[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Matthewson v Scottish Ministers [2001] ScotCS 169 (28 June 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/169.html Cite as: [2001] ScotCS 169

[New search] [Help]

[1] This application for judicial review has been brought by a prisoner who is serving a sentence of life imprisonment. He was convicted of murder on 3 August 1982.

[2] On 7 March 2000 the petitioner was required to provide a urine sample for the purpose of a mandatory drug test carried out in accordance with section 41B of the Prisons (Scotland) Act 1989 (as amended). On 9 March 2000 he was served with a charge sheet charging him with a breach of discipline under paragraph (x) of Schedule 3 to the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (as amended). Schedule 3 provides inter alia:

[3] Prison discipline is dealt with in Part 10 of the 1994 Rules. Rule 94 gives effect to Schedule 3. Rule 95 provides inter alia:

Rule 96 provides inter alia:

Rule 97 provides inter alia:

Rule 98 provides inter alia:

Rule 100 deals with punishment and provides inter alia:

[4] Returning to the facts of the case, the charge sheet informed the petitioner that the alleged offence was that while in prison between 7 February and 7 March 2000 he had administered cannabinoids to himself or had failed to prevent cannabinoids being administered to him by another person. The charge sheet informed the petitioner that his case would be heard on 10 March 2000 (i.e. the following day), when he would be given the opportunity to reply to the charge. He was asked to indicate whether he wished to call any witnesses. The charge sheet also identified the reporting officer.

[5] The hearing on 10 March 2000 was adjourned to 13 March 2000 to enable the petitioner to contact his solicitor. It appears from the record that at the adjourned hearing on 13 March 2000 the petitioner maintained his innocence and claimed that he did not take cannabinoids and that the proper procedures had not been followed. The hearing was adjourned to 17 March 2000 to enable the Governor to seek advice and for a confirmation test to be conducted. The petitioner asked for his solicitor to be present, but this request was refused. On 17 March 2000 the hearing was again adjourned, to 20 March 2000, to enable the petitioner to seek legal advice. It appears from the record that there was an issue as to the interpretation of a circular concerning strip searches. On 20 March 2000 the hearing was again adjourned: it appears that this was to enable inquiry to be made into a defence put forward by the petitioner, and to enable clarification to be obtained of a laboratory report. On 21 March 2000 the hearing was again adjourned to await the outcome of judicial review proceedings, i.e. the present application (lodged on 2 March 2001).

[6] It is not in dispute in these proceedings that in the course of the hearing before the Governor the petitioner made requests to be allowed legal representation, and that those requests were refused. It is also not in dispute that, at the hearing, the charge was based on a report by a member of the prison staff, and that the adjudication was to be carried out by another member of the prison staff, namely the Governor (a term which is defined by Rule 3 so as to cover a number of senior staff: in the present case, the Governor in question was the Unit Manager of the prison).

[7] The only factual issue of any significance which is in dispute is raised by the following averment made on behalf of the petitioner:

That averment is denied by the respondents. They aver in response:

[8] It may be helpful at this point to note the relevant legislative and administrative framework. The petitioner's release on licence is governed by section 26 of the Prisons (Scotland) Act 1989, which provides:

[9] Under existing arrangements (an account of which is given in the Policy Memorandum relating to the Convention Rights (Compliance)(Scotland) Bill), a non-statutory committee, the Preliminary Review Committee, recommends to the respondents the date for the first review by the Parole Board of an adult mandatory life prisoner's suitability for release on life licence. The Scottish Ministers reach their decision on the timing of the first review by the Parole Board in the light of the Committee's recommendation and in doing so take into account representations from the prisoner. The Parole Board then carries out the review of the prisoner's suitability for release on life licence. It does so in accordance with the Parole Board (Scotland) Rules 1995 (S.I. 1995 No. 1273), which provide inter alia:

Rule 5 requires the Secretary of State (now the respondents, by virtue of the Scotland Act 1998) to send to the Parole Board and to the person concerned a dossier of relevant information. Rule 7 entitles the person concerned to submit written representations, information and documents to the Parole Board. After considering the case, the Parole Board makes a recommendation to the Scottish Ministers about whether or not the prisoner should be released. The Scottish Ministers are not empowered to release the prisoner (except on compassionate grounds) unless this has been recommended by the Parole Board. If the Parole Board recommends that the prisoner should be released on life licence, the Scottish Ministers are required (in the case of the petitioner, by section 26 of the 1993 Act) to obtain the views of the judiciary before taking their decision. The prisoner is informed of the Parole Board's recommendation and the judiciary's views and is invited to make representations before the Scottish Ministers take their decision. If the Parole Board does not recommend the prisoner's release or the Scottish Ministers decline to accept a favourable recommendation from the Parole Board, further reviews of a prisoner's case will take place either biennially or annually, normally depending on the prisoner's security category. On behalf of the petitioner, it was accepted that he is subject to biennial reviews.

