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Regina v. Secretary of State for the Home Department (Respondent) ex parte Al-Hasan (FC) (Appellant) Regina v. Secretary of State for the Home Department (Resondent) ex parte Carroll (FC) (Appellant) (Conjoined Appeals)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Secretary of State for the Home Department (Respondent) ex parte Al-Hasan (FC) (Appellant)
Regina v. Secretary of State for the Home Department (Respondent) ex parte Carroll (FC) (Appellant)
WEDNESDAY 16 FEBRUARY 2005
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department (Respondent) ex parte Al-Hasan (FC) (Appellant)
Regina v. Secretary of State for the Home Department (Respondent) ex parte Carroll (FC) (Appellant)
 UKHL 13
LORD BINGHAM OF CORNHILL
1. I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in full agreement with it, and for the reasons which he gives I would allow both appeals and make the orders which he proposes.
LORD RODGER OF EARLSFERRY
2. I have had the privilege of considering in draft the speech which is to be delivered by my noble and learned friend, Lord Brown of Eaton-under-Heywood. Like him, I have not found this an easy case but, for the reasons he gives, I have come to the view that the appeal should be allowed.
3. In the hearing before the House the focus came to be, not on any background knowledge which Mr Copple would have had about the search, but on his presence when the governor approved the general order for a squat search. For that reason, while the Human Rights Act 1998 does not apply to this case, the decisions of the European Court of Human Rights, on the significance of an adjudicator's prior involvement in the subject of the dispute which he has to decide, may be helpful in formulating the approach of the common law in a case like the present.
4. As Lord Brown notes, in Pabla Ky v Finland, 22 June 2004, the complaint about the adjudicator's prior involvement was thin indeed and the application was rejected. The decision is worth noting, however, because, at para 29, the European Court emphasised, by reference inter alia to its decision in McGonnell v United Kingdom (2000) 30 EHRR 289, 307, para 51, that article 6(1) does not require that a member state should comply with any theoretical constitutional concepts as such. The question is always simply whether the requirements of the Convention are met in the particular case. Similarly, in a domestic law context, the question will turn, not on theoretical administrative or other concepts as such, but on whether the tribunal can be regarded as impartial and independent in the particular circumstances.
5. In McGonnell v United Kingdom the applicant owned land in the parish of St Martin's in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a draft Detailed Development Plan for the island was under consideration and, at the public inquiry, the applicant made representations to the effect that construction of a residential building on his land should be permitted. The inspector rejected that contention and supported the proposal in the draft development plan for the land to be zoned as an area reserved for agricultural purposes and in which development was generally prohibited. In 1990 the States of Deliberation, presided over by the Deputy Bailiff, Mr Graham Dorey, debated and adopted the development plan. Three years later the applicant made a formal application for a change of use for his land. The relevant planning committee rejected the application and the applicant appealed to the Royal Court, comprising the Bailiff, Sir Graham Dorey, and seven Jurats. The applicant's representative accepted that the written statement in the development plan provided for no development other than Developed Glasshouse, but he submitted that there were none the less reasons to permit a change of use in the particular case. The Royal Court dismissed the appeal.
6. The European Court of Human Rights held that there had been a violation of the applicant's article 6(1) right to have his civil rights determined by an independent and impartial tribunal. The European Court took the view that the fact that the Bailiff had, in his former capacity, presided over the States of Deliberation when it adopted the development plan, was capable of casting doubt on his impartiality when, as the sole judge of law, he subsequently determined the applicant's planning appeal in the Royal Court. It is important to notice the way that the court identified the issue, at para 55:
In the eyes of the European Court, the potential difficulty arose because the Royal Court, including the Bailiff, was not simply having to interpret and apply the development plan: it was being asked to permit a departure from the plan, whose provisions the Bailiff might be supposed, by reason of presiding over the States of Deliberation, to have supported.
7. In Davidson v Scottish Ministers 2004 SLT 895 an Extra Division of the Court of Session had to decide whether, having regard to section 21 of the Crown Proceedings Act 1947, it could grant an order for specific performance against the Scottish Ministers. One of the judges in the Extra Division had been Lord Advocate at the time when the Scotland Act 1998 was passing through your Lordships' House in its legislative capacity. During the passage of the Bill, the Lord Advocate resisted a proposed amendment, on the ground that it was unnecessary, because the Scottish Ministers were protected by the provisions of the Crown Proceedings Act 1947 which at present ensured that the Crown could not be subject to orders for specific performance. On that basis the proposed amendment was not pressed to a vote.
