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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 >> Shreeve, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 2431 (Admin) (26 October 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/2431.html Cite as: [2007] EWHC 2431 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 October 2007

Mr Justice Munby :

1. This is an application for judicial review by a prisoner. It raises a short but by no means easy point. The excellence of the arguments I have heard on both sides, and for which I am most grateful, illustrates, not for the first time, the forensic paradox that on occasions the very excellence of the arguments makes the task of the judge more difficult. That is not a criticism of the advocates; on the contrary it is testimony to their abilities.

The background

2. The claimant is a convicted murderer serving a life sentence with a tariff of 20 years. He still has many years to serve. He is and has at all material times been detained in HMP Swaleside. He is a practising Buddhist and as such is in principle, and subject to going through the appropriate formalities, entitled to have in his cell an incense holder: see PSO 4550 paras 2.26-2.30.
3. On 7 May 2005 the claimant was given a notice of report on Form F1127 alleging that at approximately 10am the previous day, 6 May 2005, he had committed an offence contrary to rule 51(12)(a) of the Prison Rules 1999, SI 1999/728. The "details of alleged offence" were that:

"you had in your possession an unauthorised article, namely a sharpened stabbing implement formed from a bamboo incense holder."

4. The charge was heard on adjudication by Governor Mark Taylor on 9 May 2005. The claimant pleaded not guilty. For reasons which it is not necessary to go into the hearing was adjourned until 27 May 2005 before Deputy Governor Martin Farquhar. He found the charge proved. It is that finding, upheld by the area manager on 15 August 2005, which forms the subject of the claimant's complaint to this court.
5. The matter came on for hearing before me on 18 October 2007. Mr Nick Moss, a caseworker with the Community Law Project, appeared on behalf of the claimant. Ms Gemma White appeared on behalf of the Secretary of State. Very fairly and entirely appropriately in the circumstances she raised no objection of any kind to Mr Moss addressing me.
6. It is a distressing commentary on the state of business in the Administrative Court that although the proceedings were commenced on 22 November 2005, and although permission was granted by Walker J on 30 January 2006, followed by service of the defendant's detailed grounds of defence on 23 March 2006, it has taken a further 18 months for the matter to be heard.

The legal framework

7. Rule 51(12) of the Prison Rules 1999 provides as follows:

"A prisoner is guilty of an offence against discipline if he –

… has in his possession –

(a) any unauthorised article, or

(b) a greater quantity of any article that he is authorised to have."

8. It is common ground that this has to be read in conjunction with the relevant provisions of the Prison Discipline Manual, paragraphs 6.38 and 6.39 of which provide as follows:

"6.38 This paragraph is intended to cover in the case of (a) the possession of an article (for example drugs) which is unauthorised in itself, an article which may be authorised (such as a radio) but which is, in the particular case, unauthorised (perhaps, because it has been smuggled in), or an article which may have been authorised to a certain prisoner but not to the one in whose possession it is found. In the case of (b) the offence is intended to cover possession of more of certain articles than a prisoner is entitled to have. See 6.79 onwards for guidance on drug possession.

6.39 Evidence. Before an adjudicator can be satisfied of guilt the following three elements must each be established beyond reasonable doubt.

a) Presence: the article exists; it is what it is alleged to be and is found where it is so alleged.

b) Knowledge: the accused knew of the presence of the article and its nature, for example that a substance was a controlled drug. Knowledge of its nature can be properly inferred from all the circumstances for instance whether it was hidden or whether the prisoner attempted to dispose of it before it was found. It is good practice for a reporting officer to question the prisoner as soon as an article is found so that his or her immediate reaction to its presence can be adduced in evidence.

c) Control: the accused exercised sole or joint control over the article. A prisoner who drops or throws away an article simply because he or she believes that it is about to be discovered may still be guilty of possession at an earlier stage if there is sufficient evidence that it was in his or her control before it was abandoned. Care will be needed in specifying the time the offence is alleged to have occurred on such a case."

9. Rule 53 of the Prison Rules provides for the hearing of disciplinary charges. Rule 54 provides so far as material for present purposes:

"(1) Where a prisoner is charged with an offence against discipline, he shall be informed of the charge as soon as possible and, in any case, before the time when it is inquired into by the governor …

(2) At an inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case."