[10] Against this background, the petitioner makes a variety of complaints, the first of which is that the refusal of the Governor to accede to the petitioner's request for legal representation at the hearing was an unreasonable exercise of the discretion conferred on the Governor by rule 97(7) of the 1994 Rules. That complaint is reflected in the petitioner's second plea-in-law, which states:

The plea conflates the respondents and the Governor on the basis, which is accepted by the respondents, that they bear responsibility for the Governor's decisions in respect of disciplinary hearings.

[11] At the commencement of the hearing before me, the Solicitor-General for Scotland intimated that the respondents did not offer resistance to the petitioner's second plea-in-law (which I have just quoted), to the extent that it sought reduction of the decision to refuse the petitioner's request for legal representation. It was accepted that the respondents were not in a position to demonstrate that the request had been refused on a reasonable basis.

[12] If that were the only substantive issue in dispute, it would be appropriate merely for me to grant reduction of the decision and for the matter to go back to the Governor for re-consideration. There are however other matters in dispute which it is appropriate to resolve at this stage. These matters concern the compatibility of the disciplinary procedure with Article 6 of the European Convention on Human Rights, and thus with the powers of the respondents under section 57(2) of the Scotland Act 1998. They were focused by junior counsel for the petitioner, in opening her submissions, in the following propositions:

[13] Addressing me on behalf of the petitioner, junior counsel submitted that the disciplinary charge which the petitioner faced constituted a "criminal charge" within the meaning of Article 6(1) of the Convention. The proceedings for the determination of that charge must therefore comply with the various requirements of Article 6(1) and (3). In particular, the petitioner was entitled to a hearing by an independent and impartial tribunal. In addition, since Article 6(3)(c) applied to the proceedings, the petitioner was entitled to defend himself through legal assistance of his own choosing. In relation to the latter point, it was explained to me that the petitioner was not in need of legal aid, and was not claiming that he was entitled under Article 6(3)(c) to free legal assistance. He could secure his own legal representation, if such representation were to be allowed.

[14] In support of her submission that the proceedings involved the determination of a criminal charge, counsel relied on two matters in particular: the subject-matter of the charge, and the penalty. In relation to the former, the charge concerned the use of controlled drugs, something which outside the prison environment would be governed by the criminal law. Counsel accepted that that consideration did not in itself give the charge the character of a criminal charge, but submitted that it was a relevant factor. In relation to the issue of penalty, counsel accepted that the penalty which could be imposed by the Governor was limited. For a mandatory life prisoner such as the petitioner, the only punishments open to the Governor were those mentioned in rule 100(1)(a), (b), (c), (d) or (i): in other words, a caution; or forfeiture of privileges for up to 14 days; or stoppage of up to one half of the prisoner's earnings for up to 8 weeks; or cellular confinement for up to 3 days; or forfeiture of the prisoner's entitlement to withdraw money for up to 14 days. Counsel accepted that those punishments would not take the charge out of the category of disciplinary charges, applying the Convention jurisprudence to which I shall shortly refer. Counsel however submitted that the consequences for a mandatory life prisoner went beyond these punishments. First, any finding of guilt could result in a higher security classification. That point was not however explained or developed at the hearing. Secondly, and more importantly, any finding of guilt would be likely to jeopardise the success of any application to the Parole Board for release on life licence. By reason of the seriousness of these collateral consequences, what would otherwise be a disciplinary matter might become a "criminal charge" within the meaning of Article 6. In other words, the charge facing the petitioner was not, considered in isolation, a criminal charge; and it would not be a criminal charge if it were directed against a prisoner who was not a mandatory life prisoner. It took on the character of a criminal charge in respect of the petitioner because he was a mandatory life prisoner and was therefore liable to be affected by a finding of guilt in an especially serious way.

