CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 juillet 2002

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margin-bottom:0pt; text-indent:-17pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s8DCCCE3B { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt } .s2452CEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.4pt } .sD85D3081 { margin-top:36pt; margin-bottom:12pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s8BD2CFA4 { width:35.21pt; display:inline-block } .sD5EF6EC4 { width:234.82pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .sFDE7661F { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt }     FORMER THIRD SECTION     CASE OF EZEH AND CONNORS v. THE UNITED KINGDOM   (Applications nos. 39665/98 and 40086/98)     JUDGMENT     STRASBOURG   15 July 2002       THIS CASE WAS REFERRED TO THE GRAND CHAMBER, WHICH DELIVERED JUDGMENT IN THE CASE ON 09/10/2003       In the case of Ezeh and Connors v. the United Kingdom, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   W. Fuhrmann ,   Mr   L. Loucaides ,   Sir   Nicolas Bratza ,   Mrs   H.S. Greve ,   Mr   K. Traja ,   Mr   M. Ugrekhelidze , judges , and   Mrs S. Dollé , Section Registrar , Having deliberated in private on 30 January 2001 and on 24 June 2002, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in two applications (nos.   39665/98 and 40086/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two United Kingdom nationals, Okechukwiw Ezeh and Lawrence Connors (“the first and second applicants”), on 23 and 29 January 1998, respectively. 2.     The applicants, who had been granted legal aid, were represented before the Court by Mr J. Dickinson, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agents, Ms S. Langrise and, subsequently, Ms R. Mandal, both of the Foreign and Commonwealth Office. 3.     The applicants complained, in particular, that they were denied the opportunity to be legally represented at their adjudication hearings before the prison Governor in 1996 and 1997, respectively. 4.     The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The applications were allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6.     On 5 December 2000 the Chamber decided to join the proceedings in the applications (Rule 43 § 1). 7.     On 30 January 2001, following a hearing on the admissibility and the merits (Rule 54 § 4), the Chamber declared the applications admissible.   There appeared before the Court: (a)     for the Government Ms   R. Mandal , Foreign and Commonwealth Office,   Agent , Mr   P. Sales , Barrister-at-Law,   Counsel, Mr   S. Bramley , Home Office, Mr   G. Underwood , HM Prison Service,   Advisers; (b)     for the applicants Mr   B. Emmerson , Q.C., Barrister-at-Law, Mr   P. Wetherby ,   Counsel , Mr   H . Arnott ,   S olicitor, Ms   A . Edmundson ,   Adviser .   The Court heard addresses by Mr Sales and by Mr Emmerson. 8.     The applicants and the Government each filed observations on the merits (Rule 59 § 1) and on any just satisfaction to be awarded (Rule 60). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The first applicant 9.     The first applicant lived in London until he was 4 years old and then in Nigeria until he was 22 years old, after which he returned to the United Kingdom. 10.     In 1991 he was convicted of rape, possessing an imitation firearm and attempted murder. He was sentenced to three concurrent terms of imprisonment, the longest term being 12 years. 11.     On 14 October 1996 the first applicant attended a meeting in the “C   wing Interview Room” with his probation officer for the preparation of his parole assessment report. The probation officer alleged that the first applicant threatened to kill her if she did not write down what he said. The first applicant was charged with an offence contrary to Rule 47(17) of the Prison Rules 1964 (“the Prison Rules”). 12.     He was “put on report” and an adjudication hearing before the Governor was convened for 15 October 1996. The first applicant requested legal representation in a form submitted to the Governor dated 15 October 1996 and also during the hearing on that day before the Governor. His reasons for such a request were not considered sufficient by the Governor, but the hearing was adjourned to allow him to obtain legal advice. The first applicant’s representative before the Court has submitted a statement, the contents of which were not disputed by the Government, to the effect that, inter alia , he advised the first applicant at that stage about the nature and format of the adjudication proceedings and about the questions which the first applicant should raise. 13.     In his detailed reply to the complaint lodged against him and written after the hearing on 15 October 1996, the first applicant stated that he required legal representation to put his points clearly to the authorities. 14.     The hearing resumed on 21 October 1996. The record of the hearing indicated that the first applicant was asked whether he had had time to speak to his solicitor and whether he was ready to proceed. The relevant part of the record was ticked to indicate that he had. The hearing went ahead. The first applicant disputed that he had used threatening words against the probation officer. He submitted that the probation officer had misunderstood the actual words he had used, either because of his accent or language, and that the impugned remarks were about his life in Nigeria. Evidence was heard from the first applicant and the probation officer, to whom questions were put by the Governor and the first applicant. 