10. This is supplemented by paragraphs 2.4-2.6 of the Prison Discipline Manual:

"2.4 The charge must be of an offence described in Prison Rule 51 or YOI Rule 55. If not, it must be dismissed. A charge may not be changed after the form F1127 has been served, though its details may be amended by the adjudicator at the hearing provided the amendment does not result in any injustice or unfairness to the accused. The accused must be told of any amendment made.

2.5 A charge may not be reduced at a hearing, for example from assault to attempted assault. If there is insufficient evidence to support the charge that has been laid it must be dismissed. If during the hearing it becomes clear that the accused's behaviour may have amounted to a lesser or to a different offence the prisoner may be charged with that offence provided that this is done as soon as possible and that it is still within 48 hours of the alleged offence being discovered. The subsequent hearing should be before a different adjudicator who comes to the hearing afresh.

2.6 If it is unclear at charging stage whether or not alleged behaviour amounts to one or more of possible alternative offences, more than one charge may be laid. The accused should be advised as to why this is being done. The hearings may commence simultaneously. As evidence is presented it will become clear to the adjudicator which, if any, of the charges is correct. The charges for which there is insufficient evidence must be dismissed and the course of events should be clearly recorded on the principal record of the hearing (form F256). This practice should be exceptional."

11. The only other provision I need refer to is rule 61(1) of the Prison Rules which, so far as material, provides that:

"the Secretary of State may quash any finding of guilt and may remit any punishment or mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe."

That was the jurisdiction being exercised by the area manager.

The disciplinary proceedings

12. The object which formed the subject of the charge against the claimant is described as follows by Mr Farquhar in his witness statement:

"The incense holder was a wooden item which was about 8 to 10 inches long and clearly narrowed to a long point at the top. It could have inflicted quite a serious injury."

Leaving aside the question of whether the word "narrowed" is there being used transitively or intransitively, there is no dispute that this is an accurate description of the object.

13. The claimant, as he was entitled to, put in a written submission in answer to the charge. It is dated 15 May 2005. It includes the following:

"As I've lately taken up with Buddhism, a fellow Buddhist inmate, [X], offered me the use of an incense holder; which I accepted, and thought no more of.

It is in the same condition now as when I first took receipt of it, a month ago, and has been on open display on my window ledge throughout that time without attracting comment.

… Later, in the afternoon, I was called into the wing office by S.O. Christopher and informed that I was being given a warning; even though it was conceded that there was no intention on my part to misuse the item, and no alleged modification was traceable to me.

… During my discussions with S.O. Christopher, it was clear that he had no idea whether the incense holder had been sharpened since its manufacture or not, and yet he states quite unambiguously in the wording of the warning that it has; in which case a charge should have been forthcoming there and then. The fact that none was brought would appear to be a tacit admission that he knew full well that such an accusation had no substance."

14. The Record of Hearing and Adjudication on Form F256/OR001 sets out the charge against the claimant in the same terms as had previously been set out in the Form F1127 It records what happened during the course of the hearing before Mr Farquhar. It says:

"I pointed out that the statement he has submitted as his written reply to the charge admits possession and as such the charge is proven by his own admission the other facts must clearly be mitigation."

15. Having heard the evidence, Mr Farquhar found the charge proved, ticking the "Charge proved" box in Part 5 of the Form F256/OR001. He sentenced the claimant to stoppage of 50% of his earnings for a period of 14 days.
16. Mr Farquhar's reasoning is explained in his witness statement:

"Mr Shreeve brought along a picture of a pointed lotus leaf and said that the sharpened shape of the incense holder was representational of the leaf's shape. After he had made his comments, I pointed out to Mr Shreeve that he appeared guilty of possessing the article by his own admission and that the fact that he was saying that he wanted to have the burner as a religious artefact was his mitigation. This was not, as appears to be suggested in the Claim Form, the full extent of my findings. I was merely explaining to Mr Shreeve that he was charged with possession of an unauthorised article and has presented as evidence a written note which stated that he had had it in his possession. On the basis of his own evidence he clearly had control of the article and was well aware of the presence of the article and of its sharpened nature (hence his bringing along a picture of the lotus leaf in an attempt to explain it)."

After describing the object in the terms I have already set out, Mr Farquhar continues:

"Mr Shreeve's file is marked that weapons are a significant risk factor for him. I note that Mr Shreeve says in his statement of grounds for judicial review that the 'nature' of the article as unauthorised was not proved as the article was in his possession openly as part of his religious practice. However, Mr Shreeve did not focus on this point at the adjudication. Rather, he insisted that the article was not sharpened. My view was that it clearly was sharp (whether or not Mr Shreeve had sharpened it himself). Mr Shreeve was well aware that he was not allowed to have anything sharp in his possession and therefore that the item was not authorised. I was therefore content that all three elements of the charge as set out in paragraph 6.39 of the Prison Discipline Manual were proved beyond reasonable doubt."