[15] Counsel referred me to two well-known judgments of the European Court of Human Rights in support of this submission: Engel v The Netherlands (No.1), Series A No.22, at paragraphs 80-85; and Campbell and Fell v United Kingdom, Series A No.80, at paragraphs 67-73. I was also referred to the decision of the Divisional Court in Greenfield v Secretary of State for the Home Department, 22 February 2001, in which the court decided that a similar charge in respect of a prisoner serving a determinate sentence did not come within the scope of Article 6. Counsel submitted that the present case was distinguishable by reason of the fact that it concerned a mandatory life prisoner. I was also referred to the decision in R (Carroll) v Secretary of State for the Home Department, 16 February 2001, in which the court held that a charge of refusal to obey a lawful order, brought against a life prisoner, did not come within the scope of Article 6. Counsel observed that the court had focused solely upon the penalties which could be imposed by the Governor, and that the argument concerned with the possible repercussions before the Parole Board had not been advanced.

[16] On the assumption that the proceedings in question involved the determination of a criminal charge within the meaning of Article 6, the respondents did not seek to argue that the requirements of the article were met by the existing procedures, in particular insofar as concerned the right to a hearing by an independent and impartial tribunal, and the right of the person charged to defend himself through legal assistance of his own choosing. Counsel accordingly invited me to pronounce a declarator (a) that the constitution and conduct of the orderly room hearing did not constitute a fair and public hearing before an independent and impartial tribunal, and (b) that the petitioner was entitled to defend himself through legal assistance of his own choosing at the orderly room hearing. In addition, counsel submitted that section 57(2) of the Scotland Act 1998, which provides:

meant that the respondents had no power to omit to make such subordinate legislation as was necessary to bring the 1994 Rules into compliance with Convention requirements. In support of that submission, reference was made to HMA v Robb, 1999 SCCR 971; Clancy v Caird, 2000 SC 441 and the decision of the Lord Ordinary in Booker Aquaculture Ltd v Secretary of State for Scotland [1999] Eu LR 54. On the basis of this submission, counsel invited me to pronounce a declarator that the respondents, in failing to provide to the petitioner, either by legislative or administrative measures and either at first instance or on appeal, the right to legal representation before his prison disciplinary hearing et separatim a right of appeal against any decision of the prison orderly room hearing to an independent and impartial tribunal established by law with full jurisdiction to hear and decide matters de novo, were acting unlawfully.

[17] The petition also seeks a remedy in damages. Counsel invited me to deal with that issue at a second hearing, if the petitioner succeeded on the points discussed at the first hearing.

[18] In the course of her submissions, counsel briefly submitted that, since the Governor could impose a punishment of loss of wages, the hearing involved the determination of "civil rights and obligations"; but the point was not developed. Reference was also made in passing to Article 5(4) of the Convention: it was said that the Policy Memorandum relative to the Convention Rights (Compliance)(Scotland) Bill disclosed that the respondents considered that there was a risk of a domestic court taking the view that the present arrangements for the release of mandatory life prisoners were incompatible with Article 5(4). After a brief discussion, counsel informed me that that matter was not being pursued.

[19] In reply, junior counsel for the respondents submitted that the hearing before the Governor did not come within the scope of Article 6. If the respondents were wrong about that, then it was accepted that the hearing before the Governor did not constitute a fair and public hearing before an independent and impartial tribunal, and that a declarator to that effect could be granted. The appropriateness of the other declarators sought was not conceded.

[20] Counsel submitted in the first place that the hearing before the Governor did not involve the determination of "civil rights and obligations". This submission was not developed, as counsel for the petitioner indicated that the argument based on "civil rights" was not being insisted on.

[21] Counsel next submitted that, applying the tests developed in the Convention jurisprudence and applied in earlier domestic cases such as Greenfield v Secretary of State for the Home Department and S v Miller 2001 SLT 531, it was plain that the proceedings before the Governor did not involve the determination of a "criminal charge". The proceedings were not classified as criminal in domestic law. The nature of the proceedings was different from a criminal prosecution. The purpose of the proceedings was equally different from a criminal prosecution. Although the subject-matter of the charge was related to the criminal law, and the proceedings could result in the imposition of a punishment, the charge was not brought in the general public interest, and the nature and severity of the possible punishment were consistent with the proceedings being of a disciplinary nature. The possible effect upon the Parole Board's consideration of the petitioner's case at some future time was too remote a consequence to be taken into account. Nor could the Parole Board's decision be regarded as forming part of the petitioner's punishment in the event that the charge was proved.