15.     The first applicant was found guilty and awarded 40 additional days’ custody (pursuant to section 42 of the Criminal Justice Act 1991 – “the 1991 Act”) together with 14 days’ cellular confinement, 14 days’ exclusion from associated work and 14 days’ forfeiture of privileges. This was the applicant’s twenty-second offence against discipline and his seventh offence of threatening to kill or injure a member of the prison staff. 16.     On 22 October 1996 and 11 February 1997 the applicant unsuccessfully petitioned the Secretary of State about the conduct of his adjudication proceedings. In a letter dated 1 May 1997, it was confirmed that the Secretary of State had reviewed the adjudication procedure as a whole and found it to have been satisfactory. B.     The second applicant 17.     In January 1988 the second applicant was convicted on two counts of rape and of robbery and was sentenced to four concurrent terms of imprisonment, the longest being 18 years. 18.     On 23 March 1997 he was jogging around a track in the prison exercise yard when he collided with a prison officer. The officer alleged that the second applicant had run into him deliberately and he was charged with the offence of assault, contrary to Rule 47(1) of the Prison Rules. 19.     The adjudication hearing commenced on 24 March 1997 when the second applicant requested legal representation (or, alternatively, representation by his probation officer) at the hearing. This was refused but the hearing was adjourned to allow him to obtain legal advice, which he did on 27 March 1997. The statement submitted by the second applicant’s representative before the Court pointed out that he had advised the second applicant about the nature and format of the adjudication proceedings and about the questions which the second applicant should raise. The second applicant was advised to request legal representation again for the adjudication hearing, which he did on 31 March 1997. 20.     The adjudication hearing was reconvened on 11 April 1997. The Governor rejected the application for legal representation. He heard evidence from the relevant prison officer and another prison officer, from the second applicant and from two prisoners called by the second applicant. The second applicant’s case was that the collision had been accidental. 21.     The second applicant was found guilty of assault and awarded 7   additional days’ custody (pursuant to section 42 of the 1991 Act). Three days’ cellular confinement was also awarded and he was fined 8.00 pounds sterling (GBP). It was his thirty-seventh offence against discipline. C.     Judicial Review 22.     On 16 June and 7 July 1997, respectively, the applicants requested leave to apply for judicial review of the Governor’s refusal of legal representation. Mr Ezeh also applied for an extension of time in which to do so. They argued that the various statutory and regulatory changes since the case of Hone and McCartan v. Maze Prison Board of Visitors ([1988] 1 AC 379) had made adjudication of prison disciplinary matters virtually indistinguishable from matters of summary jurisdiction and, therefore, legal representation ought to have been allowed as of right. On 1 August 1997 a single judge of the High Court refused leave to both applicants. He observed that there was no right to legal representation in adjudication hearings and that the Governor’s exercise of his discretion not to allow such representation was not irrational or perverse given the facts of the cases. In Mr Ezeh’s case he added that there was therefore no good reason for extending time. 23.     On 10 August 1997 the applicants’ counsel advised that a renewed leave application had no realistic prospect of success, given the views expressed by the single judge of the High Court.     II.     RELEVANT DOMESTIC LAW AND PRACTICE 24.     Control over, and responsibility for, prisons and prisoners in England and Wales is vested by the Prison Act 1952 in the Home Secretary. He is empowered by section 47(1) of that Act to make rules “for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein”. Such rules are contained in statutory instruments laid before Parliament and made in accordance with the negative resolution procedure, that is, they come into operation unless Parliament otherwise resolves. 25.     The rules made by the Home Secretary and currently in force are the Prison Rules 1964 as amended (“the Prison Rules”). A.     The charges 26.     Section 47(17) of the Prison Rules provides that a prisoner is guilty of an offence against discipline if he uses threatening, abusive or insulting words or behaviour. 27.     The Prison Manual (section 6.63) provides as follows: “It is important that it is shown how the action was threatening, abusive or insulting, but it may not always be necessary to establish at whom the action was aimed and it is not necessary to name an individual in every charge. Section 6.64 further provides that the impugned matter can be a specific act or word or a general pattern of behaviour; that “threatening, abusive or insulting” words should be given their ordinary meaning and that it is only necessary to find that a reasonable person at the scene would consider the words or behaviour threatening, abusive or insulting; and that the accused intended to be, or was reckless as to whether he was, threatening, abusive or insulting. 