He adds:

"I would have been happy for Mr Shreeve to have in his possession an incense burner, but not a sharp one (like the one in respect of which he was charged) as it could have been used to inflict injury."

17. The claimant, as was his right, pursued his remedy under rule 61 of the Prison Rules. He made a number of complaints in his Form ADJ1, his 'Appeal against an adjudication decision.' It is dated 29 May 2005. For present purposes only two are relevant, numbers 2 and 6:

"2 The adjudicator insisted on treating my written submission as an admission guilt, and my evidence overall as mitigation, not a defence.

6 The adjudicator failed to prove his case "beyond a reasonable doubt" – the criterion necessary in such hearings. As he had no way of knowing the appearance of the item when it was originally made, it was impossible for him to ascertain whether or not it had been altered at any time since."

18. The area manager, as I have said, decided that Mr Farquhar's finding should be upheld. His decision dated 15 August 2005 is as follows:

"The record of the adjudication charge number 332/05 about which you were concerned has been thoroughly reviewed and agreed by the area manager. The conclusion of that review is that the adjudication was properly and fairly conducted and that the punishment awarded should stand. The Area Manager considered that prisoners are not allowed to have other prisoner's property in possession. If you are unhappy with the outcome of your appeal, you have the option of writing to the Ombudsman, who may also review your case."

19. The claimant took his complaint to the Prisons and Probation Ombudsman. In a decision letter dated 6 October 2005 the Ombudsman decided not to uphold the complaint.
20. Accordingly on 22 November 2005 the claimant commenced the present proceedings, seeking to challenge the decision of the area manager on 15 August 2005. Properly in the circumstances the Secretary of State takes no point (even assuming that one was open to him) on the fact that the proceedings were issued more than three months after the decision under challenge.

The challenge

21. In his statement of grounds for seeking judicial review the claimant raised issues under both Article 6 and Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Relying on Tangney v The Governor of HMP Elmley [2005] HRLR 1220, Ms White submits that Article 6 cannot avail the claimant. Mr Moss, for whose realistic and carefully focussed submissions I am grateful, sensibly conceded the point in his skeleton argument. So I need say no more about it. Ms White in her skeleton argument accepted that the claimant was entitled to have incense and a suitable holder even though he had not registered with the prison as a Buddhist. Mr Moss readily accepted that on this basis no point arose under Article 9. Again I need say no more about it.
22. The advocates having sensibly cleared the ground in this way the arguments focussed on the single point in issue.

The claimant's case

23. Mr Moss submits that the claimant was charged not with unauthorised possession of a bamboo incense holder but specifically with unauthorised possession of "a sharpened stabbing implement formed from a bamboo incense holder." So, he says, pointing to paragraph 6.39 of the Prison Discipline Manual, it was necessary for all the elements of the charge thus stated to be proved if the claimant was to be properly convicted.
24. Mr Moss accepts, of course, that the object was found where it was alleged to have been found – in the claimant's cell – and that the claimant knew of its presence. Nor does he take any point on the requirement for proof of "control" as required by paragraph 6.39(c). But, he says, founding himself on the other requirements of paragraphs 6.39(a) and (b), it was necessary to prove, first, that the object in question "is what it is alleged to be" – namely, "a sharpened stabbing implement formed from a bamboo incense holder"; and, secondly, that the claimant "knew of its nature" – that is, knew not just that it was a bamboo incense holder but that it had been "sharpened" to "form" a "stabbing implement." His complaint is that by treating the admission by the claimant of possession of the object as an admission of guilt, Mr Farquhar failed to address the two crucial elements in the case. The claimant was convicted even though the two crucial elements in the charge were not proved, indeed, in circumstances where, he says, Mr Farquhar wrongly treated what the claimant wished to argue as going only to mitigation and not to guilt.
25. So, he says, Mr Farquhar, and subsequently the area manager, failed to consider and failed to address themselves properly to all the elements of the offence as charged. On the evidence, he submits, all that could be proved was that the claimant was in possession of what he believed to be an incense holder. No evidence was adduced that the incense holder had been turned into a "sharpened stabbing implement" or that, if it had, this was something of which the claimant had knowledge.
26. Mr Moss points to what Mr Farquhar himself says as illustrating his error. That the object was "sharp" – Mr Farquhar's description in his witness statement – was not, Mr Moss says, sufficient to demonstrate that it had been "sharpened" to "form" a "stabbing implement." And therefore it was not sufficient to enable Mr Farquhar to conclude that all the elements of the charge had been proved as required by paragraph 6.39.
27. The area manager adopted the same approach and therefore, says Mr Moss, erred in precisely the same way as Mr Farquhar. Moreover, in observing that the claimant was guilty because he was not allowed to have another prisoner's property in his possession – the claimant had of course admitted that the incense holder had come from another prisoner – the area manager was finding the claimant guilty of a different offence from that with which he had been charged and doing so, moreover, without the claimant being able to answer the amended charge. It was no part of the original charge that the claimant's possession of the object was unauthorised because it was another prisoner's property. For the area manager to proceed in this way – to introduce this new element – post-conviction was, says Mr Moss, unfair. And it was in any event a breach both of rule 61 of the Prison Rules, which so far as guilt is concerned, permits only the "quashing" of the finding, and of paragraph 2.4 of the Prison Discipline Manual, which requires the accused to be told of any amendment made to the charge.