[22] Senior counsel for the petitioner submitted that prison discipline, as distinct from discipline within other institutions such as schools or the armed services, could not be demarcated from the criminal justice system. The purpose of maintaining order in prison was to maintain order in the criminal justice system: prison discipline formed a continuation of the process of enforcement of society's interest in maintaining order, which was also expressed through the enforcement of the criminal law. Prison disciplinary proceedings thus contained the elements of public interest and public involvement necessary for proceedings to involve the determination of a criminal charge within the meaning of Article 6. That was not to say that all prison disciplinary proceedings involved a criminal charge: life prisoners were however in an exceptional position. The fact that the most severe punishments listed in rule 100(1) - namely, an award of additional days or loss of remission - could not be imposed on life prisoners suggested, paradoxically, that they were in a more privileged position than other prisoners. The explanation lay in the fact that it was recognised that offences against discipline by life prisoners could impact upon the decisions of the Parole Board and of the respondents concerning the possibility of release on licence. That was what, in reality, maintained discipline so far as life prisoner were concerned. The petitioner had an expectation of release which would be affected by the decision reached at the disciplinary hearing. A continuing loss of liberty would be a penal consequence of that decision. Where a charge was dealt with by one body, its implications for a subsequent decision by a different body could be relevant to the application of Article 6: reference was taken in that regard to the Pierre-Bloch v France judgment of 21 October 1997, Reports 1997-VI, p.2207. In counsel's submission, the present case also could be said to affect a "civil right" within the meaning of Article 6, since liberty was at state, and the right to liberty was a civil right: Aerts v Belgium, Reports 1998-V p.1939. Counsel said that this did not however add anything to the submission based on the existence of a "criminal charge", since it equally depended on acknowledging the relevance of the Parole Board's subsequent consideration of the petitioner's case. In counsel's submission the proceedings before the disciplinary hearing involved both the determination of the petitioner's civil rights and the determination of a criminal charge against him.

[23] In reply, the Solicitor-General for Scotland submitted that a distinction fell to be drawn between the public interest in prison discipline, and the punishment of offenders in the public interest. The latter was one of the characteristic elements of proceedings involving the determination of a criminal charge. The former amounted to no more than saying that prison discipline was a matter in which a public interest was involved. The Pierre-Bloch case was concerned with a very different situation, in which two bodies were both involved in the consideration of a single issue, the proceedings before each body being directly connected and active at the same time. In the present case, there was no current or direct connection between the disciplinary proceedings and proceedings before the Parole Board. They were two separate procedures. The Parole Board would consider the entire history of how the petitioner had conducted himself in prison: it would not be re-visiting this particular issue. It could not be said that the disciplinary proceedings would render further incarceration likely. Nor would the Parole Board be imposing any penalty on the petitioner: rather, they would be considering whether the penalty already imposed on him (by the sentencing judge) should be altered.

[24] Consideration of the scope of Article 6 is at the heart of the present case. Paragraph (1) provides that the bundle of rights which together constitute a fair hearing apply in the determination of "civil rights and obligations" or of "any criminal charge". A substantial Strasbourg jurisprudence has emerged as to the interpretation of these concepts. Each concept is recognised as having an autonomous meaning which is not dependent upon the characterisation given by the domestic legal system: König v Germany, Series A no.27, para 89 ("civil rights"); Engel and Others v Netherlands, Series A no.22, paras 81-82 ("criminal charge"). Each concept is given an interpretation which is substantive rather than formal, since "a restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision": Delcourt v Belgium, Series A no.11, para 25.

[25] One of the issues considered in the Strasbourg jurisprudence is the circumstances in which a matter considered by domestic law to be merely disciplinary will fall nevertheless to be considered as a "criminal charge" for the purpose of the guarantee. In the earliest of the cases cited to me, Engel and Others v Netherlands, the European Court of Human Rights considered the proper categorisation of military discipline imposed upon service personnel by reference to three criteria. First, the nature of the classification of the offence in domestic law was relevant: if "criminal", that would be sufficient to bring the issue within the scope of Article 6; but, if "disciplinary", that would not be conclusive and would only provide a starting point. Secondly, the nature of the offence itself required to be assessed: when a serviceman was accused of an act contravening a legal rule governing the operation of the armed forces, the State could in principle employ disciplinary law rather than criminal law. Thirdly, the severity of the penalty which could be imposed was of importance. In that regard, the court said (at para 82):

In that passage, I note that the court referred to loss of liberty imposed as a punishment, i.e. as a punishment imposed to punish the person in question for his guilt of the charge in question. In finding that certain of the charges in that case came within the "criminal" sphere, the court similarly gave as its reason (at para 85) the fact that "their aim was the imposition of serious punishments involving deprivation of liberty".

