A recent Divisional Court judgment is of interest to prison lawyers but also to public lawyers as it deals with important points of law in relation to the interpretation of the Prison Rules and the "implied powers" principle, writes Geeta Koska.
In the prison context, the possession of a mobile phone is both a disciplinary offence contrary to the Prison Rules 1999 r51(12)(a) and a criminal offence pursuant to the Prison Act 1952 s40D(3A). In R (on the application of O'Brien) v Independent Adjudicator  EWHC 2884 (Admin), the Divisional Court considered whether a governor of a prison or an Independent Adjudicator (IA) had the requisite authority to decide how such an offence should to be dealt with.
After considering the legislative scheme in detail, the Court held that the IA had no power to refer the charges to the police for a criminal investigation. The referral of the claimant’s charges had been unlawful and in breach of the Data Protection Act 1998.
The claimant was a serving prisoner at HMP The Mount. On 6 December 2017, he was charged for being in possession of a mobile phone and a Governor referred the charge to the IA. Whilst this charge was pending before the IA, the claimant was charged with a second offence for being in possession of a mobile phone. A Governor referred the second charge to the IA to be inquired into. Upon receiving the second charge, the IA referred the two charges to the police for investigation.
An application for judicial review was brought on the basis that the IA had no power to refer the disciplinary offences to the police.
Judgment: express and implied statutory power
In a unanimous judgment, the Divisional Court held that the IA had acted unlawfully in referring the charges to the police and not inquiring into them herself.
The Court first considered whether there was an express power for the IA to refer a charge to the police, and answered this question in the negative. The Court then examined whether the power was implied. In R (Ward) v Commissioner of Police for the Metropolis  UKHL 32 at para 23, the House of Lords recognised that ‘…there can be implied into a statutory power such incidental powers as are necessary for its operation’. In applying this principle, the Divisional Court outlined the function of the IA, which was to hear disciplinary charges referred to her by a governor. The Court then assessed the powers that were necessarily incidental to this function. The Court drew a distinction between the implied power to, for example, regulate the conduct of a hearing and the power to refer a charge to the police and found that the latter was not necessary to discharge her function.
Division of power between the Governor and the Independent Adjudicator
Whereas the IA was held not to have an implied power to refer a disciplinary charge to the police, the Court found that the governor of a prison did. This was on the basis that it was necessarily incidental to their function of maintaining prison discipline. Delivering the judgment, Lady Justice Thirlwall reinforced the important division between a governor and the IA: stating at para 68(vi): ‘[t]he governor has the big picture about what happens in the prison, and the IA does not.’
No absolute prohibition
The Divisional Court recognised that in certain circumstances it may be permissible for an IA to refer a charge to the police. First, the Court considered that where the IA process reveals more serious criminal conduct, this could be referred to a governor to consider a referral to the police. However, the IA would be required to carry out their inquiry into the underlying less serious charge. Second, where the IA exposes corruption or a gross error, a referral may be required to fulfil the policy objective of investigating and prosecuting crimes.
This decision reinforces the IA’s important role of dealing with disciplinary offences with impartiality and independence. The judgment is also an important reminder that powers given by statute must be used for the purpose conferred by law, and implied powers are limited to those that are necessary.
In the future, practitioners representing prisoners in adjudications need to be aware that an IA cannot generally refer disciplinary charges to the police for a criminal investigation.
In addition, if an IA has already referred a client’s disciplinary charge to the police and a criminal investigation or prosecution has been proceeded with, this may have been unlawful and could be open to challenge.
Paul Greatorex of 11KBW was instructed. Samuel Genen of Steel & Shamash (now Edwards Duthie Shamash) acted as the solicitor for the Claimant, and was assisted by Geeta Koska, now a barrister at 1MCB who also acted for Mr O’Brien for his adjudication.