The Secretary of State's case

28. The Secretary of State's case as set out in his detailed grounds of defence settled by Ms White and as elaborated by Ms White in her skeleton argument and oral submissions can be summarised as follows: The claimant was permitted to have an incense holder, but would have been prohibited the particular incense holder because it was sharp and therefore potentially dangerous. Mr Farquhar concluded that the unauthorised nature of the object was proved as the incense holder was sharp and the claimant was well aware that he was not permitted to have sharp items in his possession. Mr Farquhar properly considered all the elements of the offence as set out in paragraph 6.39 and reached conclusions he was perfectly entitled to reach on the basis of the evidence before him.
29. Moreover, insofar as there was any error on Mr Farquhar's part (which is denied) this was cured by the appeal to the area manager, the area manager correctly holding that the claimant was in any event guilty because he had the property of another prisoner in his possession. This was not, says Ms White, an alteration of the charge but simply a further reason for which the claimant was properly found guilty of the offence charged. As it was put in the Secretary of State's summary grounds, an authorised item for prisoner A when passed to prisoner B becomes an unauthorised item. That, as Ms White points put, is something the claimant would have been well aware of. The claimant's own admission that the item did not belong to him meant that it was an unauthorised item regardless of whether it was sharpened or not. All three elements of the offence were plainly established and there was no need for Mr Farquhar to enquire further as to whether or not the incense holder was sharpened in order to find the charge proved.

Discussion

30. In my judgment, and despite everything pressed upon me by Ms White, Mr Moss is right, and essentially for the reasons he gives. The claimant is in principle entitled to relief.
31. I think it is convenient to start with the Form F256/OR001, the formal record of the hearing and adjudication by Mr Farquhar. The ticking of the appropriate box in Part 5 tells us that the "Charge" has been "proved" – that, and no more. This invites the obvious question, What charge? The answer is provided on the first page of the Form where the "details of the charge" are set out as follows:

"Rule 51, paragraph 12: Has in his possession: (a) any unauthorised article, or (b) a greater quantity of any article that he is authorised to have. You had in your possession an unauthorised article, Namely a sharpened stabbing implement formed from a bamboo incense holder."

It seems to me that on any sensible reading what the Form is recording is that the charge which has been found proved is that the claimant "had in [his] possession an unauthorised article, Namely a sharpened stabbing implement formed from a bamboo incense holder."

32. The same result is reached by a slightly different process of reasoning. Paragraph 6.39 of the Prison Discipline Manual requires proof that the article "is what it is alleged to be." This immediately invites the question, What is "it" alleged to be? The answer to that question can only be supplied by looking at the charge. The charge provides the answer, helpfully signposted by the word "namely". The "it" in this case is:

"a sharpened stabbing implement formed from a bamboo incense holder."