[26] The court's judgment in this early case laid down the principles - the Engel criteria - which have subsequently been applied in other Strasbourg cases. In Öztürk v Germany, Series A no.73, for example, the court noted (at para 53), in relation to the second criterion, that a characteristic of the criminal law was that it was directed towards all citizens (albeit it might only affect citizens in particular circumstances, e.g. as road users), whereas disciplinary law was directed towards a particular group possessing a special status. In Campbell and Fell v United Kingdom, Series A no.80, a case concerned with prison discipline, the court applied the same approach. The court accepted (at para 69) the role of disciplinary charges, as distinct from criminal charges, within the prison system:

In relation to the second criterion (i.e. the nature of the offence), the court observed (at paras 71-72):

Taking into account both the "especially grave" character of the offences with which Campbell was charged and the nature and severity of the penalty (loss of 570 days' remission), the court concluded that Article 6 was applicable.

[27] The approach followed in these (and other) Strasbourg judgments has been applied by United Kingdom courts in a variety of contexts, the most detailed analysis of the Strasbourg approach being perhaps that carried out in S v Miller (a case which concerned the application of Article 6 to children's hearings).

[28] Following this approach, it appears to me to be clear that the proceedings against the petitioner before the disciplinary hearing, if considered in isolation, do not involve the determination of a criminal charge. Applying the first criterion, domestic law does not regard the petitioner as a person charged with a criminal offence. Applying the second criterion, although the subject matter of the charge is not entirely unrelated to the criminal law (insofar as the possession of cannabis or cannabis resin is a criminal offence, albeit not one which would in general be regarded as being of a particularly serious nature), the charge itself does not allege any contravention of the criminal law; the allegation is made by a prison officer rather than a prosecutor acting in the general public interest; and the aim of the proceedings is the imposition of a penalty in the interests of maintaining discipline within the prison rather than in the general public interest. The second criterion is therefore not satisfied. The third criterion is plainly not satisfied, the range of punishments open to the Governor being entirely in keeping with the proceedings being of a disciplinary nature and proportionate to the offence charged. (cf 8317/78 McFeeley v United Kingdom (1980 EHRR 161; 11691/85, Pelle v France (1986) DR 50 263). I note that the same conclusion was reached by Newman J in R (Carroll) v Secretary of State for the Home Department, and by the Divisional Court in Greenfield v Secretary of State for the Home Department.

[29] It is equally clear that the Parole Board's consideration of the pursuer's case at some time in the future will not involve the determination of a criminal charge: there is no charge and no penalty, but merely a consideration of whether the petitioner is suitable for release on life licence, taking into account such matters as those listed in rule 8 of the 1995 Rules.

[30] The argument presented on behalf of the petitioner proceeds on the basis that, although neither the disciplinary proceedings nor the Parole Board proceedings involve the determination of a criminal charge (if they are considered separately), the implications which a finding of guilt in the disciplinary proceedings may have on the Parole Board's decision whether to recommend the petitioner's release on licence confer upon the disciplinary proceedings a "criminal" character which they would not otherwise possess. This paradoxical conclusion depends on treating the Parole Board's decision as in substance a penalty or punishment for the petitioner's breach of discipline. Nevertheless, counsel for the petitioner accepted that the proceedings before the Parole Board do not themselves form part of the determination of a criminal charge: they merely have the effect of turning the disciplinary proceedings into proceedings involving the determination of a criminal charge.

[31] This argument is in my opinion misconceived. Article 6(1), in its application to the determination of a criminal charge, applies at all stages from the commencement of proceedings to their final disposal, including sentence and appeal: see e.g. V v United Kingdom (1999) 30 EHRR 121, para 109; S v Miller, para 41, per the Lord President. The "proceedings" have to be regarded as a whole. The Parole Board's decision cannot be regarded as a penalty or punishment for the purposes of the Engel criteria if it is not imposed in the same "proceedings" as those in which the charge is determined; and the petitioner concedes that it is not. One would otherwise be faced with a situation where the Article 6 guarantees in respect of criminal charges failed to apply to the very element - the Parole Board's decision - which had triggered their application to the proceedings in which guilt of the charge was determined.