28.     Section 4 of the Public Order Act 1986 (“the 1986 Act”) is entitled “Fear or provocation of violence” and provides: “(1)     A person is guilty of an offence if he – (a)     uses towards another person threatening, abusive or insulting words or behaviour; or (b)     distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting, with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked. (2)     An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling. ... (4)     A person guilty of an offence under this section is liable ... to imprisonment for a term not exceeding 6 months or a fine ... or both.” Section 5 of the 1986 Act is entitled “Harassment, alarm or distress” and section 5(1) provides: “A person is guilty of an offence if he – (a)     uses threatening, abusive or insulting words or behaviour, or disorderly behaviour; or (b)     displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.” Section 5(3) provides that it is a defence for the accused to prove that there was no person within hearing or sight likely to be caused such harassment, alarm or distress, or that he was inside a dwelling and had no reason to believe that the words of behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or that his conduct was reasonable. Dwelling is defined for the purposes of sections 4 and 5 of the 1986 Act, as being any structure or part of a structure occupied as a person’s home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose “structure” includes a tent, caravan, vehicle, vessel or other temporary moveable structure. 29.     A prisoner is guilty of an offence against discipline if he commits an assault (section 47(1) of the Prison Rules). Both section 47 of the Offences Against the Person Act 1861 and section 39 of the Criminal Justice Act 1988 make provision for the criminal offence of common assault. 30.     Section 48(1) of the Prison Rules provides that a charge of an offence against discipline shall be laid, save in exceptional circumstances, within 48 hours of the offence and, in general, inquired into by the Governor the day after it is laid. B.     Forfeiture of remission and awards of additional days 31.     Prior to 1989 disciplinary offences were adjudicated upon by Governors who could award a maximum of 28 days’ “loss of remission” (together with 3 days’ solitary confinement). Grave or especially grave offences were adjudicated upon by a Board of Visitors which could order forfeiture of a maximum of 180 days’ remission for a grave offence (together with 56 days’ solitary confinement) or an unlimited forfeiture of remission for an especially grave offence. 32.     Loss of remission was initially considered in domestic law to amount to nothing more than a loss of a privilege (see, for example, Morris v.   Winter [1930] 1 KB 243). By at least the 1970s, however, the English courts had rejected that idea: whether or not it could be said, under the prevailing statutory framework, that remission was a privilege or a right, prisoners were told their earliest release date on arrival in prison and could expect, subject to forfeiture being ordered, release on that date. Forfeiture of remission had the effect of causing the detention to continue beyond the period corresponding to that legitimate expectation ( R. v. Hull Prison Board of Visitors, ex parte St. Germain and Others [1979] 1 All England Law Reports 701 and “Prison Law (second edition, 1999), Livingstone and Owen). 33.     In 1983 the power of the Board of Visitors to award unlimited remission was removed. 34.     The Prior Report on the Disciplinary System (October 1985) recommended that there should be an effective appeal process where issues of personal liberty were at stake and that there should be a right of appeal to a manifestly independent tribunal where there was any significant forfeiture of remission. 35.     In 1989 the distinction between offences, grave offences and especially grave offences was removed and the maximum loss of remission was reduced to 120 days for any one offence. 36.     Lord Woolf’s report on Prison Disturbances (April 1990) recommended that prison Governors (as opposed to on the Boards of Visitors) should continue to adjudicate disciplinary offences and that criminal offences should be referred to the criminal courts. The report recommended that the Governor’s order be limited to a maximum of 28   days’ loss of remission and that there should be more recourse to alternative punishments such as the loss of facilities and privileges. It was suggested that the initial decision should be taken by a Governor with a right of review by an area manager, with an appeal thereafter to a Complaints Adjudicator. 37.     The Criminal Justice Act 1991 (“the 1991 Act”) took away the disciplinary jurisdiction of the Visitors Boards, allocating it to prison Governors. It also introduced a new framework for determining the period of a sentence which would be served in custody. The concept of remission, which would result in early release of prisoners prior to the expiry of their sentence, was abolished. In its place, a new regime was created which distinguished between those prisoners sentenced to less or more than four years’ imprisonment (short and long-term prisoners, respectively). 