33. It necessarily follows from the requirements of paragraph 6.39(a) of the Prison Discipline Manual that Mr Farquhar could not properly convict the claimant unless it was established beyond reasonable doubt that the object in his cell was "a sharpened stabbing implement formed from a bamboo incense holder" just as it equally necessarily followed from paragraph 6.39(b) that Mr Farquhar could not properly convict the claimant unless it was established beyond reasonable doubt that he knew the "nature" of the object, that is, knew that it was "a sharpened stabbing implement formed from" an otherwise innocuous artefact.
34. As Mr Moss rhetorically enquired, What is the purpose of the requirements so carefully spelt out in paragraph 6.39 of the Prison Discipline Manual if all that matters at the end of the day is the identification of the particular Prison Rule, here rule 51(12), under which the prisoner has been charged and not the particulars of the specific offence as set out in the charge?
35. At times Mr White's argument came perilously close to suggesting that so long as there was a sound evidential basis for a finding to the relevant standard of proof that the prisoner was in possession of an article which was in fact, as he knew, unauthorised, that was without more ado enough, even if the article was not as described in the charge and even though the reason why it was unauthorised was not that which underlay the charge as formulated. She was, of course, tempted down that road not least so as to sustain the area manager's additional ground for upholding the finding against the claimant. But this, with all respect to Ms White, cannot be right.
36. Suppose that a prisoner has in his possession a tin which proclaims its contents to be talcum powder but which is suspected to contain cocaine. The prisoner is charged with possession of an unauthorised article, namely, a tin containing cocaine. During the adjudication it emerges that the powder is indeed talcum powder but that the tin in fact belongs to another prisoner. No steps are taken to amend the charge. On Ms White's approach the prisoner would have been correctly convicted on the original unamended charge. That simply cannot be correct. Nor would it be right or fair. The record as set out in the Form 256/OR001 would seemingly record a finding that a charge of possessing cocaine had been found proved when it had not been. And the entire process would have ridden roughshod over the requirements of paragraphs 6.39(a) and (b) of the Prison Discipline Manual.
37. Moreover, a finding of guilt in such a case would involve ignoring the careful tri-partite analysis in paragraph 6.38 of the three different situations covered by rule 51(12)(a) of the Prison Rules: (i) possession of an article which is unauthorised per se ("in itself") – drugs being the classic example; (ii) possession of an article which although not unauthorised per se has not in fact been authorised – the article smuggled into the prison being the classic example; and (iii) possession of an article which although not unauthorised per se has not been authorised to the prisoner in whose possession it is found but to another prisoner. In the example I have given, a finding of guilt on a charge falling within category (i) would on Ms White's analysis be good even if the evidence established only that the article fell into category (iii).
38. Understandably, Ms White shrank from going that far and was minded to accept that in the case I have postulated the finding could not stand. But she stoutly maintained that there must in principle be cases where, although there is some discrepancy between the wording of the charge and the facts as proved, a finding that the charge has been proved will be good even though the charge has not been amended. An example canvassed during the course of argument was where the article was described in the charge as "yellow" when in fact it was green. I am inclined to agree with Ms White that in such a case the finding would be perfectly good, unless, perhaps, the colour of the article was fundamental to its "nature." (For example, the fact that a jacket and trousers were black rather than green might be crucial to a charge that a prisoner was in possession of articles of clothing designed to facilitate his escape by masquerading as a prison officer.) So, said Ms White, the discrepancy in the present case fell on the 'right' side of the line.
39. I cannot agree. The gravamen of the charge brought against the claimant was not that he was in unauthorised possession of an otherwise innocuous object whose possession by him was unauthorised only because it belonged to another prisoner. The gravamen of the charge – and it seems to me to be a very serious charge, not least given the fact, as Mr Farquhar tells us, that the claimant's file is marked that "weapons are a significant risk factor for him" – was that the claimant was in possession of "a sharpened stabbing implement" which had been "formed from" some otherwise innocuous object, a bamboo incense holder.
40. That the object was "sharp" is clear, and whether admitted by the claimant or not Mr Farquhar would plainly have been entitled to find to the requisite standard of proof that the object was "sharp" and that the claimant knew that it was sharp. After all, the fact that it "narrowed to a point" was apparent from casual inspection. It was not like a sword stick, to take another example canvassed in argument, where a prisoner might be able to argue that he thought the object was a cane or walking stick and had no idea that it contained a concealed blade.