8. In those circumstances, the House held that, in his judicial capacity as a member of the Extra Division, the former Lord Advocate could not be seen to be impartial when deciding whether an order for specific performance against the Scottish Ministers was competent. In the words of Lord Hope of Craighead, at p 907, para 56, as Lord Advocate, he had
Similarly, for Lord Cullen of Whitekirk, what was crucial was that, as a government minister, the Lord Advocate had been promoting the protection of the Scottish Ministers from judicial review. It was the exercise of that role, rather than any mere expression of view about the effect of section 21, that persuaded Lord Cullen that the judge was disqualified from sitting as a member of the Extra Division. Again, the decision in Davidson v Scottish Ministers rests on its own very particular circumstances which bring it within the general scope of the reasoning of the European Court in McConnell v United Kingdom.
9. As the facts of the present case demonstrate, however, people who are called on to adjudicate will often have substantial experience in the relevant field and will therefore be familiar with the background issues which they may have encountered previously in various roles. Indeed, the individuals concerned will often be particularly suited to adjudicate on the matter precisely because of the experience and wisdom on the topic which they have accumulated in those other roles. In many continental systems, at various stages of their careers judges spend time as legal civil servants in ministries, drafting and advising on legislation. Undoubtedly, when they return to the bench, it is expected that they will use their experience to enrich their work. Today, British judges draw on their previous work, whether as advocates, legal civil servants or academic lawyers. Therefore, they may well have to decide a point which they had argued as counsel, or on which they had written an article - or, even, which they had decided in a previous case. In various political or other contexts, judges may have publicly advocated or welcomed the passing of the legislation which they later have to apply. Judges who have served in some capacity in the Law Commissions may have to interpret legislation which they helped to draft or about which they helped to write a report. The knowledge and expertise developed in these ways can only help, not hinder, their judicial work.
10. It would be absurd, then, to suggest that in such situations their previous activities precluded the judges from reaching an independent and impartial judgment, when occasion demanded. The authoritative decision in Locabail (UK) Ltd v Bayfield Properties Ltd  QB 451 is a resounding rejection of any such approach. In any event, if proof were needed, experience confirms that judges are quite capable of acting impartially in such cases. Judges have not infrequently been party to decisions overruling their own previous decisions. Similarly, in The "Rafaela S"  2 Lloyd's Rep 113, 145, para 158, sitting in the Court of Appeal, Peter Gibson LJ freely admitted that he had taken a different view from the one adopted in a report which he had previously subscribed as Chairman of the Law Commission. In In re S (Minors) (Care Order: Implementation of Care Plan)  2 AC 291, Lord Mackay of Clashfern took part in a decision in which the House struck down a system adopted by a local authority for "starring" the essential milestones of their care plan adopted under the Children Act 1989. The appeal turned on identifying a cardinal principle of the Act - a piece of legislation for which Lord Mackay, as Lord Chancellor, had been the lead minister when the Bill was going through this House in its legislative capacity. More than that, as he explained, at p 327, para 108, he had actually given a lecture in which he suggested the idea of starring stages. At the beginning of the appeal, however, he informed counsel of this and they did not object to his sitting. So any question of apparent bias was resolved. Again, since Lord Mackay agreed with the decision to disapprove the starring system, the informed and fair-minded observer would have seen that he was well able to judge the matter independently and impartially when called upon to do so.
11. Nor should it be supposed that only professional judges are capable of the necessary independence of approach. That would be to disregard the realities of life in many organisations today. For example, on a daily basis, head teachers have to apply school rules which they have helped to frame. By virtue of their knowledge of the way the school works and of its problems, they will often be best placed to apply the rules sensitively and appropriately in any given situation. Again, it is not to be assumed that the head teachers' mere involvement in shaping the rules means that a fair-minded observer who knew how schools worked would conclude that there was a real possibility that they would not be able to apply the rules fairly. The same goes for managers in businesses and for officers in the Armed Forces who are committed to upholding the edifice of lawful orders on which the services rest. Equally, I have no doubt that an informed and fair-minded observer would regard prison governors, or their deputies, as being quite capable of interpreting and applying the prison rules fairly and independently, even though they are obviously committed to upholding them. In all these situations, if things do go wrong, the decision can be judicially reviewed or challenged in an employment tribunal, as the case may be. The present case is an example of that safeguard in action.
12. Nothing in the decision of the House today casts any doubt on the validity of the decisions of such bodies taken in the ordinary way. The circumstances of the present case were most unusual, however. The appellants chose to challenge the lawfulness of the general order for a squat search which they had refused to obey. Since Mr Copple had been present when the governor approved that particular order, and had not dissented from that approval, an informed and fair-minded observer could infer that Mr Copple had thereby tacitly accepted that the order was lawful in the situation then facing the prison authorities. If so, that observer might further conclude that there was a real possibility that Mr Copple would be biased if he later had to adjudicate on the appellants' challenge to the validity of the self-same order. On this very limited ground, which is explained more fully by Lord Brown, I have come to the view that the appeal should be allowed.