[32] What is in substance the same point can be expressed in other ways. The petitioner's argument fails to distinguish between a loss of liberty that results from a decision which may have been influenced by an earlier finding of a breach of the disciplinary charge, on the one hand, and a loss of liberty imposed as a penalty for that breach of discipline, on the other hand. The latter situation may confer a "criminal" character on the proceedings in which the breach is established and the penalty imposed, since the imposition of a penalty for a breach of a rule is a characteristic element of criminal proceedings. The former situation does not involve that element.

[33] In short, in order to know whether Article 6 applies in a given situation on the basis that the determination of a "criminal charge" is involved, one has to identify whether that situation forms part of proceedings which result in a determination of whether the person in question is guilty of a criminal charge and, if so, a determination of what penalty or other disposal is to be imposed in consequence of his guilt of that charge. Unless a particular decision forms an integral part of those proceedings, it is not relevant to determining whether Article 6 applies to the proceedings. The petitioner concedes that the decision of the Parole Board does not form part of the proceedings which result in a determination of whether a breach of discipline has been committed and, if so, the appropriate penalty. The concession is correctly made: whether a prisoner facing a disciplinary charge is also liable to have his case considered by the Parole Board is adventitious; even in such a case, the outcome of the disciplinary proceedings may have no effect on the Parole Board's decision; and even if it has some effect, that is because of the relevance of the breach of discipline to the question of the prisoner's suitability for release on licence, and not because the Parole Board is making its recommendation as an integral part of the proceedings concerned with the breach of discipline.

[34] This analysis is supported by the Convention jurisprudence. I have already quoted from paragraph 82 of the Engel judgment:

A negative recommendation by the Parole Board is not imposed as a punishment (I would also reserve my opinion as to whether it can properly be described as a deprivation of liberty.) Later in the same paragraph the court referred to "[t]he seriousness of what is at stake": the petitioner's release on licence cannot be said to be "at stake" in the proceedings before the Governor, either formally or in substance. Reference might also be made to the Benham v United Kingdom judgment, Reports 1996-III, p.738 at para 56:

It is in my opinion clear that the "penalty" which the court has in mind is one which the person charged faces in "the proceedings", rather than some collateral consequence.

[35] The Pierre-Bloch judgment, on which the petitioner relied, does not in my opinion depart from this approach, but rather supports it. That case concerned a member of the French National Assembly who had exceeded the statutory limit on election expenditure during the 1993 general election. His campaign accounts were examined by the National Commission on Election Campaign Accounts and Political Funding, which considered that the limit had been exceeded. It referred the matter to the Constitutional Council under the relevant statute, the Constitutional Council being the body which adjudicates election disputes (see para 26 of the judgment). The Constitutional Council then declared that Mr Pierre-Bloch had forfeited his seat in Parliament and was disqualified from standing for election for a period of a year. It also determined the amount by which the limit on expenditure had been exceeded. The National Commission then required Mr Pierre-Bloch to reimburse the amount of the excess to the Treasury, in accordance with its duty under the statute (para 21). The National Commission had no discretion: it was required by statute to apply the Constitutional Council's decision (para 35). The issue before the European Court of Human Rights was whether Article 6 was applicable to the proceedings before the Constitutional Council. One of the arguments advanced by the French Government was that, insofar as the obligation to pay the excess amount to the Treasury was founded upon by the applicant, that obligation was merely an indirect effect of the proceedings in the Constitutional Council, as it flowed from a separate decision of the National Commission. The court rejected that argument (at para 51; also para 58):

The order for payment made by the National Commission was an inevitable consequence of the decision of the Constitutional Council, and was therefore "at stake" in the proceedings before the Constitutional Council. That situation bears no resemblance to the tenuous relationship between disciplinary proceedings before a prison governor and the consideration of a prisoner for release on life licence by the Parole Board. The Parole Board exercises a discretion: its hands are not tied in any way by the outcome of the disciplinary proceedings.

[36] It was conceded on behalf of the petitioner that the argument that the proceedings before the Governor involved "the determination of civil rights and obligations" was bound to fail if the argument that there was a "criminal charge" was rejected. That is because the "civil rights" argument, as finally presented, was equally dependent upon treating the Parole Board's consideration of the petitioner's suitability for release on licence as the factor which would render Article 6 applicable to the earlier proceedings. That concession was in my opinion correct and inevitable.

[37] In these circumstances, I shall grant decree of reduction of the Governor's decision to refuse the petitioner's request for legal representation. I shall refuse the other orders sought.