38.     Section 33(2) of the 1991 Act provides that, as soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence. Section 33(1) put the same obligation of release on the Secretary of State as regards short-term prisoners who had served half of their sentences: release of the latter category of prison was unconditional if the original sentence was for a term of less then 12 months and was on licence if the original sentence was for between 1 and 4 years’ imprisonment. 39.     In addition, section 42 of the 1991 Act provided as follows for the award of “additional days” to a prisoner found guilty by the prison Governor of disciplinary offences: “(1)     Prison rules, that is to say, rules made under section 47 of the 1952 Act, may include provision for the award of additional days - (a)     to short-term or long-term prisoners; or (b)     conditionally on their subsequently becoming such prisoners, to persons on remand. who (in either case) are guilty of disciplinary offences. (2)     Where additional days are awarded to a short-term or long-term prisoner, or to a person on remand who subsequently becomes such a prisoner, and are not remitted in accordance with prison rules - (a)     any period which he must serve before becoming entitled to or eligible for release under this Part; and (b)     any period for which a licence granted to him under this Part remains in force, shall be extended by the aggregate of those additional days.” 40.     The maximum additional days which could be awarded by the Governor was 28 days, the same maximum period recommended by Lord Woolf’s report in 1990. However, given the growth in prisoner offending and the view that the system put in place in 1991 had not acted as an adequate deterrent or inducement to good behaviour, the Prison (Amendment) Rules 1995 (statutory instrument No. 983/1995 – in force on 25 April 1995) increased the maximum award of additional days to 42 for each offence; the maximum cellular confinement was increased to 14 days and the maximum forfeiture of privileges was increased to 21 days (Rule 50(1) of the Prison Rules). However, the award of additional days could never extend beyond the length of the original sentence imposed by the trial court. 41.     The case of R v. Governor of Brockhill Prison, ex parte Evans (No.   2) ([1999] 2 WLR 103) concerned a short-term prisoner’s detention beyond the statutory release date because of an erroneous calculation of the release date. The Court of Appeal found detention beyond that statutory release date to be unlawful and awarded damages for false imprisonment. Lord Justice Roch noted that, pursuant to section 42 of the 1991 Act, additional days could be added onto the core period foreseen by section   33(1) so that the date therein envisaged was not absolute, but was a date that could be affected by decisions made by the prison Governor under section   42. Lord Justice Judge pointed out that: “The discretionary aspects of earlier arrangements for remission and parole were altered by the [1991 Act]. As a “short-term” prisoner within Section 33(5) of the [1991 Act], subject to an award of additional days in custody for disciplinary offences, the appellant was entitled to be released on licence as soon as she had served one half of the sentence imposed by the court. Therefore authorities such as Morris and Winter [1930] 1 KB 243, based on the principle that there was no entitlement to remission, cease to be relevant ... The order of the court justifies the detention. Nevertheless, the prisoner is entitled to be released immediately the sentence has been completed. The method of calculating the date of release depends on statutory provisions which must be applied correctly, that is, correctly in law.” 42.     The House of Lords ([2000] 3 WLR 843) later rejected the appeal and confirmed the finding of false imprisonment and the award of damages. 43.     In the case of R v. the Secretary of State for the Home Department ex parte Carroll, Al-Hasan and Greenfield (judgment of the Court of Appeal of 19 July 2001), the appellants argued that Article 6 of the Convention should apply to prison disciplinary proceedings referring, inter alia , to the changes brought about by the 1991 Act. The judgment, delivered by Lord Woolf LCJ, provided, in so far as relevant, as follows: “Section 42(1) of the 1991 Act provided a power to make prison rules which included provision for the award of additional days but section 42(2) makes it clear that where additional days are awarded to a prisoner the additional days are aggregated with the period which would otherwise have to be served before the prisoner is released on licence. ... The new statutory framework properly understood is not fatal to the cases advanced by the appellants. Section 42 merely gives their case its proper perspective. The awards of additional days to be served by each of the appellants did not have the effect of adding to their sentence. It was not a fresh sentence of imprisonment. Their effect was to postpone the appellant’s release on licence. The awards clearly had a practical effect so far as the appellants were concerned and that practical effect was to postpone their release. But there was no question of their sentence being increased as a matter of law. Additional days could not be imposed so that they extended the actual sentence, which the appellants were serving, and the sentence passed by the court was the justification for the appellant’s detention for the purposes of Article 5(1) ECHR.” 44.     