BARONESS HALE OF RICHMOND
13. I have had the advantage of reading the opinions of my noble and learned friends, Lord Rodger and Earlsferry and Lord Brown of Eaton-under- Heywood, and I agree with them. In particular, I would wish to associate myself with the powerful observations of Lord Rodger. So powerful are they that they might have been thought to lead to a different conclusion in this case. I would like, therefore, to expand a little upon why they do not.
14. The inter-relationship between management and the fair administration of discipline in institutional settings and disciplined services has long been a source of concern. It used to be thought that the courts could not supervise the disciplinary actions of prison governors, chief constables, chief fire officers and the like, because to do so would interfere with the free and proper exercise of their disciplinary powers: see R v Metropolitan Police Commissioner, Ex p Parker  1 WLR 1150, 1155, Ex p Fry  1 WLR 730, 733, per Goddard LJ. Then it was held that the disciplinary decisions of prison Boards of Visitors could be distinguished from those of prison governors and were amenable to judicial review: see R v Board of Visitors of Hull Prison, Ex p St Germain  1 QB 425. But it was still thought that the governor's role in maintaining good order and discipline within the prison was part of his overall function of managing the prison: see R v Deputy Governor of Camphill Prison, Ex p King  1 QB 735. In the words of Lawton LJ at p 749, it was thought that 'Management without discipline is a recipe for chaos.'
15. Others, however, had difficulty in drawing a logical distinction between the disciplinary functions of governors and Boards of Visitors: see Re McKiernan's Application  NI 385. In England and Wales, the distinction was abolished by the decision of this House in Leech v Deputy Governor of Parkhurst Prison  AC 533. Since then it has been clear that the functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; they are subject to the supervision of the courts in their compliance with the rules of natural justice. This distinction was perhaps even more important during the years following 1992 when all prison discipline was in the hands of the Governor.
16. Of course, as Newman J said at  HRLR 731, para 38, it is inherent in the system of prison discipline that it is administered by those with responsibility for managing the prison. Sometimes it will not be possible to keep the two functions distinct. But in this case it could have been done. Giving the order and deciding upon its lawfulness could have been more clearly separated. Giving an order to search prisoners for illicit substances is part of the function of running the prison. In other contexts one would not normally expect the person who gave such an order also to adjudicate upon whether or not it was lawful, at least when the order was so sensitive and the consequences of an adjudication so serious. The lawfulness of a police officer's order to stop and search a suspect will not be decided by the police officer but by a court in any later proceedings resulting from it. The Deputy Governor in this case did not give the order but he was closely associated with it. The first reports about the indications given by the dogs and the negative findings of the search of the classroom area were made to him on the Friday. The decision to order a lock down search was made as a result. He was there on the Monday morning when the Governor approved the Principal Officer's decision to require prisoners to squat. In those circumstances, however professional the Deputy Governor was in his approach to his task, a fair-minded and informed observer would conclude that there was a real possibility that he would be pre-disposed to uphold the legality of the order. Although any other governor from within or outside the prison would have had to be briefed on the reasons for the search, it must have been practicable for someone who had not been so closely associated with giving the order to have conducted the adjudications based upon it. For those reasons I agree that the appeals should be allowed.
17. I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood. For the reasons which they have given I would allow the appeals and make the orders proposed.
LORD BROWN OF EATON-UNDER-HEYWOOD
18. Strip searches are a normal part of prison life, particularly for category A prisoners in high security prisons. Squat searches, however, the most extreme and intrusive form of strip searches in which the prisoner is required to bend over or squat, are altogether less routine. They can only lawfully be ordered for good reason. Rule 39 (2) of the Prison Rules 1964 (SI 1964/388) (now replaced by the 1999 Rules), made under the Prison Act 1952, provides: "A prisoner shall be searched in as seemly a manner as is consistent with discovering anything concealed". Consistently with that rule the Prison Security Manual dictates the only circumstances in which a squat search may be ordered: "If you suspect there is anything concealed in the anal or genital area, ask [the prisoner] to bend over or squat."
19. On Monday, 23 November 1998 a squat search was ordered of all 184 prisoners held on F and G wings of HMP Frankland, a high security dispersal prison holding some 550 prisoners. The previous Friday, two dogs trained in arms and explosives detection had given positive indications within one of the prison's classrooms, a classroom used only by prisoners from those two wings. A search of the classroom and the surrounding area having revealed nothing, it was decided to carry out a lock-down search of both wings with the prisoners confined to their cells.