41. So if the charge against the claimant had been unauthorised possession of a sharp object, namely a pointed incense holder, there would be nothing for him to complain about. But that is not what he was charged with. He was charged with possession of "a sharpened stabbing implement" which had moreover been "formed from" an incense holder. Mr Moss understandably attached much significance not merely to the label "sharpened stabbing implement" but more particularly to the fact that the word used was sharpened rather than sharp and to the fact that the implement was said to have been "formed from" something else. In my judgment he was right to do so. The gravamen of the charge was not merely that the claimant was in possession of an object which was – happened to be – "sharp". The real gravamen of the charge was that he was in possession of a "stabbing implement" which had been "sharpened" and "formed from" something else. Put slightly differently, the charge was that the claimant was in possession of something which had been turned into a stabbing implement. It was therefore, says Mr Moss, and I agree, incumbent on Mr Farquhar to satisfy himself to the criminal standard not merely that that was in fact the nature of the object but also that the claimant knew that that was its nature.
42. The fact is that Mr Farqhuar failed to understand the point and prevented the claimant from exploring these two crucial matters in evidence. Indeed, Mr Farquhar unwittingly reveals his misunderstanding in the passage in his witness statement which I have set out in paragraph [16] above, where he says that the object was clearly "sharp", that the claimant was well aware that he was not allowed to have anything "sharp" in his possession and that "therefore" the item was not authorised. Mr Farquhar's logic, if I may be permitted to say so, cannot be faulted, but his approach overlooks the crucial fact that the claimant was not charged with possession of a "sharp" item but, to repeat, with possession of a "stabbing implement" which had been "sharpened" and "formed from" something else.
43. Ms White says that this is mere semantics. I do not agree. The discrepancy between the offence as charged and the basis upon which Mr Farquhar said that the claimant must on his own evidence be guilty is, in my judgment, a matter of substance – real substance given the possible future implications for the claimant of a record seemingly indicating that he has been found in possession of "a sharpened stabbing implement formed from" something else.
44. If during the course of the hearing on 27 May 2005 the charge had been amended to "possession of an unauthorised article, namely a sharp pointed bamboo incense holder", the claimant would have been rightly convicted and he could have no possible complaint. But that was not done. And that was not, in my judgment, the charge of which he was convicted. On the contrary he was convicted of the charge as originally formulated against him and in circumstances where because of Mr Farquhar's error he had been denied the opportunity to establish that he was not guilty of the offence as charged.
45. The error was not cured by the area manager. Indeed, the area manager erred in two respects: first, in failing to appreciate that Mr Farquhar had fallen into error and secondly in thinking that the finding against the claimant could in any event be upheld for the further reason he gave when in truth it could not.
46. For these reasons the claimant succeeds. He is in principle entitled to an order quashing the decision of the area manager.
47. Ms White suggested that there was no need for me to make a quashing order, as a judgment in the claimant's favour would, she said, suffice to give him all the relief he needs. There will of course be cases where a reasoned judgment suffices and where there is no need to go further and make a quashing order. But this, in my judgment, is not such a case. The potential ramifications of this erroneous finding, maybe many years hence when the claimant's case comes before the Parole Board, are too serious to justify leaving the claimant without an order and with nothing more than a judgment.
48. Bearing in mind that even on his own case the claimant would have had no defence if the charge had been formulated differently, for example along the lines suggested in paragraph [44] above, it occurred to me to wonder whether proper justice would really be done to all concerned – for the public interest and the interests of other prisoners are engaged here, not just the interests of the claimant – if I merely quashed the area manager's decision. I wondered whether justice might not be better done if I could, in some way, substitute a finding against the claimant in the correct form. My concerns were only increased when Ms White indicated that it might be, due to the passage of time, that if I quashed the area manager's decision no further steps would be taken to pursue the matter against the claimant.
49. I do not on reflection think that it is open to me to proceed in this way. Quite apart from anything else, the decision which is under challenge is that of the area manager and his only power under rule 61 of the Prison Rules is a power to quash an erroneous finding of guilt. He has no power to amend the charge or to find the prisoner guilty on some alternative basis. And if the area manager has no power to do what I had in mind I do not see how a judge of the Administrative Court can have such a power.
50. Accordingly, the claimant in my judgment is entitled to the quashing order he seeks.
51. I should add that Ms White sought to bolster her submissions by reference to the decision of Hodgson J in R v Board of Visitors of HM Prison Swansea ex p Scales (1985) Times 21 February. It does not help me, so I say no more about it.

Costs

52. At the end of the hearing Mr Moss and Ms White indicated that neither of them would be seeking costs in the event of success – Mr Moss explaining to me that there was no point in him doing so as any award of costs would merely be set off against the Community Law Project's funding.

Order

53. Accordingly, this application for judicial review succeeds. The claimant is entitled to a quashing order to quash the decision of the area manager on 15 August 2005. There will be no order as to costs.