The judgment went on to apply “the Engel criteria” (Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22). It noted that the domestic categorisation of the relevant offences was not criminal but disciplinary. It was held, inter alia , that Article 6 did not apply to proceedings concerning a penalty of 21 additional days for a charge of administering a controlled drug to himself or failing to prevent the administration of a controlled drug by another person contrary to Rule 51(9) of the Prison Rules 1999. It was found that the offence of which the prisoner was found guilty did not precisely replicate any offence contrary to the criminal law and that “the power of punishment” was not disproportionate for a disciplinary offence although it was considered close to the borderline. C.     Prison Service Instruction No. 61/2000 (October 2000) 45.     This document entitled “Prison Discipline and the European Convention on Human Rights: Guidance on the use of Additional Days” provided guidance on the implications of the Human Rights Act 1998 for the conduct of adjudications and the imposition of punishments, particularly the punishment of additional days. Insofar as relevant, it provided as follows: “5.     Disciplinary proceedings in prisons require swift hearings and a speedy process to maintain discipline and order. They are not adversarial and the nature of the decision is an administrative public law decision rather than one which resolves a dispute between two parties. Domestic English law has distinguished prison disciplinary proceedings from criminal proceedings when deciding the procedural standards necessary for fairness. ECHR case law confirms this view. 6.     However, the fact that the ECHR will not in general apply to disciplinary proceedings does not mean that there is not, in theory, a risk it could apply in certain circumstances. ... 7.     It is therefore important that Governors do not impose punishments which are disproportionate to what is necessary, taking account of all the circumstances of the case, to achieve their aim, namely to act as a deterrent to that prisoner and others in order to ensure good order and discipline in the prison. Considerations such as the nature of the conduct involved, the impact on any victim of the conduct, the impact on the running of the prison of the conduct, the likely impact of the punishment on the prisoner, the age of the prisoner, the length of time remaining to the prisoner’s release and the length of the prisoner’s sentence may all be material to the proportionality of the punishment. ... Consideration of alternative punishments 12.     Before making a decision to impose additional days, adjudicators must ensure that they have considered whether any other punishment available to them would be more appropriate, given all the circumstances of the case. Adjudicators must satisfy themselves that any punishment imposed is proportionate, taking into account the factors set out in paragraph 7. The key question to address is whether the punishment is justified, and whether it is proportionate in the sense that a sledgehammer is not being used to crack a nut.   Guideline for situations where additional days will be appropriate 13.     The imposition of additional days is generally the heaviest of the range of punishments available to adjudicators and should be used accordingly, in targeted fashion. It is not possible to give an exhaustive list of the types of offence where additional days might be appropriate; much will depend upon the circumstances of the individual case. The following, however, are examples where additional days may be particularly appropriate following a finding of guilt at adjudication. (a)     Cases which would have been referred to the police but for the wishes of the victim. (b)     Serious assaults and assaults on staff. (c)     Escapes, attempted escapes and absconds. (d)     Drug offences, particularly involving Class A drugs. (e)     Concerted or persistent acts of indiscipline. Level of additional days to be imposed 14.     Where additional days are imposed, the number of additional days imposed must be proportionate to the aim of securing good order and discipline in the prison. In making this decision, the Governor will consider the same factors as those set out in paragraph 7. 15.     Adjudicators should be particularly careful before imposing a large number of additional days. Overall, it should be extremely rare for punishments of more than 28 days to be made. As a guide, in 1998, only 3% of punishments of additional days were for more than 28 days. Consideration of referral to police of more serious cases 16.     For more serious cases, adjudicators must ensure that they have fully considered the alternative of referring the matter to police (see section 11 of the Prison Discipline Manual). Only if this is not possible in the circumstances or there are very good reasons where a disciplinary punishment is more appropriate (for example if the victim objects to the involvement of the police) should adjudicators use the disciplinary procedure instead.” D.     Legal representation at an adjudication 46.     