20. These two appellants, both then long-term category A prisoners, were on the affected wings and amongst those ordered to squat (although in the event the search was called off after 94 prisoners had been searched). The appellants, however, unlike the rest, refused to obey the order. Mr Carroll refused on the ground that he had not been given proper reasons for it; Mr Al-Hasan (formerly known as Anthony Steele) on the ground that a reasonable suspicion was required and there was none in his case.
21. Disciplinary proceedings were brought against both appellants under rule 47 (19): "A prisoner is guilty of an offence against discipline if he . . . (19) disobeys any lawful order".
22. Rule 48 (3) requires that: "every charge shall be inquired into by the Governor". The Governor appointed to hear the charges against these appellants was Deputy Governor Copple. Separate adjudications were held, respectively on 17 December 1998 and 2 March 1999, in each case following adjournments to enable the prisoner to obtain legal advice (although each was refused legal representation for the hearing). In both cases there was no dispute that the order had been disobeyed; the defence of each was rather that the order had not been "lawful". Mr Copple ruled in both cases that the order was lawful and accordingly found both appellants guilty, findings later upheld by the Secretary of State. The penalty imposed on Mr Carroll was two additional days detention, ten days cellular confinement and ten days stoppage of earnings. He was at the time serving a sentence of 15 years for offences of robbery and assault. Mr Al-Hasan was penalised by the stoppage of 15 days earnings and the forfeiture of certain privileges. He was and remains a life sentence prisoner, serving four life sentences for offences committed whilst in prison.
23. Both appellants brought judicial review proceedings seeking to quash the findings of guilt recorded against them. The challenges were advanced on a wide-ranging basis, asserting breaches of Articles 5 (4) and 6 of the European Convention on Human Rights, and breaches of the common law principles of natural justice. The challenges were heard together and failed both before Newman J in the Administrative Court on 16 February 2001 and before the Court of Appeal (Lord Woolf CJ, Tuckey and Arden LJJ) on 19 July 2001:  1 WLR 545.
24. The Court of Appeal heard the appeals together with another appeal (from the Divisional Court) by a third prisoner, Mr Greenfield, who was also challenging an adjudication. Since the three appeals were thought to involve a number of common issues, your Lordships too heard them together. By then, however, the respondent Secretary of State had concededfollowing the judgment of the Grand Chamber of the European Court of Human Rights in Ezeh and Connors v United Kingdom (2004) 39 EHRR 1 that Mr Greenfield's adjudication had breached article 6 so that the only real issue left in his case was a claim for damages under section 8 of the Human Rights Act 1998. By the conclusion of the three-day hearing before your Lordships, the arguments had narrowed still further and it had become clear that no real overlap remained between Mr Greenfield's appeal and those of these two appellants, Mr Carroll and Mr Al-Hasan. Judgment is therefore being given separately in Mr Greenfield's case ( UKHL 14).
25. As now appears, these appellants' appeals raise essentially just one issue, an issue common to both. Put at its simplest the issue is whether these adjudications are properly to be regarded as vitiated by apparent bias on Mr Copple's part, in particular having regard to his earlier involvement in the events leading to the decision to order a squat search. As, moreover, will shortly appear, this only became an issueonly, indeed, could become an issueonce the challenge had been launched and Mr Copple (very properly) had given his detailed account of the facts of the case.
26. The facts most directly relevant to the issue are these. The initial decision to carry out a search of all prisoners and their cells on F and G wings was taken, as already indicated, on Friday, 20 November 1998 following the failure to find in or around the classroom the substances suggested by the trained dogs to be there. The decision was taken by the Governor, Mr Woods, and was relayed to Principal Officer Markham who was made aware of the indications from the dogs and of the security implications of the search. For good reasons (of no materiality on this appeal) it was decided to postpone the search until after the weekend. On the Monday morning Principal Officer Markham instructed a number of prison officers to carry out the search. He explained to them that the items being searched for were of a kind that could threaten the security of the prison and were of a nature that could be hidden in the anal or genital areas of the prisoners being searched. In the course of that morning Governor Woods was briefed in relation to the search and he specifically approved the decision to require the prisoners to squat as part of the search. Mr Copple himself was present when this approval was given.
27. At the first instance hearing before Newman J and again before the Court of Appeal it appears that the major thrust of the fairness challenge related less to Mr Copple's own prior involvement in the actual decision-making process than to his background knowledge of the general circumstances in which the search had come to be ordered. It is instructive to see how the Court of Appeal, in a lengthy and impressive judgment which had to deal also with a host of other issues, dealt with this particular issue,  1 WLR 545, 562-563: