only witness. In the judgment, we are further told that such a procedure is not in breach of the prisoner’s human rights under European Convention law, as there is nothing in Article 6, the relevant article, requiring the prosecutor to be independent.

Hang on a minute! Have I missed a trick here? Isn’t Article 6 all about fairness, and justice being seen to be done, as well as the right to a public hearing by an independent and impartial tribunal? And what price the role of the prosecutor as formalised in detail by Mr. Justice Farquharson as long ago as 1986? I seem to remember something about a fair and independent prosecutor, not seeking a conviction but acting as a minister of justice, and placing the evidence fairly and impartially before the court. Now I accept that the learned judge’s Report was aimed at prosecuting barristers, but is there one rule for us, and another rule for the rest?

I have done my fair share of these disciplinary hearings, and thankfully, I have never encountered a situation which exercised the mind of the Administrative Court. Of course, by the very nature of these disciplinary proceedings, they are indeed “at the less serious end of the spectrum.” But try telling that to the prisoner who risks losing remission and the chance of early parole when the adjudication goes against him.

This judgment sets an ugly precedent, and should be revisited. It gives the impression that prisoners are second class citizens when it comes to fairness and impartiality in quasi-legal proceedings, and that simply isn’t fair.

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David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

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