Section 49(2) of the Prison Act 1952 provides: “Rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case.” 47.     The above provision is implemented through Rule 49(2) of the Prison Rules: “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.” 48.     The courts have interpreted Rule 49(2) as conferring a power on the Governor to grant, or not, to a prisoner legal representation at an adjudication hearing. In R v. the Home Secretary ex parte Tarrant and Others ([1985] 1 QB 251), the High Court pointed out that there is no right to legal representation for prison adjudications and that its grant in a particular case should be determined by reference to certain factors. Those factors were stated to include the seriousness of the charge and of the potential penalty; whether any points of law are likely to arise; the capacity of the particular prisoner to present his own case; procedural difficulties; the need of the prison authorities for reasonable speed in making their adjudications; and the need for fairness as between prisoners and as between prisoners and prison officers. 49.     The House of Lords endorsed the factors outlined in the aforementioned Tarrant judgment in the above-cited case of Hone and McCartan v. Maze Prison Board of Visitors . Lord Bridge found it difficult to imagine that “the rules of natural justice would ever require legal representation before the Governor”. Lord Goff considered that: “... it is easy to envisage circumstances in which the rules of natural justice do not call for representation, even though the disciplinary charge relates to a matter which constitutes in law a crime, as may well happen in the case of a simple assault where no question of law arises, and where the prisoner charged is capable of presenting his own case. To hold otherwise would result in wholly unnecessary delays in many cases, to the detriment of all concerned including the prisoner charged, and to a wholly unnecessary waste of time and money, contrary to public interest. Indeed to hold otherwise would not only cause injustice to prisoners: it would also lead to an adventitious distinction being drawn between disciplinary offences which happen also to be crimes and those which happen not to be so, for the punishments liable to be imposed do not depend on any such distinction.” E.     Statistics 50.     In its letter dated 12 November 1999, the Home Office set out the numbers of adjudications which took place between 1996 and 1998, those in which the charges were considered proven and those where additional days were awarded. The approximate figures are set out below:     Total Adjudications Charges proved Addit. days awarded 1996 129,000 115,700 77,300 1997 121,500 108,200 74,000 1998 126,000 111,500 75,000 51.     That letter also pointed out that between 1994 and 1998 there were about 250 requests for legal or other representation, of which approximately two-thirds were granted. 52.     The above-cited R v. Carroll, Al-Hasan and Greenfield judgment noted that 118,860 adjudications had taken place in 1999, during which the charges were proven in 104,384 cases and a total of 70,625 additional days were awarded. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 3(c) OF THE CONVENTION 53.     The applicants complained under Article 6 § 3(c) of the Convention about the lack of legal representation and, alternatively, legal aid for their adjudication hearings. Although it was accepted by the Government, when the question was raised during the oral hearing, that the Governor would not respond to the requirements of Article 6 § 1 as to independence and impartiality, the applicants did not, in their written or oral submissions, complain to the Court about such deficiencies in the proceedings before the Governor. 54.     Article 6 § 3(c) reads as follows: “3.     Everyone charged with a criminal offence has the following minimum rights: (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” A.     Applicability of Article 6 of the Convention 55.     The parties disputed the applicability of Article 6 to the adjudication proceedings. The applicants contended that the charges against them should be considered “criminal” for the purposes of Article 6 of the Convention. The Government considered that they were disciplinary, emphasising the necessity of prison disciplinary regimes independent of the criminal justice system. They considered that the dividing line between disciplinary and criminal had been placed in a manner consistent with Article 6 and underlined the deterrent value of the prison disciplinary regime. 56.     It was not, however, disputed that the applicability of Article 6 fell to be assessed on the basis of the criteria outlined in the above-cited Engel and Others judgment (see §§ 82-83): “..., it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. ... However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the “criminal” sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental.... It is on the basis of all these criteria that the Court will ascertain whether some or all of the applicants were the subject of a “criminal charge” within the meaning of Article   6 § 1 of the Convention”. 57.     In its later Campbell and Fell v. the United Kingdom judgment of 28   June 1984 (Series A no. 80, §§ 68-69), the Court applied these criteria in a prison context: “... The Convention is not opposed to the Contracting States creating or maintaining a distinction between criminal law and disciplinary law and drawing the dividing line, but it does not follow that the classification thus made is decisive for the purposes of the Convention. ... If the Contracting States were able at their discretion, by classifying an offence as disciplinary instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 and 7, the application of these provisions would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention. 69.     The Court was careful in the Engel and Others judgment to state that, as regards the dividing line between the “criminal” and the “disciplinary”, it was confining its attention to the sphere with which the case was concerned, namely military service. It is well aware that in the prison context there are practical reasons and reasons of policy for establishing a special disciplinary regime, for example security considerations and the interests of public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor-made sanctions which may not be at the disposal of the ordinary courts and the desire of the prison authorities to retain ultimate responsibility for discipline within their establishments. However, the guarantee of a fair hearing, which is the aim of Article 6, is one of the fundamental principles of any democratic society, within the meaning of the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, p. 18, para. 36). As the Golder judgment shows, justice cannot stop at the prison gate and there is, in appropriate cases, no warrant for depriving inmates of the safeguards of Article 6. It follows that the principles set forth in the Engel and Others judgment are also relevant, mutatis mutandis , in a custodial setting and that the reasons mentioned above cannot override the necessity of maintaining, there too, a dividing line between the “criminal” and the “disciplinary” that is consistent with the object and purpose of Article 6. It therefore has to be determined whether the proceedings against Mr.   Campbell have to be regarded as coming within the “criminal” sphere for Convention purposes. To this end, the Court considers it right to apply, making due allowance for the different context, the criteria stated in that judgment.” 58.     Moreover, the Court agrees with the applicant’s submission that the second and third criteria laid down in the Engel and Others judgment are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as “criminal” from the point of view of the Convention, or that the person concerned is liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (Lutz v. Germany judgment of 25 August 1987, Series A no. 123, § 55). This does not exclude that a cumulative approach may be adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” (Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports of Judgments and Decisions , 1997-V, § 33; Bendenoun v. France judgment of 24   February 1994, Series A no. 284, § 47, and Lauko v. Slovakia judgment of 2 September 1998, Reports 1998-VI, § 57). 59.     As in the Campbell and Fell case, the Court considers it right to apply the “Engel criteria” to the facts of the present cases making due allowance for the prison context. 1.     The domestic classification of the offences 60.     The first matter to be ascertained is whether or not the text defining the relevant offences belongs, according to the domestic legal system, to criminal law, to disciplinary law or to both concurrently. 61.     The parties did not dispute that the offences with which the applicants were charged belonged to disciplinary law: Paragraphs 1 and 17 of Rule 47 state that the relevant conduct on the part of a prisoner shall be “an offence against discipline” and the Prison Rules go on to provide how such offences shall be dealt with under the prison disciplinary regime by adjudication before the prison Governor (paragraphs 26, 29 and 30 above). According to national law, the adjudication of such offences was treated as a disciplinary matter, and was designed and pursued the objective of maintaining order within the confines of the prison. 62.     However, the indications so afforded by the national law have only a formal and relative value; the “very nature of the offence is a factor of greater import”.   2.     The nature of the charge 63.     The Government argued, in the first place, that certain acts of misconduct are clearly no more than questions of internal prison discipline, concerning as they do the security and good order of a prison. 64.     In any event, the Government maintained that the charge against the first applicant did not correspond to any offence in the ordinary criminal law but was a similar offence adapted to the prison context. The differences between Rule 47(17) and section 4 of the 1986 Act, and the necessarily simpler nature of the offence under that Rule, underlined the clear disciplinary nature of the Rule 47(17) offence. In the first place, section 4 of the 1986 Act required an intention that the subject of the threats should be made to fear that immediate violence would be used and this was not a necessary element of the offence under Rule 47(17) of the Prison Rules. A threat of violence was considered, in itself, inherently disruptive and contrary to good discipline and should therefore be controlled even though the restraints of prison meant that it might